Planning authorities are required to have regard to a number of specified matters when considering whether to grant planning permission. These matters include:
- the Local Development Plan (where relevant); and
- any other Material Considerations.
The second heading, Material Considerations, is a catch all intended to include (amongst other relevant matters) the design, appearance, layout and density of buildings together with noise and disturbance from the proposed development.
Issues which aren’t material (and as such cannot be taken into account by the local planning authority when determining whether or not to grant planning permission) include the loss of value to an adjoining or nearby property and any boundary encroachment of foundations and gutters.
The question of the matters to which the local planning authority should have regard when considering a planning application was considered by the High Court in a recent Judicial Review brought against Erewash Borough Council. The planning application concerned a two storey extension to an existing building. An adjoining landowner objected to the application since the depth of excavation needed for the foundations might cause structural damage to his adjoining property.
Planning permission was granted but was quashed following a successful Judicial Review application brought by an adjoining landowner.
The local planning authority reconsidered the planning application. A report was prepared which noted that there were concerns relating to the foundations of the proposed development but stated that those concerns were not material considerations for planning purposes since they would be addressed by the building regulations approval system.
Planning permission was accordingly granted and the landowner once again sought Judicial Review.
The High Court found that the local planning authority in determining that the concerns of the adjoining owner weren’t material from a planning perspective because they would be addressed by Building Regulations and the Party Wall Act had not made an error of law. The weight to be given to any material consideration is a matter for the local planning authority and not the Court. The planning permission therefore remained in place.
This decision doesn’t represent new law but is an interesting commentary on the interaction between the planning system, Building Control and the Party Wall Act. The case emphasises the importance of understanding the interaction of these various schemes, systems and controls when contemplating development which may impact upon adjoining property.
If you wish to discuss any of the issues raised in this blog please contact Mark Withers at mark.withers@parissmith.co.uk