What is a material planning consideration is a key consideration for local planning authorities when making planning decisions.
In this case the Court of Appeal held that in deciding whether to revoke or modify a planning permission under section 97 of the Town and Country Planning Act 1990, the Council was entitled to consider the effect on its own finances of having to pay compensation to the disappointed developer.
By way of background, section 97 authorises an LPA to revoke or modify a planning permission if they consider it expedient, having regard to the development plan and to “any other material considerations”
The Council refused to exercise its power under section 97 of the 1990 Act to revoke or modify a planning permission granted for four blocks of student accommodation located just 95 metres from a liquefied petroleum gas facility. Three of the blocks had already been constructed but the fourth, closest to the LPG facility, had not.
The Court of Appeal held that the Council, having consulted the HSE, must in the circumstances consider exercising its power to revoke the permission for the fourth block. The majority concluded that the Council could take into account the requirement to pay compensation under section 107.
Lord Justice Sullivan agreed that “material considerations” in section 97 must be consistent with the meaning in other parts of the Act (i.e. it must relate to the development). However he distinguished the position by stating that the decision to revoke planning permission is initiated by the LPA and in considering whether it is “expedient” to make the order the LPA must be expected to be familiar with the content of the 1990 Act as a whole.
Lord Justice Pill dissented, adopting the approach in Alnwick District Council v SSETR, who held that under section 97 “payment of compensation enters the picture only after a decision to revoke or modify has been taken”. Pill LJ continued to say that “the development value of land, over and above the value attributable to existing use of the land, should be taken into public ownership”; it would be both inconsistent with the primacy of the development plan and unfair on individual landowners were the availability of public finances for compensation to be a material factor in deciding whether to revoke a planning permission.
In conclusion, this decision leaves the law on the materiality of compensation (for decisions under sections 97 and 102 of the 1990 Act) somewhat uncertain; as Longmore LJ noted, the matter “divides the acknowledged experts”. In light of the clear division of judicial opinion, permission to appeal to the Supreme Court has been granted.