Friday, 20 January 2017

Reasons for granting planning permission (2)


Very shortly after I had published my post on Reasons for granting planning permission on 10 January, I saw a report of the High Court judgment in Shasha v. Westminster City Council [2016] EWHC 3283 (Admin), in which judgment was given on 19 December last year.

The Deputy Judge confirmed that a local planning authority is not under any statutory obligation to give reasons, or to give any summary of their reasons, for the grant of planning permission (as they once were), whereas they are required to give their reasons for refusing permission and for any conditions imposed on a planning permission that they may grant. In such circumstances, the Court of Appeal has found that there is no general obligation at common law requiring reasons to be provided for the grant of planning permission: see R v Aylesbury Vale DC ex p Chaplin (1998) 76 P&CR 207.

The Deputy Judge went on, however, to draw attention to several potential exceptions to this general rule, where there may be circumstances in which reasons need to be provided as a matter of fairness: see e.g. R v Mendip DC ex p. Fabre (2000) 80 P&CR 500 (pages 509 to 513), and Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). This may mean, as Lang J stated in R (Hawksworth Securities PLC) v Peterborough City Council [2016] EWHC 1870 (Admin) (at [80]), that a requirement to give reasons may only arise "exceptionally" to meet the requirements of fairness. Article 6 of the European Convention on Human Rights may also require reasons to be provided to a person whose civil rights are determined by the grant of permission.

However, counsel for the claimant advanced a different point, which seems to have been widely overlooked until now. This submission was that there was an obligation here to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 [SI 2014 No. 2095]. These regulations were made under sections 40 and 43(2) of the Local Audit and Accountability Act 2014.

Regulation 7 [Recording of decisions] provides that the decision-making officer must produce a written record of any decision if it would otherwise have been taken by the relevant local government body [which includes councils that are local planning authorities], or by a committee or sub-committee of that body, or a joint committee in which that body participates, but it has been delegated to an officer of that body either under a specific express authorisation, or under a general authorisation to officers to take such decisions, and the effect of the decision is to grant a permission or licence, or affect the rights of an individual, or award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain information as to the date the decision was taken, a record of the decision taken along with reasons for the decision, and details of alternative options (if any) considered and rejected. Where the decision falls under a specific express authorisation, the record of the delegated decision must include the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.

If there is already a statutory requirement [under other legislation] to produce a written record of the date the decision was taken and a record of the decision taken along with reasons for the decision, then the duty of the decision-making officer under the 2014 Regulations is satisfied, without the need also to record in those circumstances details of alternative options (if any) considered and rejected.

Regulation 8 provides that the written record referred to in Reg. 7, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public at all reasonable hours at the offices of the authority, and also on its website (if it has one), and by such other means that the authority considers appropriate. On request and on receipt of payment of postage, copying or other necessary charge for transmission, the authority must provide to the person who has made the request and paid the appropriate charges a copy of the written record and a copy of any background papers. The original written record must be retained by the council and be made available for inspection by the public for six years from the date of the decision. Any background papers must be retained by the council and made available for inspection by the public for four years from the date of the decision.

In the present case, the decision to grant planning permission had been delegated under a general authorisation to officers to take such decisions and its effect was to grant a permission. Accordingly, the claimant submitted, the decision fell within regulation 7(2)(b)(i) and it followed that the decision-making officer was required to produce a written record of the decision taken along with the reasons for it by virtue of regulation 7(3)(b).

The Council attempted to resist this, and to argue that there was no duty to give reasons for the grant of planning permission under that regulation. They submitted that, as Lord Scarman put it in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at p141, "Parliament has provided a comprehensive code of planning control" and that it would be "beyond anomalous" if there was a requirement to give reasons for the grant of permission only under delegated powers when the requirement in all cases to provide merely summary reasons for the grant of planning permission had been revoked. Counsel also submitted that, even if there was any duty to give reasons under regulation 7, it would be satisfied (given regulation 7(4)) by a notice provided in accordance with Article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 containing the reasons for any conditions imposed.

However, the Deputy Judge was in no doubt that Regulation 7 is applicable to a decision taken under delegated powers to grant planning permission. There is no basis for holding that a decision to grant planning permission is not a decision the effect of which "is to…..grant permission" (to which regulation 7(2)(b)(i) applies).

The Deputy Judge observed that it is true that planning legislation provides a comprehensive code of planning control; but that legislation does not by itself provide a comprehensive code that governs by whom and how planning decisions are to be taken by local authorities. Those matters are also governed by the primary legislation applicable to the discharge of their functions by local authorities including, in particular, (in England) Parts V, VA and VI of, and Schedule 12 to, the Local Government Act 1972 and Part 1A of the Local Government Act 2000, and subordinate legislation made under those Acts, and in this case also the Local Audit and Accountability Act 2014.

The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from 6 August 2014 under the 2014 Regulations sits ill with the earlier removal on 25 June 2013 of the requirement in all cases to give summary reasons for the grant of planning permission provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to the order which had removed this requirement generally - the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 - explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice, and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities.

It is at least consistent with the explanation for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations, and whether or not the requirement it imposes may be thought anomalous given the removal of the requirement to give summary reasons in all cases, the Deputy Judge held that there is no basis for reading the words "other than a planning permission" into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within Regulation 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.

For these reasons, the Deputy Judge held that there was an obligation on the decision-making officer in this case to produce a record of the decision to grant planning permission and the reasons for it as soon as practicable after the decision-making officer made the decision. In this case that did not happen.

Where members of an authority take a decision, it is a reasonable inference, in the absence of contrary evidence, that they accepted the reasoning in any officer's report to them, at all events where they follow the officer's recommendation: see Palmer v Herts CC [2016] EWCA Civ 1061(per Lewison LJ at [7]). In the Deputy Judge’s view, the same inference in the like circumstances is reasonable when one officer takes a decision having received a report from another officer containing a recommendation.

The Deputy Judge went on to consider the standard of reasons required from an officer acting under delegated powers for a decision to grant planning permission, and the admissibility of evidence about the reasons for a decision when there is an obligation to have provided them, but I don’t propose to discuss those aspects of the judgment in this article.

Turning to the actual decision to grant planning permission, the claim succeeded on all of the four grounds that were pleaded, but the Council sought to argue that it was highly likely that the outcome for the Claimants would not have been substantially different if the conduct which had been found to be unlawful had not occurred, so that the Court ought not to grant the relief sought. However, the Deputy Judge disagreed, and for the reasons given in the judgment, this claim for judicial review succeeded.

Just to add a couple of brief comments, there can be no doubt as to the applicability of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 to planning permissions granted by officers under delegated powers, and local planning authorities will have to take on board the requirement to comply with this rule. When I worked in local government (a good many years ago now), it always concerned me that no proper record was kept of decisions taken by officers under delegated powers. I felt that some sort of minute ought to be kept to record the decision. The 2014 Regulations now confirm this requirement.

In practice, some LPAs do already deal with delegated decisions in much the same way as they do in respect of planning applications that are being reported to committee. Bristol City Council, to take just one example, produces a full “delegated report” for each such application which deals thoroughly with the issues considered and the reasons for the decision. Bristol’s delegated reports almost certainly comply with Regulation 7, even though they have been compiled since long before the 2014 Regulations were made. I am not usually in the habit of praising BCC, but this is an example of good practice that other authorities would do well to follow, although Regulation 7 actually requires rather less detail than Bristol habitually includes in its delegated reports.

If LPAs do not ensure that minutes are kept of decisions to grant planning permission taken by officers under delegated powers, including the reasons for granting permission, they may well face legal challenges like this one in Westminster. In practice, it is to be hoped that any LPAs that do not yet comply with Reg. 7 of the 2014 Regulations will take steps to do so, in order to avoid such difficulties arising in future.

ADDENDUM (23.1.17): On reflection, I don’t think the effects of this judgment are likely to be so dramatic as they may have seemed at first sight. In Shaha, the permission was quashed because the LPA had gone wrong in the way they handled the application (and the objections to it). I don’t believe that failure to state the reasons in a properly minuted record of the decision would by itself have led to quashing. That would simply be a ‘technical’ legal infringement which would not have vitiated the decision and would not have prejudiced the claimant.

So I don’t expect to see a string of challenges based solely on failure to record the reasons for the grant of planning permission under delegated powers.

© MARTIN H GOODALL

5 comments:

Matt Thomson said...

This is a very useful commentary, and I hope councils are reading it!

I've always thought that it was a specious argument to say that recording reasons for decisions was an additional burden for council officers. If they've been through the thought process, they should have written it down. Not writing it down should be taken as evidence of not going through the proper thought process, potentially leaving the decision open to challenge, whether there is a legal requirement to state reasons or not.

Challenges often occur when there is a "duty" to have regard to something - for example the desirability of protecting a listed building - that is not explicitly referred to in an officer's reasoning.

This should also be seen as important where a decision is made to grant planning permission contrary to development plan policy. If a proposal is wholly in accordance with policy, it should be sufficient to say just that.

In my view councils are under a duty to make decisions in accordance with the development plan unless material considerations indicate otherwise (blah blah blah), but frequently approve permissions contrary to local or neighbourhood plan policy without necessarily articulating exactly what the material considerations are that they have favoured, and why.

Anonymous said...

Martin

I have read your commentary with interest and looked at the Officer's Delegated Report from the London Authority involved in the Judicial Review and those at Bristol and I don't think a delegated report is simply enough but you will need to provide a title in the delegated report stated reason rather than assessment etc. very much like the Planning Inspectorate do.

Anonymous said...

Martin,

Thank you for highlighting this case.

Do you think that the duty imposed under Regulation 7(1) would include delegated decisions to take (or not to take) enforcement action where quite often such a decision is likely to affect the rights of an individual? Or do you think such decisions would qualify as exempt information by virtue of s.100l(1)of the 1972 Act?

I recall that in the days where all planning decisions were made by a committee, LPA's would often cite the exemption at paragraph 6 in Part I of Schedule 12A of the 1972 Act when it came to enforcement reports. I now note, however, that paragraph 10 of Part 2 of that Schedule requires some balancing of the public interest in disclosing versus maintaining the exemption to be carried out. What are your thoughts on this, please?

Martin H Goodall LARTPI said...

In reply to the anonymous query of 23 January, I can understand the point that is being made. The wording of Reg. 7 refers not only to a decision whose effect is to grant a permission or licence, but also to one whose effect is to “affect the rights of an individual”. Arguably, therefore, a decision taken by an officer under delegated powers to serve an Enforcement Notice under section 172 must be duly recorded in compliance with Reg.7, and the reasons for that decision must also be recorded. However, these are likely to be the same as those stated in the notice itself, and so this would appear to be a purely technical point.

The provisions of Reg 8 regarding production of background papers would also apply. However, I am reasonably certain that the exemption granted by section 100(1)of the 1972 Act would apply, and that paragraph 6 in Part I of Schedule 12A of the 1972 Act can also be called in aid with regard to enforcement reports, and certainly as regards the information from complainants on which any such report is based.

So I don’t think the Shasha judgment, which drew attention to the need to comply with the Openness of Local Government Bodies Regulations 2014, makes any practical difference so far as Enforcement Notices are concerned. The only way that an Enforcement Notice can be challenged is by an appeal to the Planning Inspectorate under section 174, and it seems very unlikely that an Inspector would be influenced by an argument based on non-compliance with the 2014 Regs.

Where there may be greater mileage in taking a point about non-compliance with the 2014 Regulations might be in a case where the LPA has served a Breach of Condition Notice under section 187A. However, even here, the claimant seeking to judicially review the issue of the BCN would have to satisfy the Court that they had been substantially prejudiced by the LPA’s failure to comply with the 2014 Regs, and that proper compliance with the regulations might reasonably have led to a different outcome (i.e. a decision not to issue the BCN). I suspect that a legal challenge might well founder on this point.

Anonymous said...

I agree that the reasoning given by the officer in this case was flawed and that this would have impacted on the decision.

I believe most LPAs do provide a report with reasoning behind their delegated decisions, although I am aware 'PAS' have for some time (post 2014) been suggesting to LPAs that they put an end to this practice as an efficiency / resource saving.

Presumably they will now stop suggesting this!