Summary: Two judgments at the back end of June serve as reminders of some well-established legal principles and, although completely unrelated to each other, are examples of a more universal truth in judicial review: That the Court is much more likely to intervene and quash a decision where a claim relates to a failure to do something by the decision-maker.

Tate and consistency in decision-making/the duty to give reasons

Introduction

This blog (part two of a two part post) focusses on R (Tate) v Northumberland County Council and Susan Leffers-Smith [2018] EWCA Civ 1519, a Court of Appeal judgment concerning consistency in decision-making and the duty to give reasons. 

The Case

Tate concerned a planning permission for the construction of a dwelling house on a Green Belt site that in LJ Peter Jackson’s words had a “depressingly protracted planning history”.   There was in fact almost thirty years’ worth of planning applications for the erection of a dwelling house on the site, including two previous – and successful – judicial review claims by the same claimant, a neighbour. 

In the context of the immediate case, which concerned the redetermination in 2016 of one of these previous decisions, the most critical aspect of the planning history was a 2009 appeal decision refusing permission where the relevant inspector had rejected the suggestion that the proposal was an acceptable form of “infill development” in accordance with policy.  However, the local planning authority had granted planning permission for the latest proposal on the basis that it constituted limited infilling within a village.   Neither the officers’ report nor the planning permission contained any reasons to explain the decision in the context of the 2009 appeal decision.

Almost inevitably, the claimant challenged the latest grant of planning permission.  The High Court upheld the claim and quashed the permission on the basis that reasons should have been given for concluding that the development amounted to limited infill, particularly in light of the 2009 appeal decision.

In dismissing the Council’s appeal, the Court of Appeal wrapped its judgment around the single question at the heart of the case: Did the local planning authority err in law in failing to provide reasons for reaching a conclusion that was contrary to the view of an inspector in a previous appeal decision? 

The answer to that question provided by the Court of Appeal was, in the circumstances of the case, a resounding yes.

Comment

As Lindblom LJ remarked in his opening comments in the Court of Appeal’s judgment, this case “does not raise any novel issue of law”.  Instead, it provides a reminder of some well-established principles concerning consistency in decision-making and the duty to give reasons.  In summary:

  • Questions such as whether a proposed development is “limited infilling” for the purposes of policy will always be a question of fact and degree and planning judgment for the planning decision-maker.  In this regard, a decision-maker is not bound to adopt the same approach as a previous decision-maker and must always exercise his own judgment. 
  • However, previous decisions are capable of being material considerations in planning decisions. 
  • When reaching a different view in a “like” case, as per North Wiltshire DC v Secretary of State for the Environment (1993) 65 P&CR 137, the decision maker should explain his departure from the previous decision in the interests of consistency and to avoid any question mark as to whether or not regard has been had to material considerations.

Interestingly, the High Court had not referred to any of the case law on consistency in decision-making in its judgment.  Instead, HHJ Belcher had relied on Lord Browne’s statement in paragraph 36 of South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 concerning the duty to give reasons.  However, Lindblom LJ endorsed the judge’s approach and conclusion as being consistent with his analysis.

One point that both Courts made was that, whilst the duty to provide reasons had arisen in this case, it would not have taken very much to have discharged that duty, i.e. only limited reasons would have been necessary to explain the departure from the previous appeal decision.  However, as LJ Peter Jackson remarked, “they did not do so in the smallest way, and the judge was right to quash their decision for lack of reasons, notwithstanding the continuing waste of public and private time and money”.

The bottom line was that, just like the case covered in the first part of this two-part blog (R (Buckley) v Bath and North East Somerset Council & Curo Places Limited [2018] EWHC 1551 (Admin)), this was yet another case about a failure to do something that was required in the circumstances of the case.  As LJ Peter Jackson’s closing remarks illustrate, such failure is something the Courts are always likely to look upon dimly.