Tratt, R (on the application of) v Hutchison 3G UK Ltd. [2007] EWHC 1485 (Admin)

Case No CO/3471/2006[2007] EWHC 1485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 25th May 2007
Strand
London WC2A 2LL
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF JACQUELINE TRATTClaimant-v-
Between
HORSHAM DISTRICT COUNCILDefendantHUTCHISON 3G UK LTDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Kolinsky (instructed by Messrs Richard Buxton) appeared for ClaimantMr T Crosgrove (instructed by Horsham District Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim for judicial review of the grant on 23rd January 2006 of planning permission to Hutchison 3G UK Ltd to enable it to erect a 25-metre high telecommunications mast and equipment on land near Horsham in Sussex. The claimant lives in a house called Kilnwood House and the mast is to be erected in a copse some 130 or so metres away from her house.[2]The claimant objected on the basis, first, that it had not been established that there was a need for the mast, which was required to provide what is called 3G coverage for mobile telephones as part of the objective to cover all the inhabited part of the United Kingdom. The mast was said to be needed to fill a gap in the Faygate and Colgate area, including a section of the A264 road and local transport network. That refers largely to a railway line. Secondly, she objected to the chosen site, saying that she recognised that, if need were established, it had to be put somewhere in the area but that it could and should be further away in the copse from her house and so less intrusive.[3]In its statement supporting the application, Hutchison said that it had undertaken a comprehensive search of the area and had considered a number of potential sites. It identified those it had examined and the reasons for rejecting them. The chosen site was the one which afforded the best coverage while having the minimal impact on the character and appearance of the area. A "flag" test had been carried out, that is to say the erection of a flag pole of the same height as the proposed mast, and it had been found to be relatively unobtrusive, bearing in mind the need for it to overtop the trees in the copse. It was positioned as far as possible from the nearest dwellings, namely the claimant's house, and as centrally in the woodland as possible, given access requirements, in such a way that the existing established woodland would largely screen the installation from view from the direction of the claimant's house.[4]The claimant relies on three grounds. First, it is said that the defendant misunderstood the need for the mast; more particularly, the information provided by Hutchison did not support its contention that the installation was required to provide coverage to the Faygate and Colgate areas. Secondly, the defendant failed to consider the claimant's assertion that the mast could and should have been sited further away from her house. Thirdly, the reasons for granting permission were not in accordance with what the law required.[5]Hutchison produced what were called plots, identifying the coverage which existed and that which was needed. While the justification for the proposal stated that it was required to provide coverage for the Faygate and Colgate areas, those plots showed that it would not in fact cover Colgate at all, thus the justification was wrong and misleading. Further, the claimants have obtained from Hutchison's website a plot which showed that there was existing cover for most of the area which would be covered by the proposed mast, albeit on some parts it was patchy. However, there was coverage for most of the Faygate area but not for the Colgate area. Thus the proposed mast would, it was said, mainly benefit only an area which already had cover and would not benefit the part, namely the Colgate area, which had none.[6]Hutchison's answer to this argument, based on its website, was as follows. In a letter of 3rd August 2005, addressed to the Planning Department of the defendant council, this was said under the heading "Need":
"As regards coverage I am advised that the maps shown on the '3' website are originated using predictive software tools, but from a broad 'best case scenario' view point. The website states that: 'Although we try to make our maps as accurate as possible, the information is only a guide, and is not a guarantee of service availability in a particular location'. Although also predictive, the coverage plots forming part of the application are site and mast height specific and are considered more locally accurate than the predictions shown on the website."
In the report to the Council's committee, this answer was repeated and the conclusion drawn in the report in relation to need was as follows:
"The applicant has submitted details of existing and proposed coverage in the area and how the proposal would integrate into the local network. It is considered that the information provided makes it inappropriate to refuse permission on the basis of need."
[7]Mr Kolinsky submits that the report does not draw attention to the discrepancy in the justification and the actuality since the coverage does not extend to the Colgate area. The policy in the local plan is TU19. So far as material this reads, under the heading "Telecommunications Development":
"The Local Planning Authority will normally grant planning permission for telecommunications development where; (ii) there is a justifiable need for the development, taking into account the special requirements, and technical considerations relating to telecommunications systems; (ii) there are no satisfactory alternative sites for telecommunications development available;"
Thus need must be established.[8]Mr Cosgrove submits that the committee had before it the plots and could see for themselves the area which would be covered. While the wording may not have been completely apt, the reality was that they were entitled to decide that the need had indeed been established. The officer's view that it would be inappropriate to refuse on the basis of lack of need was not, in the light of all the information provided, one which would be said to have been wrong as a matter of judgment. Equally, the committee had sufficient information before it, including the website point, to enable its members to form an individual judgment. In my view those submissions are correct and the description of the need, albeit, as I said, not entirely accurate, was in all the circumstances not a factor which could properly be said to have resulted in any unlawfulness in the eventual decision.[9]The second ground relates to the siting. The claimant had entered into correspondence with Hutchison about resiting the mast further into the copse. On 7th June 2005 we find a letter from the claimant to those who were acting on behalf of Hutchison in these terms, so far as material:
"... this is to confirm our view that the proposed base station should be sited at some further distance from our house than is currently suggested. I have spoken to [the relevant person] and trust that you and he (or his agent) will be in contact in due course. I would be grateful if you would keep us informed of any further progress made in this matter. I would like to stress that it is of the greatest importance to us -- and to our neighbours -- that the proposed base station should be sited as far away from our houses as is reasonably possible."
On 20th June the answer to that was as follows:
"My client has looked at the possibility of siting the mast further away from your property within the copse. However, it has been found that whilst there may be other access points into the wood, there is nowhere else within the copse where sufficient access for construction and maintenance purposes can realistically be achieved, other than by siting the mast alongside the existing access track running adjacent to the proposed site. Given this restriction, the mast has been sited as centrally within the woods as is practicable."
The letter goes on to state that on the same day the application for planning permission had been lodged. In the supporting statement to the application for planning permission, this is said in relation to siting:
"In responding to this consultation the occupier of the nearest property asked whether it would be possible to site the mast further away from their property within the copse. My client has looked at this possibility, but has found that whilst there may be other access points into the wood, there is nowhere else within the copse where sufficient access for construction and maintenance purposes can realistically be achieved, other than by siting the mast alongside the existing access track running adjacent to the proposed site. Given this restriction, the mast has been sited as centrally within the woods as is practicable."
It is the same wording in effect as that contained in the letter to the claimant. In addition to that, there was a list of other sites which had been considered and reasons were given why those were not suitable. It is no part of the claim before me to suggest that the rejection of those alternative sites was other than appropriate.[10]The claimant on 21st June wrote a further letter to Hutchison's agents, in which she said this:
"There seem to be no grounds for your assertion that 'there is nowhere else within the copse where sufficient access for construction and maintenance purposes can realistically be achieved'. Much easier access can, in fact, be achieved directly from the lane at many points further away from our house -- access which, I might add, we have offered to pay for. There are also other sites in the immediate vicinity and much further from habitation for which access can be provided -- if necessary at our expense. It is our firm opinion that your proposal -- to erect a mast yards from our front gate -- is unreasonable. We appreciate that these masts have to go somewhere and we are resigned to the fact that one will eventually be sited nearer to our property than we would like. At the same time it is clear to us that, while there can be no reasonable objection to siting the mast somewhere in this vicinity, not enough consideration has been given to the precise location that you have chosen."
There was an added concern raised about damage to health from masts such as the one to be erected if they were in reasonable proximity to where people lived.[11]The claimant wrote again on 30th June asking whether other sites had indeed been considered and reiterating how seriously the proposal was affecting the claimant and others. The claimant took the matter up with her Member of Parliament and that resulted in a letter from the Member of Parliament to the chief executive of the Council on 4th July 2005. That letter read as follows:
"Mrs J Tratt of 2 Kilnwood, Kilnwood Lane, Faygate, visited me at my local surgery last Friday to express her concern about the proposed erection of a Hutchison 3G phonemast close to her home. Mrs Tratt has been told by the local landowner, Harry Calvert, the mast can be sited anywhere and I understand she has already contacted the Council to voice her concerns. I would be grateful for your assurance that Mrs Tratt's concerns will be taken into account when considering this application, in particular her comments about the placing of this mast."
Then in manuscript Mr Maude, the MP, adds:
"Given the readiness of the landowner to make sites available that are less intrusive for residents, there seems be an opportunity to encourage Hutchison to be more flexible."
In reply to that letter the Council wrote back as follows: "I refer to the above proposal and your letter to the Chief Executive dated 4th July 2005. I note the comments of your constituent Mrs Tratt and your own views on this proposal. I will ensure these are recorded on the case file and taken into account before any decision is made on this proposal.[12]The next important letter was one to the Council from ASB Law, who were then representing the claimant. This was a lengthy letter of 12th July which set out in detail the claimant's objections to the proposed permission. So far as the siting is concerned, the letter refers to what was said to be the disadvantages of this particular site. It is asserted that it was intrusive, it would be visible to the local community and it would tower at the height of 24 metres over the tree coverage, which was at a maximum of 22 metres, it would affect adversely the high quality and natural features of the locality, it would have a detrimental effect on the skyline, it would be visible over a wide area, it was a rural area, it was in an area designated for scenic value, it was close to residential property, and, particularly in summer, the mast would have a detrimental effect upon the use and enjoyment of the gardens and of the property. It was pointed out that there was an obligation to consider all possible alternative sites -- that is a reference back to the requirements in TU19 -- and there was a suggestion that some of the alternatives were indeed possibilities. The letter goes on:
"It is our client's opinion from negotiations with the Operator that the proposed site was selected because of an existing access and the proximity of transformer and hence cheaper to erect and maintain. In the course of negotiation, alternative sites further away from habitation (including Furze Field) were put forward to the Operator. The Operator's agent had expressed interest in site at Furze Field and has referred to his technical team to evaluate. No decision has been reached on pursuing those, more expensive, alternatives by the Operator. It is our client's contention that the economic interests of the Operator should not override the amenity of the local community."
It is to be noted, as I was informed, that the landowner, Mr Calvert, owns a considerable amount of land in the area, including Furze Field and it appears, the copse. Then a little later in the letter, in relation again to siting, this is said:
"The planning application states that a green rating was appropriate because the proposed development is 'a reasonable distance from residential property'. As we have outlined above, this is clearly not the case. Our clients only became aware that this site was being considered for a mobile phone mast by chance and had asked to be kept informed. It was only after such request that they received a letter dated the 24 May 2005 from the Operator's agent setting out the detail of the proposal and entered into negotiations with the Operator's agent and the owner of the land on which the mast is to be sited. Our clients were finally notified on the 20 June 2005, despite negotiations, that a planning application had been made. Despite correspondence to and meeting with the Operator's agent indicating their specific concerns and offering alternative sites which were further from habitation, they were told that the planning application would possibly still go ahead as they were 'so far down the road already'."
Finally, under the heading "Conclusion", the letter states:
"We would respectfully request that this application be refused on the grounds that the development is contrary to PPG8, the West Sussex Structure and the Horsham District Local Plan policies in that- 1. Insufficient information regarding the need (demand for 3G and details of existing coverage) for the development has been provided that would allow the decision maker to make an informed decision. 2. Insufficient information regarding alternative sites (ie reasons for discounting mast sharing and a decision regarding the alternative proposed Furze Field) has been provided that would allow the decision maker to make an informed decision. 2. The perception (fear) that the local community hold that the development will have an adverse health affect due our client's exceptional circumstances (in terms health and current level use of their properties."
Pausing there, I gather the claimant suffers from a physical disability. It is not necessary to go into the details:
"4. The siting and design of the proposed mast will result in it being clearly visible in the surrounding area which will have a detrimental affect on the outlook, visual amenity currently enjoyed by the local community."
[13]It is unfortunate that that letter does not in terms refer to the possibility of resiting further into the wood. It appears, as it seems to me it would reasonably have appeared to the Council, that the concern was more about the alleged failure properly to have had regard to alternative sites, particularly Furze Field and, as I say, Furze Field was a site which was on land owned by Mr Calvert. The significance of that is that the MP's letter had referred to Mr Calvert, indicating that he had no objection to the site being placed on any land owned by him, provided, no doubt, that it was regarded in all other respects as an appropriate site. The correspondence with Hutchison's agent, which is referred to simply in the terms "despite correspondence to and meeting with the Operator's agent", was not disclosed. Accordingly, there was nothing before the Council which expressly indicated that there was not only an assertion that there would be proper access were the mast to be sited further away from the house in the copse but that the claimants had offered to provide payment for ensuring, or helping to ensure, that such access was available.[14]The officer's report to the Committee is dated 6th December 2005. It refers to other sites and rejects them. It refers to the consultations and includes in those, in referring to the representations that had been made by occupiers of the adjacent dwelling, the points on need, with which I have already dealt, concern that it was too close to their house and that insufficient detail had been provided with regard to alternative sites. It did not, as I say, in terms refer to the possibility of siting further within the copse. So far as visual amenity is concerned, the officers dealt with that in paragraphs 6.3 to 6.5. The red flag test was referred to and the officers said in the report that they considered that that test also demonstrated that the proposal would not be prominent from the adjacent dwelling due to the existing tree screening, some of which lay in the ownership of the adjoining occupier. It then went on to deal with the alternative sites. It dealt specifically with Furze Field, stating that the officers considered that this:
"... with the mast height stated to be necessary by the applicant, would result in the proposal causing significantly greater visual harm from short and medium distance views, with such a mast projecting significantly above surrounding trees, clearly visual against an open skyline."
Accordingly, it recommended that permission should be granted.[15]Mr Kolinsky has argued that the Council ought to have been aware from the Member of Parliament's letter in particular that there was a real issue of resiting in the copse. It seems to me that the Council was, as I have said, entitled to look to ASB Law's letter and to assume that that put forward the claimant's objections, and those objections were indeed drawn to the attention of the Committee and the MP's letter was also before the Committee, and in those circumstances I am unable to accept that the Council erred in failing to have regard to the possibility of resiting further within the copse and at a greater distance from the claimant's house. In those circumstances, both grounds 1 and 2 are not in my judgment made out.[16]I turn then to the reasons challenge. The permission, when it was granted, was subject to a number of conditions. The two most relevant are: (2) In the event of the mast/equipment hereby permitted ceasing to be used for telecommunications purposes the mast/equipment together with all debris shall be removed from the site and the site cleared as soon as is reasonably practicable and by no later than six months after the cessation of such use. Reason: In the absence of demonstrable need there is no justification for the retention of the equipment and in accordance with policy TU19 of the Horsham District Local Plan 1997." Then 6:
"Before the development hereby approved is implemented, the precise siting of the mast shall be agreed on site with the Local Planning Authority. Thereafter the mast shall be erected in the agreed position. Reason: In the interests of visual amenity as the impact of the mast (in particular when viewed from the property to the east) [that is the claimant's property] was judged on the basis of the 'flag test' previously undertaken and in accordance with Policy TU19 of the Horsham District Local Plan 1997."
It then referred to the plans upon which the decision was based and concluded:
"Note to applicant: In making this decision the Council has had regard to the following policy(ies) from the Horsham District Local Plan/West Sussex Structure Plan: CS1 TU19 NE23 Reasons for granting planning permission: 1. The proposal is consistent with the provisions of the development plan."
[17]The obligation to give reasons for granting planning permission is contained in article 22 of the Town and Country Planning (General Development Procedure) Order 1995. Article 22(1), which is the relevant provision, was substituted from December 2003, so it is still a relatively recent requirement. It reads, so far as material, as follows:
"22(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 -- (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];"
[18]Although not specifically raised by either counsel, it seems to me that there was a failure here to include a summary of the relevant policies. It is in my judgment insufficient simply to identify a policy without indicating what it concerns. What is required is a summary of the relevant policies, not merely a list of policies which are considered to be relevant. The summary need be no more than a few words identifying the relevant aspect of any policy but that in my view at least must be given. Accordingly, the decision failed to comply with that part of article 22(1)(b)(i). However, as I say, that point was not taken by Mr Kolinsky and he concentrated on what he submitted was a defect in the reason, as it was stated. He submitted that that could not on any view be regarded as a sufficient reason for granting the permission in the circumstances of this case.[19]There is some authority on what is required in order to comply with article 22(1). The first case in which this matter appears to have been raised was R (Wall) v Brighton & Hove City County [2005] 1 P&CR 566. It was a decision of Sullivan J. In that case it was conceded that there had been a failure to give any reasons. In fact what the notice stated was that the decision to grant planning permission had been taken having regard to the policies and proposals in the relevant plans and to all relevant material considerations and then set out a brief indication of what the various policies covered but went no further. As I say, it was then conceded by counsel that there had been a failure to give any reasons at all and the case proceeded on that basis.[20]Sullivan J helpfully sets out what led to the decision of Parliament to include article 22(1) in its present form and Sullivan J's experience in planning is of course second to none. In paragraph 53 he said this, on page 588:
"53. 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. 54. 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. 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."
Pausing there, clearly, interested members of the public will be those for whom the reasons to grant will be of the greatest concern but it must be remembered that an objector may well want to know whether there is a prospect of a claim for judicial review of the decision and therefore the summary reasons will be material so that he can indeed consider whether the Council has on the face of it properly had regard to all to which it ought to have had regard. Equally, the applicant may also have an interest to know and to be satisfied that there is no legal problem in the grant because obviously if there were he would know that it might be dangerous for him to go ahead immediately in reliance upon that permission, particularly if there had been vociferous and detailed objection by interested parties to it. Accordingly, as it seems to me, the need to give reasons is based upon the same considerations as the need to give full reasons for the refusal of a planning permission but of course, as Sullivan J pointed out, so far as the applicant is concerned, if there is a refusal, it is wider than whether there was an error of law because he has to consider whether there is a chance that, were he to appeal, that appeal might meet with success.[21]Going back to the judgment, in paragraph 55, Sullivan J pointed out that the new requirement did not impose an undue burden upon local planning authorities because officers' reports customarily included recommended reasons for refusal or for the imposition of conditions and there was no reason in his view why officers, when recommending the grant of planning permission, should not similarly include recommended summary grounds for so doing. Then in paragraph 58 he said this:
"58. 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." 59. 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 [that is R v Westminster Council Ex P Ermakov [1996] 2 All ER 302]. 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."
He then went on to deal with the facts of the case before him.[22]He considered the question of the exercise of discretion because, obviously, the fact that reasons have been defective should not automatically result in the quashing of the planning permission. If it was apparent that the permission was properly considered and was properly granted, it would, generally speaking, be wrong to quash it merely because there was a defect in the reasons. What the court could do in such a case would be to direct that proper reasons should be given, bearing in mind that one of the purposes of having the reasons in the decision is that, when that decision is placed on the planning register, those who have occasion to look at the register will be in a position to understand why the particular permission was granted. In paragraph 63 Sullivan J said this:
"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."
Pausing there, those were the replies of the councillors who had been on the committee to a request to indicate what in fact were their reasons for having granted permission. Going back to paragraph 63:
"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."
He made the point that Parliament had required the giving of summary reasons. If there was a breach of the requirement then prima facie the decision should not stand unless there were reasons why the court should in the exercise of its discretion refuse in the circumstances to grant the relief that was sought.[23]In a subsequent case R(Ling) (Bridlington) Limited and others v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin), Sir Michael Harrison was concerned with a claim in which it was suggested that the reasons given had been insufficient. The relevant reasons -- in fact there were two permissions in question -- relating to the provision of a fun park and whether a wheel, similar to that on the South Bank in London, should be placed on the seafront in Bridlington and the reasons in each case, as I say, were much the same and, so far as the wheel was concerned, read:
"The proposal has been considered against the policies below and it is considered that the scheme accords with these policies, and there are no material considerations which indicate a decision should be otherwise. East Yorkshire Borough Wide Local Plan: EN1 - Development Limits. T1 - Tourist Development. EN20 - Setting of Listed Buildings."
So far as the fun park was concerned the wording was identical, the only difference was that only one policy was referred to. In fact there was a typing error but that was accepted by everyone as a typing error and that was that reasons referred to T10, which should have referred to T1.[24]Sir Michael Harrison set out some four factors which he considered to be relevant in considering the adequacy of reasons for the grant of permission. He deals with them in paragraphs 47 to 50 of his judgment which read as follows:
"The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants' contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission. 48. Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission. 49. Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases. 50. Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate."
[25]I have, I confess, some slight difficulty with the first two of those stated relevant factors. It seems to me that in principle the purpose of the giving of reasons is the same whether they be full or summary. The requirement in planning cases -- indeed not only in planning cases -- has always been recognised to be that the reasons are to enable an individual, be he objector or failed applicant, to see whether there might be grounds to challenge the decision and, accordingly, if in paragraph 47, when Sir Michael was stating that the standard of reasons for grant should not be the same as the standard for refusal, he was intending to indicate that the same principle that I have referred to should not apply, then I do not accept that that is an appropriate approach. If, on the other hand, all that he was intending to say was that there is a significant difference in the standard required for summary as opposed to full reasons, although each should have regard to the same purpose, then I have no difficulty.[26]The second relevant factor is an indication that there is no need for a summary of the reasons for rejecting objections. It seems to me that reasons in relation to planning decisions must normally deal with the main issues that have been raised. That is again a clear basis upon which the adequacy of reasons should be judged. In this case, the officer's report indicates what were the main issues and they really are need, siting and possible health concerns, and in siting I include, of course, the visual impact of the mast. It seems to me that the reasons ought at least to have stated, albeit only in a sentence in each case, why those issues have been decided in favour of the applicants. It is true that all that would have been required perhaps in relation to, for example, need was that the Council, had been satisfied that a need for the mast had been established in order to provide the necessary coverage; so far as siting was concerned, that the Council had been satisfied that this was the best available site for the mast because it had the least impact insofar as visual amenity was concerned; and, so far as health considerations, that there was no risk to health in having the mast sited where it was.[27]Mr Cosgrove has suggested that, if one looks at the decision as a whole and sees the conditions and the reasons given for the conditions, it must have been obvious, and indeed implicit, that the Committee had indeed decided that those considerations had been met and therefore that the laconic statement that the proposal was consistent with the provisions of the development plan suffice. Incidently, there were, it seems, two plans, certainly on the face of it two plans which were regarded as relevant, because it is far from clear whether all the three policies are in one. But that apart, as I say, Mr Cosgrove suggests that a reading of the whole would make that clear.[28]I have no doubt that the reasons stated in the circumstances of this case do not meet what was required. It may be that in an entirely straightforward case where there have been no objections to the relevant application (and that may well be often the situation) it is unnecessary to do more than to state that the proposal was consistent with the plan. It would be helpful, I think, to indicate that no objections have been raised to it and that would make the position clear. Perhaps adding there were no material considerations which pointed in any other direction might be sufficient. But it is a dangerous approach for Councils to make. It lays them open to claims that insufficient reasons have been given and it would be prudent and sensible in all cases for Councils, and obviously for officers in making their reports, to bear in mind the need that summary reasons must deal in summary form, with the substantial issues which have formed part of the consideration of the planning application and that they are likely to be used by objectors to see whether there may be some reason to seek judicial review. If reasons are defective and do not deal with what they ought to deal with, that may lay the Council open to a judicial review claim.[29]I should add that I was referred to a further authority, the decision of Newman J in R (Chisnell) v London Borough of Richmond upon Thames [2005] EWHC 134. The reasons in that case had referred back to the report and in fact the reasons stated were as follows:
"... permission to develop the said land in accordance with the said application is hereby granted subject to the conditions and informatives summarised and listed on the attached schedule."
In the schedule this was said:
"This decision has taken into account the relevant policies of the Unitary Development Plans and all other material considerations where appropriate. Full reasons are given for the imposition of any conditions attached to this notice. For a full understanding of the reasons for reaching this decision reference should be made to the application report and any accompanying minutes. Minutes are only relevant if the application was considered by the Planning Committee. The following have been taken into account in the consideration of this proposal... [and it then listed various references to the plans and policies.]"
This Newman J decided was not lawful because it did not comply with article 22(1), it was not sufficient for reasons to require the reader to look to other documents. The whole purpose of the requirement to give somebody reasons in the planning decision was to enable him from that decision to know why, in summary form, the permission had been granted.[30]I am therefore, as I say, entirely satisfied that the reasons given in this case did not accord with what was required by article 22(1). The question therefore finally arises as to whether I should, in the exercise of discretion, refuse nonetheless to grant relief or rather I should limit the relief that I grant to a requirement that proper reasons be expressed and be placed on the register rather than that the decision itself should be quashed. Mr Cosgrove has submitted that there is no prejudice to the claimant and that in all the circumstances it must have been obvious why the decision went as it did. I have rejected the substantive grounds which were raised and which were said to vitiate the grant. In those circumstances, Mr Cosgrove submits that there is no good reason why this planning permission, which was ex hypothesi properly granted, should now be set aside and there should be a need for a reconsideration.[31]I should say that prejudice to a claimant is not established simply by the claimant having established a breach of the requirement to give proper reasons and losing, if discretion is exercised against her, the opportunity of hoping that on reconsideration a different decision might be reached. That would involve putting both the Council and the applicants to added expense for no good purpose and certainly would not be in the public interest. It is clearly a relevant consideration in exercising discretion 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 this context, it seems to me that it is clearly a relevant factor that there are objections which could have been put in a more satisfactory fashion. It is apparent that the siting further within the copse was an issue that was not properly dealt with and not properly raised by the claimant. It may be that it can be said that that was her fault, initially in that her representatives, ASB Law, did not properly identify the point and, secondly, that she did not raise it when she was permitted to speak at the Committee (and indeed she did speak, albeit she was limited to two minutes). That seems to me to be, albeit perhaps relevant, not determinative.[32]The fact is that, as it seems to me, there was an issue particularly having regard to the offer to pay, and it may be that, if it is properly put forward and some work is done on establishing that the access concerns are able to be met, there might be some possibility of a different decision being reached. Having regard to the clear breach that I have found of article 22(1), it seems to me that little in the way of a chance of a fresh decision would justify a decision to quash and not to exercise discretion against and, indeed, that seems to have been the approach adopted by Sullivan J in Wall, an approach with which I respectfully concur. In all the circumstances of this case, I therefore am persuaded that it would not be appropriate to exercise discretion against the decision to quash the planning approval, having regard to the breach of article 22(1). Accordingly, this claim succeeds and the permission will be quashed.[33]Yes. Now, Ms Hallet --[34]MS HALLETT: My Lord, I appear in place of Mr Kolinsky for the claimant.[35]MR JUSTICE COLLINS: Yes, I gather that. I indicated that I did not require anyone in particular to attend on the other side. Have you had any discussion as to what might be agreed in the way the --[36]MS HALLETT: In terms of costs my Lord, my understanding is that costs are agreed and that the defendant has agreed to pay off all the costs that appear in the claimant's schedule. Do you have a copy of that?[37]MR JUSTICE COLLINS: I do not think I have it or if I do have it I am afraid I have not got it with me. What is the total sum?[38]MS HALLETT: It is in the sum of £18,796.30, my Lord.[39]MR JUSTICE COLLINS: It is rather a lot. I see, yes. This is the -- yes, I see. Well, if that is the agreed sum, then I am content to state that this claim succeeds with costs in the sum of £18,796.30.[40]MS HALLETT: I am obliged, my Lord. Perhaps in the absence of any learned friend I should just address the question of appeal. It has been -- I understand it has been agreed that, should either party wish to appeal, that representations should made within 14 days of the date of the transcript and thereafter within 21 days, if it is refused, to be renewed to the Court of Appeal.[41]MR JUSTICE COLLINS: Yes, that is satisfactory. I am afraid that I am in fact going to be away for three weeks from tomorrow so I would not be able to approve the transcript until my return, which will be, I think, 18th June, so I imagine that a transcript will be available then or on a day or two afterwards. So time will have to run from then but I am quite content that time for consideration should run from then.[42]MS HALLETT: I am obliged, my Lord.[43]MR JUSTICE COLLINS: Right. Thank you.

Cited in 19 later judgments

and 10 more of the most senior