REGINA v CHELMSFORD CITY COUNCIL

A planning committee’s resolution that it is minded to approve an application and defers it for consideration of conditions is ordinarily a preliminary view, not an in-principle decision. Until planning permission is formally granted, the committee may reconsider the application. The principle of consistency is engaged only where the earlier decision was sufficiently concluded and substantive to require careful consideration of the weight given to it. A fair process is fact-sensitive; fairness does not generally require one third party to respond orally to another’s representations. Elected councillors may hold and express prior planning views. A finding of a closed mind requires clear pointers that the decision-maker was unable, or appeared unable, fairly to consider the material before it.

The claimant, a local resident, sought judicial review of Chelmsford City Council’s refusal of outline planning permission for up to 55 dwellings at an existing industrial site in Roxwell, Essex. At an earlier meeting, the Planning Committee was minded to approve the application contrary to the officer’s recommendation, but resolved to defer it so officers could report on possible conditions. At the later meeting, the Committee reconsidered the application and refused permission for the reasons previously recommended by officers.

The claimant alleged breach of the Council’s constitution, failure to address an earlier in-principle decision, procedural unfairness, and a closed mind. The central issues were the legal effect of the first resolution and whether the later decision was lawfully reached.

1. The claim was dismissed. The first resolution, properly construed, deferred further substantive consideration of the application. It recorded only a preliminary view in favour of the proposal. It did not constitute an in-principle decision to grant permission. The public resolution and minute were decisive; the meeting transcript could not displace them. The approach in R (Shelley) v Carrick DC [1996] Env. L.R. 273, followed in R (Cross) v Cornwall Council [2021] EWC 1323 (Admin), was applied.
2. The Council’s constitution required deferral where the Committee was minded to depart from the officer’s recommendation. Its purpose was to provide a pause or breathing space in which members could consider conditions, reasons and the implications of the proposed decision. The Committee remained entitled to reconsider all options at the later meeting. The constitution was interpreted objectively according to natural and ordinary meaning, context and common sense, applying Lambeth London Borough Council v Secretary of State for Housing Communities and Local Government [2019] 1 WLR 4317. Ground 1 therefore failed.
3. The Committee was entitled to change its view before formal notification of a planning decision. The principle of consistency is fact-sensitive. It requires careful consideration of an earlier decision where that decision was sufficiently concluded and substantive, as in the circumstances discussed in St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655, King’s Cross Railway Lands Group v London Borough of Camden [2007] EWHC 1515 (Admin) and R(Davison) v Elmbridge Borough Council [2020] 1 P&CR 1. The first resolution here was procedural and inchoate, so no intellectual nettle required addressing. Ground 2 failed.
4. Fairness in planning decision-making is acutely fact-sensitive. The claimant and interested party had opportunities to make representations. The interested party could submit written material before the second meeting, and there was no general requirement to allow one third party to respond orally to another’s representations. The procedure was fair in context. Grounds 3 failed.
5. A closed-mind challenge requires clear pointers. Councillors may have and express prior planning views, provided they consider material considerations fairly. The fact that some members changed their minds supported, rather than undermined, the conclusion that their minds remained open. The factors relied on, individually and collectively, did not meet the threshold identified in R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83. Ground 4 failed.