Court of Appeal rejects challenge to refusal by council of application for outline planning permission for housing development

The Court of Appeal has rejected an attempt to challenge a planning decision made by Chelmsford City Council, with Lady Justice Andrews noting an “absence of merit” in arguments made.

Local resident Edward Blacker supported an application made by a Mr Sharp for a residential development at Roxwell, which Chelmsford had refused at a second planning committee meeting having originally been minded to accept it.

Mr Blacker sought judicial review but this was dismissed by Thornton J. He then appealed against her ruling on the grounds that she misdirected herself as to the correct interpretation of the planning committee’s resolution when it first considered the application, erred in law in concluding the ‘consistency principle’ was not engaged and wrongly concluded there was no real risk of ‘closed minds’ among committee members when the decision to reject was made.

In Blacker, R (On the Application Of) v Chelmsford City Council (Rev1) [2023] EWCA Civ 25 Andrews LJ, with whom Lord Justice Stuart-Smith and Lord Justice Holroyde agreed, said: “I have concluded, for the reasons which follow, that there is no substance in any of these grounds, and that the judge was plainly right to dismiss the claim for the reasons that she gave.”

A senior planning officer had recommended refusal due to loss of an allocated rural employment site, impact on the countryside and the proposed development’s unsustainable location.

Mr Blacker submitted that the committee’s decision to defer the application to consider proposed conditions on the grant of permission necessarily involved a rejection of the officer's recommendation.

The claimant argued that at its first meeting the committee had approved the application as far as it could and therefore to depart from this - as it did - by rejecting it at a later meeting meant the committee should have provided an explanation for its departure from its original position.

Andrews LJ said: "The fundamental problem with [these] submissions is that this was not a case of the planning committee revisiting or seeking to revisit a previous decision on the merits of the application.”

She explained: “On the contrary, and consistently with the provisions of the council's constitution, the [first] decision reflected in the language of the resolution was to defer consideration of an application which the committee was ‘minded to’ grant but had not, at that stage, decided.”

All options remained open to the committee at its subsequent meeting  and the purpose of the deferral was “plainly to give the decision-maker an opportunity to stand back and think twice about the implications of going behind the recommendations of the planning officer before committing itself to doing so”.

Andrews LJ said those councillors who changed their minds between the two meetings, leading to the application’s rejection, had given cogent reasons for doing so as reflected in the meeting’s minutes.

The fact that several changed their position “might be said to be evidence of open, rather than closed minds”, the judge said.

Lord Justice Stuart-Smith had asked Mr Blacker’s counsel how, even if correspondence demonstrated that the meeting chair had a closed mind, one got from there to the whole committee having a predisposition to reject the application?

Andrews LJ said: “He responded that the court should draw that inference from the fact that the decision was made by a 10-1 majority. The fact that [counsel] was unable to provide a satisfactory answer to the question demonstrated the absence of merit in this ground of appeal.”

She could not see that an explanation given to councillors on the options open to them at the second meeting “could possibly have been regarded by the neutral observer as an attempt to skew the substantive decision in a particular way, let alone providing a clear pointer towards the members of the committee having already made up their minds”.

All three justices agreed to dismiss Mr Blacker’s appeal.

Mark Smulian