Material consideration: failure to take into account;

Re Findlay [1985] AC 318

Baroness Cumberiege of Newick v SSCLG [2017] EWHC 2057 (Admin) – Appeal outstanding

Girling v East Suffolk Council [2020] EWHC 2579 (Admin) –

    1. Mr Wolfe rightly submits that the need for the development was a relevant consideration which the planning authority was mandated by national policy to take into account. This legal concept has recently been explained by the Supreme Court in Samuel Smith Old Brewery (Tadcaster) Limited v North Yorkshire County Council [2020] PTSR 221 at [29] to [32] and encapsulated by the Court of Appeal in Oxton Farm v Harrogate Borough Council [2020] EWCA Civ 805 at [8] as follows: –

“In R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] PTSR 221 the Supreme Court endorsed the legal test 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.”

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