There is a phrase in the lexicon of each and every planning professional in the country that is the ultimate curse! Forget ‘Avada Kedavra’ from the Harry Potter novels and films or Kahn spitting ‘from hells heart I stab at thee’ in Star Trek II.
Even mentioning the Scottish play to a Shakespearean actor does not come close!
This one curse in planning law and practice will get everyone’s back up and once uttered there is often no reputational return!
Planning Precedent!
(Herein referred to as PP in order not to upset planning colleagues)
There is nothing in the world of planning law that is more incorrectly used and relied upon that this simple term and nothing will destroy a developers reputation quicker than the use of the phrase in front of a planner or planning officer.
The term is used as a form of panacea to all ills by developers, architects and even estate agents to enshrine the idea that all cases must be considered alike. It comes from the idea of legal precedents when a case’s circumstances and legal requirements match those of a contemporary legal dispute; unless a party can demonstrate that it was incorrectly resolved or that it differed materially, the precedent will typically govern the outcome of a later similar case.
It is often used by those who utter the curse to somehow hamstring the LPA. Those who use it believe that if the LPA allows a form of development in their area they have effectively allowed that form of development everywhere in their area and must therefore allow their planning permission.
The use is understandable if the attitude of the developer is “well they got it thirty miles away so I can have it too”
The whole concept of PP is, in fact, planner made. When I was trained as a town planner in 2002 we were encouraged to consider whether there was a case for stating that the development would set an undesirable precedent for other such decisions to be allowed. This clumsy set of words that appeared in appeal decisions of the time were always ultimately swept away by the Planning Inspectorate as ultimately the concept of PP essentially flies in the face of planning’s ‘Prime Directive’s’ which are;
Planning permission should be granted unless policy or material considerations dictate otherwise
and
Every planning permission must be considered on their own and individual merits.
Ultimately a search of the case law does not reveal a judicial direction on the existence of PP because it cannot in fact actually exist. That is why, when cited, a developer or other professional must be corrected stating that PP does not exist or PP is not a material planning consideration.
So what is person actually trying to get to when they use the PP curse?
What developers hope PP is, is actually two discrete and much more open principles of decision making behaviour and the principle of consistency. Lets deal with the latter first.
The Principle of Consistency
In planning law, there is a “principle of consistency” in decision-taking. The principle is not that like cases must be determined alike, but a decision-taker ought, when considering a materially similar proposal, to have regard to the principle of consistency, to have good reason if deciding to depart from the previous decision, and to give reasons for any such departure.
The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency […]. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.”
Two further recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise.
The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council [2017] EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre.
Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.”
In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government [2017] EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier.
The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date.
These two further court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable.
Consistency is still not the panacea than PP pretends to be. The principle importantly requires the decision maker to consider previous planning decisions but importantly, unlike the PP curse, they are not bound to them and can deviate from them if material considerations dictate otherwise. In essence then the decisions have to be so similar in all respects for the true principles of consistency to take effect and for us to get close to the effect of the PP curse.
Decision Making Behaviour
The concept of decision making behaviour builds on the principles of consistency and applies them over a number of applications within the same LPA area. This requires a much greater understanding of the likes and dislikes within a particular planning authorities area and gives some credence to the old adage that a local town planner may be better informed about the LPA’s decision making behaviour than a planner that operates nationally.
However in today’s modern age of planning data online this can easily be established.
Decision making behaviour is often identified as an rational or irrational dislike for specific forms of development.
In Portsmouth in the 2000’s it was the Hip-to-Gable roof conversion that was very much on the Council’s hit list. They refused almost every single one and won almost every single appeal. It stemmed from an established hatred of that particular form of development based on the fear that it would disrupt the symmetrical appearance of pairs of semi-detached properties within Portsmouth’s regimented suburbs.
This policy only died when the government altered the householder permitted development allowances and allowed for hip-to-gable developments.
Nominally decision making behaviour is negative however it can come from a policy impetus that is ultimately positive.
Croydon, between 2015 and 2018, displayed a decision making behaviour that perversely sought to demolish houses within the suburbs and replace them with small blocks of 7 and 8 flats. This was a politically motivated policy to assist the Council in disposing of some of their own stock.
The positive nature of this policy meant that every developer in south east London appeared to be gravitating towards Croydon in order to buy a suburban house and turn it into a small block of flats. Policy and behaviour were confused and the PP curse was used on a number of occasions. Ultimately the behaviour changed and a number of developers were left carrying the corpse of existing or prospective developments that had been bought at an overinflated price or where the GDV no longer represented the reality of the situation.
Ultimately the decision making behaviour lead to a housing market in Croydon that was no longer sustainable. But at least the Council were consistent!
As a town planner I would dearly love for PP to be deleted from the English language and I spend time correcting clients and others that the term has no effect in law. Hopefully by this article you dear reader will also understand why PP is just not to be used and why the ultimate curse is ultimately…pointless!
By Jon McDermott
Image of Lord Voldemort attributed to Warner Home Video / Warner Home Video