Planning circular 3/2022: development management procedures

Annex A

Defining a Material Consideration

1. Legislation requires decisions on planning applications to be made in accordance with the development plan (and, in the case of national developments, any statement in the National Planning Framework made under section 3A(5)^[34]) unless material considerations indicate otherwise. The House of Lords' judgement on City of Edinburgh Council v the Secretary of State for Scotland (1998) provided the following interpretation. If a proposal accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the proposal does not accord with the development plan, it should be refused unless there are material considerations indicating that it should be granted.

2. The House of Lords' judgement also set out the following approach to deciding an application:

• Identify any provisions of the development plan which are relevant to the decision
• Interpret them carefully, looking at the aims and objectives of the plan as well as detailed wording of policies,
• Consider whether or not the proposal accords with the development plan,
• Identify and consider relevant material considerations for and against the proposal, and
• Assess whether these considerations warrant a departure from the development plan.

3. There are two main tests in deciding whether a consideration is material and relevant:

• It should serve or be related to the purpose of planning. It should therefore relate to the development and use of land, and
• It should relate to the particular application.

4. The decision maker will have to decide what considerations it considers are material to the determination of the application. However, the question of whether or not a consideration is a material consideration is a question of law and so something which is ultimately for the courts to determine. It is for the decision maker to assess both the weight to be attached to each material consideration and whether individually or together they are sufficient to outweigh the development plan. Where development plan policies are not directly relevant to the development proposal, material considerations will be of particular importance.

5. The range of considerations which might be considered material in planning terms is very wide and can only be determined in the context of each case. Examples of possible material considerations include:

• Scottish Government policy and UK Government policy on reserved matters;
• Scottish Government circulars, planning advice notes and chief planner letters;
• Local Place Plans;
• Planning policies which do not form part of the statutory development plan;
• National Park Plans;
• Draft policies which are proposed to form part of the statutory development plan;
• Environmental impacts of the proposed development;
• Design of the proposed development and its relationship to its surroundings;
• Infrastructure impacts of the proposed development;
• Planning history of the site;
• Views of statutory and other consultees; and
• Legitimate public concern or support expressed on relevant planning matters.

6. The planning system operates in the long term public interest. It does not exist to protect the interests of one person or business against the activities of another. In distinguishing between public and private interests, the basic question is whether the proposal would unacceptably affect the amenity and existing use of land and buildings which ought to be protected in the public interest, not whether owners or occupiers of neighbouring or other existing properties would experience financial or other loss from a particular development.