Local authorities: The duty to reconsider re-visited

It is not unusual for circumstances to change between a local authority's operative resolution and the subsequent administrative or other final step effecting the terms of that resolution. The question arises as to when such a change of circumstance requires the local authority to reconsider its earlier decision and, if it does not do so, how easy it is to establish that a failure to reconsider amounts to an error of law. While challenges on this ground do succeed, the case law demonstrates the difficulties.In R (Kides) v South Cambridgeshire District Council [2003] 1 P&CR 19, the Court of Appeal held that a new factor is only material if, viewed objectively, it would tip the balance in some way or another, although it added that as a counsel of prudence, the officer responsible for acting on the resolution should refer a matter back for consideration where the new factor might rationally be regarded as material.

Subsequently the Court of Appeal indicated that the 'counsel of prudence' guidance offered by the court in Kides erred on the side of caution (see R (Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143), and there followed some debate as to the precise wording of the correct test to apply in deciding on when an obligation to reconsider arises (see, for example, R (Hinds) v Blackpool Borough Council [2012] EWCA Civ 466). The settled position is now reflected in the judgment of Lindblom J in Wakil v Hammersmith and Fulham LBC [2013] EWHC 2833 (Admin). In that case, the judge rejected a contention that a planning authority had erred in not reconsidering a decision reached by reference to the draft National Planning Policy Framework when the final policy document had been available to be taken into account prior to the issue of the relevant planning permission.

Lindblom J concluded that the essential question which the court had to ask itself was whether the new factor relied upon in the challenge would have been capable of affecting the outcome (i.e. whether it might have led the authority to reach a different conclusion). Applying that test, he was satisfied that any changes as between the draft and final policy would realistically have made no difference.

Unusually in public law, save in the context of the exercise of discretion, this approach requires the court to form its own view, albeit an objective one, rather than simply reviewing the relevant judgment made by the local authority.The recent case of R (oao Leckhampton Green Land Action Group Limited) v Tewkesbury Borough Council [2017] EWHC 198 (Admin) shows how difficult the test is for claimants to satisfy.Tewkesbury Borough Council resolved on 29 September 2015 to delegate to its development manager the grant of planning permission for a housing development on land at Farm Lane, Shurdington, Gloucestershire, subject to the completion of a section 106 agreement. The land was allocated in the council's adopted development plan and proposed for continued allocation as part of a larger strategic allocation in the emerging Joint Core Strategy (JCS), which was undergoing its independent examination.

After the council's resolution to grant but before the planning permission was issued, the inspector conducting the JCS examination issued some preliminary findings in which she stated that she was not minded to find the housing allocation of the application site sound.

The council rejected a number of requests that the application be reported back to the committee in the light of these preliminary findings and, in April 2016, proceeded to issue the planning permission.The grant of planning permission was challenged on grounds which included that the council had failed to have regard to the inspector's preliminary findings in its decision to grant planning permission, notwithstanding that it had attached weight to the proposed allocation of the land in the emerging Local Plan.Holgate J held that there were clear functional differences between the determination of a planning application and the examination of a draft development plan, not least the greater site and scheme specific detail available in the consideration of planning applications on matters such as landscape sensitivity and impact when compared to

the local plan process. Given the preliminary nature of the inspector's findings and the fact that more detailed evidence on landscape impact was available to the council in determining the application, it was wholly unrealistic to contend that those findings could possibly have tipped the balance already struck by the committee. As this case shows, it is not enough that there has been some obvious change of circumstance. Unless the change undermines or alters some key consideration upon which the original resolution was based, there is little prospect of a challenge succeeding.

Simon Bird QC is a barrister at Francis Taylor Building

@FTB_law

www.ftbchambers.co.uk

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