When a committee goes against the officer recommendation

Members are entitled to disagree with their officers. Planning decisions are taken by the authority, and the officer's recommendation is advice. What follows a committee overturn of an officer recommendation is a set of procedural obligations that determine whether the decision survives, and the applicant's response depends almost entirely on how well those obligations were met in the room.

The pattern is familiar to anyone who attends committees. A recommendation to approve, a run of speakers against, a proposal to refuse, a seconder, a vote, and then a slightly awkward discussion about what the reasons actually are.

Why members depart from a recommendation

Sometimes for good reasons. Members hold local knowledge that does not reach a case officer, and a site visit can reveal a relationship between buildings that no drawing conveys. Weight is also a matter of planning judgement, and two people can weigh the same harm differently without either being wrong.

Sometimes for reasons that are not material. Volume of objection, the identity of the applicant, loss of a view, effect on property values, and dissatisfaction with a previous scheme all appear in committee debate and none of them supports a refusal.

The officer's job at that point is to say which is which, on the record. A refusal founded on non material considerations is vulnerable at appeal and exposed on costs, and members are entitled to be told that plainly before they vote.

Recording adequate reasons for the decision

The Development Management Procedure Order 2015 requires a notice refusing permission to state clearly and precisely the full reasons for the refusal, specifying all policies and proposals in the development plan that are relevant.

That is a higher bar than a motion carried in a meeting. Reasons drafted from the floor tend to name a policy without explaining the harm, or describe a harm without naming a policy, and both create difficulty later. A reason that reads simply that the proposal is out of keeping with the character of the area will not support an appeal defence, and it will not tell the applicant what to change.

Good practice is for the officer to draft the reasons after the vote, from the debate, and for the chair to confirm them at the meeting or for delegated authority to be given to finalise them in consultation with the chair and the proposer.

The reasons are then the authority's case. The council cannot advance a different case at appeal without explaining why, and the appellant's statement will be written against the reasons as issued.

Deferral so reasons can be drafted properly

Many authorities operate a protocol requiring an application to be deferred where members are minded to decide against the officer recommendation, so that a further report can be prepared setting out the implications and the draft reasons.

The mechanism varies in name and is generally worth using. It gives the officer and the legal adviser time to test whether the reasons are arguable, gives the applicant notice of the case to be met, and removes the pressure to draft a decision in front of a public gallery.

Deferral costs a committee cycle, usually three to four weeks. Set against a refusal that cannot be defended and a costs award, that is a modest price.

Applicants should check whether the authority has such a protocol before the meeting, because knowing it exists changes what you ask the officer to do if the debate turns.

The risk of a costs award on appeal

Costs can be awarded at appeal where a party has behaved unreasonably and that behaviour has caused another party to incur unnecessary expense.

For a local planning authority, the recognised examples include failing to produce evidence to substantiate a reason for refusal, refusing on a ground that could not be sustained on the evidence available, and departing from the development plan without the material considerations to justify it. A refusal against officer advice, with reasons the officer advised were not sustainable, sits squarely in that territory.

That does not make every overturn a costs risk. Where members identify a genuine planning harm, articulate it against a policy, and the authority then defends it with evidence, an unsuccessful defence is not unreasonable behaviour.

The practical consequence for an applicant is to keep a record. The officer's written advice, the minutes, any deferral report and the reasons as issued together form the material for a costs application if one is later justified.

Officer advice at the meeting

The officer's role during the debate is narrow and important: to advise on the policy position, on the materiality of the points raised, and on the sustainability of any proposed reason.

A monitoring officer or legal adviser sits alongside for the same purpose. Where members propose a reason that officers consider unsupportable, the advice should be given openly and minuted, because that record protects the authority and informs any later costs decision.

Members are free to reject the advice. They are not free to take a decision without regard to it, and a decision taken in the face of clear advice with no articulated planning reason is where judicial review risk starts.

Judicial review exposure

Challenges to committee decisions tend to run on a small number of grounds.

Failure to give adequate reasons is the most common, and the requirement is that the reasons enable the reader to understand why the decision was reached on the principal issues. Failure to have regard to a material consideration is the second. Predetermination is the third, though the threshold is high: the Localism Act 2011 makes clear that a member having previously expressed a view on a matter does not make them incapable of deciding it, provided they approach the decision with an open mind.

Bias and the appearance of bias run alongside predetermination, and are usually about undeclared interests rather than expressed views.

Judicial review is a remedy of last resort with a short time limit and a high cost, and for most applicants an appeal is the better route. Where the authority is deciding on its own land the scrutiny is sharper, and the safeguards are set out in our note on applications made by the council on its own land.

What an applicant should do next

Move quickly and in this order.

1. Obtain the decision notice and the minutes, and read the reasons as issued against the debate.
2. Ask the case officer, in writing, for the evidence the authority relies on for each reason.
3. Decide between appeal and revised application, remembering the appeal deadline is six months from the decision notice for most applications and 12 weeks for householder cases.
4. Where a reason is unsupported by evidence, put the authority on notice in writing that a costs application will follow if it is maintained. Doing that early is more effective than raising it in the final statement.
5. Keep the revised scheme option open by talking to officers, who will often be more receptive after an overturn than before it.

A well structured Planning Statement on the original application helps here too, because it gives the appeal statement a foundation and shows what was before members. Where the site spans two authorities the position becomes more complicated again, as our piece on cross boundary sites and applications to two councils explains.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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