Failure to take account of a material consideration – is it fatal or not?
In Samuel Smith Old Brewer (Tadcaster) & others v North Yorkshire County Council [2020] UKSC 3 the Supreme Court was again grappling with issues of interpretation arising from the NPPF, this time in respect of the Green Belt. Whilst of interest as to the proper approach to the concept of “openness”, it is of wider import to planning, and beyond, by reason of the Court’s determinative view as to the proper approach when considering whether a failure to take into account a material consideration is fatal.
There had been two schools of thought. The first held that it is only material considerations that a decision maker is obliged to take into account which matter, in terms of grounding a legal challenge. If the decision maker was not obliged, a challenge based on failure to have regard to material considerations would fail. The second, formulated by the Court of Appeal in Bolton MBC v SOSE (1991) 61 P&CR 343, considered that if the Judge took the view that the consideration might have made a difference to a decision then a failure to take it into account would lead to quashing. Moreover, the first approach leaves it to the decision maker what to take into account (outside the ambit of obligatory considerations), whereas the latter made that issue, in part at least, a matter for the Judge to decide.
The Supreme Court succinctly but emphatically found for the first approach. A very useful summary is provided by Holgate J in R (Client Earth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin)[1] at [99]:
“In R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] PTSR 221 the Supreme Court endorsed the legal tests in Derbyshire Dales District Council [2010] 1 P & CR 19 and CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 182 which must be satisfied where it is alleged that a decision-maker has failed to take into account a material consideration. It is insufficient for a claimant simply to say that the decision-maker did not take into account a legally relevant consideration. A legally relevant consideration is only something that is not irrelevant or immaterial, and therefore something which the decision-maker is empowered or entitled to take into account. But a decision-maker does not fail to take a relevant consideration into account unless he was under an obligation to do so. Accordingly, for this type of allegation it is necessary for a claimant to show that the decision-maker was expressly or impliedly required by the legislation (or by a policy which had to be applied) to take the particular consideration into account, or whether on the facts of the case, the matter was so “obviously material”, that it was irrational not to have taken it into account.” (Original emphasis)
The result is, perhaps, not that surprising, as (i) the leading Opinion was given by Lord Carnwath (in one of his last cases) endorsing an earlier view of his in Derbyshire Dales District Council but (ii) is also clearly correct, as persuasively argued by Robert Williams[2] in his article “From CREEDNZ to Cumberledge: A review of the law on material considerations” [2017] 12 J.P.L. 1358. Bolton is no longer good law on this aspect.[3]
Section 70(2) of the Town and Country Planning Act 1990 requires a decision maker to have regard to the development plan – an obligatory consideration – but also all material considerations. But what the material considerations are will be a matter for that decision maker. It is a matter of judgment for the decision-maker as to which considerations to take into account, subject only to the legal test that a particular consideration is so “obviously material” as to require consideration. The Court is most unlikely to interfere with such a judgment.
Moreover, even if a consideration is found to be material it can still be given no weight – which is not the same as treating it as irrelevant.[4]
In any contentious planning dispute, therefore, there will be considerations which the decision maker can have regard to but is not obliged to and even if regard is had to them, they can be given little weight.. Any applicant for or opponent to a development will therefore be well advised to give thought as to what are said to be the obligatory considerations, as well as those which are obviously material on the facts of the case. In respect of considerations which aren’t clearly obligatory, it will be up to the party concerned to establish their importance to ensure that they are taken into account and given due weight. They may need expressly to point out what they consider are the obvious material considerations which require to be taken into account.
There is a cross-over here with the requirement to give reasons for a decision, which should resolve the principal issues in dispute between the parties. Again, it will be for a party pushing a consideration to seek to ensure that it is properly highlighted so at least requiring the decision maker to have appropriate regard to it and to give reasons if they do not adopt the arguments for it. Whilst there are limitations about how much a consideration can be engineered so as to require to be dealt with under either head, it is important to realise that a court will have little truck with a party complaining about the failure to have regard to, or give reasons for not dealing with, matters that are not properly raised before them.