King's Cross Railway Lands Group v London Borough of Camden

A local planning authority may reconsider an earlier resolution to grant permission before the decision notice is issued. It may change its planning judgment without a material change of circumstances, although consistency creates a practical need for a good planning reason, usually a very good one, for reversal. A planning committee’s discretion is not unlawfully fettered merely because officers explain the practical risks of departing from an earlier decision. The court assesses the advice as a whole, including oral advice given at the meeting. Officers must refer an application back where a genuinely new material consideration might rationally affect the outcome, unless satisfied that the committee would reach the same decision in any event. A later policy definition did not require referral where it made no practical difference to the definition already being applied.

The claimant sought judicial review of the defendant local planning authority’s grant of outline planning permission for the redevelopment of the King’s Cross railway lands, together with related listed building and conservation area consents.

The permission had originally been resolved upon by a development control subcommittee in March 2006, subject to conditions and a section 106 agreement. After a change in committee membership and completion of the agreement, the matter was considered and ratified by the Development Control Committee in November 2006. The claimant argued that the committee had been unlawfully constrained from reconsidering the planning merits and that officers should have referred the application back after publication of PPS3, particularly its definition of affordable housing.

1. Outcome. Permission to apply for judicial review was granted solely so that the substantive claim could be dismissed. The challenge to the planning permissions and related consents failed.
2. The committee had a lawful discretion to review the March resolution afresh and, if appropriate, to change its mind: R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23. A material change of circumstances was not essential. A different assessment of the weight to be given to relevant factors could justify a different planning balance. The earlier resolution nevertheless remained a material consideration, and the desirability of consistency meant that a good, in practice very good, planning reason was required for reversal.
3. The publication of PPS3 did not create a new material consideration requiring referral. Its definition of affordable housing was materially the same as the definition already reflected in the section 106 agreement. No reasonable planning officer could have concluded that it might lead the committee to a different result.
4. The officers’ advice did not unlawfully fetter the committee’s discretion. The advice had to be read cumulatively, including the written report, legal advice and oral explanations at the meeting: Oxton Farms v Selby District Council and R v London County Council, ex parte London and Provincial Electric Theatres Limited. The advice correctly stated that the committee could reconsider the matter and decide whether the affordable housing shortfall amounted to a departure from the development plan and, if so, whether it justified refusal.
5. The committee’s practical reluctance to depart from the earlier resolution was not the result of erroneous legal advice. There was no evidence that advice constrained consideration of the historic building issue, and the affordable housing issue had been left expressly for the committee to determine.