July's Conundrum - reasons for grant and summary of policies

Each month in our e-bulletin, Future Perfect?, we pose a conundrum that has struck us an interesting and invite readers to give us their ideas and opinions - or maybe even the answer! This month's reads as follows, let us know what you think....

This month, we've seen a few planning permissions that don't necessarily go as far as they should in providing a summary of reasons for grant, or in explaining the purport of the various policies referred to. Typically, they simply stick to their usual form of referring to the committee report and listing the policies by number. As a developer, you may well want to get your consent as soon as possible, but there are a growing number of cases showing that sufficient reasons must be given on the decision notice. If there are no known strong objectors to your proposals, do you just take the consent as drafted and get on with things, or are developers getting more nervous about the need to ensure that the consent tells readers what it should? And as a local authority, are you seeing any changes to this practice?

Comments

[Martin Goodall LARTPI]

Reasons - a less demanding approach?

The case of O.P.E.N. v. Tower Hamlets LBC [2008] EWHC 3053 (Admin), decided by Pitchford J on the 17th December 2008, drew attention to a couple of recent Court of Appeal decisions which had previously escaped my notice, and which may offer a more practical approach to the summary of reasons for the grant of planning permission (as required by Art 22 of the GDPO) than the previous cases might seem to have indicated.
After referring to R (Wall) v Brighton & Hove City Council [2005] 1 P&CR 566 and R (Tratt) v Horsham District Council [2007] EWHC 1485 (Admin) (both of which were previously reported in this commentary), Pitchford J drew attention to the Court of Appeal decisions in R (Roundham and Larling Parish Council) v Breckland Council [2008] EWCA Civ 714, and Smith v Cotswold District Council [2007] EWCA Civ 1341.
Pitchford J briefly summarised the point derived from Roundham by saying that where planning permission is granted, the necessity is for the summary of reasons to identify why the application was successful. That may amount to no more than an explanation that the proposal complied with identified planning policy and guidance. I would respectfully suggest that this is an oversimplification. My reading of the previously cited cases would indicate that this would not be enough to comply with the requirements of Art 22, but it does serve to remind us that the approach taken by the Court of Appeal in Roundham was perhaps slightly less demanding of the LPA than the previous cases might appear to have been.
The relevant part of the notice in Roundham had read:
“This decision to grant planning permission has been taken having regard to the policies and proposals set out in the Breckland District Local Plan adopted September 1999 summarised below, and to all relevant material considerations, including Supplementary Planning Guidance.
ENV22. Proposals for farm diversification will be permitted subject to criteria.”
The Parish Council said that this was not good enough. The reasons simply recited part of the Development Plan without explaining how the Plan had been applied in this case. Buxton LJ did not agree. It was quite clear that the decision-maker was saying that his conclusion was that the project was one for farm diversification, as described in the Plan, and fulfilled the requirements for the granting of permission for such development that were set out in Policy ENV22. Objections previously raised, mainly in terms of noise and traffic, had been addressed by the conditions imposed on the grant, thus meeting the "criteria" referred to in ENV22. The potential litigant, if he was to make progress, accordingly knew that he had to establish that the project was not one for farm diversification. That had never been suggested, nor could it be.
It was clear from the recitation of the policies why the proposal was considered to comply with them, and the conditions and the reasons for their implementation constituted an implicit explanation that the concerns of those who had objected (on noise and highway grounds) were considered to have been met.
A further objection under this head had been that although various potentially relevant policies in the Plan had been referred to in the officers' reports before the planning committee, none of them apart from ENV22 had been summarised in the notice. That complaint was misconceived. In accordance with the approach set out above, Regulation 22 requires the reader to know which policies the local authority relies on, thus which are relevant to the decision to grant permission. It does not require a theoretical account of what policies the local authority might have had to rely on, but in the event did not, when granting (or refusing) permission.
In the case of Smith, the reasons given in the decision notice were arguably inadequate, because the decision notice referred only to a series of policy documents but did not give any substantive reasons which referred to the facts of the application being decided. However, the Court of Appeal agreed with the judge at first instance in that case when he had observed that, notwithstanding the inadequacy of the stated reasons, one then has to consider whether, if the matter was sent back, there is any real prospect of there being any change. Counsel for the claimant had argued that if the committee are required to reconsider the specific reasons, it may be that they would give greater thought to the matter and it is not impossible that they might change their approach. However, there was in truth no real prospect in this case that this would occur.
In these circumstances, a mere reasons challenge was pointless. The only positive result could be that the matter was remitted to the council to give some better reasons, which they would well be able to do, because the judge at first instance had decided that their substantive reasons were sustainable. Given the material before the court, it would be fanciful in this case to suppose that the committee would reach a different conclusion.
Whilst planning authorities are obliged to give proper summary reasons, and dismissing the attempted challenge in the present case would provide no basis whatever for not doing so, the Court should not conclude that a mere reasons challenge should succeed in every case, nor should the Court ‘discipline’ the LPA in this case simply in order “to encourage the others”.
In saying this, May LJ did not intend in any way detract from what Sullivan J said in Wall. The present case was one where, on the "spectrum of possibility" mentioned by Sullivan J in Wall, it was clear that the present case fell well on the side where the Court should not give permission to proceed with judicial review, which would only engender pointless expense.
In point of fact, Collins J had observed in Tratt that it is clearly a relevant consideration in exercising discretion in a reasons challenge whether there has been prejudice and perhaps more importantly whether there is a possibility that there might, having regard to all the circumstances, be a different decision were the matter to be reconsidered. In Tratt there was an issue which upon reconsideration might lead to a different conclusion, and that was why the reasons challenge had succeeded in that case.
The Master of the Rolls agreed that the appeal in Smith should be dismissed for the reasons given by May LJ. In doing so, he stressed that he did not in any way intend to minimise the importance of planning authorities giving reasons for the grant of planning permission, as required by Article 22 of the GDPO. However, where there has been a failure to give reasons which comply with Article 22, on an application to quash the decision granted by planning permission, the court has a discretion whether or not to make such an order.

[Paul Barkley]

I would be interested to hear views on the case of R (Loader) v Poole Borough Council. It seems to me to confirm that merely stating an application complies with policy is likely to be insufficient, unless the policy is permissive (e.g. farm diversification projects will be supported). Even in that case, I would suggest that if the policy is subject to criteria it would be preferable for the reasons to state in what way the criteria are satisfied.

The last LPA I worked at had taken on board the point that once a resolution was passed the committee no longer were seized of the matter and therefore if going against officer advice the reasons had to be formulated before the vote. For this reason if a member wanted to propose a resolution contrary to officer advice it was phrased in terms of "I propose that we do not accept the officer recommendation". If that was passed, the reasons for going the other way were formulated before a second resolution was put to the vote.

[Beverley Firth]

Very interesting comments thank you. I think a lot of us would have sympathy with the view expressed by the Court in R(Loader)v Poole BC (supported in other cases)because there will be many examples of failure to comply with Reg 22 which are indeed minor. However, I do often see in practice a complete failure to observe the requirements (often out of a lack of appreciation of what is needed and the potential risks). Why take the risk?