Bates, R (On the Application Of) v MALDON DISTRICT COUNCIL

A previous planning permission for the same land may remain a material consideration because consistency in decision-making serves the public interest, even where the permission cannot be implemented. Its weight is a planning judgment and depends on all the circumstances, including material changes since the earlier decision.

An officer’s report must be read fairly, as a whole, and for an informed readership. The court will intervene only where there is a distinct and material public law error. Language suggesting that significant weight “must” be given to an earlier permission does not establish unlawful fettering where the report as a whole shows that the officer exercised an evaluative judgment.

The developer obtained permission in 2015 for a dwelling on land outside defined development boundaries. By 2018 that permission remained legally extant but could no longer be implemented. A second application for the identical development was granted under delegated powers, principally because the earlier permission carried significant weight as a matter of consistency.

The appellant sought judicial review, arguing that the council had failed to address the intervening restoration of a five-year housing land supply, had fettered its discretion, had counted the earlier permission more than once, and had irrationally relied on an unimplementable permission. Andrews J dismissed the claim in [2018] EWHC 3421 (Admin). The sole issue on appeal was whether the council’s treatment of the 2015 permission was lawful.

1. Appeal dismissed. Hickinbottom LJ, with whom Baker and Lindblom LJJ agreed, held that the officer lawfully treated the 2015 permission as a material consideration and was entitled to give it significant weight.

2. A previous planning decision concerning the same land may be material because an implementable permission provides a fallback and, independently, because consistency in decision-making serves the public interest. Consistency is a principle of good practice, not a rule of law. The decision-maker must consider whether circumstances have materially changed, exercise an independent judgment, and determine the weight of the earlier decision.

3. Read fairly and as a whole, the 2018 report recognised the material change in housing land supply. It did not apply the tilted balance, treated the local plan’s locational policies as fully effective, and acknowledged that the proposal conflicted with the plan. It also assigned only minimal weight to the development’s contribution to housing need. The absence of an express rehearsal of every analytical step did not disclose an error.

4. The report’s statements that the council was “bound” to give significant weight to the earlier permission did not amount to unlawful fettering. In context, they expressed the officer’s evaluative conclusion that permission for the identical development was inevitably a significant factor, rather than a supposed legal obligation to assign predetermined weight.

5. The officer assessed the earlier permission under several relevant planning considerations and then conducted a holistic balance. This did not amount to multiple counting. Nor did the absence of reasons for the 2015 decision make reliance upon it irrational.

6. The officer understood that the 2015 permission could not be implemented and did not treat it as a fallback. Nevertheless, it remained material because of consistency and would have remained so after expiry. Implementability ordinarily affects weight, but the weight remains a fact-sensitive planning judgment.

7. Lindblom LJ added that an officer’s report must not be read in an overly critical spirit. The same approach applies to a delegated decision subject to regulation 7 of the Openness of Local Government Bodies Regulations 2014. Judicial intervention requires a distinct and material defect, which was absent here.

1. Court of Appeal (Civil Division): The appeal in [2019] EWCA Civ 1272 was dismissed. The court upheld the conclusion that the council had lawfully treated the earlier permission as a material consideration.
2. High Court, Planning Court: Andrews J dismissed the judicial review claim on all grounds in [2018] EWHC 3421 (Admin).