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

A planning committee’s resolution to defer consideration of an application, where it is minded to depart from an officer’s recommendation, is not an in-principle grant or refusal. It pauses the decision-making process and leaves all options open at the later meeting. The consistency principle is engaged by a substantive earlier decision on the same or a materially similar application, not by an inchoate deferral. A planning committee may change its mind before its decision is notified. A challenge based on closed minds requires a real risk that the decision-makers’ minds were closed. Given the role of elected councillors, clear pointers are required. Changes of mind, a large voting majority and procedural communications about an officer’s report do not, without more, establish such a risk.

A local resident supported an application by Mr Sharp for outline planning permission for housing development at Ash Tree Farm, Roxwell. Chelmsford City Council initially resolved that it was minded to approve the application, but deferred consideration so that officers could report on conditions. At a later meeting, the committee refused the application by a substantial majority.

The claimant sought judicial review, alleging that the initial resolution was an in-principle approval, that the consistency principle required explanation for the change of view, and that the committee had approached the later decision with closed minds. Thornton J dismissed the claim in the Planning Court: [2021] EWHC 3285 (Admin). The appeal concerned those three issues.

The Court of Appeal unanimously dismissed the appeal.

1. The Council’s constitution required the planning committee, if minded to depart from the officer’s recommendation, to state and record its material planning reasons and ordinarily defer consideration to a later meeting for conditions and reasons. The requirement created a pause or breathing space in the decision-making process. It did not produce an in-principle grant of planning permission. The November resolution was therefore properly understood as a deferral, with all options remaining open at the later meeting.
2. A planning decision does not take effect upon a resolution to grant or refuse permission. It takes effect when notified to the applicant. Until notification, the committee could change its mind, even without a material change of circumstances: R (Burkett) v Hammersmith & Fulham LBC (No 1) [2002] UKHL 23.
3. The consistency principle recognises that a previous substantive decision on the same site or a materially similar application may be a material consideration. A decision-maker departing from it must engage with the reasons for the earlier decision and explain the departure. That principle was not engaged because the earlier resolution was not a substantive decision. The cases involving a previous appeal decision after a public inquiry or a grant subject to a section 106 agreement were materially different. Alternatively, if the principle had applied, the councillors gave cogent reasons for changing their view, and the minutes provided a sufficient explanation.
4. For the closed-minds ground, the question was whether the circumstances created a real risk that the committee’s minds were closed at the time of decision. Given the role of councillors, clear pointers were required: R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83, especially at [62] and [63]. The evidence did not meet that threshold. Changes of mind pointed towards open minds; the transcript showed that all options remained available; and correspondence concerning procedural aspects of the officer’s report was innocuous. The 10–1 majority did not justify an inference that the whole committee had been predisposed to refuse the application.

Grounds 1, 2 and 3 therefore failed, and the decision below was upheld.

1. Court of Appeal (Civil Division) — Appeal dismissed. [2023] EWCA Civ 25.
2. High Court of Justice, King’s Bench Division, Planning Court — Thornton J dismissed the judicial review claim. [2021] EWHC 3285 (Admin).