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Judge rejects claim planning committee failed to grasp "intellectual nettle" of previous decision

Chelmsford City Council’s planning committee did not commit itself to give consent for a housing development when it indicated support but deferred its decision, the High Court has found.

In Blacker, R (On the Application Of) v Chelmsford City Council [2021] EWHC 3285 (Admin) Mrs Justice Thornton rejected all the grounds argued by local resident Edward Blacker.

He supported the proposed village housing development because the land in Roxwell was used for industrial purposes that Mr Blackler considered intrusive and felt residential development would be preferable.

Developer CCC Property applied to build 33 homes and Chelmsford considered this at a November 2020 planning committee meeting, where a majority were in favour. It returned to the committee in January 2021, when permission was refused.

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Mr Blackler argued that the committee failed to follow the council's constitution by refusing permission at the second meeting, failed to grasp the ‘intellectual nettle’ of its 'in principle' decision at the first meeting, failed to follow a fair procedure and that at its second meeting the committee's mind was closed.

Chelmsford responded that the first meeting simply decided to defer the application for further consideration.

The council said there was no unfairness, the committee’s mind was not closed and Mr Blackler’s real complaint was that the committee changed its mind, which it was lawfully able to.

An officer’s report recommended refusal as the site was designated for rural employment use in a recently adopted local plan and residential construction “would represent an isolated and significant enclave of development that would conflict with the linear and sporadic development in the area”.

At its first meeting the committee had been minded to approve but deferred the matter for an officer’s report.

Minutes of the second meeting recorded: “Several members who had expressed the view at the previous meeting that the application should be granted said that, having considered the matter further, they were now of the opposite view.

“Their reasons for this varied but included the precedent that would be set by going against, for inadequate reasons a policy in the recently adopted local plan and that the development would encroach on green field land.”

Mr Blackler said the committee had approved the principle of the development, and the purpose of the second meeting was solely to agree the conditions.

Thornton J said: “I am not persuaded that the principle of consistency is engaged by the facts of the present case.

“I have concluded that the decision by the committee at the end of the first meeting was to defer further substantive consideration of the application, on the basis of a preliminary view in its favour. The decision making was inchoate.”

She said Chelmsford’s constitution prohibited a substantive decision at the first meeting, and “there was therefore no 'intellectual nettle' to the first decision which needed to be grasped.

“The first decision amounted to no more than a procedural decision to defer further consideration, albeit based on a preliminary view in favour of the application.”

Mr Blackler also argued it had been unfair to take account of further material planning considerations at the second meeting without permitting those supporting the application to address these.

The judge said: “Fairness must therefore be assessed in light of my conclusion that the decision making was deferred at the end of the first meeting and continued into a second meeting.

“Viewed in this context there is nothing unfair about the procedure at the second meeting.”

She said no proposition of law or fairness required that one third party had to have the opportunity to comment on the representations of another third party.

Mr Blacker gave 12 reasons why he thought committee members’ minds were closed, but Thornton J said: “The committee had not reached a concluded decision by the end of the first meeting, save that it was minded to act against officer advice. It deferred consideration, as required by the constitution.

“Accordingly, at the second meeting, the principle of the application remained 'live' for consideration.”

The fact that a number of members changed their view was indicative of open rather than close minds, the judge added.

Mark Smulian

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