Financial consequences – a further thought

When commenting on the Court of Appeal’s decision in Health & Safety Executive v. Wolverhampton City Council on 18 August, I mentioned that I thought there was judicial authority precisely on the point which was in issue in that case which supported the proposition that the financial consequences for the LPA of a planning decision made by them could be a material consideration in relation to that decision, but I had been unable to find the case I had in mind.

I have just come across that case in a note of the advice which I gave to a client on this very point a couple of years ago. The case I had in mind with regard to financial considerations (including a potential liability to pay costs or, in the case on which I was advising, substantial compensation) being properly taken into account by an LPA as a material consideration in the determination of a planning application is R. v. Royal Borough of Kensington & Chelsea (ex p. Stoop)[originally reported as Stoop v. Council of the Royal Borough of Kensington & Chelsea [1991] JPL 1129, [1991] EGCS 85, [1992] 1 PLR 58; The Times 10 September 1991.]

Officers had advised a planning committee of the possibility that costs could be awarded against the Council if they refused planning permission in this case. The chances of success on appeal were remote and there was a distinct possibility of a substantial amount of costs being awarded against the Council.

Otton J noted that the advice given at the meeting went predominantly to the prospects on appeal and to the possibility of an award of costs against the Council. He was satisfied that the officers had not abused their position. The advice was not improperly couched. In summary, the receipt of advice on the prospect of an appeal and costs fell within the statutory provisions. Such advice was a material fact to be taken into account by the committee.

He added that the officers were advising the committee not to refuse 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 his judgment, the officers were doing no more than giving advice as to what were sound and clear cut reasons for refusal [and what were not] and that to refuse planning permission would put the Royal Borough in a position whereby they were vulnerable as to costs. In his 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 JPL case editor also drew attention to a decision of the Local Government Ombudsman (reported at [1990] JPL 469) that the probability of costs being awarded against the authority was a proper consideration for members to take into account.

This does raise the possibility that the Court of Appeal’s judgment in the HSE case might possibly have been reached per incuriam. This, combined with the fact that Pill LJ also delivered a dissenting judgment on the point, suggests that the point could be decided differently if it were ever to reach the Supreme Court, or a differently constituted Court of Appeal in another case.

© MARTIN H GOODALL