Macrae, R (on the application of) v Heath

This is an appeal from an order dated 8 September 2011 of David Elvin QC sitting as a deputy High Court judge ("the judge") refusing the appellant's application for permission to apply for judicial review of a planning permission granted on 17 June 2010 to the interested party for the construction of a three-bedroom dwelling on land adjacent to Sun Cottage, Garaway Hill, Hereford. The site of the dwelling is in the open countryside.

The respondent's planning officers had repeatedly recommended that planning permission should be refused. In a report dated 10 February 2010 the Head of Planning and Transportation had stressed his concern that:

The factual background is set out in some detail in the judge's judgment reported at [2011] EWC 2810 (Admin). In summary the Southern Area Planning Subcommittee had resolved on 25 November 2009 in favour of granting planning permission. Because this decision was contrary to officers' advice the matter was referred to the Planning Committee on 10 February 2010. The officers again recommended refusal; members disagreed and resolved to approve the application subject to appropriate conditions to be recommended by officers and approved by members through a further information report. The matter came back before the Planning Committee on 17 March; again the officers argued for a refusal of planning permission, but members adhered to their view that planning permission should be granted, decided what conditions were appropriate and what heads of terms should be included in a Section 106 agreement and that the details of the agreement to be determined by the officers.

The agreement was eventually concluded on 16 June, and on the next day, the 17 June 2010, the planning permission was granted.

The terms of the planning permission are set out in paragraphs 38 and 39 of the judgment. For present purposes the respondent's summary reasons for granting planning permission are of particular importance. They were set out in an “Informative” at the end of the planning permission, as follows:

The claim form applying for permission to apply for judicial review was issued on 15 September 2010, two days within the three-month period for seeking judicial review in CPR 54.5. In paragraph 50 of his judgment the judge said that the issues before him were as follows:

The judge answered those questions as follows:

In his appeal to this court the appellant challenges the judge's answer to question (i) and the latter part of his answer to question (iii). That is to say that the minutes provided "a basis for understanding members' views".

The appellant does not challenge the judge's answers to questions (ii) and (iv), nor does the respondent challenge the judge's conclusion in (iii) that the summary reasons were inadequate.

Much of the appellant's skeleton argument is concerned with the question whether there is still a requirement of promptness in the light of certain decisions of the European Court of Justice, now the Court of Justice of the European Union. It is submitted that the promptness requirement is not compatible with the requirement of legal certainty as applied by the CJEU and that it is undesirable that there should be two approaches to the need for promptness, on the one hand to purely domestic cases and on the other to those cases where there is an EU dimension.

Those are interesting arguments, but in my judgment it is unnecessary to resolve them in this case because this appeal turns very much on its own particular facts. If it is assumed against the appellant that he should have made his application for judicial review promptly after the grant of planning permission, the judge's conclusions that:

Whether an application for permission to apply for judicial review is made promptly will depend upon all the circumstances. One of those circumstances is the extent to which the alleged error of law in the decision is plain or whether the decision "leaves the claimant in the dark" as to the basis on which it was taken. In the latter case it would normally be reasonable for the claimant to seek to ascertain, so far as he reasonably can, what was the basis for the decision before he resorts to litigation.

In paragraph 58 of his judgment the judge said:

With respect to the judge, that misses the point. In the present case the summary reasons were so inadequate that they did "leave the appellant in the dark" as to what were the members' reasons for granting planning permission, contrary to the very clear recommendations in the officers' reports. Mr Giles submitted on behalf of the respondent that if one looked at the Informative one could see the policies which the respondent had considered, and those policies included policy H7 and policy H8. One could also see, he submitted, that members considered that those policies had been complied with rather than this being a case of non-compliance with policy, so that an exception was being justified on the basis of other material considerations.

Mr Giles further submitted that if one looked at the minutes of the members' discussion it would have been apparent to the appellant, who had attended the meetings, that the basis for the grant of planning permission was that members had decided that the application did comply with policies H7 and H8. Therefore the appellant was not someone who was in the dark as to the reasons for the respondent’s decision.

I do not accept that submission. If one looks at the Informative the first paragraph merely identifies those policies to which the respondent had regard. It says nothing whatsoever as to whether or not the development was or was not in compliance with all or any of those policies. To ascertain that one has to look at the second paragraph, but that does not say in clear terms that there was compliance with policy H7 or H8; it merely says that in reaching the decision the authority had been mindful of various matters, and they included "the extent to which development complied with policy". That of course leaves open the question: to what extent did the development comply with any, and if so which, of the policies that had been listed? If one was left puzzled by that, one would then go to the next paragraph, which said that further detail on the decision could be obtained by looking at what was described as "the application report".

Turning to the minutes. While two of the speakers appear to contend that there was compliance with policies H7 and H8, other speakers appear to be directing their observations to further policies, for example policy H10 which Mr Giles correctly pointed out is not referred to in the summary reasons for granting permission, or they were contending that an exception to policy was justified. In these circumstances I do not accept that attendance at the meetings would have meant the appellant was left any the wiser as to what the reasons for granting planning permission were.

Against this background it was, in my judgment, entirely reasonable for the appellant's solicitors to seek formal clarification of what was meant by the reference in the summary reasons to "the application report" which the informative said would give "further detail on the decision". The solicitors asked this question of the respondent by letter dated 19 August, some two months after the grant of planning permission. The respondent answered nearly three weeks later on 7 September and the claim was then filed on 15 September. The judge dismissed the significance of the need for this inquiry as to what was "the application report" because he said (in paragraph 48 of his judgment):

There was no cross-examination; the judge was therefore referring to what the appellant had said in paragraph 16 of his second witness statement:

Since none of the officers' reports had recommended that planning permission should be granted it was very far from obvious that the reference to "the application report" was really a reference to those officers' reports rather than a possible reference to some other, as yet undisclosed, document. The appellant was entitled to be puzzled as to how the reports recommending a refusal of planning permission could possibly give further details of a decision to grant planning permission, and to seek through his solicitors to have that issue clarified before commencing proceedings. Even if there was some lack of promptness, the application had been made within the three month period and, subject to one exception, the judge had found that there had been no prejudice to either the respondent or the interested party as a result of any lack of promptness. The judge referred to that exception in paragraph 62 of his judgment:

“The exception to that is the reserved matters application which was made and approved following the grant of permission, and before he [the interested party] was aware of the letter before claim, since it was only received by the Council on the day that the approval was issued."

It is important to bear in mind in this context that the interested party made the application for reserved matters’ approval and incurred the application fee of £335 on 13 June 2010; thus the application for approval of reserved matters was made within some two weeks of the grant of planning permission. It seems to me that however promptly the challenge might have been made, it was inevitable that this application fee would have been incurred.

In summary, this was a case where there was, in truth, no lack of promptness if it was reasonable for the appellant's solicitors to ascertain the basis of the respondent's decision and, even if there was some small lack of promptness, it had caused no prejudice whatsoever. If there was a proper ground of challenge to the planning permission there was simply no case for refusing the application for permission to apply for judicial review on the ground of mere lack of promptness.

The judge's conclusion that the reasons were "certainly not adequate to discharge the statutory duty" (see paragraph 110 of the judgment) was plainly correct. In particular, the summary reasons failed to make it clear whether the members had decided to grant planning permission because they considered that the development was in accordance with the development plan or whether they had recognised that the proposed development was not in accordance with the development plan but had nevertheless decided to grant planning permission because "material circumstances" had persuaded them to depart from the policies referred to in the Informative.

The reference to “the application report” merely added to the confusion because the officers' reports had advised members that the development was contrary to the development plan and that material circumstances did not justify a departure from the plan.

The judge thought that this failure to comply with the statutory requirement was ameliorated by the fact that:

In approaching the issue of reasons in this way the judge, in my respectful view, erred both in principle and on particular facts of this case. The judge erred in principle because the underlying statutory purpose of requiring local planning authorities to give a summary of their reasons for granting planning permission was to avoid the need for claimants to pursue a paper chase and to examine extrinsic evidence in order to ascertain what the reasons for granting planning permission really were.

In paragraph 101 of his judgment the judge cited R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin), in which I said in paragraph 57:

I there referred to extrinsic post hoc evidence. The judge in the present case thought it was permissible to rely on contemporaneous evidence, that is to say the minutes, albeit that they were extrinsic to the summary reasons for granting planning permission. If the summary reasons cross-refer to an officers’ report which has recommended the grant of planning permission, it is entirely consistent with the statutory purpose to look at that document as fleshing out the summary reasons given for the grant of permission. However, looking at extraneous documents to which the summary reasons do not refer, and in effect conducting a "paper chase" through the local planning authority's minutes, frustrates the statutory purpose of requiring summary reasons. The minutes of the council's debates were not referred to in the summary reasons, and they do not in any event enable an answer to be given to the question: did the members think that this was a decision that was in accordance with the development plan, and if so for what reasons since they were disagreeing with the officer's view; or was this a decision that was contrary to the development plan but material considerations indicated that permission should be granted, and if so what were those material considerations which justified the departure from the development plan given that the officers had said that a departure was not justified?

For these reasons I am satisfied that although the judge's decision to refuse relief on this ground was an exercise of discretion. It was an exercise of discretion that was plainly wrong in principle, and I for my part would allow the appeal and set the judge's order aside.

That leaves the question what should this court do in the circumstances as they now are. Since the judge's decision the house has been built and it is now occupied by the interested party, his wife and two small children; a third child will soon be added to their family. Since there has been no challenge to the judge's conclusion that the grant of planning permission was not unlawful having regard to Section 38(6) of the 2004 Act, or otherwise irrational (see paragraphs 50 and 98 of the judgment) it is in my view quite inconceivable that if we were now to quash the planning permission the respondent on redetermination would refuse to grant a retrospective planning permission and would think it expedient to commence enforcement notice proceedings to secure the removal of the house. In these circumstances I accept Mr Giles' submission that an order quashing the planning permission would be a disproportionate remedy. Can anything else be done? The judge indicated that if he had not concluded that the application should be dismissed on the ground of promptness he would have ordered the respondent to provide a summary of its reasons for granting planning permission.

It seems to me that after this lapse of time that would not be an appropriate course for this court to take. In these circumstances I would allow the appeal and grant the appellant a declaration that the summary reasons do not comply with the statutory requirement. In my judgement declaratory relief is justified it must be made clear that these reasons were wholly inadequate to discharge the respondent's statutory responsibilities.

In these somewhat unusual circumstances declaratory relief is a sufficient vindication of the stance that the appellant has taken.

I agree.

I also agree with the course proposed by Sullivan LJ and for the reasons he gives. I add a few words because we are disagreeing with the judge. On the reasons challenge, the judge stated at paragraph 107:

When considering the question of promptness the judge, with respect, does not appear to have taken into account the findings he has made. He has conducted a very detailed consideration of the issue of promptness and at paragraph 59 referred to what he understood “the application report” to be. He stated:

But the question remains open what the reasons for the decision were. The best the respondent could offer was to refer the appellant to the application report. That report was the report of the planning officer. His report was very firmly against the granting of planning permission and it plainly did not reveal the reasons why, contrary to that advice, permission was refused. The approach demonstrated in that paragraph was in my judgment erroneous as a matter of principle and requires the court to re-exercise the discretion.

The appellant made further attempts to discover what the reasons for the grant of permission were. That inevitably took time. His enquiries were not met by a constructive response. This is not a case where the respondent said “we have given reasons, we do not intend to say anymore”. In a case where there was such a clear notification a potential claimant may be expected to act straight away. The circumstances in this case are quite different. I agree with Sullivan LJ's analysis of the lapse of time and, exercising a discretion afresh as we are entitled to do, I agree that the claim was brought promptly within the meaning of the rule.

The respondent's default was a significant one. I appreciate the difficulties involved when officers who have prepared a report have to advise elected members, and to advise them not only on the merits of the planning considerations but on the need to give reasons. In my judgment the judge's use of the word "sloppy" was justified in this case. However, in my judgment, there is no real prospect that enforcement proceedings will result if the permission is quashed. A lawful decision could have been taken; there is no doubt about the power of the respondents to grant planning permission, and the judge held that the decision to grant permission was not an irrational decision. It was made by members who were most unlikely to change their minds on the merits of the proposal.

That being so, I agree with Sullivan LJ that it would not be appropriate to quash this permission and to create the uncertainty which would result from that. When the prospect of a lawful grant of permission is a strong one, and the prospect of enforcement proceedings by this particular council is virtually non-existent, I see no merit in quashing the decision as distinct from giving the declaratory relief to which Sullivan LJ has referred.

The proposal was made by the judge that, rather than quash, had he been in favour of the appellant on the question of promptness it would have been appropriate, as he stated at paragraph 114, to order a statement of the reasons for the decision. In my judgment that would not be an appropriate course to take in this case. An attempt to reassemble the 19 members of the council committee present on 10 February 2010 to try to express now, over two years later, what their reasons were at that time would not be sensible and would be susceptible to distorted reasons being given. In any event, as has frequently been said in this court, ex post facto reasoning is inevitably suspect. Without challenging the good faith of decision-makers, there would inevitably be a temptation to produce such reasons, as subsequent events will have made most acceptable.

What is important in this context is the statutory duty is discharged at the time that the decision has taken. That has its origins in the principles stated in relation to court proceedings by Henry LJ in Flannery v Halifax Estate Agencies [2000] 1 AER 3373. Henry LJ gave the following reasons. The first is that fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know whether the court has misdirected itself and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind. If it is fulfilled the resulting decision is much more likely to be soundly based on the evidence than if it is not.

The requirement placed on councillors and those advising them may be less stringent than that placed on judges in this context, but it is basically the same requirement and exists for the same reasons. The type of analysis which may be required in circumstances such as there was considered in this court, for example, in R (Young) v Oxford City Council [2002] EWCA Civ 990.

The appellant as a local resident has sought to uphold what he regards as important government and local policies in relation to the protection of the environment. In my judgment his wish to do that will in this case be sufficiently established by a declaration. It is to be expected that on future occasions the council will have regard to the judgments of the court in this case.

For those reasons and those given by Sullivan LJ, I agree with the course that he proposes.