Planning permission — Procedure – Defendant council resolving to grant planning permission for major development — Constitution of defendants changing following elections — Whether defendants wrongly advised that obliged to grant permission in terms of previous resolution — Whether change of circumstances prior to issue of decision letter such that planning officer obliged to refer back to planning committee — Claim dismissed
The claimant was an umbrella group that represented those interested in encouraging the regeneration of the railway lands in the King’s Cross area, which were recognised as being run-down and in need of redevelopment. The interested party applied to the defendant council for planning permission for a development within the railway lands, along with listed building consent and conservation consent for the demolition of two buildings. The claimant objected to the development on the ground that it provided insufficient employment opportunities or affordable housing, and that the two buildings should be retained. In March 2006, the defendants’ planning subcommittee resolved to grant permission subject to the conclusion of appropriate agreements under section 106 of the Town and Country Planning Act 1990.
Once the terms of the section 106 agreements had been defined, the matter went back to a full planning committee. In the meantime, elections had taken place, resulting in changes to the defendants’ composition. However, the committee considered itself to be effectively bound by the resolution of its predecessor subcommittee to grant permission. In reaching that view, it followed the advice of a planning officer to the effect that, in the absence of any material change of circumstances, a change of mind might result in the decision being quashed and costs being awarded against the defendants. The officer advised that the proposals involved no significant departure from the development plan and that any departure could be justified. A decision notice was subsequently issued. In the meantime, a definition of “affordable housing” was introduced by PPS 3.
The claimant challenged he defendants’ decision by way of judicial review. It contended that: (i) the defendants’ discretion had been fettered by erroneous advice that a change of circumstances would be necessary before they could change their mind; and (ii) the new definition of “affordable housing” could be regarded as being a material change of circumstances requiring the planning officer to refer the matter back to the committee before a decision notice was issued.
Held: The claim was dismissed.
(1) There was no material difference between the definition of affordable housing in PPS 3 and that set out in the section 106 agreement worked out for the purposes of the application. Since no reasonable planning officer could have concluded that PPS 3 was a new factor, or that it could result in a different conclusion, the officer had been entitled not to bring it before the committee.
(2) In deciding whether the advice of the planning officer had fettered the discretion of the committee, the court was entitled to have regard to the whole of that advice and not just that contained in the officer’s report. Although, as a matter of law, the committee had had the power to consider the proposals afresh, it would in practice have required a clear justification or good planning reason for a change of mind, given the desirability of consistent decision making. Otherwise, where a subcommittee of the defendants had resolved to grant permission on the basis of an extensive report and consultation, a subsequent refusal would be likely to expose the defendants to an appeal and a finding that the change of mind was unreasonable, resulting in costs being awarded against them. The advice given by the planning officer was faultless. That advice was not simply as to matters of law, but had to be of practical use in the real world. The need to give a good planning reason for any change of mind was a very important practical consideration, and the officer had rightly advised that, in the real world, in the absence of any change in circumstances, it would be difficult for the defendants to justify a change of mind. It was that realisation, rather than erroneous advice as to the legal position, that had resulted in the committee feeling constrained to grant permission.
John Hobson QC, Paul Stinchcombe and Alexander Goodman (instructed by Leigh Day & Co) appeared for the claimant; Timothy Corner QC and Paul Brown (instructed by Denton Wilde Sapte LLP) appeared for the defendants; Keith Lindblom QC and David Forsdick (instructed by Lovells LLP) appeared for the interested party.
Sally Dobson, barrister
