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R (Patmore) v. Brentwood Borough Council [2012] EWHC 1244 (Admin)

DATE: 13 Apr 2012

HHJ Robinson (sitting as a Deputy Judge of the High Court) held that the defendant Council had erred in law in granting planning permission for a housing development, because the planning committee had proceeded upon the basis that it could not reconsider its decision to grant outline planning permission after it had became apparent that an expert who had signed up to address the committee about the effect that development would have on local badgers had been inadvertently excluded from the proceedings.

The judgment is of particular interest in relation to the approach taken by the Court to the Council’s subsequent resolution, made after permission to proceed with the judicial review claim had been granted, to approve a fresh application for a very similar development to that which was the subject of the challenged planning permission. At para. 50, the Deputy Judge held:

“50. …It is clear from a number of authorities that where an application is determined in such circumstances there is a real risk that the decision would be perceived as a way to avoid a judicial review and the claimant is entitled to a fresh consideration, see R(Carlton Conway) v London Borough of Harrow [2002] EWCA Civ 927, at paragraph 27.

51. I accept that a reconsideration pending judicial review proceedings is potentially tainted by a desire to avoid the consequences of a judicial review and should not preclude the grant of relief. The passage in paragraph 27 of Carlton Conway was described in R(Goodman) v London Borough of Lewisham [2003] EWCA Civ 140, paragraph 14, as “general guidance”, and, in my judgment, it is guidance which should normally be followed.”

Charles Banner appeared for the claimant, instructed by Ince & Co LLP.