Committee meetings: material considerations; warning members about the risk of appeal costs

Miles v Tonbridge v Malling Borough Council [2020] EWHC 1608 (Admin) – https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2020/1608.html&query=(miles)+AND+(tonbridge)+AND+(malling)#disp0

Material Considerations; appeal cost implications for local planning authorities

    1. The immaterial consideration which, in Ground 4, the Claimant contends that the Defendant took into account in this case, was the risk that a decision to refuse planning permission would lead to an appeal at which the Defendant would be at risk of an award of costs being made against them, giving rise to adverse financial consequences and, as if such an award were to be made, it would (in accordance with the relevant policy) be made on the basis that the Council had behaved unreasonably, damage to their reputation.
    2. In R. Kensington and Chelsea RLBC ex parte Stoop [1992] 1 PLR 58 at page 75 Otton J said:
“The officers were advising the committee not to refuse the planning permission but to grant it. If the committee chose to go against the advice of their officers they were thereby making the local authority vulnerable as to costs. In my judgment, the officers were doing no more than giving sound and clear cut reasons for refusal and that to refuse would put the royal borough in a position whereby they were vulnerable as to costs. In my judgment, there was nothing wrong with this procedure or in the advice that was given or the consequences that flowed from the acceptance of that advice.
The officers gave the advice prudently and reasonably and there was nothing improper in their doing so. ….”
    1. In R (on the application of East Bergholt Parish Council) v. Babergh District Council [2019] EWCA Civ 2200 the Court of Appeal considered a challenge to decisions to grant planning permission in which one ground advanced was a contention that the council had improperly taken into account the possible financial consequences for them of fighting appeals against refusal of planning permission. The point at issue in that case was whether the council’s exercise of legitimate planning judgment was distorted by considerations relating to extraneous implications for their own resources (paragraph 74). Lindblom LJ concluded that considerations relating to expending money in resisting appeals or on paying an appellant’s costs did not play a part in the officers’ assessment of the proposals on their planning merits (paragraph 71). At paragraph 82 Lindblom LJ stated:
“82. It need hardly be said that local planning authorities are not free to misread or misapply government policy because they fear the financial consequences for themselves if later faced with an appeal against a decision to refuse planning permission, or indeed, as in this case, proceedings for judicial review challenging a decision to grant. They must adhere, always, to a correct interpretation of relevant policy, apply such policy lawfully when assessing the proposals before them solely on the planning merits, and not allow the potential consequences of the decision for their own resources to influence their exercise of planning judgment. If authorities abide by that basic principle, they may still not avoid the expense of having to defend their decisions on appeal or resist claims for judicial review. That is beyond their control. But they will, at least, be acting in accordance with the law. And in this case, in my view, the district council did that.”
    1. Underhill LJ agreed with Lindblom LJ and added the following at paragraph 87:
“No doubt the risk of those costs will encourage them to think carefully about any refusal decision, and that is fair enough – though of course in principle they should be doing so anyway. But that is not the same as allowing the risk of the costs associated with defending an adverse decision on appeal to influence them in the exercise of their planning judgment. That is not legitimate (Lord Carnwath’s observations in the HSE case to which Lindblom LJ refers are directed to a different question).”

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