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Court of Appeal uphold Maldon’s approach to a previous planning permission

23.07.2019

A strong Court of Appeal (Lindblom, Hickinbottom and Baker LLJ) have dismissed an appeal against the decision of Andrews J in a case concerning the principle of consistency in decision-making in the planning sphere. The Court reiterated and confirmed the well-established principles in such cases.

Maldon DC had, in 2015, granted planning permission for the conversion of some agricultural buildings into a dwelling on land in the countryside, subject to various conditions (including one prohibiting any development between April and October to protect nesting birds).

They had done so contrary to the recommendation of the planning officer, who had recommended that it be refused, in circumstances where the Council could not demonstrate a five-year housing land supply. The permission was not implemented, and in early 2018 the applicant applied again for permission to carry out identical development.

By the time the officer came to write her report (this time recommending approval) the 2015 permission was soon to expire, and could not be lawfully implemented because of the ecology condition mentioned above. In addition, whilst in 2015 the Council had been unable to demonstrate a five-year housing land supply (and thus the 'tilted balance' had applied), by 2018 it could demonstrate such a supply. At various places in her 2018 report, the planning officer gave 'significant weight' to the 2015 permission, which was still (just) extant but could not be implemented.

The Claimant was the adjacent landowner, unhappy with the grant of permission. He argued that the planning officer had gone wrong in her approach to the 2015 permission in a variety of ways, but the central point was that she had not explicitly acknowledged the change in the housing land supply position.

This was rejected by the Court of Appeal, who said:

  • The fact that the 'tilted balance' was not applied in 2018 whereas it had been in 2018 was evidence enough that the officer had well in mind the change in the housing land supply position.
  • On a fair reading of the report as a whole, the change in the housing land supply position had been taken into account.
  • The position was different from those cases in which an officer might have to 'grasp the intellectual nettle' of disagreeing with a previous decision because here the officer was agreeing with the previous decision – that was a 'different nettle' to grasp, and she had done so.
  • The criticism of the officer's language in parts of her report, where she said she was 'bound to give' the previous permission significant weight, was not an expression of fettered discretion but a conclusion as to the weight she considered should be attached, which was a matter for her judgment.
  • She had properly stepped back and considered the overall planning balance in her conclusion, having weighed the findings of the 2015 permission in various respects.
  • She had properly understood that the 2015 permission could not now be implemented, but was nonetheless still a material consideration.

Lindblom LJ added that the principles that apply to the way in which a planning officer's report must be read (as set out in Mansell v Tonbridge & Malling BC [2017] EWCA Civ 1314 – the court will only intervene where there has been a distinct and material defect) applies just as much to reports written under delegated authority as they do to reports to committee.

Josef Cannon acted for Maldon DC throughout instructed by Simon Quench.