How planning decisions are made?

A very brief overview

The outcome of a planning application can be decided by Planning Committee, or be delegated for a decision by planning officers. In both cases, the decision must be based only on relevant material considerations and be ‘plan based’.

Issues that are considered relevant in planning decisions are listed below:

• the local plan
• development plan documents
• supplementary planning documents
• the statement of community involvement
• the authority monitoring report
• government planning guidance
• the council’s corporate policies
• highway safety and traffic levels
• noise, disturbance and smells resulting from the proposed development
• design, appearance and layout
• conservation of buildings, trees and open land flood risk
• the impact on the appearance of the area
• the effect on the level of daylight and privacy of existing property
• the need to safeguard the countryside or protected species of plant or animal
• planning case law and previous decisions
• the need for the development
• the planning history of the site

Issues that are not considered relevant to planning decisions include:

• private property rights, such as covenants
• the developer’s identity, morals or motives
• the effect on the value of your property
• loss of a private view
• private neighbour disputes

The planning balance

The planning balance is a thought exercise that the decision-maker must go through when deciding whether to give consent or not.

Is the process subjective or objective?

In that decisions must be plan based (unless there are material reasons not to) then decisions should be rational and objective, i.e. based on the expert evidence.

However, elected Councillors may also apply personal judgement, and therefore the weight they apply to material planning matters can vary.  Clearly, this can pose a challenge in an open and transparent administrative process.

It is a requirement of planning law that all planning decisions are made in accordance with the provisions of the development plan (normally referred to as the ‘Local Plan’), as well as a suite of material considerations such as the National Planning Policy Framework (2012) (NPPF) and its Guidance (National Planning Policy Guidance).

The weight to be given to specific matters is often prescribed by planning law and guidance. For example, local authorities must make sure that any proposals have regard for the purpose of conserving and enhancing the natural beauty of the AONB and IT’S SETTING and that its protection is given ‘great weight’ in the planning balance.

Subjectivity refers to personal feelings, viewpoints, opinions, and biases. Subjective statements and observations express people’s preferences as well as personal interpretations about something. The quality of subjective evidence depends upon the decision makers ability to perceive reality.  Unfortunately, subjective views are often inconsistent and biased.  People often see what they want to see, or what they expect to see. 

Objective evidence takes more effort.  It must be retrieved, stored, protected, recorded, and presented.  Subjective reasoning is easier – and views expressed often go untested. On the other hand, objective decisions involve facts that are provable or verifiable.  Objective statements and observations don’t include people’s personal views and preferences, known as biases.

What if a decision is contrary to an officer’s recommendation:

• Councillors can come to a decision that differs from the Officer’s (professionally qualified experts) recommendation

• But it must be justified on planning grounds (based on the plan and material considerations)

• Committee must give justified planning reasons for their decision (it cannot be left to officers)

A decision-maker will open themselves up to challenge if they have failed to regard a policy in the development plan which is relevant to the application or have failed to properly interpret it.

A challenge might involve an allegation that a decision-maker was misled by the planning officer about material considerations, often due to an unclear report or advice to the council which fails to understand the important issues that bear on the decision.

The absence of a rational or logical connection between the evidence and a decision

In cases where the courts apply greater scrutiny, what the evidence says is always critical and will be the focal point for the court’s assessment. If there is an absence of a rational or logical connection between the evidence and a decision then there will be greater scope for challenge. Simply put, if the evidence says X and the decision-maker subjectively conclude Y then there is a significant risk that the decision will be unlawful because it cannot be justified or supported by the evidence. *

There is often a correlation between decisions that are irrational in the substantive sense and those decisions where there is some form of procedural flaws, such as where the decision-maker failed to take into account relevant decisions, took into account irrelevant considerations, or failed to keep an open mind during the process. These types of procedural errors alone are usually sufficient to justify the court quashing the decision being challenged. But they also provide helpful signposts for public bodies to keep in mind when giving reasons for a decision. Again, the key to reducing the risk of a decision being overturned by the courts is to avoid subjective reasoning and focus on the available evidence and ensure that it can demonstrate that everything relevant has been taken into account.

Whilst the intensity of the judicial scrutiny will depend on the context, public bodies will always be in a better position to defend a challenge if they ensure that their decision-making process is thorough and fair, the decision can be justified on the evidence and the reasons given for it are adequate. Ultimately, this is something that public bodies should be concerned about irrespective of the threat of legal challenge – after all, good decision-making is a public good in itself and something that public bodies should strive towards in all cases.

Various classifications of weight contained within the NPPF have been identified and are shown in the following hierarchy of ‘weight’ which is presented in order of importance.

* (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] 3 All ER 665 at 681–682 per Lord Wilberforce; Brind v Secretary of State for the Home Dept [1991] 1 All ER 720; Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48 at 57).

© 2022