Does the consistency principle apply to a previously quashed decision? Andrew Parkinson considers a recent High Court ruling.
The High Court has 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  EWHC 1409 (Admin)).
In the most recent case to consider this question (R(West Lancashire Borough Council) v Secretary of State  EWHC 3451), HHJ Pelling QC said that “this is an area of planning law which has been left in some confusion because of the conflicting approaches by first instance judges in many cases where those first instance judges had not had the or any of the relevant authorities cited to them.”
This case concerned a decision made by Elmbridge Borough Council relating to a new sports stadium in the Green Belt. A previous grant of planning permission, where the council found that the development would harm the openness of the Green Belt, was quashed (R(Boot) v Elmbridge Borough Council  EWHC 12 (Admin)). In a subsequent decision, the council found that a very similar development would not harm the openness of the Green Belt.
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 Wilts applied notwithstanding that the previous decision had been quashed. The defendant 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.
Following a full review of the relevant authorities, Thornton J found that there was no inconsistency in the case-law and that: (a) a previously quashed decision is capable of being a material consideration to which the principle of consistency set out in North Wilts applies and (b) a failure to take into account a previously quashed decision will be unlawful if no reasonable authority could have failed to take it into account.
On the facts of this case, it was found that the Planning Committee unlawfully failed to take into account its previous decision, and the planning permission was quashed.
Andrew Parkinson is a barrister at Landmark Chambes. He appeared for the Claimant (in both Boot and Davison).
Zack Simons, also of Landmark Chambers, appeared for the Defendant (in both Boot and Davison).