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Planning – costs and material considerations
Can a planning authority take cost into account when considering whether or not to revoke a planning consent? And just what are ‘material considerations’ in planning legislation? If the answer to these questions has been keeping you anxiously awake, you can now sleep peacefully. The Supreme Court has recently prescribed a judgment that should quickly knit up your ‘ravell’d sleeve of care’. The prescription reads: Health and Safety Executive v Wolverhampton City Council  UKSC 34 and was dispensed by the Supreme Court on 18 July.
Wolverhampton City Council, having granted planning permission for four blocks of student accommodation (three of which had already been constructed) near a site used for storage of liquefied petroleum gas, failed to activate a request by the Health and Safety Executive (HSE) to revoke planning permission (under section 97 of the Town and Country Planning Act 1970) for at least the fourth block, work on which had not yet commenced. According to the council, revocation was a most unlikely option because of the potentially high compensation costs of doing so.
This is because, although section 97 enables planning authorities to revoke planning consent granted for the development of land to such extent as the authority considers expedient (but having regard to the development plan and to any other material considerations), section 107 requires the authority in question to compensate those affected for any resultant expenditure, loss or damage. The HSE brought judicial review proceedings concerning (among other things) the council’s failure to revoke the relevant planning consent. Before the Supreme Court was the issue of whether, in considering expediency to modify a relevant planning consent, ‘is it always open to that local planning authority to have regard to the compensation that it would or might have to pay under section 107?’
Lord Carnwath gave the leading judgment and started by looking at whether the statute and case law required any departure from the simple proposition that a public authority, when deciding to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. In his view the answer was clear. As custodian of public funds, the authority not only may but generally must have regard to the cost to the public of its actions – at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective.
Expedient and material
On an ‘ordinary reading’, section 97 requires no different approach. The word ‘expedient’ simply implies that the action should be appropriate in all the circumstances, and where one of those circumstances is a potential compensation liability ‘it is hard to see why it should be excluded’. Similarly, nothing in ‘material considerations’ appears to exclude cost. ‘Material’ is the same as ‘relevant’, and where exercising the power will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant.
Despite consideration of relevant case law (in particular the decision of Richards J, as he then was, in Alnwick DC v Secretary of State  79 P & CR 130), Lord Carnwath’s view remained unaltered. ‘Material considerations’ are those which are relevant to the exercise of the particular power in its statutory context and for the purposes for which it was granted. As to the issue of consistency between section 70 (general considerations governing the determination of planning applications) and section 97, while the meaning of ‘material considerations’ is the same, the statutory context is different.
Under section 70 an authority has a duty to act having a limited choice between granting or refusing permission, and its decisions must be governed by considerations material to that limited choice. Moreover, the decision will normally have no direct cost consequences for the authority. On the other hand, under section 97, the authority has no obligation to do anything at all since it has a discretion whether to act, and if so how. But if it does decide to act it must bear the financial consequences in the form of compensation. And section 97 ‘creates a specific statutory power to buy back a permission previously granted’. Cost or value for money ‘is naturally relevant to the purchaser’s consideration’ and a ‘public authority has no self-interest distinct from that of the public… it serves’.
Even on a narrower interpretation of ‘material considerations’, where planning considerations including the development plan are the starting point, the result is no different. While a decision to act under section 97 must be motivated by planning considerations and directed to a planning objective, the converse does not follow since inaction is also an option. In exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is ‘expedient’.
And, in Lord Carnwath’s view, no principle of consistency requires that process to be confined to planning considerations or to exclude cost. That would not exclude effective judicial supervision when necessary for, as the court pointed out, a public authority faced with a serious threat to public safety within its sphere of responsibility would find it difficult to defend the rationality of a refusal to act if the only reason was budgetary demands. In any event, under section 100, if the authority fails to act, the secretary of state may make a revocation order with the same compensation consequences as if the authority had done so itself.
This is an interesting judgment and one which planning authorities will welcome since it clarifies that authorities can indeed have appropriate regard to cost when considering whether or not to exercise planning consent revocation powers in section 97. However, this is not carte blanche. Authorities must act reasonably and context-sensitively in the light of all relevant circumstances.
Authority sees off equalities challenge
Many authorities have found themselves trapped between the anvil of inevitable budget reductions and the hammer of equalities challenges. But on 18 July, North Somerset emerged unscathed from the judicial blacksmiths when Wyn Williams J handed down his judgment in Aaron Hunt v North Somerset Council  EWHC 1928.
The case concerned budget reductions to council youth services. Section 149 of the Equality Act 2010 contains the well-known public sector equality duty which requires public authorities when exercising their functions to have due regard to the need: (a) to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this act; (b) to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) to foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Per section 149(7), the relevant protected characteristics are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex and sexual orientation.
The council contended that to ensure compliance with this duty equality impact assessments (EIAs) were produced and subsequently updated in advance of reports considered by the senior leadership team. The council also had undertaken what it considered a comprehensive consultation exercise about its emerging proposals for youth services and other aspects of the proposed expenditure cuts.
Because although the EIAs had not actually been sent to the members at the meeting at which the revenue budget was approved, their existence had been made known to members, and officers left it for members to obtain copies either in electronic or hard copy format. The Unison representative had also told members that they should read all the EIAs. In the circumstances, the court decided that the members at the relevant meeting had familiarised themselves with all the information provided by council officers.
Wyn Williams J also noted from relevant case law that the ‘due regard’ duty in section 149 can have no fixed content, is fact-sensitive and varies considerably from situation to situation. Councils also ‘cannot be expected to speculate or investigate the potential impact of a decision upon public service equality duties in a manner befitting a lawyer engaged in forensic analysis in court’.
The court therefore accepted (among other things) that ‘due regard’ does not require every protected characteristic to be considered ‘with the impact upon it, if any, identified and analysed come what may’. For that would be unnecessary and unduly formulaic. In the instant case: ‘The EIA identified those budget proposals which had a high impact on service users; it dealt explicitly and in detail with the impact of the reduction in the youth service budget; it referred explicitly to the impact upon a number of the protected characteristics itemised in section 149(7) of the 2010 act… it set out the information upon which it based its conclusions and it set out the steps to be taken to minimise or mitigate that impact.’
In the circumstances, the equalities challenge failed. The court also rejected a challenge based on breach of section 507B of the Education Act 1996 which requires English local authorities, so far as reasonably practicable, to secure for qualifying young persons in the area access to sufficient educational and recreational leisure-time activities and facilities for the improvement of their well-being.
This decision should bolster the confidence of hard-pressed authorities having to make tough and unpalatable decisions in a context of financial stringency. ‘Due regard’ in the Equality Act means just that – a conscientious consideration of relevant equalities issues throughout the entire decision-making process. But it does not prescribe particular outcomes and nor does it require decision-makers to apply impracticably detailed forensic analysis. Paragraph 55 of the judgment helpfully rehearses key principles to help authorities keep sensibly on the straight and narrow when considering such issues.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors
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