Material considerations and objections that count for nothing

Material planning considerations are those that relate to the use and development of land and that fairly and reasonably relate to the application being decided. That formulation comes from Stringer v Minister of Housing and Local Government, and it is the gate every objection has to pass through. Whether something is material is a question of law. How much weight it gets is for the council, as the House of Lords confirmed in Tesco Stores v Secretary of State.

Which means two separate things can go wrong with an objection. It can be about something the council is not allowed to consider. Or it can be about something they can consider but will weigh lightly because you have not given them anything to work with.

What makes a consideration material

The test is narrow in subject and wide in scope. Narrow because the concern has to be about land use and development. Wide because almost anything touching land use qualifies, including matters not mentioned in the development plan at all.

Things that are reliably material: the policies of the adopted development plan and any neighbourhood plan, the National Planning Policy Framework, design and the character of the area, living conditions for existing and future occupiers (daylight, outlook, privacy, noise and disturbance), highway safety and parking, trees and ecology, heritage impact, flood risk, drainage, and the planning history of the site.

The development plan has primacy. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires decisions to be made in accordance with the plan unless material considerations indicate otherwise. So an objection anchored to a numbered policy in the adopted plan starts in a stronger position than one that is not.

Common objections with no planning weight

These come up at every committee and they are not considered.

• The effect on the value of your property.
• The loss of a view across land you do not own.
• A breach of a restrictive covenant on the applicant's title.
• A dispute about where the boundary runs.
• Competition with an existing business, as distinct from harm to the vitality of a defined centre.
• The identity, character or motives of the applicant.
• The fact that the applicant has not spoken to you.
• Loss of light to a window as a private legal right, which is a civil matter rather than a planning one.
• Construction disturbance, which is usually dealt with by condition rather than by refusal.
• Matters controlled by other regimes, such as structural safety under the Building Regulations or a premises licence.

That last category needs care. Matters controlled elsewhere are not automatically immaterial, and a council can take them into account while giving them limited weight on the basis that another regime handles them. What a council cannot do is refuse on a ground that is purely a matter for another regime.

Loss of view compared with loss of outlook

This distinction decides more objections than any other, and it is worth getting right.

There is no right to a view in planning. If a new building removes your sight of open fields, hills or a church tower across third-party land, that is not a material consideration and the council will say so.

Outlook is different. Outlook is about the immediate visual relationship between a window or garden and what is built close to it. A two-storey wall three metres from a kitchen window harms outlook because it encloses and oppresses the space, and that is material. The test is not what you can no longer see. It is whether the new structure is overbearing in its position and bulk.

So write it that way. Describe distances, heights and angles rather than scenery. State which window of which room, how far the proposed wall is from it, and how much of the sky view from that window the wall would occupy. A sketch section with a dimension on it does more than three paragraphs of description.

The same reframing works for privacy. "They will be able to see into my garden" is better as "the proposed first floor window is 14 metres from my rear elevation and faces it directly, below the 21 metre separation in the council's own design guide."

Boundary disputes and private rights

Planning permission does not confer a right to build. It does not resolve ownership, it does not override a covenant, and it does not grant access over anyone else's land. A permission can be granted for development that the applicant cannot lawfully carry out, and that is not a reason to refuse it.

Where an application involves land you own, you should still check the ownership certificate. Applicants must serve notice on other owners, and a false certificate is an offence. Raising an incorrect certificate with the council is legitimate, though it goes to procedure rather than to the planning merits.

Separately, the civil remedies remain available whatever the council decides. A covenant is enforced in court, not at committee.

Competition and loss of trade

Objections from nearby businesses are common and usually misdirected. The fact that a new shop will take trade from an existing one is not a planning consideration. Planning is not there to protect individual traders from competition.

What is material is the effect on the vitality and viability of a defined town or local centre, where the development plan has a policy on it and the scale of the proposal engages that policy. That is a different argument, it needs evidence about the centre rather than about your turnover, and for larger retail proposals it is tested through a formal retail impact exercise.

Health and amenity grounds sometimes do the work instead. Concentrations of hot food takeaways near schools, for instance, are addressed by policy in many plans, and that is a material consideration with nothing to do with competition.

Turning a non-material concern into a material one

Most objections that fail have a material version buried inside them. Translate rather than abandon.

Highway concerns in particular reward being specific, and the evidence a neighbour can realistically gather is covered in highways objections a neighbour can evidence.

Get in early where you can. Concerns raised before an application is submitted sometimes change the drawings, which is the only point at which an objection costs nobody very much, and our note on getting involved before applications are submitted explains how.

Where a non-planning remedy exists

Knowing the right door saves months.

Excavation near a shared boundary goes to a party wall surveyor under the Party Wall etc. Act 1996. Tall evergreen hedges go to the council's high hedges service under Part 8 of the Anti-social Behaviour Act 2003. Noise from a completed development goes to environmental health as a statutory nuisance under the Environmental Protection Act 1990. Loss of light as a legal right goes to a rights of light surveyor and a solicitor. Covenants, boundaries and access all go to a property solicitor.

If the decision has already been made and you think the council got the process wrong, the routes are the council's own complaints procedure and, in narrow circumstances, the courts. We cover both in the council planning complaint process and judicial review of a planning decision. If the applicant appeals a refusal, you can take part, and taking part in an appeal as an interested party sets out how.

This is general guidance rather than legal advice, and materiality turns on the facts of each case, so check the position with your local planning authority or a qualified professional before relying on it.

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