‘Grasping the Nettle’: Court of Appeal Rules on Principle of Consistency

18 Jan 2023

Planning and Environment

On 17 January 2023 the Court of Appeal (Andrews, Stuart-Smith and Holroyde LJJ) handed down its judgment in R (Blacker) v Chelmsford City Council [2023] EWCA Civ 25, on the principle of consistency in the context of planning decisions.

The case concerned the Council’s decision of 13 January 2021 to refuse outline planning permission for a housing development in Roxwell, Chelmsford. The Council’s Planning Committee considered the developer’s planning application over two meetings. At the first meeting, in November 2020, the planning officer recommended refusal of the application but a majority of the Committee were minded to grant it. This difference of opinion between officer and Committee triggered provisions in the Council’s constitution that required the Committee to defer the application “for consideration of appropriate conditions and reasons and the implications of such a decision clearly explained in the report back”. The Committee duly resolved to defer consideration of the application until a later time in order, as the minutes recorded, “to enable officers to report to a future meeting on conditions that could be attached to any grant of planning permission for the development”.

When the Committee resumed in January 2021, it voted by a majority to refuse the application. The central question was whether it was lawful to refuse, or whether the Committee was bound to accept the principle of the development given its earlier resolution. The claimant was a local resident who supported the scheme. Thornton J dismissed his claim for judicial review ([2021] EWHC 3285 (Admin)] and he appealed.

The Court of Appeal unanimously upheld Thornton J and dismissed the appeal.

Giving the leading judgment, Andrews LJ held on the main grounds that the purpose of the Council’s constitutional provisions was 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” (para 24). That constitutional requirement “did not limit their [the Committee’s] powers” at the second meeting “but simply paused the process they were undergoing” (para 25). The upshot was that the Committee’s decision at the first meeting was inchoate and did not amount to a substantive decision on the principle of whether to grant permission. Committee members were free to change their minds and to refuse permission at the second meeting. The public-law principle of consistency, which requires decision-makers to treat like cases alike and to grasp the intellectual nettle of disagreement with an earlier inconsistent decision, is not engaged “where there was no substantive decision” (para 25). Her Ladyship went on to dismiss the remaining grounds, under which the Appellant alleged that there was a risk that the Committee had closed its mind to the merits of the application (paras 31-39).

The Court of Appeal’s judgment has obvious relevance in the planning context but has broader application to the field of administrative law more generally. It serves as a useful reminder of the nature and extent of a decision-maker’s duty to provide a fair hearing. While that duty may extend to the giving of reasons for the eventual decision, it does not extend – at least as a general principle – to the giving of reasons for each twist and turn in the decision-making process along the way. The decision-maker only has to explain away an inconsistency where it proposes to depart from a sufficiently similar substantive decision. Here, as the Court of Appeal ruled, there was no proposal to depart from an earlier substantive decision and the principle of consistency did not apply.

Members of Cornerstone Barristers appeared on both sides. Josef Cannon and Dr Alex Williams acted for the Council, instructed by the Council’s Elaine Bell. Wayne Beglan and Rowan Clapp acted for the Appellant, instructed by Steven Hopkins of Holmes & Hills LLP.

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