An Introduction to… Material Planning Considerations

When planning applications are being decided, the decision maker is limited as to what they can take into consideration when deciding whether to grant permission or not. Section 70(2) of the Town and Country Planning Act 1990 allows the decision maker to consider the following:

• the provisions of the development plan, so far as material to the application;
• a post-examination draft neighbourhood development plan, so far as material to the application;
• any consideration relating to the use of the Welsh language, so far as material to the application (which is unlikely to have much relevance outside of Wales and note that the majority of planning functions are devolved to Welsh ministers);
• any local finance considerations, so far as material to the application; and
• any other material considerations.

When preparing a planning application or wishing to object to an application, it is often the “other material considerations” that cause some confusion. There is no set list of what can or cannot be a material consideration as each planning decision will turn on its own facts. However, case law has helped us to develop a better understanding of what generally could be a material consideration.

Firstly, as per the ‘Newbury’ criteria (as set out in Newbury District Council v Secretary of State for the Environment [1981]), material planning considerations must:

• have a planning purpose (relate to the character and/or use of the land); and
• be fairly and reasonably related to the development (it cannot have a remote or trivial connection to the proposed development).

Policies and guidance contained in the National Planning Policy Framework, the Planning Practice Guidance and any local supplementary planning guidance will be considered material. However, if the issue does not concern the wider public, it is less likely to be able to qualify. This means the following examples are unlikely to be material considerations:

• loss of value to an individual property;
• loss of an individual’s view;
• boundary disputes between neighbours;
• private rights of way;
•  the applicant’s potential motives or personal conduct.

This does not mean anything of benefit to the wider community will meet the threshold, regardless of how well intentioned the point may be (for example, in R (on the application of Wright) v Resilient Energy Severndale Ltd [2019] a commitment to make annual donations to a community fund was not found to be a material consideration). As per Newbury, material considerations must relate to the land that is the subject of the planning permission. This could, for example, include the layout of the proposed development, the means of access, the availability of infrastructure, or the design.

It is important the parameters of what could or could not be a material consideration are understood as the approval of a planning application can depend on them. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that applications should be determined in accordance with the development plan “unless material considerations indicate otherwise”.  It therefore follows that if a planning application can be legitimately refused, even if it accords with the local development plan, depending on the impact of material considerations.

To add further complexity, so long as the decision is made having regard to all material considerations, the weight given to each cannot usually be challenged. The weight to be given to each material consideration is a question of planning judgment and therefore will not be challenged by the courts, unless the weight given was unreasonable. This could ultimately mean that, even if a material consideration is highlighted to the decision maker, they may decide to give it limited weight.

For example, a developer could offer to provide funding for new roads to ease congestion locally and improve access to their development, but the application could still be legitimately refused if the decision maker decides to not attach any significant weight to this consideration (see Tesco Stores Ltd v Secretary of State for the Environment and others [1995]).

Ultimately, it is crucial to understand material considerations and for decision makers to ensure they show they have all be considered but, so long as the decision maker can show this, then it is difficult to challenge the decision made.

How we can help:

• draft letters of objection to planning application;
• advise on the judicial reviews to challenge planning permissions and assist throughout the process;
• negotiate and draft s106 agreements to overcome legitimate planning objections.