Davison, R (on the application of) v Elmbridge Borough Council

In planning decision-making, the consistency principle extends beyond a previous formal decision to the reasoning underlying it. A planning authority may begin afresh after a permission has been quashed, and the quashed decision has no legal effect on the parties. Its reasoning may nevertheless remain a material consideration. The authority must assess the basis of the quashing, consider any reasoning unaffected by it, and explain a departure where the apparent inconsistency warrants explanation. The question is fact-specific, but omission is unlawful where no reasonable authority could have failed to take the earlier decision into account. The court quashed the second permission because the Council did not address its changed view of Green Belt openness.

The claimant sought judicial review of Elmbridge Borough Council’s decision to grant a second planning permission for a football and athletics stadium in the Green Belt. An earlier permission for materially the same development had been quashed in R(Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) on a narrow issue concerning the interpretation of paragraph 89 of the National Planning Policy Framework.

The earlier officer’s report and statement of reasons recorded a limited adverse impact on Green Belt openness. The later officer’s report concluded that the proposal would preserve openness, without addressing the change in planning judgment. The central issue was whether the consistency principle required the Council to consider and explain its departure from the earlier reasoning despite the earlier permission having been quashed.

1. Disposition. The claim succeeded. The Council’s decision to grant the second planning permission was quashed.
2. Under Town and Country Planning Act 1990 and Planning and Compulsory Purchase Act 2004, the authority must have regard to the development plan and other material considerations. The court determines whether a matter is capable of being material; the weight given to a relevant consideration is for the planning authority, subject to public-law review for irrationality.
3. The consistency principle requires reasonable consistency in the exercise of administrative discretion. In planning, it extends to the reasoning underlying an earlier decision. A decision-maker may reach a different conclusion, but must have regard to the earlier decision and explain the departure where the cases are materially alike. The greater the apparent inconsistency, the greater the need for explanation.
4. A quashed decision has no legal effect on the rights or duties of the parties, and a planning authority must determine the matter afresh with a clean sheet. That does not make the earlier decision or its reasoning incapable of being a material consideration. The decision-maker must assess the basis of the quashing and, where appropriate, identify reasoning unaffected by it. Complexity in doing so may justify putting the earlier decision aside, provided the position is explained. This approach followed R(Fox Strategic Land and Property Ltd) v Secretary of State [2012] EWCA Civ 1198 and Vallis v Secretary of State [2012] EWHC 578 (Admin).
5. The two applications concerned the same site and materially identical development under the same policy framework. The earlier judgment in R(Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) had not interfered with the Council’s planning judgment on openness. The Council therefore had to address its changed position. Its failure to do so meant that it had unlawfully failed to take into account a material consideration.
6. Although relief may be refused where it is highly likely that the outcome would not have been substantially different, the court could not speculate about what the Planning Committee would have decided had it confronted the inconsistency. The planning judgment belonged to the Committee, not the court. The statutory threshold in section 31 of the Senior Courts Act 1981 was not met, and the permission was quashed.

The claim was determined at first instance. The earlier permission had been quashed by the High Court in R(Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) ; the present judgment quashed the subsequent permission.