Wall, R (on the application of) v Brighton & Hove City Council [2004] EWHC 2582 (Admin)

"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 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. "

"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."

"As you may recall, this Application was considered at Planning Committee on 17th March last. The Committee resolved to grant Planning Permission. "

"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 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. "

"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). "

"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. "

"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 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. "

"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 considerationson 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."

"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."

"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. "

"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'. "