Councils may only refuse a planning application if the argument against it qualifies as a “material planning consideration”. There is no authoritative definition of what is and is not a material planning consideration. Basically, material planning considerations are anything that is governed by planning legislation and policy. Planning policy in this context means in particular:
Central Government’s National Planning Policy Famework (NPPF);
the London Plan, which sets out the Mayor’s strategy for London on matters such as housing, transport, economic development and environment. See https://www.london.gov.uk/programmes-strategies/planning/london-plan/new-london-plan/london-plan-2021
RBKC’s 2019 Local Plan, a voluminous document that sets out the Council’s policies on a wide variety of planning issues. Individual sections can be downloaded as a word-searchable pdf. The most useful part is Section 2- Delivery Strategy. Each chapter has some explanatory text followed by a series of numbered policies (as referred to below). The part most relevant to the majority of planning applications in the Ladbroke area is Chapter 22 on “Renewing the Legacy” – this deals with planning in conservation areas and also with basements. Chapter 21 on “An engaging public realm” is also relevant. See www.rbkc.gov.uk/planning-and-building-control/planning-policy/local-plan/local-plan
RBKC’s Supplementary Planning Documents (SPDs) – these deal with a variety of subjects, including basements, noise, trees and shopfront design. Technically, these are not planning policy documents but occupy some strange bureaucratic limbo. Nevertheless, anything in them is likely to be accepted as a material planning consideration. See www.rbkc.gov.uk/planning-and-building-control/planning-policy/supplementary-planning-documents-and-guidance
The Ladbroke Conservation Area Appraisal (CAA). This also is not technically a planning policy document, but rather a description of the Ladbroke conservation area to help decide what will or will not “conserve or enhance the character or appearance” of the conservation area, one of the duties of the Council under planning legislation.
If a development is contrary to some aspect of the policies set out in these documents, this is likely to be a “material consideration” and a valid reason for refusing it. On the other hand, if the development is in accordance with stated planning policy, either national or local, permission would only be refused if exceptional circumstances exist.
Decisions by Planning Inspectors can also create precedents as to what can be accepted as a material planning consideration. If an Inspector has overturned a Council decision, for instance to refuse an application for a subterranean development, this would be a material planning consideration and the Council would not normally be able to refuse a similar application in the future (if they did, and the matter went to appeal, they would be liable for costs if the Inspector found against them).
Anything governed by other legislation cannot be a material planning consideration. For instance, pollution or noise caused by the construction work is not a material planning consideration, because it is deemed that there is adequate legislation in the form of the various laws on control of pollution to deal with any problems. Similarly, the stability of the building on which the works are being done is deemed to be dealt with under building control regulations; and damage to neighbouring properties is deemed to be dealt with under party wall legislation (or the common law of damage in the case of premises which are too far away to be covered by party wall legislation). And traffic problems are considered to be adequately controlled by highways legislation.
Other matters that the Council cannot take into account are the effect of a development on the value of neighbouring properties or anything to do with private property disputes, for instance boundary disputes (it is not against the law to seek planning permission on a property belonging to someone else, although the permission could only be exercised with the agreement of the owner). The fact that there is a restrictive covenant that appears to rule out the development is also a matter for private action rather than enforcement through the planning system.
Common material considerations
The following are the most common material planning considerations that have successfully been used to oppose (or support) domestic or small business planning applications:
Design and appearance. In conservation areas, the Council has a duty to pay special attention “to the desirability of preserving or enhancing the character or appearance of that area”. Developments that would harm the character of the area would normally be resisted by the Council, and even outside conservation areas Councils may refuse an application that would create an eyesore. Inevitably judgements on what is acceptable in terms of design and appearance, especially outside conservation areas, can be somewhat subjective, and it is not unknown for a Planning Inspector to disagree with the judgement of the Council. Relevant policies in the Local Plan (which can be found by word-serarching the Delivery Strategy pdf) include:
The Ladbroke CAA is also very relevant.
Effect on a listed building. A special planning regime applies to listed buildings, which normally need planning permission for any alteration to either the outside or the inside of the building. In decisions concerning listed buildings, an important material consideration is the desirability of preserving the character of the building’s special architectural or historic interest. This may also be a material consideration in the case of works on neighbouring buildings or land that may affect the listed building. The most relevant Council policy is CL 4: Heritage Assets – Listed Buildings, Scheduled Ancient Monuments and Archaeology .
Effect on a Registered Park or Garden. The communal gardens on the Ladbroke estate have all been registered by English Heritage as Grade II on the Register of Parks and Gardens of Special Historic Interest. The fact that a garden has been registered is a material planning consideration, and when deciding planning applications affecting a communal garden the Council should take into account the historic interest of the site. They must also consult the London Parks and Gardens Trust.. Changes to the appearance of the rears of the houses backing onto a communal garden may well be considered as affecting the historic interest of the gardens, especially in those cases where the rears are highly decorated and clearly meant to be viewed from the garden. The most relevant Council policy is CR5: Parks, Gardens, Open Spaces and Waterways.
Effect on green spaces. Communal gardens are not the only green spaces that the Council seeks to protect. Policy CR 5: Parks, Gardens, Open Spaces and Waterways also covers other green spaces, including private open space that gives visual amenity to the public.
Effect on views and vistas. The relevant Council policy is CL11: Views; and the Ladbroke CAA also describes important views and vistas in our area.
Effect on streets and streetscapes. It is Council policy inter alia to resist the gating of existing streets and the development of new gated communities (CR1: Street network); to require proposals for tables and chairs on the highway to maintain the primary function as public footway allowing for the free, safe and secure passage of pedestrians (Policy CR3: Street and outdoor life); and to resist pavement crossovers and forecourt parking (Policy CR4: Streetscape).
Basements: Council Policy CL7: Basements sets out a number of restrictions that will normally be applied to basement development. The Basements SPD is also relevant.
Visual intrusion or overbearing, for instance if a very large new building is proposed close to the boundary with a smaller one. The relevant policy is CL5: Living conditions.
Loss of privacy/increase in overlooking. This is particularly likely to be relevant in the case of new windows overlooking another property, or for instance roof terraces and terraces on top of back extensions. The potential for noise from e.g. parties on such terraces might also be accepted as a material consideration. The most relevant policy in the Local Plan is CL5: Living conditions.
Drainage and potential flooding problems. The most relevant policy is CE2: Flooding.
Problems associated with contaminated land. The most relevant policy is CE7: Contaminated land.
Effect on trees, for instance when a development risks damaging a tree or requires a tree to be felled. The relevant Council policy is CR6: Trees and landscape. The Trees and Development SPD is also relevant.
Effect on ecological habitats. The relevant policies are CR5: Parks, Gardens, Open Spaces and Waterways; and CE4: Biodiversity.
Loss of light. The Council uses specific methods and criteria to measure and assess unacceptable loss of light. Loss of a view from an individual building cannot be taken into account. The relevant Council policy is CL5: Living conditions.
Loss of housing units. Because of the acute shortage of housing in London, all boroughs have been given tough targets for the number of dwellings that they are expected to add to their housing stock every year. RBKC has had great difficulty meeting its target, and the situation is worsened when two or more existing dwellings are combined. Its policy (Policy CH1: Increasing housing supply) is to resist such amalgamations except in certain specified circumstances – where only one dwelling is lost and where the floor space of the new dwelling is limited.
Light pollution. This mostly applies in rural areas, but proposals for bright lights in a back garden, for instance, could be a material planning consideration. There is no specific RBKC policy on light pollution, but paragraph 125 of the NPPF says: “By encouraging good design, planning policies and decisions should limit the impact of light pollution from artificial light on local amenity, intrinsically dark landscapes and nature conservation”.
Increase in smells (from a proposed restaurant for example). The most relevant Council policy is CL5: Living conditions.
Air quality, e.g where it might be worsened as a result of emissions from extra traffic after completion of the development. The relevant Council policy is CE5: Air quality. The Air Quality SPD is also relevant.
Noise from permanent equipment installed as part of the development (air conditioning units or extractor flues for example). Only the permanent equipment left behind at the end of the development counts; temporary noisy equipment used during the construction does not, because it is judged that this can be dealt with through the legislation on controlling noise. The relevant policy is CE6: Noise and vibration. The Noise SPD is also relevant.
Expected increase in noise and disturbance because of the use of the building – for instance if the proposal concerns a pub or nightclub in a residential area. This also is covered by Policy CE6: Noise and Vibration.
Traffic or parking problems post-construction, including incapacity of the local roads to cope with extra traffic expected as a result of the development; or road safety problems, or loss of parking. Again this applies only to problems after completion of the development; traffic problems during the excavation and construction are dealt with under normal Council traffic restrictions. The main policy is CT1: Improving alternatives to car use. The Transport and Streets and the Transport SPDs are also relevant.
Pubs, offices, markets, shops and shop-fronts: Council policy on resisting the loss of local facilities like pubs and small businesses and local shops is set out in Policy CK 2: Local Shopping and other Facilities which Keep Life Local. Council policy on the design of shop-fronts is set out in Policy CL10: Shopfronts. The latter is supplemented by the Shop-front Design Guidance SPD. Street markets, including the Portobello Market, are dealt with in Policy CF 4: Street markets; and CR 3 Street and Outdoor Life. Policy on promoting local businesses is mainly set out in Policy CF 5 Location of Business Uses.
Last revised 26.4.2020