“Grasping the Nettle”: how far into the thicket do you have to reach?

08 Dec 2021

Housing, Planning and Environment

The High Court has confirmed that the requirement to ‘grasp the intellectual nettle’ of a previous, inconsistent planning decision does not extend to ‘minded to’ positions reached as part of an inchoate decision-making process.

Chelmsford City Council’s constitution requires its planning committee to pause where it appears that it is minded to reach a decision on a planning application that is contrary to its officers’ recommendation; in such circumstances it must defer consideration of the application until a later, reconvened meeting, by which time various steps can be taken: putative reasons for refusal (or grant) prepared, potential conditions drafted, and the full implications of such a decision explained clearly to the committee.

That is what happened in this case: a planning application for 55 new dwellings on a site not allocated for housing, and beyond the settlement boundary, was recommended to be refused. The committee debated the application and found themselves, by a slim majority, minded to grant the application; in line with the constitution, matters were deferred to a subsequent meeting; at that subsequent meeting a number of members changed their minds and ultimately the committee resolved, 10-1, to refuse the application in line with the officer’s recommendation.

A supportive local resident sought judicial review of that decision (the developer did not appeal), claiming that the members that had changed their minds had not ‘grasped the intellectual nettle’ of the change in position, and not adequately explained why their position had changed since the previous meeting. The claim was heard by Mrs. Justice Thornton, who had decided R (Davison) v Elmbridge BC [2020] 1 P&CR 1 – the case in which she held that the reasoning lying behind a quashed planning decision remained ‘live’, in that a subsequent decision going the other way had to explain why the position had changed – heard the case, handing down her judgment on 6 December 2021. She dismissed the claim on all grounds.

Of particular interest will be her comments on her own judgment in Davison: whether a previous decision is a material consideration is highly fact sensitive; and in that case the ‘specific, fact sensitive reasons why the principle of consistency was engaged in the articular circumstances of the decision making in that case‘ were explained within that judgment. They could not be equated with the circumstances here, where all that had happened at the first meeting was a decision to defer further consideration: no sufficiently concluded position had been reached.

The Court also dismissed the Claimant’s contentions that the Council’s constitution had in fact operated to prohibit any different outcome at the second meeting; that the Council had adopted an unfair procedure in determining the application; and that there was a real risk of closed minds in the way members had gone about determining the application.

The Claim was dismissed.

Josef Cannon acted for Chelmsford City Council, instructed by Victoria Marsh of the Council’s legal services team; Wayne Beglan acted for the Claimant, instructed by Steven Hopkins of Holmes and Hills LLP.

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