High Court to hear challenge over council decision to rescind planning refusal after receiving complaint about “sleeping” councillor

The High Court has given permission for a judicial review challenge concerning a decision by Welwyn Hatfield Borough Council's planning committee to rescind a planning refusal because the applicant claimed a councillor appeared to be asleep during the meeting.

At a later meeting, the council reconsidered the same application and granted permission.

The claimant, Jonathan Shack, has been given permission for his case to be heard on three grounds, including a ground that argues that a direction given to councillors to completely disregard the first meeting was unlawful.

The developer, King & Co (Wells) Ltd, applied for planning permission to build 14 dwellings on a parcel of Green Belt land at Wells Farm, Potters Bar, in December 2020.

Councillors on the local authority's planning committee considered the application at a meeting on 29 September 2022 and resolved to refuse the application, despite an officer's report that advised councillors to approve the application. The vote was seven against and six for.

The committee reasoned that the development would involve an increase from single-storey to multi-storey, resulting in "unacceptable harm to the green belt and result in over development of the land".

But the council did not issue a notice of refusal, and a note appeared on the draft minutes for the meeting stating that a review of the decision was taking place.

The planning application was then listed again at the next committee meeting. A council officer provided a further report that was essentially the same as the previous report, save for a paragraph detailing the decision to reconsider the application.

It noted that following the previous committee meeting, "concerns were raised relating to how the application was considered by the Committee".

These concerns were raised by the applicant in an email to the council, which read: "Early in the committee meeting [the councillor] was observed by several people in the room texting or emailing on [his or her] phone, and later … was asleep, or at least had [his or her] head in [his or her] arms on [his or her] desk for several minutes during consideration of our application prior to the vote."

The video recording of the meeting does not show the full panel of councillors at the meeting.

At the second meeting on 20 October, the Chair said that any committee member unable to consider the application afresh should excuse themselves from the meeting, adding that members must disregard their previous positions.

The application was given permission at the second meeting by eleven votes to two.

Northaw and Cuffley Parish Council subsequently made a Freedom of Information Act (FOI) request regarding the decision to reconsider the application.

Responding to the FOI request, Welwyn Hatfield said the councillor named in the email was not paying attention to the proceedings and that it "would have been impossible for Cllr [x] to have considered the slides being shown on the screen or follow the debate about the proposals between planning officers, legal officer, chairman and other members of the planning committee".

The response added that if the councillor's vote "did not stand due to [their] inability to consider the evidence, the application would have been approved based upon the chairman's vote carrying the split decision".

It also noted that additional concerns were received verbally and that the council took external legal advice on the concerns.

Mr Justice Swift gave permission for the legal challenge last month (17 March) on three grounds.

The first ground contends that the committee's decision to rescind its previous resolution was unlawful for two reasons. Firstly, members were not given the information they needed to make a properly informed decision. Secondly, objectors, including the claimant, were not given sufficient information on which to make properly informed representations to the committee as to the recission of the decision.

Grounds two and three argue that the Chair's instruction that members must completely disregard the previous resolution and reconsider the matter afresh – and that if they could not do so, they would have to leave the room – was unlawful because the committee's previously resolved position was patently capable of amounting to a material consideration in the committee's redetermination of the application.

"It was a misdirection in law for Members to be instructed that they had to leave out of account something that was potentially relevant to their decision," the claimant's skeleton argument reads.

Under grounds two and three, the claimant also contends that where a council reaches a resolved (as opposed to a 'minded to') position on an application, the principle of consistency in decision-making will apply to subsequent applications on the same site.

"The principle applies even more strongly to the reconsideration of the same application on the same site and where (as is common ground here) nothing factual has changed. Having been directed to ignore the previous resolution, Members were unable to (and did not) take into account the principle of consistency in decision making. The committee's subsequent grant of permission was therefore unlawful."

The hearing is scheduled to take place in June of this year.

A spokesperson for Welwyn Hatfield District Council said the council is defending the judicial review action but refused to comment any further on the legal action.

Adam Carey