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Grants of planning permission and consistency

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A challenge to a district council’s decision on grounds of consistency was recently rejected. Saira Kabir Sheikh QC looks at the lessons of the case.

The High Court has handed down its judgment dismissing a claim brought by an objector against the decision of East Hertfordshire District Council for the grant of planning permission on its own land for a mixed use development including 546-space car park, office and residential development in the Bishop Stortford Conservation Area.

Two main grounds to the recent challenge were pursued. First, that the council had failed to take into account the previous finding of harm to the conservation area in respect of an earlier consideration of the issue and had failed to give adequate reasons in respect of its change of view on this matter. Secondly, that there was a misdirection on the issue of harm to the conservation area and on the effect of section 72(1) of the Planning (Listed building and Conservation Areas) Act 1990.

In Risby v East Hertfordshire District Council & Ors [2019] EWHC 3474 Rhodri Price Lewis QC (sitting as a Deputy Judge of the High Court) rejected the claim on both grounds and found for the Defendant Council. 

The case is of interest as it considers the application of two recent cases, R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) and R (oao Bates) v Maldon District Council [2019] EWCA Civ 1272. These cases concern the public law principle of consistency in decision making and the need to take into account not only the formal decision but also the underlying reasons for a decision.

The learned judged held that while the underlying reasoning was material, in this case, the previous findings in respect of the harm to the Conservation Area were so confused that the council was right not to rely upon them but that it had nonetheless adequately considered the background to the previous consideration of the proposal. 

On the reasons point, the learned judge found that it was not necessary for the council to “unpick” the earlier advice and seek to explain why the view that they had now adopted was being taken [54]. It was found that the council did address why they differed from the observations of the Conservation and Design advisor in respect of the initial determination and in respect of the second determination.

The second ground concerned alleged misdirection on the duty upon the council to give considerable importance and weight to any harm to the Conservation Area. On the facts, the Court was satisfied that members of the council had been given clear and accurate guidance on the nature of the duty including that it creates a strong but rebuttable presumption against development to which considerable importance and weight is attributed as a start point [57].

Saira Kabir Sheikh QC is a barrister at Francis Taylor Building. She acted for East Hertfordshire District Council.