Does the Consistency Principle Apply to Previously Quashed Decisions?

The High Court has recently considered the application of the principle of consistency in decision-making to a fresh decision following the quashing of a previous decision – Davison v Elmbridge Borough Council [2019] EWHC 1409 (Admin) and held that a previously quashed decision is capable of being a material consideration to which the principle of consistency set out in North Wilts applies.

By way of background, the case concerned a decision by Elmbridge Borough Council to grant planning permission for a new sports stadium in the Green Belt in circumstances where a previous grant of permission had been quashed by the High Court – R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin).

In the earlier decision, the Council found that the development would harm the openness of the Green Belt whereas in the latest decision the Council concluded that a development that was identical in all material respects would not. The Council’s planning judgment on the issue of openness was unaffected by the earlier decision to quash the permission.

The Claimant challenged the decision on the grounds that no reasons had been given from departing from the previous decision; and that the principle of consistency in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P&CR 137 applied notwithstanding that the previous decision had been quashed.

The Defendant Council argued that the principle of consistency did not apply to previously quashed decisions and that, in any event, it was not unlawful on the facts of this case not to have given reasons for departing from the previous decision.

Thornton J said that:

It was incumbent on the Officer and the Planning Committee to address the change in position on openness between the two reports. The applications were identical in all material respects and related to the same site. Public confidence in the Council’s decision making was important given the earlier judicial criticism and given the Council was awarding permission to itself. It was both unsurprising and clear from the judgment in Boot that Court’s criticism of Permission 1 did not extend to the issue of Green Belt openness. The EIA Statement of Reasons and OR1 which contain the apparently inconsistent decision on openness remains in existence. In the absence of any explanation it is simply not possible to know whether the Planning Officer and especially the Planning Committee were even aware they had changed their position, let alone whether they had grasped the intellectual nettle of the difference in view. Nor was the explanation for the apparent inconsistency so obvious that a formal statement about it was unnecessary. The Court has been left to attempt to infer the reasons for the difference in view by a close scrutiny of both reports