Edward Blacker, R (on the application of) v Chelmsford City Council

The Court of Appeal dismissed the appellant's challenge to Chelmsford City Council's refusal of outline planning permission. The central legal points were (i) the correct interpretation of the planning committee's resolution at the first meeting and the effect of the council's constitution (Rule 4.2.25.3 and the Planning Code, Part 5.2 including paragraphs 5.2.7.1 and 5.2.7.2), (ii) whether the "consistency principle" applied, and (iii) whether there was a real risk that committee members had closed minds.

The court held that the November 3, 2020 resolution merely deferred decision-making in accordance with the constitution when the committee was "minded to" depart from the officer recommendation, creating a pause for further consideration rather than a substantive in-principle grant. Accordingly the principle of consistency did not apply as there was no earlier substantive decision to depart from. The court also found no evidence of a real risk of closed minds: the subsequent officer report and correspondence did not demonstrate a predisposition and the reasons given by members who changed their votes were adequate.

Background: The council refused outline planning permission for housing on a site in Roxwell. The site included allocated employment (part brownfield) and substantial greenfield land; enforcement action was ongoing in respect of unlawful waste accumulation on part of the site. The planning officer recommended refusal (reasons: loss of allocated employment site, countryside impact, unsustainable location; a s.106 issue was identified as readily solvable).

Nature of claim and relief sought: The appellant, a local resident who supported the application, sought judicial review of the council's decision to refuse planning permission. The claim was dismissed at first instance by Mrs Justice Thornton ([2021] EWHC 3285 (Admin)) and the appellant appealed.

Procedural history: The planning application was first considered by the council's Planning Committee on 3 November 2020, when the committee, being "minded to" grant, resolved to defer consideration so officers could prepare conditions in line with the council constitution (Rule 4.2.25.3; Planning Code Part 5.2, paras 5.2.7.1–5.2.7.2). The matter returned on 12 January 2021 after additional representations and a Green Sheet; the committee then voted to refuse the application.

Issues framed: (i) whether the Judge misinterpreted the November resolution and the council constitution; (ii) whether the "consistency principle" required the committee to explain any departure from an earlier decision to grant; and (iii) whether there was a real risk of closed minds among committee members at the January meeting.

Court's reasoning: The court agreed with the judge that, read naturally, the constitution required deferral where the committee was minded to depart from an officer recommendation so that conditions and implications could be considered; the November resolution therefore did not amount to a substantive or in-principle grant. Because there was no prior substantive decision, the consistency principle (as articulated in authorities cited in the judgment) did not apply. On the closed-minds ground the court applied the established test (requiring "clear pointers") and found the evidence fell well short: the iterations of the officer's report, correspondence about drafting and consultation, and the subsequent debate and reasons given by councillors were consistent with open-minded decision-making rather than predisposition. The court endorsed the judge's detailed factual findings and reasoning and dismissed the appeal.

Wider context: The judgment emphasises the constitutional mechanism of deferral as a legitimate procedural pause where committees are minded to depart from officer advice, and reiterates the high threshold for showing a real risk of closed minds in planning committee decisions.

Appeal dismissed. The Court of Appeal agreed with the judge below that the November 2020 resolution was a procedural deferral required by the council's constitution and did not constitute a substantive decision engaging the consistency principle; and there was no real risk that committee members had closed minds when the substantive refusal was made in January 2021.

Appeal from the High Court of Justice, King’s Bench Division, Planning Court (Mrs Justice Thornton) [2021] EWHC 3285 (Admin), where the claimant's judicial review claim was dismissed. The appeal to the Court of Appeal was heard and dismissed on 17 January 2023 (CA-2022-000610).