Town and country planning – Planning permission – Consistency – Application for outline planning permission for housing development – Respondent local authority deferring decision for planning committee to report on conditions to be attached – Respondent subsequently refusing application – High Court dismissing appellant’s application for judicial review – Appellant appealing – Whether judge erring in law – Whether judge wrongly concluding no real risk of planning committee members having closed minds – Appeal dismissed
Part of a site in Roxwell, Chelmsford was “brownfield” land, allocated for employment use in the Chelmsford Local Plan, adopted by the respondent local planning authority in May 2020. However, almost half the acreage was “greenfield” land.
An application was made for outline planning permission for a housing development on the site. At the time of the planning application, the respondent was engaged in enforcement action. Other employment uses within the site were lawful.
Following an initial meeting of the respondent’s planning committee, the respondent had resolved that it was minded to approve the application but deferred the decision to enable planning officers to report on conditions that could be attached to any grant of planning permission. On 13 January 2021, the respondent gave formal notice of its refusal of the application.
The appellant was a local resident who supported the application. The High Court dismissed his application for judicial review: [2021] EWHC 3285 (Admin).
The appellant appealed contending that the judge: (i) misdirected herself as to the correct interpretation of the resolution passed by the planning committee at its first meeting to consider the application; (ii) erred in law in concluding that the “consistency principle” was not engaged on the facts; and (iii) wrongly or unreasonably concluded that there was no real risk that the minds of planning committee members were closed at the meeting at which the decision under challenge was made.
Held: The appeal was dismissed.
(1) It was common ground that a decision on a planning application did not take effect until it had been notified to the applicant and not on a resolution to grant or refuse. That meant that it was open to the planning committee to change its mind at any time prior to the notification of its decision to the applicant’s representatives on 13 January 2021, even in the absence of a material change of circumstances. However, the appellant sought to rely on the “principle of consistency” articulated in authorities including North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113, R v Hammersmith and Fulham London Borough Council, ex parte Burkett [2002] UKHL 23; [2002] PLSCS 130; [2002] 1 WLR 1593 and St Albans City & District Council v Secretary of State for Communities & Local Government [2015] EWHC 655 (Admin); [2015] PLSCS 92 considered.
A previous decision to grant or refuse planning permission in respect of the same site was capable of being a material consideration on a later application because of the importance of consistency for decision-making in “like cases”. Therefore, if the decision-maker was going to depart from a previous decision on the substance of the same (or materially similar) planning application they had to “grasp the intellectual nettle” by engaging with the reasons for the previous decision and providing an explanation for any departure from it.
In the present case, the decision taken and reflected in the language of the resolution was to defer consideration of an application which the committee was “minded to” grant but had not, at that stage, decided. As the planning officer’s second report expressly recognised, all options were still open: King’s Cross Railway Lands Group v Camden London Brough Council [2007] EWHC 1515 (Admin); [2007] PLSCS 116 distinguished.
(2) The purpose of the provision for deferral in the defendant’s constitution was plainly to give the decision-maker an opportunity to stand back and think twice about the implications of going behind the recommendations of the planning officer before committing itself to doing so. The opportunity for reflection was particularly important in a case such as this, where the proposed development would be contrary to the local development plan, to which primacy would normally be afforded.
When the resolution was passed, the members of the planning committee knew that the constitution prohibited them from deciding to grant the application. They were expressly reminded of that before the motion was formulated. The circumstances that arose required them to defer making any decision, and that was what they did. The requirement did not limit their powers, but simply paused the process they were undergoing. The judge was right to describe the decision-making as “more inchoate” than an “in principle” decision. She was also right to find that the principle of consistency was not engaged in circumstances where there was no substantive earlier decision.
Had it been necessary to do so, the court would have decided that, even if the principle of consistency had been engaged, it was substantively complied with; those councillors who changed their minds gave cogent reasons for doing so at the time and the summary of those reasons in the minutes of the meeting was both accurate and sufficient. A sufficient explanation was given for the fact that, having been initially “minded to” grant the application, the committee ultimately decided to refuse it.
(3) On the issue of closed minds, the key question for the court was whether the circumstances gave rise to a real risk of closed minds such that the impugned decision ought not to be upheld. Given the role of councillors, “clear pointers” were required if their state of mind was to be held to have become a closed or apparently closed mind at the time of the decision. The evidence in this case fell a long way short of providing such pointers: R (on the application of Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83 considered.
There was no legal requirement to give reasons for a decision to grant planning permission, as opposed to a decision to refuse it. The fact that several members of the committee had changed their minds since the first meeting might be said to be evidence of open rather than closed minds. There was nothing to suggest to an independent and impartial observer that the committee members who did so were predisposed to reject the planning application. There was no indication of the matter being “railroaded to a refusal” as the appellant alleged.
Wayne Beglan and Rowan Clapp (instructed by Holmes & Hills LLP) appeared for the appellant; Josef Cannon and Alex Williams (instructed by Chelmsford City Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here for a transcript of R (on the application of Blacker) v Chelmsford City Council