Hinds, R (on the application of) v Blackpool Council [2011] EWHC 591 (Admin)

[2011] EWHC 591 (Admin)Case No CO/10362/2010
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Manchester Civil Justice CentreDate 17/03/2011
Before
MR JUSTICE LANGSTAFF
Between
The Queen on the application of Angelia HindsApplicantBlackpool CouncilRespondentKensington DevelopmentsInterested party
Mr John Hunter (instructed by Glassbrooks Ltd Solicitors) for ApplicantMr Paul G. Tucker Q.C.(instructed by Head of Legal and Democratic Services of Blackpool Council) for RespondentMr Roger Lancaster (instructed by HBJ Gateley Wareing LLP) for Interested PartyHearing Hearing date: 4 th March 2011
JUDGMENT
[1]On 25 March 2010, Blackpool council resolved to approve an application for planning permission for residential development consisting of up to 584 dwelling houses with associated parking and village green, including water features and shops on land at Moss House Road, Marton Moss, Blackpool. It authorised the Head of Development Control to determine the application subject to conditions. No complaint is made about that decision in this action. If planning permission had been granted immediately thereafter, there would have been no lawful objection to it. However, it was not until the 22 July, 2010 that Mr Johnston (The Head of Development Management) granted the permission. He did so in accord with the resolution. The current challenge arises because of what had happened in the interim. The Secretary of State for Communities and Local Government had (on the 27 May, 2010) written to local planning authorities expressing the Government’s intention to ‘rapidly abolish’ regional strategies including regional spatial strategies (‘RSS’) as part of its localism agenda. On 2 July 2010 the claimant’s advisers wrote to Mr Johnston urging that the intended abolition of RSS was highly relevant, and the committee should therefore reconsider whether in principle permission should be granted. Then, on 6 July, 2010, the Government proceeded formally to purport to revoke all regional strategies. In an advisory note sent to local planning authorities on the same day it told local planning authorities who had not yet issued decisions on planning applications which were in the pipeline that they might wish to review those decisions in the light of the new freedoms following the revocation of regional strategies. It observed that some authorities might decide to retain their existing housing targets as set out in the revoked regional strategies, whereas others might decide to review those targets.[2]The case which Mr Hunter makes on behalf of the Claimant is simplicity itself. He argues that Section 70(2) of the Town and Country Planning Act 1990 requires a local planning authority to have regard ‘ ..to the provisions of the development plan, so far as material to the application, and to any other material considerations.’ The revocation of regional strategies, in the light of the Secretary of State’s expressed intention in his letter of 27 May, 2010, was plainly a material consideration which required the planning committee to reconsider the whole question of granting permission in principle. The committee had not done so. Thus the decision to grant permission was flawed, because it failed to take account of an obviously material consideration. He placed reliance upon the way in which Jonathan Parker LJ had defined what considerations were material in this context in R (on the application of Kides) v South Cambridgeshire DC [2002] EWCA(Civ) 1370, at paragraph 121, where he said:
“In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision maker’s scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.”
[3]Although other grounds are raised by the originating application (see paragraph 3.1(2), amplified by the text) Mr Hunter specifically advanced only the ground which I have summarised above as his ground for review.

Cala Homes 1

[4]After the application was made, on 1 October 2010, Sales J gave judgment in Cala Homes (South) Limited v Secretary of State for Communities and Local Government and Winchester City Council [2010] EWHC 2866 (Admin). He determined that the Secretary of State’s purported revocation of regional strategies was void and ineffective. He quashed the decision of 6 July 2010. He observed (see paragraph 54) that a second ground of claim (which subsequently he went on to find would also have been justified) did not arise since there had been ‘no effective change in any planning guidance brought about by the Secretary of State’s decision.’[5]I was told that there is no appeal nor any anticipated appeal against this decision. Counsel before me (Mr Hunter, Mr Tucker QC for the Defendant Council, and Mr Lancaster for the Interested Party) were all agreed that the effect of this decision was that the regional spatial strategy (the abolition of which had been relied upon by the Claimant as a material ground requiring reconsideration by the planning committee in the present case) remained lawful and effective policy guidance. The challenge based upon the failure of the Council to reconsider its application in the light of this change could thus no longer succeed (argued Mr Tucker QC, supported by Mr Lancaster) since the rug had been pulled from under the feet of the Claimant’s argument whatever the strength of the Defendant’s arguments might otherwise have been. Mr Hunter, however, maintained that the landscape had changed between March and July so significantly that it was undoubtedly to be appreciated after the letter of 27 May, 2010, that the government’s intention was to change the law so that Councils would not be restricted by a regional approach, but would be free to take an approach suitable to their own localities, and that this anticipated change in the law consequent upon this declaration of policy intent itself was a material consideration which required the Council’s planning committee to think again, and rendered unlawful any decision taken until and unless they first did so.

Cala Homes 2

[6]On 7 February 2011, Lindblom J handed down a decision in a second claim by Cala Homes against the Secretary of State for Communities and Local Government, with Winchester City Council the Interested Party: [2011] EWHC 97 (Admin). This – which the parties before me called ‘Cala Homes 2’ - sought to review a statement and letter dated 10 November 2010. That was made on the same day, but after, Sales J had delivered his determination in Cala Homes 1. This letter, issued by the Chief Planner at the Department for Communities and Local Government, advised local planning authorities and the Planning Inspectorate that they should still have regard to the letter of 27 May 2010 in any decisions they were currently taking. The Claimant in that case sought a declaration that it was unlawful for the makers of planning decisions to have regard to the Government’s stated intention to enact primary legislation to abolish regional strategies in England as a material consideration in making determinations under the planning Acts. Mr Justice Lindblom in a carefully considered and detailed judgment refused the claim.[7]Much of the argument before me focussed on Lindblom J’s discussion at paragraphs 104 and 105. In the former he said:
“The Secretary of State’s letter of 27 May 2010 indicated that a ‘formal announcement’ was going to be made ‘soon’. In my judgment [Counsel for the claimant] was right to submit that the formal announcement came in the Secretary of State’s statement of 6 July, 2010. That statement superseded the advice on the materiality of regional strategies given in the letter of 27 May. It purported to revoke regional strategies. The May letter had been predicated on regional strategies continuing to exist. In the July statement no mention was made of the May letter. It is reasonable to conclude that the reason for this was that the advice provided in May was now redundant. There was no need for Cala Homes, or anybody else who was aggrieved by the government’s revocation of regional strategies, to resort to litigation to challenge that advice. The substantive decision at this stage, and the appropriate target for Judicial Review, was the action taken by the Secretary in July. Cala Homes went ahead with such a challenge.”
[8]In the latter paragraph, Lindblom J said:
“….only after the Secretary of State had failed to convince the court that his action in July was lawful and the regional strategies were restored did he resume the stance he had adopted in May. Between 6 July and 10 November, 2010, therefore, the advice in the letter of 27 May, 2010, was of no practical effect. After 10 November the May advice was reinstated and amplified. Incorporated as it was into the letter sent by the Chief Planner to all local planning authorities, it has since then remained in place.”
[9]Insofar as what Lindblom J said is relied upon for its inherent logic, I accept that it may be persuasive. However, the issue as to the status, if any, of the letter of 27 May, 2010 between that date and the 10 November, 2010, (and the reflective issue of the status of the purported revocation at that time) was considered by him in the context of a challenge by the Secretary of State to Cala Homes claim on the basis of delay. The argument before him was that if Cala Homes had wanted to challenge the lawfulness of advice given in the letter of 27 May, 2010 it should have done so directly and promptly (see paragraph 102). In that context it is readily understandable why Lindblom J should have focussed upon the way in which the purported revocation of regional strategies had (it may have appeared) effectively superseded the letter. The reason for the advice within it being ‘redundant’ was that it was thought (albeit erroneously) that the revocation was effective. No counsel before me sought to argue that the revocation was effective until revoked or should be treated as such: and the context, therefore, within which I am invited to consider Lindblom J’s words is different in the current case from that before him.[10]Of more direct relevance, therefore, were Lindblom J’s conclusions upon the substance of the application for a declaration before him (he considered the issues of abuse and delay because the matter came to him as a ‘rolled up’ hearing). Here in a section headed ‘Policy as a material consideration’ (paragraphs 49 to 54) Lindblom J noted that a Minister had a general duty to secure consistency and continuity in the framing and execution of a national policy for the use and development of land, the materiality of which as a planning consideration the courts had traditionally upheld. The letter of 27 May, 2010 (as the letter of 10 November, 2010, which Lindblom J was considering) manifested a political intent: and any distinction between ‘Policy’ and ‘statement of political intent’ was of no consequence for materiality (paragraph 51). Because planning decision making was a process informed by policy, prospective changes to the policy framework might logically be seen as relevant to a planning decision (paragraph 52). The Judge saw no distinction in principle between evolving national policy, prospective changes to the development plans, and taking account of national policy, just as taking account of financial considerations might involve (paragraph 53). Therefore:
“The Government’s intended reforms in the Localism Bill could be on the Statute Book within the next 12 months. This being so, it seems to me to make perfectly good sense for authorities, Inspectors and the Secretary of State to be free to take into account the potential removal of Regional Strategies in the decisions they will in the meantime still have to make. To hold otherwise would, I think, be unreal. 54. I am therefore unable to accept that material planning considerations do not, and as a matter of law must not, embrace a Government’s intention to reform the composition of the development plan itself. And I cannot see why the principle that such a consideration is capable of being material in a planning decision should exclude the intention to take away, through legislation designed for the purpose, an element of the development plan which for the time being is properly to be regarded as ‘central’. Whether in any particular case this factor is indeed material to the decision being made and, if it is, the weight to be given to it will always depend on the decision maker’s own judgment, which is ultimately subject to review by the court on public law grounds.”
[11]In a part of his judgment headed ‘Development Control’ Lindblom J observed:- “67 The weight to be given to relevant provisions of regional strategies pending the legislative process will be for decision makers to gauge. Until the end of that process is reached regional strategies will remain in place as part of the development plans, commanding such weight for the purposes of particular decisions as authorities, Inspectors and the Secretary of State may reasonably judge to be right……”[12]At paragraph 68 he added:
“The work that informed the preparation of those strategies could be relevant too. And this may remain so even after the strategies themselves have gone. When, in July 2010, the Secretary purported to revoke all the regional strategies using section 79(6) of the 2009 Act he issued guidance for the local planning authorities, which, under the heading ‘4. How will this affect planning applications?’ stated: …….’Evidence that informed the preparation of the revoked regional strategies may also be a material consideration, depending on the facts of the case.’ As counsel of the Secretary of State acknowledged assessment of housing need underpinning the provisions of a regional strategy will not vanish when the imprimatur they had earned as policy is removed. Housing needs will not disappear overnight. It will be for the Government to decide how, in the future, those needs are to be addressed in policy documents formulated within the framework established by Parliament.”
[13]At the outset of the hearing Mr Tucker QC complained that Mr. Hunter was not asking the court to address the grounds of appeal advanced in the originating application, for which permission had been given. The application ground related to the revocation of RSS. Since RSS had not, in fact, been revoked (as was now common ground) that ground was unarguable. The way it was now put in the Claimant’s skeleton argument (paragraph 21) was that the Government’s stated intention to revoke was capable of being relevant and ought to have been considered by the planning committee before the decision notice was issued. This ground had not been considered at the permission stage. It sought to rely upon the letter of 27 May which (per Lindblom J, paragraph 104) had been superseded, and had no effect until the 10th November. The application for planning permission was granted within that period. Had this claim for judicial review gone through the permission filter, with those facts in mind, permission would have been refused. The defendant would not then have been prejudiced in costs by having to appear to defend the claim. There had been no application to amend the originating application, as there should have been. The obligation to do so rested upon the claimant.[14]Mr Hunter accepted that the ground was not as stated in the originating application. However, he maintained that the focus of the claim had been clear to the defendant. The target was the same (the planning permission, in the light of the Government’s policy as to regional strategies), the legal ground was the same (a breach of Section 70(2) in failing to have regard to a material consideration – effectively, the same material consideration), the underlying theme was the same - the position of the Government on regional strategy. What had changed was a shift from the purported revocation being the material consideration to an intention to revoke being that consideration. This was not sufficiently different to require a fresh grant of permission from the court. The defendant submitted amended grounds for resisting the claim on the 24th November 2010, which referred to the judgment in Cala Homes 1. Those grounds went on to anticipate that the claimant’s case would seek to resurrect the effect of the letter of the 27th May 2010 (at new paragraph 1.9). The defendant had amended its submissions to take account of such a contention. The claimant argued that the effect of Cala Homes 1 was simply to return matters to the status quo ante the 6th July, in which the Government had indicated a clear intention to revoke regional strategies. This, argued the claimant was capable of being a material consideration. No prejudice had been afforded the defendant or interested party, because they well understood the way in which the claimant was likely to make her case. Moreover, neither the Council nor the interested party had argued before the hearing was imminent that the claimant required to seek permission to amend, nor had the court itself suggested it. Mr Tucker QC confirmed that there was no prejudice to the Council save that inherent in poor process.[15]Mr. Hunter drew attention to the importance which the court places upon the clarity of grounds (see R (on the application of P, W, F, and G) [2004] EWHC 2027 per Munby J., albeit in a different context, at paragraphs 34 et seq, and a judgment of my own endorsing his approach, R (on the application of L) v Leeds City Council [2010] EWHC 3324 (Admin) (see especially paragraphs 41 to 52)).[16]In my view, it was necessary that the complaint which the Court was asked to resolve should have been clearly articulated. The main issues as set out at paragraph 21 of the claimant’s skeleton were those the court was being asked to determine. Since the parties were prepared to argue this ground, and were not prejudiced in their ability to do so, a hearing within the day allocated to the claim for which permission had been given would be capable of resolving what is a continuing dispute between the parties without the need for adjournment so that there might be separate consideration of the issue of permission for the revised ground. Accordingly, I consider the appropriate way to resolve the complaint of Mr Tucker QC and Mr Lancaster that the “new” grounds required permission before they could be argued was to be met in the circumstances by ordering that the hearing was to take the nature of a rolled up hearing for permission insofar as the new grounds were those argued. (As it turned out, they were the only grounds argued). The parties were content with this course providing, in the case of Mr Lancaster, that he could make submissions when resisting the claim as to delay and the prejudice that that had caused his developer client, to persuade me that whatever my view of the merits I should in any event decline permission and relief. That was therefore the procedure that the court adopted.

The Claimant’s Submissions

[17]The claimant argued that policy NE2 of the Blackpool Local Plan (adopted June 2006) recognised part of the site as the Marton Moss Countryside Area. At paragraph 5.64 of that policy it noted that “reflecting its specific character, more restrictive policies exist on the Moss than typical open countryside areas and new residential development is not permitted other than for agricultural or horticultural purposes”; to retain the existing rural character and prevent peripheral open expansion new development at Marton Moss was not to be permitted, and new dwellings not permitted unless “essential in relation to agricultural or horticultural use of the land.” “essential in relation to agricultural or horticultural use of the land.”[18]The report which had led to the resolution of Council in March drew attention to the fact that this part of NE2 was in conflict with the regional spatial strategy, which looked to securing a 5 year’s supply of building land in order to remedy the shortfall in housing need in the region, and with Planning Policy Statement 3 (“PPS3”) and emerging planning policy, set out in the Core Strategy Draft Preferred Option of February 2010 which expressed Blackpool’s preferred option as a mix of inner area regeneration, development at Marton Moss and at the wider M55 hub grid point. However, Mr Hunter observed that the regional spatial strategy (identifying the need for residential housing in the region) was said toward the conclusion of the report to Council to be a “more recent expression of policy” (than NE2). Plainly, it was anticipated thereby that it would be granted greater weight. Once uncertainty had been raised about the future of the RSS, the weight to be given to it would be bound to diminish. It could not increase. This should have displaced any preference based on the currency of rival policies.[19]When outline planning permission was granted on the 22nd July 2010 by Mr Johnston under delegated authority, he gave reasons for his decision (Page 31, Bundle). He recognised that whilst not in accordance with policy NE2 there were “other material considerations which weigh sufficiently against policy NE2 to justify approval of the application”, namely “(i) That the proposal would contribute to the Council’s 5 year housing land supply” (ii) That the proposal would provide for a more mixed housing offer (iii)That the proposal would contribute to inner area regeneration.”[20]Mr Hunter argued that the fact that the Council’s 5 year housing land supply was taken into account was determined at least in part by the regional strategy. After the letter of 27th May had been written, Solicitors on behalf of the claimant wrote (2nd July 2010) to the Council, urging a reference back to Committee because the intention to abolish the regional strategies was liable to affect the balance to be drawn between NE2 (tending against grant) and the other factors which tended toward it.[21]In the light of this, and the definition of materiality adopted in Jonathan Parker LJ’s judgment in Kides, Mr. Hunter argued that the consistent and clear intention of Government to effect a revocation or abolition of regional spatial strategies could not be ignored. It was for the Committee to decide what weight to give it: he acknowledged that issues of weight were not for this court to determine, but emphasised that materiality was a question of law. If a decision maker “wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again” (Tesco Stores v The Secretary of State for the Environment and Others [1995] 1WLR 759, at 764G per Lord Keith. Gransden v Secretary of State ex-parte Richmond LBC (1987) 54 P & CR 86 was authority that Government policy would often be a material consideration in planning decisions, and this would specifically be so for the purposes of Section 70(2) of the 1990 Act. The weight to be given to a material consideration once identified was a matter of judgment for the decision maker alone (City of Edinburgh Council v Secretary of State andothers [1997] 1WLR 1447 at 1450B-E per Lord Clyde. The question was not, therefore, what weight the court might think the planning committee would probably have given the Government’s Policy on revocation of Regional Strategies – that is not for the court: but if it was a material consideration, objectively viewed, the Council would be required by the court to consider what weight, if any, it should give it. The committee here had not given it any. The effect of Cala Homes 2 was that the intention to revoke regional strategies was legally capable of being a material consideration in planning decisions (see passages cited above): Cala 2 should be followed in this respect. When the defendant and interested party placed reliance upon the need to ensure a 5 year supply of housing land to which PPS3 referred, they were overstating the matter to say that it created any form of obligation binding in any practical way upon the defendant. (Mr Hunter fought shy of accepting that paragraph 71 of PPS3 created a presumption in favour of securing a 5 year supply of building land but accepted that it at least created a “bias” or weighting toward it: however, he emphasised, not an obligation to achieve it). Mr Johnston should have referred the grant of planning permission back to the planning committee, rather than determine for himself that the considerations were not material.

Submissions in Response

[22]Mr Tucker QC focused first upon the note which Mr Johnston had made to himself the day before granting planning permission (bundle 102 to 106, dated 21 July 2010). He had identified in it 14 matters which had arisen since the Committee had reached its decision in principle in March. Notable among them was a letter sent by the Department of Community and Local Government to Chief Planning Officers on the 26th of March 2010, seeking to ensure a 5 year supply of housing land; and the promulgation of PPS3 on 9th June 2010, in which guidance to the same effect had been reissued. He had referred to the letter of 27th May 2010, advice given to Planning Inspectors following that letter by the planning inspectorate, and a letter of 6th July regarding the revocation of regional strategies. He had considered, over the following 3 or so pages of his note, the implications of those developments for the grant of permission in the present case. Mr Tucker QC pointed out that Mr. Johnston recognised there was no supply for the full 5 years. However, (Mr. Johnston had noted) those figures were “not imposed on Blackpool, but evolved out of dialogue between the regional assembly and the Council…the Council…undertook an assessment of the housing situation on a sub regional basis…which reflects the “local” agenda advocated by the Coalition Government and the cross boundary/joint working also advocated.” Blackpool Council’s own assessment of housing need and land supply on the Fylde coast did not depart from that set out in the regional spatial strategies. When Mr. Johnston had considered the letters of 27th May and 6th July he noted that evidence which had informed the preparation of the revoked regional strategies might also be a material consideration in resolving planning applications, and that it was recognised that some authorities might decide to retain the housing targets that were set out in the revoked RSS. He then said this:
“There is recognition that Strategic Housing Market Assessments and Housing Land Availability Assessments are important for identifying growth and land for growth. ‘Authorities should also have a 5 year land supply of deliverable sites.’ The original recommendation to committee was based on the 5 year housing land supply position coupled with the FCSHMA/SHLAA and annual housing monitoring report. This is entirely consistent with the approach being adopted by the Coalition Government. The application was considered on the basis of the “local” situation not some imposed figures from the Regional Assembly. The Council’s Annual Housing Report for 2010 shows a worsening of a completion situation and although it identifies housing coming through Certificates of Lawfulness and the contraction of the holiday stock the former supply is likely to reduce as a result of a more proactive monitoring approach and this supply does not do anything to improve the housing links.”
[23]Although Mr Tucker QC himself did not rely upon these words, Mr. Johnston concluded: “given what has been said above the Council’s resolution to grant planning permission given the local circumstances and the material consideration which outweigh the conflict with the development of plan was the correct one.”, No submissions were addressed to me as to whether this was a matter which fell appropriately within his remit for decision as opposed to that of the Committee: but it plainly summarises his view that the decision which the Council had come to in March was not likely to be departed from in the light of any of the recent developments. Mr Tucker QC argued that given the ineffective revocation of regional strategies (as per Cala Homes 1) there was, in any event, no basis for thinking that regional spatial strategies no longer applied. As a matter of planning law, they did. The decision had been properly made insofar as it was made in reference to them in March. At 21st July that reasoning remained unaffected as to its validity.[24]Mr.Hunter’s argument based on Kides was overly selective in relying upon one small part of the decision. The case had concerned a very large housing site, where nearly 5 years had passed between a decision in principle and the grant of outline planning permission. It had been argued that during that period a number of material changes in circumstance had occurred which required reconsideration by the Council: in particular Planning Policy Guidance note 3 (“PPG3”) of March 2000, two Government circulars in relation to affordable housing, the progress of the Council’s local plan review, and the declaring as redundant of an airfield at nearby barracks. Ouseley J. at first instance had rejected the submission that only a formal reconsideration could ever suffice for compliance with Section 70(2) in the event of new material considerations arising between a resolution to grant planning permission and its actual grant. At Paragraph 69 of his judgment (endorsed by Jonathan Parker LJ. at and after paragraph 83) he said:
“In my judgement it is a question of fact whether in the circumstances in any particular case the duty has been fulfilled. What actual steps have to be taken in order to fulfil it, as a matter of fact, depends on the circumstances of the case. Very often the circumstances will indeed require a formal Committee meeting to reconsider an earlier resolution in the light of new circumstances. However, I do not accept that is required in law if, on the fact of a particular case, it is possible to demonstrate that regard was had to material considerations in some other way.”
[25]The appeal was dismissed. In summary this was because (see paragraph 129) “in the light of the decisions which the Council took, and the policies it adopted, it is entirely clear, in my judgment, that had the planning officer taken it upon himself to refer the 1995 application back to Committee for reconsideration immediately before issuing the planning permission, the Council’s decision would have been the same. Indeed, it goes further than that, in my judgment….the inference which I draw is that it would have come as a considerable and unwelcome surprise to members had they been told at the beginning of October 2000 that….it was necessary for them specifically to reconsider the 1995 application before a decision notice could be issued pursuant to the 1995 resolution.”[26]The detailed reasoning leading to that conclusion examined the scope of a planning authority’s duty to “have regard to” material considerations. Particular weight was placed by Mr Hunter on paragraph 126:
“in practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a “material consideration” for the purposes of Section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, (c) that on a reconsideration the authority would reach (might reach) the same decision”
[27]Mr Tucker QC argued that those words should not be over-interpreted. They did not require a delegated officer to refer back to the planning committee any and every matter which might rationally be regarded as a material consideration. They were to the effect that he (and for that matter the authority) would be protected against challenge if he did so. It was not to the effect that unless a delegated officer were satisfied as to factors (a) to (c) his failure to remit the matter for reconsideration would amount to an error of law. This very point was made by Lord Justice Carnwath in R (on the application of Dry) v West Oxfordshire District Council and Taylor Wimpey [2010] EWCA Civ 1143, at paragraph 16. He had there observed that the guidance contained in Kides must be applied with common sense and with regard to the facts of the particular case. Here, Mr Tucker QC submitted, Mr. Johnston had effectively concluded that the matters to which he referred would not have made a blind bit of difference (as he put it) to the decision, either because they were material but had no weight, or were not material. Although he wished to preserve the right to argue if necessary that Mr Justice Lindblom was wrong to conclude that it was lawful to take into account as a material consideration that which directly contradicted a factor acknowledged in applicable planning guidance to be a material consideration (as would be the case if the policy of revocation, without ever being put to the legislature, allowed it to trump or diminish regional strategies, which had effect as material policy to which planning authorities must have regard), he maintained that Cala Homes 2 gave no assistance to the claimant. Thus, in paragraph 53, Lindblom J’s closing words, which accepted that authorities should be free to take into account the potential removal of regional strategies did not oblige them do so. He urged that I should in any event refuse permission on the rolled-up application, in exercise of the court’s discretion, because no relief would be appropriate: there was no realistic prospect that the Government’s policy would have made any appreciable difference to the decision here even it were (contrary to his principal submissions) to be held technically relevant. The wording of the judgment at paragraph 104 and 105 of Cala Homes 2 showed that at the date the decision was in fact taken it was taken in accordance with the then appropriate guidance. It could not be argued, in that light, that there was here any matter which realistically could be regarded as material arising out of a view of the Government’s intentions.[28]Finally, he stressed that there is no evidence that Blackpool had a 5 year planned housing supply such that that material consideration, which was central to the decision, had changed: PPS3 would still apply.[29]Mr Lancaster adopted Mr Tucker Q.C’s submissions. He emphasised that Blackpool Council did not have a 5 year land supply: instead, they had a 3 year supply and shortfall of 926 dwellings. Brown field development alone would not meet the housing requirements from the regional strategy, and PPS3 indicated that where there was not a 5 year supply councils should look favourably on planning applications for housing development. The regional spatial strategy had to be considered here: it had not effectively been revoked at the time of the decision. The letter of 27th May, and the intention it expressed, was not capable of being a material consideration. Insofar as it was in conflict with the regional spatial strategy, it was the regional spatial strategy to which the planning authority was at the time required to direct itself under the applicable law He emphasised that given the cornerstone of the local development plan, contained in policy L4, coupled with national policy in favouring permission where there was an inadequate housing land supply, and the absence of evidence to displace the presumption that that created in favour of housing, coupled with events since March including the Government Office for the North West determining in a letter of 16th June 2010 not to call in the application, and the restatement on 9th July ( after the letter of 27th May) of PPS3, that the decision inevitably would have been the same, even if the Government’s intentions as to the future direction of planning control had been thought theoretically “material”.[30]He submitted that permission should be refused in exercise of the court’s discretion because of the passage of time. Permission had been granted in July. Had it not been for the challenge, his client developers would have been “up and away” by now. Time cost money. They had suffered real prejudice.[31]In reply Mr Hunter repeated his principal submission that the intention to abolish regional spatial strategies coupled with the letter of 27th May amounted to a material consideration to which the Council had to have regard if it was to comply with Section 70(2); and it had not had regard in any way that would satisfy the test set out in Kides. As to whether the decision would have been different or inevitably the same he pointed to the hill the defendant and interested party had to climb: as, for instance, expressed in Simplex Holding and Another v Secretary of State for the Environment and St Albans District Council (1989) 57 P&CR 306, CA (at 327) it is not necessary to show that a decision maker would, or even probably would, come to a different conclusion for a claimant to succeed: he had only to exclude the contrary contention, namely that the decision maker would necessary still have made the same decision. When Mr Lancaster suggested that there was only one answer to whether the Council would have made another decision, he accused him of having debated the merits rather than concentrated on the legality of the appeal.

Discussion

[32]Section 70(2) requires a planning authority to have regard to material considerations in reaching its conclusion whether to grant permission. I adopt the definition of materiality stated by Jonathan Parker LJ. in Kides. I have two further observations, though, to make. First, for a court to take an objective view of materiality requires it to have regard to all the facts and circumstances, viewed broadly. Theoretical relevance to a planning decision may be excluded as insufficiently material (adopting a de minimis approach). This is not to confuse materiality and weight, but to recognise the true scope of materiality. Secondly, in argument Mr Hunter was constrained to accept that materiality has regard to practical effect. A planning authority is not obliged to take account of considerations which objectively viewed would have no practical effect upon the decision as to land use to which it has to come. Similar to the first point, this, too, does not confuse materiality and weight.[33]In Kides, passages from paragraphs 121 (dealing with material considerations) to 126 are of particular relevance. Thus, in paragraph 122 Jonathan Parker LJ. said “in my judgment, an authority’s duty to “have regard to” material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit the application was not specifically placed before it for reconsideration.”[34]Paragraph 126 is, as Dry points out, guidance. The combination of 122 and 126, together with the decision in Kides viewed in context, leads me to conclude that it may in some circumstances be simplistic to argue that there has been a failure to have regard to a material consideration, not considered by the relevant committee though known to the officer at the time, simply because he did not refer it back to the committee for decision. The question whether the local authority had regard to a consideration (assuming that it is to be regarded as material) is to be viewed overall.[35]Was the intention of parliament here material? To this decision? The decision of Lindblom J. that it is open to local authorities to take account of the proposed revocation of regional strategies may be correct, whatever hesitation one may have about accepting that statements of legislative intention by Parliament which are not formally enshrined as part of the planning policy which the Secretary of State has power to make, nor considered by Parliament, nor subject implicitly or explicitly to any form of legislative approval should be taken into account where they contradict, and to the extent that they contradict, that which the existing policy so adopted requires. I say no more about that, because there was no developed argument before me, and the point may yet be argued elsewhere. Mr. Tucker QC expressly reserves it. However, Lindblom J’s words are carefully chosen, and fall short of requiring a local authority to take legislative intent into account. Nonetheless, like him, I consider it open, and often wise, for a local authority making decisions which will affect the distant future to take into account those matters which it may reasonably be supposed will alter the planning landscape in the intermediate future.[36]The relevant legislative intent here, as the court best understands it, is to provide for local decision making to be made closer to the communities affected by the decisions which are to be taken: hence the title “Localism Bill”. If regard to regional strategies is removed as a requirement, the need to take a view of local requirements nonetheless remains, and indeed it is the principal purpose of the change to give these greater weight, and not permit them to be overborne by regional considerations which do not address more local needs. It is in this light that I understand the Secretary of State to have said that material which underpinned the formation of the regional strategy might remain relevant to a particular local authority. In July 2010, here, Mr Johnston formed a view of that which had caused the authority to reach its decision in principle in March. That view is encapsulated in the bullet points identified at paragraph 19 above. Those bullet points do not, on their face, depend upon any regional strategy as opposed to any local approach. They are plainly locally driven. It cannot logically be suggested that the abolition of a regional strategy would have any effect on this decision, where no reference was made by the report to Council in March, or in its then decision, to any particular feature of that strategy which was not true also of the local approach which is intended to survive it. Viewed objectively, therefore, there would be no reason to suppose that the revocation (even if it had been effective) would have been a material consideration to which the Council would have had regard in reviewing its decision.[37]I bear in mind here too that what the claimant asks for is not that the decision made in March should not have been reached by reference to the potential for change in the policy landscape, but that the decision should have been reviewed in the light of it. Mr. Johnston was aware of the revocation (or, as the case is now put, of the policy intention to achieve revocation in due course). His view in his memorandum to himself of 21st July was that the application was considered in principle on the basis of the local situation, and not some “imposed figures from the regional assembly”. He regarded that as entirely consistent with the approach being adopted by the Coalition Government. Not only was he (if relevant) entitled himself so to hold, but this is borne out by the bullet points which I have mentioned. I read his last paragraph as concluding that he did not need to refer the matter for formal reconsideration by the planning committee. There was no practical difference, in the particular circumstances of the case, which the existence of the regional strategy as opposed to local strategy, or vice versa, would have made. That factor, objectively viewed in the light of the material he relied upon, was justified. There is no material before me to the contrary. The guidance in paragraph 126 in Kides was satisfied, for Mr Johnston had in mind the legislative intent, he considered the application with that in mind, no other officer or councillor (so far as I am aware) suggested that the council should formally reconsider its decision in that light, and – the decision having been taken on the basis that it was, would be unaffected by the contrast between regionalism and localism. No grounds were demonstrated to me for supposing that the authority would or might reach any other decision. Though it was with a forensic flourish that Mr. Tucker QC argued that the Council’s surprise if it had been asked to reconsider the decision in March, on the basis not so much of a change of relevant factors but of the legislative and policy route which identified them as relevant would have echoed that hypothetically supposed of the Council in Kides at paragraph 129 of the judgement of Parker L.J., I accept the thrust of the point.[38]Whether one regards the legislative intent as being an immaterial consideration in the particular circumstances of this case when it reached the stage of decision making by Mr Johnston under delegated powers, or whether it should be regarded as potentially material but discarded under de minimis approach, or whether it is a matter which would have made no difference (in the same way as in paragraph 129 of Kides, Jonathan Parker LJ. thought on the facts of that case that if the planning officer had taken it upon himself to refer the application question back to committee for reconsideration immediately before issuing the planning permission the Council’s decision would still have been the same) makes no difference in the result. My preference would be for the first of those: but any one of them suffices to dispose of the argument before me.[39]If, contrary to my view, the intention of the Government to abandon the need to have regard to regional spatial strategies was a material consideration, the question would then be whether the Council had regard to it. As recognised in Kides, it is not necessary in order to establish this that there should be a formal committee decision. Mr Johnston considered the question on the 21st July, with a view to taking a decision (or remitting the matter to committee) on the following day. His memorandum clearly sets out that he, the authorised officer for the Council, had specific regard to it, amongst other considerations which also might have contended for materiality. He specifically considered the letter of 27th May 2010 as a separate item. Understandably, he recorded simply “see response of 6th July 2010”. That letter had superseded the letter of the 27th May in apparent effect. Since the claimant here relies upon the letter of 27th May as evidence of legislative intention for present purposes the operative part of that letter, which links with the letter of 6th July following the reported revocation, was the second sentence:
“consequently, decisions on housing supply…will rest with local planning authorities without the framework of regional numbers and plans.”
[40]The letter of 6th July amplified this. This letter was qualified by the recognition(a) that it would be important for planning authorities to continue delivering local development frameworks and making decisions on applications,(b) that evidence that had informed the preparation of the regional strategies might be material, and(c) that it was open to an authority to retain the housing target which had been set out in the revoked regional strategy. This, coupled with the requirement that authorities should have a 5 year housing land supply which was emphasised in PPS3, were therefore also features of the same legislative intent. It was not just a matter of removing RSS. It is clear that Mr Johnston had specific regard to the whole of the letter. Was that sufficient for the Council? Given the facts that Blackpool had a 3 year supply, not a 5 year land supply, and the material before me shows Blackpool Council was content with the figures set out in the regional strategy insofar as it applied to the area in respect of which it had planning responsibilities, I conclude that it was: the Council, viewed overall, had regard to a material factor. It was not inappropriate for Mr Johnston to take the view he did. In conclusion, therefore, if the consideration were material, the Council had sufficient regard to it to satisfy the requirements of Section 70(2) of the Act.[41]For the reasons given above the decision made by the Council was not unlawful. In the case as formulated before me by the advocates, in respect of which permission was sought by the claimant, the decision was one made solely by reference to an intention to abolish regional spatial strategies (by contra-distinction to that for which permission was earlier granted by the court). Although the reasoning set out above would have denied the claimant review on the merits of her case as originally formulated, that case as re-drafted in paragraph 21 of the claimant’s skeleton has an additional hurdle. It is accepted that the decision had to be made by reference to the regional spatial strategies (that was the agreed position before me). The only relevance of the legislative intention declared in the letter of 27th May, and developed on 6th July is as to the weight which should have been given to the regional spatial strategy. Here, counsel sought to address me on the basis that currently the Chief Planning Officer, and the Planning Inspectorate, regard the matter as being (on one view) of materiality but (from the other perspective) that it would be treated as of little weight. A court considering at the permission stage whether a full hearing would result in the issue of a discretionary remedy would be heavily influenced by the unlikelihood in the circumstances described in the papers before me that this Council would or might make a different decision on the planning application because it would accord less weight to the regional spatial strategy than it had done. As I have indicated above, the material suggests that local factors albeit reflected in the regional strategy were conclusive. There is no material which Mr Hunter pointed to suggestive of the revocation having any, let alone significant, influence on the decision. In context, the effect would be theoretical, rather than the practical approach reflected necessarily in the concept of materiality.

Time

[42]Permission was granted by HHJ Waksman QC on the 1st November 2010. When, a few days later, the decision in Cala Homes 1 was handed down, the claimant could, and in my view should, have applied to amend his claim. Too many claims challenging the decisions of public authorities are begun on one basis which is clear and specific, but are then continued on another basis on the footing that all parties are aware of the nature of the challenge. They may be: but there can often be no certainty of this, given the lack of definition in the challenge. The public too have an interest in knowing precisely what is being alleged in respect of a decision of an authority which affects their lives, or in whose good administration they have a participative interest. There is a danger to good public administration and effective justice (as Munby J. outlined in R (on the application of P,W,F and G) 2004 EWHC 2027G at paragraphs 31 – 40) if these steps are not taken. Here, there was culpable delay in seeking an amendment. When sought, at this hearing, more than four months had passed since it might first have been promulgated. Challenges must be brought “promptly and in any event within 3 months” in the first place. However, given that in this case issues very closely related to the original were the subject of the hearing, given that where an amendment is needed one would hope and expect other represented parties to draw the attention of the claimant to that fact, rather than wait until the hearing itself to complain, and given that had there been such a complaint there would have been a further hearing as to whether permission for the amended grounds should be granted, which would not materially have advanced the timetable and might indeed have delayed ultimate resolution, I would not be inclined to refuse permission here on the ground of time. The substance of the argument needs resolution, if that can be achieved without prejudice to the party not in default. Here, Mr. Lancaster argues that the delay must inevitably have caused loss to his developer client. However, I have no evidence to that effect, only assertion; and in reality, the amendment has caused no further time to be spent before the hearing than would have been spent had the original ground been argued. In effect, Mr. Lancaster is arguing that the claimant should have abandoned her claim as soon as the effects of the decision in Cala Homes 1 sank in. Though I have some sympathy with that, no effect of the failure earlier to seek to amend has caused the passage of time, unless it could be concluded that the application for permission on the amended ground would necessarily have failed, such that the probability is that the claimant would then and there have abandoned her claim. Tempting as it may be to accede to that argument in the light of a full hearing of a rolled-up nature, I have come to the conclusion that time alone has caused no real prejudice to the parties, and I would not therefore have refused permission on this ground alone.[43]I decline permission, on discretion grounds, for the amended claim. No court would consider that any effective relief would be granted here. Had I granted permission, the claim would anyway have failed upon its merits, which are fully discussed above. The decision which Blackpool Council reached is not one which is rendered ineffective on the ground of challenge put before me. The intention of Parliament to achieve a revocation of regional spatial strategies would not have been a material factor within the meaning of s.70(2) in the particular circumstances of the present case (or would have been de minimis, or would not have made a practical difference), did not alter the local factors on which the effective decision was based, and did not require Mr. Johnston to make a reference back to the Planning Committee. Even if he had done, the Council would still have been bound under the law as it stood at the time to apply the regional spatial strategy (this being accepted in the arguments before me), and the most that might be expected of the legislative intention would be that it would have some effect on the weight accorded to the RSS. Though the planning decision is not one for the court to reach, on the material before me I am satisfied the decision of the Council would have been no different. Finally, the Council did sufficiently “have regard to” the factor in any event, even if it were material.[44]It follows that the claim, on the original and unargued grounds, and on the amended basis put before me at the hearing, must be dismissed.