A plea for consistency

Two recent court decisions have highlighted the importance of consistency in planning decisions and the need for clear reasons to be provided where inconsistencies arise. Existing case law establishes that previous planning decisions are capable of being a material consideration when determining a subsequent planning application, and may need to be taken into account when considering a new development proposal. As Mann LJ explained in North Wiltshire DC v Secretary of State for the Environment (1993) 65 P&CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency […]. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.” Midcounties Co-Operative The first of the recent cases – R (Midcounties Co-Operative Ltd) v Forest of Dean DC [2017] EWHC 2056 – concerned a challenge by the Co-Op of the council’s grant of planning permission for an Aldi store on a site outside the town centre. The planning officer’s report had recommended that permission be refused. The application was approved at a full council meeting. The grounds of challenge included that the council failed to have regard to the importance of consistency in decision-making, as it had rejected a very similar scheme on the same site in 2015 (due to adverse retail impact on the town centre). If the council had considered the earlier decision, it had failed to give reasons for its different conclusion in 2016. The court held that, by granting planning permission for substantially the same scheme a year later, without explaining how the retail impact would now be acceptable, the council had made clearly inconsistent decisions and failed to provide adequate reasons for this. The permission was quashed. Singh J confirmed (at [107]): “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” The council had not shown that it had grappled with its earlier reason for refusal. The case emphasised that where circumstances arise that make an earlier decision a material consideration, if the decision-maker departs from their original position, clear reasons for that departure need to be given. Baroness Cumberlege In the second case, Baroness Cumberlege v Secretary of State for Communities and Local Government [2017] EWHC 2057, the High Court held that the secretary of state had unlawfully granted planning permission for a housing development because he had failed to take into account a decision taken by his own department only 10 weeks earlier. His decision that a planning policy was out of date and could be given less weight was completely inconsistent with the earlier decision, which stated that the policy was up to date. Howell QC stated at [100]: “…in my judgment there is a public interest in securing reasonable consistency in the exercise of administrative discretions that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.” Here the earlier decision was not so different that it could reasonably be ignored. A reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up to date, and whether it was equally applicable to this case. Again, the secretary of state was found to have acted unreasonably in giving no adequate reasons for overlooking the earlier decision, or why he felt this case was different. The relevant planning permission was quashed. In addition, the court considered which cases the secretary of state could be expected to be aware of when assessing whether no reasonable decision-maker would have failed to take a matter into account. Where an appeal is being determined by a secretary of state, there is some expectation that the parties would draw any relevant decisions to his attention. However, here the relevant information was a secretary of state decision from the same district which was made 10 weeks before and during the time when the decision-maker was considering the appeal submissions and drafting the decision. It was not unreasonable to expect the secretary of state to be aware of such relevant decisions. He should then consider them and make a consistent determination or, at least provide clear reasons for the departure from the recent decision. It undermined public confidence in the development control system for there to be conflicting decisions issued from the same department on the same floor of the same building within 10 weeks of each other. An important duo These two decisions are important for decision-makers in emphasising the need for consistency, particularly when assessing similar developments. This does not mean that all previous decisions have to be considered, but some are so similar that it would be unreasonable not to take them into account. It is also acceptable to come to a different view, but if so, adequate reasons need to be provided. They are also important for developers, who need to be aware of similar earlier decisions when applying for planning permission. If they are asking for a different result this time, they need to provide adequate evidence for the decision-maker to shift their view, and be able to back up such a departure with reasons. Amy Truman is a senior associate in the planning team at DLA Piper