The basics #17 - following the leader: “precedents” in planning
So. Rule number 1 in the planning barista social media code:
Never, and I mean NEVER, mention cases where you came 2nd. Or 3rd. Definitely not 4th, if that’s even possible. No no. We stay quiet about anything other than 1st, really. 1st is just about ok.
[This is, for the avoidance of doubt, a joke - albeit there is interesting new guidance on barristers’ use of social media here which followed an important post in 2022 from the now Chair of the Bar explaining why barristers should avoid “supportive” comments after winning cases - all of this for dissection in another post.]
Anyway, following this golden rule becomes harder when the gods of Planning Magazine elect to publish an article called “Inspectors dismiss three big green belt housing appeals despite councils' two-year land supply positions” and… heavens help us… you were the advocate instructed to promote 2 of those 3 “big” housing appeals in the Green Belt. Sure, there might be a quiet part of you, deep down, wondering where this glittering media fanfare was for the appeals you helped to win for over 400 homes in the Green Belt the month before (here in Essex and here in Surrey). But we don’t write the news, folks. Planning Magazine writes the news. And they want to talk about failed appeals. So. Let’s talk about them…
Not just 1 appeal dismissed. Or 2. But 3. Decisions all released within a few days of one another? Which might make an interested observer start to wonder… Is there some kind of trend brewing [“trends” don’t “brew”, Ed.]. When we get a string of planning decisions which appear, at least on the face of it, to be saying something similar, what can we take from it? Do Planning Inspectors - consciously or not - start to follow one another? Are they required to follow one another? What does the law say about any of this?
So, put the kettle on. Rest a spell. And join me, if you will, for 2 minutes flat - no more - for some good, old-fashioned, fanfare-free planoraks #basics.
For the key caselaw references, have a look here and here.
Soooooo, to cut a long story short - in 10 quick-hit points:
Can one planning decision bind another? In the sense of pre-determining its outcome?……… No. [End of blog post? Well, not quite…]
Generally, each planning application and appeal turns on its own facts, and on the decision-maker’s application-specific judgment weighing e.g. the development plan and other material considerations.
Planning decision-makers do not bind one another as sometimes happens in the courts, i.e. it is always open to different planning decision-makers to take different views of things.
That said, previous planning decisions may need to be taken into account as material considerations in new planning applications or appeals.
That is, in part, because of the importance of consistency in the planning system.
This doesn’t mean that similar cases must always be decided in the same way. Again, planning authorities or inspectors can disagree with judgments of others in similar cases, but the point is that before doing so they should have regard to the importance of consistency and give reasons for disagreeing - or, as one Lord Justice put it, should “grasp the intellectual nettle of the disagreement”.
On the other hand, if the two cases are distinguishable in a relevant way (e.g. different schemes, different sites, different areas, different policies etc.), they normally won’t be material in this way. Which will mean there’s no nettle to be grasped. Phew.
How to decide if an earlier decision is material or not? The Courts have said that “a practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case?” Or, as a different judge put it, “a previous decision having been drawn to my attention, do I take the view that it may well be sufficiently closely related to the matters in issue in my appeal that I ought to have regard to it and either follow it or distinguish it?".
In the end, there is no rigid rule that a decision maker must always treat a previous decision as a material consideration. Where there’s a complaint based on a failure to consider a previous decision, any such failure will make the decision unlawful if no reasonable decision maker would have failed to take it into account in the circumstances of the decision making. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. It depends on the circumstances.
And here’s a twist. There always has to be a twist. Following the Davison case where (yet again) I came in an honourable second here, albeit the courts had taken varying and sometimes inconsistent positions on this matter for many years: the state play today is that old decisions can be material considerations, and so may be required to be grappled with in new decision-making exercises, even when the old decision has been quashed by the Court for some kind of illegality and is no longer capable of having any legal effect.
So what to make of it when lots of decisions emerge which seem to say something similar? We have to, as one author put it, follow the signal not the noise. One swallow, two swallows, or even… gulp… three swallows don’t make a summer.
My take - if you’re asking: read the detail of what actually happened in the decisions with care, and treat allegations of “landmark” decisions with caution. Appeal decisions aren’t “landmarks”. Win, lose or draw [can you draw? Ed.]. They don’t set “precedents” - binding or otherwise. Planning decisions are not isolated, theoretical examinations of e.g. the relationship between needs for development and countryside protection. They are get-your-hands-dirty, site-specific, scheme-specific examples of a particular planning balance being struck at a particular time. If you’re after trends, don’t look at individual appeals. Look at stats (e.g. these ones), look at policy and guidance. And, lest we forget, court decisions. Where precedents really do get set. More of which next time.
Stay well #planoraks! Enjoy this mildest of late-winters, and whatever else you do… #keeponplanning.
