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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wall, R (on the application of) v Brighton & Hove City Council [2004] EWHC 2582 (Admin) (02 November 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2582.html
Cite as: [2004] 4 PLR 115, [2004] EWHC 2582 (Admin), [2005] JPL 807, [2004] 46 EG 150, [2005] 1 P & CR 33
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF WALL | (CLAIMANT) | |
| -v- | ||
| BRIGHTON & HOVE CITY COUNCIL | (DEFENDANT) |
____________________
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS J WIGLEY AND MS M GREKOS (instructed by Brighton & Hove City Council) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
- MR JUSTICE SULLIVAN:
- In this application for judicial review the claimant applies for a quashing order in respect of a grant of planning permission dated 18th March 2004 by the defendant for the demolition of an existing house "Ruston", Withdean Avenue, Brighton, and its replacement by eight self-contained apartments.
- Ruston is a substantial two-storey house which is set in a large garden on the north side of Withdean Avenue. To the west there are the rear gardens of houses (Nos. 8 and 10) fronting Dyke Road Avenue, and to the north there are the rear gardens of houses (Nos. 6 and 8) fronting Hazeldene Meads. The eastern boundary of Ruston adjoins Lions Gardens. Lions Gardens comprises six bungalows in two groups of three. Nos. 1 to 3 face approximately westwards towards Ruston; Nos. 4 to 6 face approximately southwards. The two blocks form an inverted "L" shape enclosing communal gardens bounded by Nos. 4 to 6 to the north, Nos. 1 to 3 to the east, and Ruston to the west. Access to Lions Gardens is from Withdean Avenue to the south.
- The claimant lives in No. 6 Lions Gardens. The windowless flank wall of No. 6 is separated by a narrow strip from the boundary with Ruston's garden, making it the nearest property to the boundary. A 3-metre high hedge runs along the boundary.
- The grant of planning permission was challenged on two grounds. Firstly, the defendant failed to take into account a material consideration, namely the effect of the proposed redevelopment on the claimant's property. Secondly, the defendant failed to comply with the requirements of article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended) ("the Order") because its decision notice did not include a summary of the Planning Applications Subcommittee's (the Committee's) reasons for granting planning permission. A third ground of challenge in the claim form was not pursued by Mr Pereira on behalf of the claimant.
- It is clear from the officers' report to the Committee meeting on 17th March 2004 that the application for planning permission was a controversial one. The report notes under "Consultations" that two councillors were opposed to the development, and refers to a total of 160 letters of objection having been received. The addresses of those objectors are listed and they include Lions Gardens. Letters of objection are noted as having been received from Nos. 2, 3 and 6 Lions Gardens. The report stated that the letters had not been copied to all of the members of the Committee but had been placed on file and were available for viewing by the councillors.
- The claimant's letter of objection said, in part:
- The report summarised the objections in a long list of bullet points. These included "New building will overlook surrounding houses/bungalows", and "New building will overshadow surrounding houses/bungalows".
- Having referred to the relevant planning policies, the report set out the officers' view of the relevant planning considerations under a number of headings. Under the heading "Effect on amenity of adjoining properties" the report said this:
- The conclusion in the report was as follows:
- Mr Pereira submits that the impact on No. 6 Lions Gardens was not addressed in the report, despite the fact that it was the closest property to the proposed redevelopment. The existing house, Ruston, is situated roughly halfway along the eastern boundary of its garden, opposite the communal garden area of Lions Gardens and to the south of No. 6. Although set further back from the boundary, the proposed redevelopment would extend further northwards within the garden, so that the northernmost flats, with their windows facing east, would be some 6 metres away from the western flank wall of No. 6. Thus the proposed new building would be much closer to No. 6 and the intervening distance would be very much less than the figures quoted in respect of the other properties mentioned in the report.
- The report referred to the diagrams submitted by the agent of the applicant for planning permission. TA1101/09A was a proposed cross-section which showed the relationship between the new flats and the flank wall of No. 6 Lions Gardens. It also showed, by dashed lines, the outline of Ruston, closer to the boundary than the new flats. Mr Pereira submitted that this cross-section was misleading because it gave the impression that the existing property was closer to No. 6 than the proposed flats, when the reverse was the true position. Viewed in isolation, by someone who was unfamiliar with architects' plans and drawings, cross-section TA1101/09A might have been misleading, but it would have ceased to mislead anyone as soon as it was considered in conjunction with the other plans and drawings, including in particular the site location plan, what was described as a "proposed contextural plan", and the proposed site layout, on all of which the position of Ruston was clearly shown.
- Copies of all the plans were not supplied to each individual member of the Committee. Instead, they were on display in the Committee room and all the members of the Committee were provided with a location plan at the end of the report. Having looked at that location plan they would have been left in no doubt as to the position of the existing property within its garden, and would have been able to take that information into account when interpreting the cross-section.
- The members of the Committee did not confine their attention to simply looking at plans and drawings. Prior to the meeting they carried out a site visit. During their site visit they visited 8 Hazeldene Meads. The rear garden of No. 8 backs on to the application site and the rear elevations of 4 to 6 Lions Gardens. No details of the site visit are available, but it is reasonable to assume that the members must have looked towards the application site (and hence towards the rear of No. 6) from No. 8 Hazeldene Meads, since they were trying to assess the impact of the proposed development upon the surrounding dwellings. Armed with the plans and drawings, and in the light of what they saw on the site visit, the councillors must have been made aware of the relationship between No. 6 and the proposed flats.
- At the meeting three councillors spoke in objection to the proposals, as did a spokesman on behalf of the objectors. All of these speakers referred to the effect of the proposals on adjoining residents.
- Against this background it is unrealistic to suggest that the Committee overlooked the impact of the proposed development on the claimant's property. It is true that the impact on No. 6 was not specifically referred to in the report, but the officers were not obliged to deal individually with each and every property that might be affected by the proposed redevelopment. It is important that officers' reports concentrate on the principal issues, otherwise there is a real danger that the wood will be lost for the trees. Although the issue was of vital importance to the claimant, the impact of the proposed development upon No. 6 was but one aspect of one of the very many planning factors which the Committee had to weigh in the balance.
- Members of the Committee were alerted to the fact that they needed to consider the impact of the proposed development on adjoining properties, including Lions Gardens, adjoining one of the "two most vulnerable boundaries" to the east. It is understandable that the report should have dealt with the distances between the proposed development and Nos. 1, 2 and 3 Lions Gardens because those bungalows faced westwards towards the proposed development. No. 6, by contrast, faces southwards and has a windowless flank wall facing towards the proposed development. Insofar as the new flats would overlook Lions Gardens, they would overlook the communal garden area to the south of No 6. Thus the officers' view that "there would be no adverse effect on adjoining properties by way of overlooking or overshadowing" is understandable. The Committee members were entitled to disagree with that assessment, and some of them did so. Four members voted against the grant of planning permission, seven in favour. There was therefore ample opportunity for any member who was at all concerned about the effect of the proposals on No. 6 because, for example, of what he or she saw on the site visit, heard during the course of the discussion in Committee, saw on the drawings, or read in the report, to raise that issue. I am not satisfied that the failure to mention it was because it was overlooked. For these reasons I reject ground 1 of the challenge.
- The notice dated 18th March 2004, granting planning permission, contained this informative:
- Article 22(1) of the order provides, so far as relevant for present purposes:
- While the notice does include a summary of the policies and proposals in the development plan which were relevant to the decision, the defendant concedes that it does not include a summary of the Council's reasons for the grant of planning permission. At issue between the parties is what should be the consequence of that failure to give summary reasons. Permission to apply for judicial review was granted on 21st July 2004. On 11th August one of the defendant's senior lawyers wrote to those members of the Committee who had voted in favour of granting planning permission:
- All seven of the councillors who voted in favour of granting planning permission replied. The Chair of the Committee said:
- Other councillors said:
- Councillor Hamilton said:
- Councillor Watkins said:
- It is clear from the application drawings that the proposed redevelopment does in fact exceed the footprint of the existing house and so one of the defendant's lawyers wrote to Councillor Watkins on 23rd August, thanking him for his letter and saying:
- Councillor Watkins replied on 23rd August:
- The defendant's officers have prepared an amended decision notice, adding the following words after the informative set out above:
- The defendant has made it plain that it is prepared to undertake to substitute the amended decision notice for the original notice in the planning register and on the planning file. In these circumstances Ms Wigley, on behalf of the defendant, submitted that it was unnecessary for the court to quash the original decision notice since it would serve no useful purpose to do so.
- Mr Pereira emphasised the fact that the statutory scheme does not simply require the local planning authority to provide a summary of their reasons for granting planning permission: the summary must be included in the decision notice itself. It would be noted that article 22(1) draws a distinction between the summary of the local planning authority's reasons for granting planning permission and the "full reasons" which must be given for the imposition of each condition (22(1)(b)), and for any refusal of planning permission (22(1)(c)). In principle there could be no objection to a local planning authority subsequently adducing evidence to amplify its summary reasons, since by definition they do not purport to be the local planning authority's full reasons for granting planning permission. In the present case, however, no reasons whatsoever were given in the notice granting planning permission.
- In these circumstances, Mr Pereira submits that the defendant should not be allowed to rely upon the statements of the individual councillors obtained some five months after the decision notice was issued in response to the letter of 11th August 2004. He principally relied upon the approach of the Court of Appeal in R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302. In that case the claimant was seeking assistance as a homeless person from the City Council under the Housing Act 1985. In a decision letter by one of the Council's housing officers he was told that he was not entitled to assistance because the Council considered that he was intentionally homeless. The Council's decision was challenged in judicial review proceedings. In its evidence in those proceedings the Council advanced new and different reasons for reaching the conclusion that the claimant was intentionally homeless. The judge admitted that evidence. The Court of Appeal allowed the claimant's appeal. Hutchison LJ, with whom Thorpe LJ and Nourse LJ agreed, said at page 309A that a number of factors were of particular importance in that case. Those factors were as follows:
- Having considered a number of other authorities, Hutchison LJ said this at page 312E:
- Hutchison LJ set out his conclusions, beginning at page 315G:
- While acknowledging that Ermakov was concerned with a different statutory regime, Mr Pereira made the point that planning permission is granted when the notice of decision is issued. Until that time the local planning authority is under a statutory duty to have regard to all material considerations: see R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, [2003] JPL 431. Thus the local planning authority's decision-making power is formally engaged until the time when the notice is issued. On the fact of the present case, the Committee meeting took place on 17th March and the notice was issued the following day, so for practical purposes the resolution to grant planning permission and the issuing of the notice were contemporaneous.
- Ms Wigley accepted that local planning authorities were under a duty to have regard to all material considerations up to the point when the notice granting planning permission was issued, but she submitted that where there was no material change of circumstances (and none is suggested in the present case) the local planning authority was under no duty to reconsider its resolution before issuing the notice of the grant of permission. Thus there might be a significant lapse of time between the resolution to grant permission and issuing the notice of the grant of permission. She relied on the Court of Appeal's decision in R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860, [2004] 1 WLR 1920. A decision to grant planning permission for an EIA development, a quarry extension, was challenged in judicial review proceedings. Regulation 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regulations) provides:
- Regulation 21(1) implements Article 9(1) of Council Directive 85/337/EEC which provides:
- The defendant Council accepted that it had not complied with Regulation 21(1), but proposed to place a revised statement, setting out the main reasons and considerations on which its decision was based in the planning register, thus making it available for public inspection. The claimant contended that this was inadmissible and that the planning permission itself had to be quashed. Neither Richards J nor the Court of Appeal accepted that submission. Richards J reviewed the relevant authorities, and in paragraph 33 of its judgment the Court of Appeal endorsed his conclusions, reached in the light of that analysis, which were as follows:
- In paragraphs 38 and 39 of his judgment, Simon Brown LJ as he then was, with whom Keene LJ and Scott Baker LJ agreed, said this:
- Richardson was followed in Younger Homes (Northern) Limited v First Secretary of State [2004] EWCA Civ 1060, where there had been a failure to send a copy of a screening opinion under the EIA Regulations to the applicant for planning permission and to place a copy in the planning register. The Court of Appeal concluded that these breaches of procedural requirements did not invalidate the planning permission itself. Having referred to the decision in Richardson, Laws LJ said this in paragraph 48 of his judgment:
- Mr Pereira submitted that Richardson was distinguishable on two grounds. First, the Court of Appeal concluded that the critical part of Richards J's judgment was that regulation 21(1) looked to the position after the grant of planning permission:
- In the present case, after the lapse of some five months two of the councillors did have difficulties in recollecting their reasoning. Councillor Watkins initially said that the new building did not exceed the footprint of the existing house. When it was pointed out that this was wrong he acknowledged that he may have misremembered the size of the footprints. Councillor Hamilton's view that "the footprint of the proposed block does not differ greatly from the footprint of Ruston" was not reasonably open to her in the light of the submitted drawings.
- Ms Wigley submitted that, with the exception of a regrettable lapse of memory on the part of the Councillor Watkins, the councillors' responses were clear enough: all those who voted for the grant of planning permission agreed with, or saw no reason to dissent from, the views expressed in the officers' report. She relied on the approach adopted in R v Mendip District Council, ex p Fabre [2000] JPL 810 at page 822:
- That approach was adapted by Simon Brown LJ in Richardson (see paragraph 35 of his judgment). She submitted that the circumstances in this case were very different from those in R (Carlton-Conway) v Harrow London Borough [2002] EWCA Civ 927 where the members, who had not themselves taken any decision, were subsequently asked to endorse a planning officer's reasons for taking a decision, purportedly, but wrongly, under delegated authority.
- Mr Pereira pointed out that Fabre pre-dated the amendments to article 22(1) which require the local planning authority to give summary reasons for the grant of planning permission. Parliament could have required local planning authorities to give summary reasons for granting planning permission only when they disagreed with an officer's recommendation, but it did not do so. Although he accepted that the letter dated 11th August 2004 was couched in neutral terms, he submitted that the councillors' replies might have been motivated in part by a desire to adopt the reasons in the report as the simplest means of resisting the claimant's judicial review proceedings which were by that stage on foot.
- Ms Wigley also relied upon the Court of Appeal's decision in Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303. In that case planning permission had been granted subject to conditions, but no reasons had been given for the imposition of those conditions. The Town and Country Planning (General Development) Order 1950 required the local planning authority to state its reasons in writing if it decided to grant planning permission subject to conditions. It was argued that the lack of reasons meant that the conditions were a nullity and could not be relied upon in enforcement notice proceedings. The Court of Appeal rejected those arguments. Winn J, giving the judgment of the court, said this at pages 313 to 314:
- The question of giving post facto reasons does not appear to have arisen in the Brayhead case. As Mr Pereira pointed out, the decision is now over 40 years old and it long pre-dates what Richards J described as the tendency in recent years to adopt a stricter approach to the requirement to give reasons: see paragraph 47 on page 1931 of the Court of Appeal's judgment. In the present case the claimant does not claim that the decision notice is a nullity. She does claim that the notice granting planning permission is legally flawed and that the court therefore has jurisdiction to quash it.
- In London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 a certificate of appropriate alternative development was issued but, in breach of the relevant procedural requirements, it did not mention the existence of a right of appeal. The House of Lords concluded that this defect was fatal to the certificate, quashed it and ordered the Council to issue a new certificate. On page 189C Lord Hailsham considered the Council's submission that the defect could have been safely ignored:
- Ms Wigley accepted that the court has a discretion to quash the defective notice, but she submitted that, by reference to the policy underlying the requirement to give summary reasons, it should not do so. There are two policy reasons for requiring the local planning authority to give its summary reasons for granting permission: firstly, to inform those who are interested in the outcome of the application why they have "won or lost" and thus enable them to assess whether they have any ground for challenging that decision by way of judicial review; and secondly, to impose a degree of rigour upon the decision-making process itself: see Ermakov at page 316C-D and Richardson paragraph 39.
- Looking at the first of those policy reasons, the claimant now knew why the defendant had decided to grant planning permission. She had therefore suffered no real prejudice, much less any substantial prejudice (see Save Britain's Heritage v No. 1 Poultry Ltd [1991] 1 WLR 153 per Lord Bridge at page 167) by reason of the omission of summary reasons from the decision notice itself.
- Turning to the latter policy requirement she submitted that it made no practical difference whether summary reasons were formulated before the decision notice was issued or shortly thereafter. In the latter case members would have to recall what were their reasons for deciding to grant planning permission, so a discipline or structure would still be imposed upon the decision-making process.
- By contrast with the claimant, who had suffered no prejudice, she submitted that an unnecessary administrative burden would be placed upon the defendant and the applicant for planning permission would be prejudiced by the continued uncertainty. She drew my attention to a letter dated 8th October 2004 from Mrs Sugarman, the owner of Ruston, which encloses a letter from the prospective developers, dated 2nd December 2004, stating that they were willing to proceed with the purchase of the site but were unable to proceed further "until a satisfactory outcome of the proposed judicial review in respect of the planning consent has come about".
- Mr Pereira submitted that it was not necessary for the claimant to demonstrate that she had been prejudiced by the absence of reasons on the decision notice, although he accepted that a lack of prejudice would be a relevant factor in the exercise of the court's discretion. The requirement to demonstrate "substantial prejudice" in the context of applications to quash Secretary of State's decision letters under the Town and Country Planning Act 1990 stemmed from the wording of the Act itself (see section 288). If the decision notice was quashed the defendant would have to redetermine the application and the claimant would then have an opportunity to explain in detail her concerns about the impact of the proposed development on No. 6 Lions Gardens.
- Development Orders are subject to annulment by a resolution of either House of Parliament: see section 333(5) of the Town and Country Planning Act 1990. In permitting paragraph 1 of article 22 to be substituted by the 2003 Order, Parliament clearly intended not merely that local planning authorities should give summary reasons for their decisions to grant planning permission, but that those reasons should be included in the decision notice itself. The requirement to give summary reasons in the decision notice can fairly be described as "procedural", but the importance of this procedural change, as from 6th December 2003, should not be underestimated. Disappointed applicants who have been refused planning permission, or applicants who have been granted conditional planning permission, have always been entitled to reasons from the local planning authority. In the years immediately after the First Appointed Day, on 1st July 1948, there was a tendency to regard development control as akin to a private matter between property owners and local planning authorities. Public participation in the planning process was very limited indeed. Very few rights were conferred upon the public. They were not consulted on planning applications as a matter of routine, and if there was an appeal against a refusal of planning permission their participation in any inquiry was very much left to the discretion of the inspector.
- Over the years the public was first enabled and then encouraged to participate in the decision-making process. The fact that, having participated, the public was not entitled to be told what the local planning authority's reasons were, if planning permission was granted, was increasingly perceived as a justifiable source of grievance, which undermined confidence in the planning system. Thus the requirement to give summary reasons for a grant of planning permission should be seen as a further recognition of the right of the public to be involved in the planning process. While the requirement to give "full reasons" for a refusal of planning permission, or for the imposition of conditions, will principally be for the benefit of the applicant for planning permission, who will be better able to assess the prospects of an appeal to the Secretary of State, the requirement to give summary reasons for the grant of planning permission will principally be for the benefit of interested members of the public. The successful applicant for planning permission will not usually be unduly concerned to know the reasons why the local planning authority decided to grant him planning permission.
- Parliament decided that this extension of the public's rights under the Planning Code was necessary even though in many cases it could reasonably be inferred that the members would have granted planning permission because they agreed with the planning officer's report (see Fabre above). Parliament could have, but did not, limit the obligation to give summary reasons to those cases where the councillors did not accept their officers' recommendation.
- The new requirement does not impose an undue burden upon local planning authorities. Officers' reports customarily include recommended reasons for refusal of planning permission or for the imposition of conditions. Members are free to debate those recommendations and agree or disagree with them, adding or striking out reasons for refusal or conditions. When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officers' report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officers' summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission.
- A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void (see Brayhead above). On the other hand, such a failure could not be described as "so nugatory or trivial that the authority can safely proceed without remedial action" (see London & Clydeside above). If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case, where it fits within the "spectrum of possibilities" referred to by Lord Hailsham in London & Clydeside.
- The failure to give "full reasons" for refusing planning permission or for imposing conditions could, in theory, be the subject of judicial review proceedings but it is likely that in almost every case there will be a more effective alternative remedy: appeal to the Secretary of State, coupled with the Secretary of State's power to award costs in respect of unreasonable behaviour, which would include failure to give proper reasons for refusing planning permission or for the imposition of a condition.
- The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers' advice, where the officer has felt unable to make a recommendation, where the officer's report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee's reasons for granting planning permission. In such cases -- and I emphasise that these are merely examples -- there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address.
- While there can be no objection in principle to a local planning authority amplifying its summary reasons, since by definition they will not be its full reasons for granting planning permission (see above), it would equally frustrate Parliament's intention if local planning authorities were able to rely post facto on entirely different or wholly new reasons for granting planning permission: see Ermakov at page 315j. It is difficult to see why a local planning authority which has failed to include any summary reasons for granting planning permission in its notice of decision should be placed in any better position. It is not suggested that the members did in fact agree their summary reasons at the meeting on 17th March, but due to an administrative oversight those reasons were omitted from the decision notice on 18th March. It would appear that the, then relatively recent, need to provide summary reasons was not appreciated by members and officers, and it was thought that merely listing the relevant policies would suffice.
- Although Ermakov was concerned with a wholly different statutory scheme, where the decision and the reasons for it are contained in a letter sent by a local authority housing officer, and there is no equivalent of an officer's report or committee consideration, the "good policy reasons" given in subparagraph (3) on page 316, as to why a decision that does not contain any reasons should prima facie be quashed as unlawful, apply with no less force to a decision notice granting planning permission. The fact that summary reasons for granting planning permission are provided for the benefit of the public, rather than for an individual applicant for housing assistance, does not lessen the need both to inform those concerned and to avoid sloppy decision making.
- Richardson and Younger are distinguishable since they are both concerned with what happens after the grant of planning permission. Although Ms Wigley sought to persuade me that providing reasons after the event would still impose a discipline or structure on the decision-making process because members would have to recollect what their reasons were for granting planning permission, it is plain that the Court of Appeal saw a clear distinction between making information available for the public as to what has been decided, and laying down requirements for the decision-making process and thereby dictating the course or quality of that process: see per Simon Brown LJ at paragraphs 38 and 39 above.
- Regulation 21(1) of the EIA Regulations does not prescribe any particular time within which the statement containing (inter alia) the main reasons and considerations on which the local planning authority's decision is based must be made available for public inspection. It is to be inferred that it must be done as soon as reasonably practicable and in any event within a reasonable time: see per Richards J at page 257 of 2004 Env LR 13. Thus it would be lawful for the purposes of Regulation 21(1) of the EIA Regulations if the members of a planning committee, after a lengthy debate, resolved that they would grant planning permission for an EIA development, instructed the officers to issue the decision notice the following day, but decided that because of the lateness of the hour they would reconvene on a convenient day the following week to agree the statement of the main reasons and considerations to be placed in the Register. Such a course would not, however, be lawful for the purposes of article 22(1) of the Order since the decision notice is itself the grant of planning permission. This may also be contrasted with the position in Younger since no time is prescribed for placing the copy of the screening opinion on the Register once planning permission has been granted.
- Since I have rejected ground 1 of the challenge the defendant can fairly say that the claimant has suffered no substantial prejudice now that she has seen the councillors' replies to the letter of 11th August. While the extent to which a claimant has been prejudiced by a local planning authority's failure to include summary reasons in a decision notice will be a relevant factor in the exercise of the court's discretion, there is no requirement that an applicant for judicial review must show that he or she has been prejudiced, or substantially prejudiced, by the unlawful act complained of.
- At first sight it might seem somewhat odd that an interested third party who wishes to challenge a Secretary of State's decision letter granting planning permission on the grounds of inadequate reasons has to show that he has been substantially prejudiced by that failure (see Save above), whereas an interested third party challenging a local planning authority's failure to give summary reasons for granting planning permission does not have to show prejudice. The requirement to demonstrate substantial prejudice in the former case is imposed by the 1990 Act (see section 288(5)(b)). Moreover, the two sets of circumstances are not truly comparable. Decision letters from the Secretary of State and his inspectors must contain not merely summary but their full reasons for granting planning permission, even though those reasons may, in appropriate cases, be briefly stated. Some reasons are invariably given in decision letters from the Secretary of State and his inspectors, and challenges are made upon the basis that the reasons given are inadequate, not that they are non-existent. In the unlikely event that a decision letter from the Secretary of State contained no reasons whatsoever, it is difficult to imagine circumstances in which the court would decline to quash the decision upon the basis that the applicant was not substantially prejudiced by the complete failure to give any reasons.
- I accept Ms Wigley's submission that this is not a Carlton-Conway type case. The letters dated 11th and 23rd August from the defendant's legal officers to the councillors are scrupulously fair and neutral in their terms. There no reason to believe that the members subconsciously felt that they were under any pressure to endorse the officers' report, or to adopt any other line of reasoning. Reading the letters as a whole, one is left with the clear impression that the members did agree with, or at least did not dissent from, the officers' report, but it is difficult to understand how Councillor Hamilton could have reasonably formed the view that the footprint of the proposed block did not differ greatly from the footprint of Ruston, and Councillor Watkins fairly acknowledged that his recollection may have been (it plainly was) mistaken. A comparison of the footprints of the existing and proposed buildings can fairly be described as a matter of detail in the overall picture, but it is a detail which is of vital concern to the claimant. As the closest neighbour to the proposed development she has a particular interest in being accurately informed of the defendant's summary reasons for granting planning permission. Councillor Watkins' and (to a lesser extent) councillor Hamilton's evidence illustrates the problems inherent in inviting busy Committee members to recall what their reasons were for granting a particular application -- one of many they will have had to consider -- some five months after the event. Ms Wigley referred the approach of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 to those cases where judges at first instance have given inadequate reasons, but the position of the professional judge is not to be equated with that of a lay committee seeking to reach a "collegiate" majority view. Moreover, in most cases the professional judge will have given some, albeit perhaps incomplete, reasons for his decision.
- I do not intend to suggest that in an appropriate case a local planning authority cannot remedy a failure to include summary reasons in the decision notice granting permission. The Clydeside case reminds us that each case will very much turn upon its own particular facts. The failure to include summary reasons in a decision notice might be no more than a typographical omission of reasons which have in fact been agreed. There might be cases, for example, where very substantial prejudice would be caused to the applicant for planning permission, or to others interested in the land, if the planning permission was to be quashed on this ground. Building work might have commenced on site; a change of use might have taken place; contracts might have been exchanged. While I have great sympathy for Mrs Sugarman, and the continued uncertainty is most undesirable from her point of view, there is no reason to believe that Gresham Homes would not proceed with the purchase if, on reconsideration, the defendant decided that planning permission should be granted for the reasons set out in the officers' report. Mrs Sugarman certainly would be prejudiced if, on reconsideration, the defendant refused planning permission, and might be prejudiced if it imposed markedly more stringent conditions designed to protect the amenity of No. 6, but in so far as such an outcome is a possibility it is an argument in favour of quashing an unlawful decision notice.
- Ms Wigley submits that, the members' views having been ascertained, the outcome of any reconsideration would be in effect a foregone conclusion. That would suggest that it should not be unduly burdensome for the defendant to have to redetermine the application if the decision notice was to be quashed. But in any event I have concerns about the procedure which was adopted by the defendant to elicit the members' recollections of their reasons for granting planning permission. In saying this I do not intend to sound unduly critical, and I accept that the defendant was doing its best to rectify the procedural error. The fact remains that the Committee met in public on 17th March. Thus the public were able to hear the arguments for and against the grant of planning permission. Article 22(1) is intended to ensure that the Committee's summary reasons are agreed upon in public session, not in private correspondence between a local planning authority's lawyers and individual councillors who voted in favour of granting planning permission, which correspondence is made public only because it is produced for the purpose of defending judicial review proceedings.
- If there has been a failure to include summary reasons for granting planning permission in a decision notice, and the omission has occurred because the Committee has failed to agree upon the summary reasons for its decision, and the local planning authority wishes to make good that omission, then the proper course would seem to me to be for the officers to take the matter back to committee at the earliest possible opportunity so that the Committee can decide, in public session whilst members' recollection is still fresh, what were its summary reasons for granting planning permission. It must be borne in mind that those reasons might well have been informed by the views of those who were against the grant of planning permission, as well as those who voted in favour. Adopting such a procedure would not necessarily persuade the court that a defective notice granting planning permission should not be quashed, but the fact that a local planning authority had adopted such a procedure would be a factor to take into account in the exercise of the court's discretion, since in practical terms the local planning authority would have undertaken the same exercise that it would have to undertake if the decision notice was quashed, although it would not have been free to change its mind and refuse planning permission.
- Standing back from the detail, Parliament intended that the defendant should set out its summary reasons for granting planning permission in the decision notice. This is not a case of summary reasons being inadequate because, for example, the planning authority has failed to mention a particular reason or reasons. No reasons at all were given. While it is true that the claimant cannot point to any specific prejudice having been caused by the defendant's omission, neither can the defendant or any interested party point to any particular prejudice if the decision notice is quashed and the Committee has to reconsider the matter. The defendant's case really amounts to no more than a submission that it should not be put to the administrative inconvenience of having to reconsider the application, but if the Committee's reasons are to be elicited after the event that should have been done by taking the matter back to the Committee and by the Committee discussing and resolving upon summary reasons in public session. Whether they do so following the quashing of a decision notice or as a means of trying to save a defective notice would seem to make little practical difference in terms of administrative burden, save that in the former case the members would retain the option of refusing planning permission on reconsideration.
- In the "spectrum of possibilities" this case could be said to be finely balanced. Beyond the complete absence of reasons there are no very strong pointers either way as to how the court's discretion should be exercised. In these circumstances the proper approach must be that it is unlawful for a local planning authority to issue a grant of planning permission that does not include its summary reasons for granting planning permission, and the court should exercise its discretion to remedy that illegality by quashing the defective notice, unless there is some good reason not to do so. For the reasons set out above, no such reason exists in the present case and it follows that the planning permission dated 18th March 2004 must be quashed.
- It only remains for me to express my thanks to both counsel for their very helpful submissions.
- MR BOOTH: My Lord, I am grateful.
- MR JUSTICE SULLIVAN: Yes, Mr Booth.
- MR BOOTH: I shall firstly indicate that Mr Pereira does apologise for being unable to attend this afternoon.
- MR JUSTICE SULLIVAN: Of course, apology accepted.
- MR BOOTH: My Lord, given the judgment which you have just made, it only remains for me to seek that you also make an order for the claimant's costs.
- MR JUSTICE SULLIVAN: Yes.
- MR BOOTH: As you will be aware, my Lord, the claimant is in receipt of a certificate from the Legal Services Commission and in those circumstances, and the fact that also this case was not heard in a single day, I do not consider this is a case for seeking summary assessment.
- MR JUSTICE SULLIVAN: You have to have detailed assessment for public funding purposes if you get your costs.
- MR BOOTH: Of course, that is correct.
- MR JUSTICE SULLIVAN: Can I see if Ms Grekos has any objection to that?
- MS GREKOS: No, my Lord.
- MR JUSTICE SULLIVAN: I am not suggesting there really could be one, seriously, but just in case there might be one. Then the order of the court is that the application is allowed; the decision notice dated 18th March 2004 is quashed; the defendant is to pay the claimant's costs; those costs are to be subject to detailed assessment for public funding purposes.
Introduction
The grounds of challenge
Ground 1: Submissions and Conclusions
"I am totally against this as my bungalow is right next door in (Lions Gardens) to the house and it will completely overshadow my bungalow blocking my light and I will have no privacy whatsoever as it would be overlooking into my lounge and also the other 5 bungalows in Lions Gardens. We all use our patio which would be substantially overlooked by the flats."
"The two most vulnerable boundaries are the east, adjoining Lions Gardens and the north, adjoining 6 and 8 Hazeldene Meads. The proposed new building is set back further from the eastern boundary than the existing house and the existing 3 metre high conifer hedge is to remain. Windows in the east elevation of the new building face numbers 1, 2 and 3 Lions Gardens, but the intervening distance is 24 metres, more than adequate to maintain privacy and comparable [to] the distance between the frontages of properties opposite each other in Hazeldene Meads.
"The two houses in Hazeldene Meads are set between 10 and 12 metres back from the boundary with Ruston. The part of the new building closest to this boundary is two storey and is set back 9 metres, the three storey elements, 12 and 15 metres. Again, these combined back to back distances are more than adequate and combined with the existing planting on both sites, will ensure that privacy is maintained.
"The new building would be higher than the existing house. However, due to the existing boundary fences and planting, it would be very difficult to argue that the development would either overshadow or block out day or sunlight to adjoining buildings, as demonstrated in diagrams submitted by the agent."
"The proposal to develop this site to provide 8 new dwellings accords with current national and local planning guidance which seeks to maximise land within built-up areas for residential development. The contemporary design of the new building is restrained, of high quality and refers to local architectural language.
"There will be no adverse effect on adjoining properties by way of overlooking or overshadowing and the maximum level of off-street parking is to be provided.
"The proposal meets all relevant policy requirements and approval is therefore recommended."
Ground 2: Submissions
"This decision to grant Planning Permission has been taken having regard to the policies and proposals in the Brighton Borough Local and Brighton & Hove Local Plan Second Deposit Draft and to all relevant material considerations:
Brighton Borough Local Plan: ENV.1 - General principles, including amenity, ENV.2 - New development within the built-up area, ENV.3 - Design, ENV.61 - Planting and landscaping, H.19 - Amenity space in residential developments, TR.33 - Cycle parking.
Brighton and Hove Local Plan Second Deposit Draft: SU2 - Efficiency of development in use of energy, water & materials, TR12 - Cycle access and parking, TR17 - Parking standards, QD1 - Design quality, QD3 - Full and effective use of sites, QD15 - Landscape design, QD16 - Trees, QD17 - Protection and integration of nature conservation features, HO4 - Dwelling densities, HO (new) - Amenity space in residential development."
"(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and --
(a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;
(b) planning permission is granted subject to conditions, the notice shall:
(i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and
(ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;
(c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision."
Paragraph (1) was substituted from December 6, 2003 (subject to certain exceptions which are not material for present purposes) by the Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003 (the 2003 Order).
"As you may recall, this Application was considered at Planning Committee on 17th March last. The Committee resolved to grant Planning Permission.
"An application has been made for Judicial Review of the Committee's decision, one of the grounds being that the Council has failed to provide satisfactory reasons for their decision to grant Planning Permission. The Applicant's statement of facts states 'the Council's stated reasons to grant permission refers only to the relevant policies. This is insufficient with the requirement to give intelligible reasons dealing with the issues at stake'.
"The Decision Letter on this Application states that the decision to grant permission 'has been taken having regard to the policies and proposals in the Brighton Borough Local and Brighton & Hove Local Plan Second Deposit Draft and to all relevant material considerations' and then goes on to name the policies with their general effect, e.g. 'ENV.1 - General Principles, including amenity'. The relevant material considerations are not specifically detailed in the Decision Letter.
"I have instructed Counsel to act in this matter and her advice is that I should write to you, as a member of the Committee who voted in favour of the Application, to ask that you provide me with a summary of your reasons for approving the Application. Your response will be included in the bundle of documents to be lodged with the Court.
"Unfortunately, I have to ask you to respond as a matter of urgency and I would be very much obliged if you could let me have a letter setting out your summary of reasons by next Monday 16th August ..."
"My reasons for voting in favour of this application were, that I felt that the officers recommendations were sound and that the site was well suitable for the development proposed as well as being in keeping with ODPM recommendations for site utilisation."
"I recall that the decision I made was based upon
* advice from the officers that the proposal was reasonable within Council policy guidelines,
* That the proposal was an attractive one, prepared by a reputable architect, and did not damage the amenity of the area, nor was [it] an unduly 'greedy' proposal,
* The proposal was broadly in accord with Government policy that best use should be made of land in the urban area."
"* I was guided by the Officers recommendation, which was made in accordance with policies in the council's Development Plan and current central government advice regarding the more intensive use of suitable sites for residential development.
* The site is a very large site, and I felt that it could accommodate a development of this size ..."
"I have looked at the Committee report for that meeting dated 17 March and the minutes of that meeting itself. The summary of my reasons for approving the application are as detailed in the Committee report pages 29 to 39, including paragraph 8 'Considerations' ..."
"I supported this application on the Officers' recommendation. In addition this is in line with Government policy to provide more housing in the South-East of England. It is a better use of land in the city to demolish a large house and replace it with 8 self-contained apartments, as this enables more people to be accommodated."
"I had attended the site visit the previous day. The site was well screened by walls and vegetation. The footprint of the proposed block did not differ greatly from the footprint of Ruston. The height was also similar. We visited a nearby property. I did not consider that the proposed apartment block would have any significant detrimental effect on the amenities of neighbouring properties. Officers recommended consent and I could see no material planning issues to lead me to a contrary view. I therefore supported the recommendation."
"In my view, the site is large enough for this development and the proposed new building did not exceed the footprint of the existing house.
"Therefore I could see no reason to refuse to accept the officer's recommendation to grant the planning permission."
"In your letter, there appears to be a factual error. You say that the proposed new building did not exceed the footprint of the existing house. This is incorrect as the footprint of the proposed new building is larger than the footprint of the existing house (please see attached Committee report and site plan).
"In light of this inaccuracy, I need you to explain whether you were under the impression that the footprint of the proposed building did not exceed the existing house at the time when you voted in favour of the application or whether the inaccuracy in your letter is as a result of your misremembering the details of the application at the time when you wrote the letter.
"If the inaccuracy is as a result of a failure to remember properly, please could you remove the inaccuracy from your summary of reasons and amend the summary as necessary to ensure that it represents your thoughts at the time when you voted in favour of the application."
"On further reflection, I feel that my statement of 19th August 2004 may not be entirely accurate. Due to the time that has passed since the application came before the planning committee in March, and the fact that I was unable to make a site visit due to another meeting, I may have misremembered the size of the footprints of the two buildings.
"Therefore, I would like to state that I voted in favour of the application as I could see no reason to go against the officer's recommendation to accept."
"The application was considered by the Planning Applications Sub-Committee on 17th March 2004 when Councillors had regard to the above policies. In light of the large size of the site and the screening around the site, the increase in height and footprint of the proposed building over the existing was not considered to be so great as to have any significant detrimental effect on the amenities of neighbouring properties. The increased number of dwellings on the site was considered beneficial in light of government policy and the need for additional dwellings in Brighton and Hove. The Councillors agreed with the reasoning in the officer's report and accepted the recommendation to grant."
"(1) This is a case in which the obligation to give reasons and to give them at the time the decision is communicated is a statutory one. Section 64(4) of the 1985 Act, as material to the present context, provides:
'If the local housing authority notify the applicant ... (c) that they are satisfied that he became homeless ... intentionally ... they shall at the same time notify him of their reasons.'
"(2) Nowhere in Pt III of the 1985 Act is there any express requirement that the authority shall take a decision on the questions into which s 62 obliges them to inquire. However, that section and s 64 plainly imply such a requirement. The terms of s 64, the marginal note to which reads 'Notification of decision and reasons', to my mind suggest that decision and notification of it are regarded as going very much hand in hand. Of course, it has to be accepted that a decision must always precede notification, for reasons which are obvious. For practical purposes, however, there is much to be said for the view that the decision and its communication to the applicant are contemporaneous.
"(3) The affidavits of Mr Lodge and Mr Humphreys did not merely correct, amplify or explain the reasons given in the decision letter -- they put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and, of course, only after judicial review proceedings had been launched.
"It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable, or invalid and therefore open to challenge. There are numerous authoritative statements to this effect: see e.g. Thornton v Kirklees Metropolitan BC [1979] 2 All ER 349 at 354, [1979] QB 626 at 638 per Megaw LJ and R v Croydon London Borough, ex p Graham [1993] 26 HLR 286 at 291-292 (a case to which further reference will be made), where Sir Thomas Bingham MR said --
'I readily accept that these difficult decisions are decisions for the housing authority and certainly a pedantic exegesis of letters of this kind would be inappropriate. There is, nonetheless, an obligation under the [Housing Act 1985] to give reasons and that must impose on the council a duty to give reasons which are intelligible and which convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning the applicant may take such steps as may be indicated.'"
"It is possible to state two propositions which the judgments in Ex p Graham support. (1) If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision itself will be unlawful; and (2) the court should, at the very least, be circumspect about allowing material gaps to be filled by affidavit evidence or otherwise."
"(1) It is unrealistic to seek to draw any significant distinction, in the context of s 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.
"(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence -- as in this case -- which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
"(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.
"(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.
"(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.
"I also wish to emphasise that all that I have said is with reference only to the provisions of s 64 of the 1985 Act."
"Where an EIA application is determined by a local planning authority, the authority shall ... (c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing (i) the content of the decision and any conditions attached thereto; (ii) the main reasons and considerations on which the decision is based; and (iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development." [Emphasis added by the Court of Appeal.]
"When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
-- the content of the decision and any conditions attached thereto,
-- the main reasons and considerations on which the decision is based,
-- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects."
"47. The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.
"48. The closest decision in point of subject matter, though furthest away in point of time (and divorced from the context of an EC directive), is Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, where it was held that a failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. At the other end of the spectrum, R v Westminster City Council, Ex p Ermakov [1996] 2 All ER 302 provides an example of a case, more recent and in a different statutory context, in which a decision was quashed for a failure to comply with the duty to give adequate reasons at the same time as the decision, and the court adopted a restrictive approach to the admissibility of later reasons. Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377 was concerned with a different context again, namely the duty of a trial judge to give reasons for his decision. In that area a more up to date and detailed analysis is to be found in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, which was not cited by counsel but which makes it clear that it may be appropriate in certain circumstances to remit the case to the trial judge for the provision of additional reasons: pp 2418-2419, paras 22-25. Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.
"49. As to that, the first and most important point in the present case is that regulation 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself. It implements the obligation in article 9(1) of the Directive to make information available to the public 'When a decision to grant ... development consent has been taken' (emphasis added). That is to be contrasted with article 2(1) of the Directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects).
"50. The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.
"51. Thus, to take a straightforward example, if the members of the committee had agreed in terms at their meeting on a specific statement of the main reasons for the grant of planning permission but the officers had failed to include that statement on the register, a mandatory order requiring the statement to be placed on the register (or, perhaps more accurately, requiring it to be made available for public inspection at the place where the register is kept) would plainly be the appropriate remedy.
"52. The difficulties in this case arise out of the fact that there was no such agreement. The need to make a statement of main reasons available for public inspection appears to have been overlooked by the officers, so that members were not advised about it. That was a most unfortunate oversight. It meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available. It also meant that they missed the opportunity to agree in terms on a specific set of reasons. The most obvious way in which that might have been done was by expressing agreement with the reasoning in the director's report, subject to any agreed departures from or additions to that reasoning.
"53. The resulting situation is very unsatisfactory. I have reached the conclusion, however, that it is still capable of being remedied by a mandatory order and that what has happened does not justify the quashing of the grant of planning permission. My reasons are as follows. (i) Although it is necessary to view with caution any subsequent statement of reasons for a decision, especially where the reasons have not been articulated until many months after the decision, I do not think that the exercise of obtaining reasons ex post from the individual members who voted for the resolution is inherently flawed or of such doubtful reliability that the evidence should be rejected. All that the individual members have been asked to do is to cast their minds back to the reasons that actually motivated them to vote for the grant of planning permission. There is no suggestion that they have had any difficulties of recollection. In my view there is nothing in the nature of the exercise or in the evidence obtained to cause concern that the answers might have been distorted by the existence of these proceedings or other extraneous considerations. The process does not involve changing a decision or reconsidering it or anything of that kind. This is a very different exercise from that found unacceptable in R (Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927; The Times, 11 July 2002 or in R (Goodman) v Lewisham London Borough Council [2003] 2 P&CR 262. In both those cases the councils had engaged in a later decision-making process and there was an understandable concern that that might be vitiated by a wish to sustain a former invalid decision. In this case it is simply a matter of being satisfied that the reasons now put forward were the actual reasons that motivated the decision-makers at the time. (ii) On the face of it, a greater difficulty is created by the fact that, although all the members were 'motivated by factors referred to in the report or in the public session', each of them has given a different set or 'particular reasons' for voting for the resolution and those 'particular reasons' do not of themselves provide a sufficiently reasoned basis for a departure from the development plan and the grant of planning permission. (iii) It requires only a limited degree of beneficence, however, to read the evidence as meaning that all the members accepted the reasoning and conclusion in the director's report but each attached particular significance to the 'particular reasons' that they have identified. If the evidence is read in that way, everything seems to me to fall into place and a reasoned basis for the decision is immediately provided. That is evidently how the author of the proposed substitute notice understood the information being provided by the individual members."
"38. I turn, therefore, to the claimants' main criticism of this part of the judgment, Mr McCracken's argument that, in a case falling as this one does within the scope of the Directive, the court is simply not permitted to regard a breach of the implementing regulations as curable other than by the outright quashing of the development permission granted. Mr McCracken not surprisingly emphasises certain features of the judgment below: the judge's recognition that the need to make a statement of reasons appears to have been overlooked by the council's officers so that the members of the planning committee were not advised of it; that this 'most unfortunate oversight ... meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available', the resulting situation being 'very unsatisfactory'. These, of course, are powerful considerations. But are they such as to compel the court to quash the permission itself? In common with the judge below I conclude not. The critical part of the judge's reasoning I conceive to be that expressed in para 49 or his judgment, namely that:
'regulation 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself.'
"39. Mr McCracken submits that an irresistible inference arises from the requirement to give reasons following an EIA decision that at the time the decision is taken those reasons must be openly discussed and formulated in public. Whenever there is a legislative requirement for reasons, he argues, there are necessarily twin objects to be served. One is to enable those aggrieved by the decision to challenge it if its reasoning can be seen to be deficient. The other is to improve the quality of decision-making. Often, of course, that will be so. But to contend that it is invariably so seems to me extravagant: the requirement for 'the main reasons and considerations on which the decision is based' to be made available to the public -- after, it should be noted, the decision 'has been taken' -- was first introduced by the amending Directive 97/11/EC in 1997. To suggest that there then suddenly arose a duty upon planning committees to discuss their detailed reasoning in public I find absurd. As Mr Straker points out, an EIA planning application can on occasion be decided by a council officer under his delegated powers when, of course, there would be no public hearing at all. In any event it seems to me plain that the particular requirement for reasons imposed upon planning authorities here was to inform the public retrospectively of the basis for the decision rather than to dictate the course or even quality of the decision making process itself. Be it noted that the recital quoted in the Berkeley case [2001] 2 AC 603 (set out in para 9 above) was from the unamended Directive 85/337/EEC, when therefore, there was no requirement for reasons to be stated. Yet the Directive already contemplated its central purpose being achieved irrespective of whether reasons were or were not to be given. Nor, of course, is this the only context in which the law regards it as acceptable to formulate and state the reasons for a decision subsequent to the decision itself. Courts on occasion follow this practice (for example announcing a decision for reasons to be given later, or, following English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, requiring additional reasons to be stated by the judge below). So too do certain tribunals -- employment tribunals, for example, under the provisions of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171). So too, in my experience, do various other public bodies."
"I accept of course and have already stated that Richardson deals with a breach occurring after the grant of planning permission. But with respect I would simply apply parallel reasoning to the facts of this case."
Wall LJ and the President agreed.
"It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself."
By contrast, article 22(1) laid down requirements for the decision-making process itself, since the local planning authority's summary reasons for granting planning permission would have to be formulated in committee so that they could be included in the decision notice granting planning permission. Secondly, Richards J had said that there was no suggestion in Richardson that the councillors in that case had had any difficulties in recollection: see paragraph 53 of his judgment set out on page 1933 of the Court of Appeal's judgment.
"One is concerned with the members' reasons not the planning officer's, but where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary."
"As a matter of construction it seems clear that article 5(9)(a) requires (1) that the notice of decision be in writing; (2) the reasons be stated in writing; (3) that the notice be accompanied by a notification in the prescribed form; these requirements can be satisfied by a single document or by three physically separate documents.
"Should requirement (1) not be complied with, disputes might well arise as to the calculation of the time limit for appeal to the Minister fixed by section 16(1) of the Act; should requirement (3) not be satisfied an applicant might be left in ignorance of his rights. Each of those requirements is therefore essential to the statutory purposes. The interposition of requirement (2) militates strongly against any view that it can be regarded as merely directory; all three requirements appear to be mandatory. It does not follow necessarily that non-compliance with any one of them will render the notice null in law, still less that the decision of which notice purports to be given is itself of no legal effect. The court is not concerned in the instant case with any non-compliance with requirement (1) or requirement (3): the effect of non-compliance with requirement (2) must be decided.
"No doubt such a non-compliance may be and often will be inconvenient for an applicant; he may find it necessary to give notice of appeal to the Minister before he knows the strength or weakness of the case which he will have to meet. However, he could undoubtedly demand, as of right, a statement of reasons and by threat or effect of an order of mandamus secure them, and it would be strange if the Minister did not adjourn his appeal until the reasons had been delivered and considered. In the sense that there is a duty to state the reason in writing requirement (2) is undoubtedly mandatory. Comparison may be made of the provisions of section 12 of the Tribunal and Enquiries Act, 1958, requiring that reasons, if requested, be stated, in general, for a decision: a non-compliance with those provisions would certainly found a mandamus.
"It is another matter whether the notice of condition in the present case, or such a tribunal decision is rendered null by a failure to state reasons in writing: notwithstanding the obiter dicta of Salmon J this extreme result is not required for the effective achievement of the purposes of the statute nor intended, as a matter of construction, by Parliament."
"In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions. In the reported decisions there is much language presupposing the existence of stark categories such as 'mandatory' and 'directory', 'void' and 'voidable', a 'nullity', and 'purely regulatory'.
"Such language is useful; indeed, in the course of this opinion I have used some of it myself. But I wish to say that I am not at all clear that the language itself may not be misleading in so far as it may be supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (e.g. 'void' and 'voidable') are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative law.
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory', 'directory', 'void', 'voidable', 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."
Ground 2: Conclusions