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Preface First

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Material considerations and the determination of applications

Material Considerations

A new provision in the 1991 Act requires that the determination must be made in accordance with the development plan unless material considerations indicate otherwise. 

In any report to Committee on a planning application, the provisions of the development plan, if any, which are relevant to the application will be outlined, together with any material considerations. Although the law requires that all material considerations must be considered, it is for the decision-maker to decide what weight to attach to them. A court will not usually interfere with this part of the decision-making process.

There is no definition in legislation of what are material considerations. Case law has said that any consideration which relates to the use and development of land is capable of being a planning consideration. It is clear, therefore, that matters such as noise, traffic and effect on amenity are material considerations.

Other examples are:

Local Policies:

The Council has a number of policies on issues of particular local concerns. These policies do not carry the same weight as the policies in the Local Plan and must not be adhered to slavishly but, nevertheless, they should be applied consistently.

Replies to Consultations:

Where the replies raise relevant planning issues, these must be considered. Conversely, if the issues raised are not planning issues, then they cannot be taken into account even if the same issues are put forward by a large number of people.

Examples of matters which are not material considerations are:

Moral and Social Issues:

It is not proper, for example, to refuse planning permission for an amusement arcade on the grounds that such arcades encourage young people into truancy and gambling.

Private and Legal Rights:

Objections that a development will encroach on someone else's land or will destroy a view are not planning matters.

Premature Development:

The fact that an applicant may have started work without waiting for planning permission is not a material consideration. He must neither be "punished" for this action by a refusal, nor must he be granted permission out of sympathy for his otherwise wasted expenditure. His application must be considered on its merits, as if no work has taken place.

Case Law:

The courts can decide specifically what matters can be material considerations and this means that instructions can change overnight. For example, it was though that fear of crime regarding bail/probation hostels was not a material consideration, but the courts have now said this can be in certain circumstances.

Determination of Applications

Presumption:

It used to be the rule that, except in the case of inappropriate development in the Green Belt, there is a presumption in favour of development. This means that it is not for the applicant to justify their proposals, but for the Authority to justify any refusal. The new provision in the 1991 Act strengthened the role of the development plan and it is felt that there is now a presumption in favour of development which complies with the development plan and a presumption against development which does not comply with it. 

conditions:

Any conditions imposed on a planning permission must be:

  • necessary;

  • relevant to planning;

  • relevant to the development to be permitted;

  • enforceable; 

  • precise; and

  • reasonable in all other respects.

Section 106 Agreements/Obligations:

Committee is sometimes recommended to give delegated powers to grant planning permission once a Section 106 Agreement has been concluded. These Agreements are entered into with persons having a legal interest in the land concerned, and are used to restrict or regulate the development or use of the land, in circumstances where it would be difficult to impose or enforce a condition. The Agreements must be used with caution. It is not permissible to use the promise of a planning permission to obtain an unrelated and excessive gain for the Borough. The 1991 Act has introduced a new concept, which is that a developer may offer unilaterally to enter into a planning obligation. Such an offer can constitute a material consideration if it would overcome a legitimate planning objection.

Reasons:

If planning permission is refused or is granted subject to conditions, the reasons for the refusal or the conditions must be specified.

If Members wish to refuse permissions contrary to Officer advice, they must state the reasons for such refusal and, of course, these must relate to valid planning issues. It is now the Committee's policy in these cases to ask Officers to report back to the next meeting with suggested conditions.

Costs:

If a dissatisfied applicant appeals and there is either a Local Hearing or a Public Inquiry, the Inspector may make an award of costs. This would only arise if either party had acted unreasonably. An example of unreasonable conduct would be where an application had been refused on highway grounds, but no evidence had been put forward to substantiate that refusal. Costs can also be awarded against another local authority if their behaviour has been unreasonable, e.g. a local highway authority, but a District Council must also take responsibility for accepting and pursuing the advice of another local authority. It is not automatically unreasonable if the Council refuses planning permission against Officer recommendations provided there are good and relevant planning grounds.

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