Wall, R (on the application of) v Brighton & Hove City Council

MR JUSTICE SULLIVAN:

In this application for judicial review the claimant applies for a quashing order in respect of a grant of planning permission dated 18th March 2004 by the defendant for the demolition of an existing house "Ruston", Withdean Avenue, Brighton, and its replacement by eight self-contained apartments.

Ruston is a substantial two-storey house which is set in a large garden on the north side of Withdean Avenue. To the west there are the rear gardens of houses (Nos. 8 and 10) fronting Dyke Road Avenue, and to the north there are the rear gardens of houses (Nos. 6 and 8) fronting Hazeldene Meads. The eastern boundary of Ruston adjoins Lions Gardens. Lions Gardens comprises six bungalows in two groups of three. Nos. 1 to 3 face approximately westwards towards Ruston; Nos. 4 to 6 face approximately southwards. The two blocks form an inverted "L" shape enclosing communal gardens bounded by Nos. 4 to 6 to the north, Nos. 1 to 3 to the east, and Ruston to the west. Access to Lions Gardens is from Withdean Avenue to the south.

The claimant lives in No. 6 Lions Gardens. The windowless flank wall of No. 6 is separated by a narrow strip from the boundary with Ruston's garden, making it the nearest property to the boundary. A 3-metre high hedge runs along the boundary.

The grant of planning permission was challenged on two grounds. Firstly, the defendant failed to take into account a material consideration, namely the effect of the proposed redevelopment on the claimant's property. Secondly, the defendant failed to comply with the requirements of article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended) ("the Order") because its decision notice did not include a summary of the Planning Applications Subcommittee's (the Committee's) reasons for granting planning permission. A third ground of challenge in the claim form was not pursued by Mr Pereira on behalf of the claimant.

It is clear from the officers' report to the Committee meeting on 17th March 2004 that the application for planning permission was a controversial one. The report notes under "Consultations" that two councillors were opposed to the development, and refers to a total of 160 letters of objection having been received. The addresses of those objectors are listed and they include Lions Gardens. Letters of objection are noted as having been received from Nos. 2, 3 and 6 Lions Gardens. The report stated that the letters had not been copied to all of the members of the Committee but had been placed on file and were available for viewing by the councillors.

The claimant's letter of objection said, in part:

The report summarised the objections in a long list of bullet points. These included "New building will overlook surrounding houses/bungalows", and "New building will overshadow surrounding houses/bungalows".

Having referred to the relevant planning policies, the report set out the officers' view of the relevant planning considerations under a number of headings. Under the heading "Effect on amenity of adjoining properties" the report said this:

The conclusion in the report was as follows:

Mr Pereira submits that the impact on No. 6 Lions Gardens was not addressed in the report, despite the fact that it was the closest property to the proposed redevelopment. The existing house, Ruston, is situated roughly halfway along the eastern boundary of its garden, opposite the communal garden area of Lions Gardens and to the south of No. 6. Although set further back from the boundary, the proposed redevelopment would extend further northwards within the garden, so that the northernmost flats, with their windows facing east, would be some 6 metres away from the western flank wall of No. 6. Thus the proposed new building would be much closer to No. 6 and the intervening distance would be very much less than the figures quoted in respect of the other properties mentioned in the report.

The report referred to the diagrams submitted by the agent of the applicant for planning permission. TA1101/09A was a proposed cross-section which showed the relationship between the new flats and the flank wall of No. 6 Lions Gardens. It also showed, by dashed lines, the outline of Ruston, closer to the boundary than the new flats. Mr Pereira submitted that this cross-section was misleading because it gave the impression that the existing property was closer to No. 6 than the proposed flats, when the reverse was the true position. Viewed in isolation, by someone who was unfamiliar with architects' plans and drawings, cross-section TA1101/09A might have been misleading, but it would have ceased to mislead anyone as soon as it was considered in conjunction with the other plans and drawings, including in particular the site location plan, what was described as a "proposed contextural plan", and the proposed site layout, on all of which the position of Ruston was clearly shown.

Copies of all the plans were not supplied to each individual member of the Committee. Instead, they were on display in the Committee room and all the members of the Committee were provided with a location plan at the end of the report. Having looked at that location plan they would have been left in no doubt as to the position of the existing property within its garden, and would have been able to take that information into account when interpreting the cross-section.

The members of the Committee did not confine their attention to simply looking at plans and drawings. Prior to the meeting they carried out a site visit. During their site visit they visited 8 Hazeldene Meads. The rear garden of No. 8 backs on to the application site and the rear elevations of 4 to 6 Lions Gardens. No details of the site visit are available, but it is reasonable to assume that the members must have looked towards the application site (and hence towards the rear of No. 6) from No. 8 Hazeldene Meads, since they were trying to assess the impact of the proposed development upon the surrounding dwellings. Armed with the plans and drawings, and in the light of what they saw on the site visit, the councillors must have been made aware of the relationship between No. 6 and the proposed flats.

At the meeting three councillors spoke in objection to the proposals, as did a spokesman on behalf of the objectors. All of these speakers referred to the effect of the proposals on adjoining residents.

Against this background it is unrealistic to suggest that the Committee overlooked the impact of the proposed development on the claimant's property. It is true that the impact on No. 6 was not specifically referred to in the report, but the officers were not obliged to deal individually with each and every property that might be affected by the proposed redevelopment. It is important that officers' reports concentrate on the principal issues, otherwise there is a real danger that the wood will be lost for the trees. Although the issue was of vital importance to the claimant, the impact of the proposed development upon No. 6 was but one aspect of one of the very many planning factors which the Committee had to weigh in the balance.

Members of the Committee were alerted to the fact that they needed to consider the impact of the proposed development on adjoining properties, including Lions Gardens, adjoining one of the "two most vulnerable boundaries" to the east. It is understandable that the report should have dealt with the distances between the proposed development and Nos. 1, 2 and 3 Lions Gardens because those bungalows faced westwards towards the proposed development. No. 6, by contrast, faces southwards and has a windowless flank wall facing towards the proposed development. Insofar as the new flats would overlook Lions Gardens, they would overlook the communal garden area to the south of No 6. Thus the officers' view that "there would be no adverse effect on adjoining properties by way of overlooking or overshadowing" is understandable. The Committee members were entitled to disagree with that assessment, and some of them did so. Four members voted against the grant of planning permission, seven in favour. There was therefore ample opportunity for any member who was at all concerned about the effect of the proposals on No. 6 because, for example, of what he or she saw on the site visit, heard during the course of the discussion in Committee, saw on the drawings, or read in the report, to raise that issue. I am not satisfied that the failure to mention it was because it was overlooked. For these reasons I reject ground 1 of the challenge.

The notice dated 18th March 2004, granting planning permission, contained this informative:

Article 22(1) of the order provides, so far as relevant for present purposes:

While the notice does include a summary of the policies and proposals in the development plan which were relevant to the decision, the defendant concedes that it does not include a summary of the Council's reasons for the grant of planning permission. At issue between the parties is what should be the consequence of that failure to give summary reasons. Permission to apply for judicial review was granted on 21st July 2004. On 11th August one of the defendant's senior lawyers wrote to those members of the Committee who had voted in favour of granting planning permission:

All seven of the councillors who voted in favour of granting planning permission replied. The Chair of the Committee said:

Other councillors said:

Councillor Hamilton said:

Councillor Watkins said:

It is clear from the application drawings that the proposed redevelopment does in fact exceed the footprint of the existing house and so one of the defendant's lawyers wrote to Councillor Watkins on 23rd August, thanking him for his letter and saying:

Councillor Watkins replied on 23rd August:

The defendant's officers have prepared an amended decision notice, adding the following words after the informative set out above:

The defendant has made it plain that it is prepared to undertake to substitute the amended decision notice for the original notice in the planning register and on the planning file. In these circumstances Ms Wigley, on behalf of the defendant, submitted that it was unnecessary for the court to quash the original decision notice since it would serve no useful purpose to do so.

Mr Pereira emphasised the fact that the statutory scheme does not simply require the local planning authority to provide a summary of their reasons for granting planning permission: the summary must be included in the decision notice itself. It would be noted that article 22(1) draws a distinction between the summary of the local planning authority's reasons for granting planning permission and the "full reasons" which must be given for the imposition of each condition (22(1)(b)), and for any refusal of planning permission (22(1)(c)). In principle there could be no objection to a local planning authority subsequently adducing evidence to amplify its summary reasons, since by definition they do not purport to be the local planning authority's full reasons for granting planning permission. In the present case, however, no reasons whatsoever were given in the notice granting planning permission.

In these circumstances, Mr Pereira submits that the defendant should not be allowed to rely upon the statements of the individual councillors obtained some five months after the decision notice was issued in response to the letter of 11th August 2004. He principally relied upon the approach of the Court of Appeal in R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302. In that case the claimant was seeking assistance as a homeless person from the City Council under the Housing Act 1985. In a decision letter by one of the Council's housing officers he was told that he was not entitled to assistance because the Council considered that he was intentionally homeless. The Council's decision was challenged in judicial review proceedings. In its evidence in those proceedings the Council advanced new and different reasons for reaching the conclusion that the claimant was intentionally homeless. The judge admitted that evidence. The Court of Appeal allowed the claimant's appeal. Hutchison LJ, with whom Thorpe LJ and Nourse LJ agreed, said at page 309A that a number of factors were of particular importance in that case. Those factors were as follows:

Having considered a number of other authorities, Hutchison LJ said this at page 312E:

Hutchison LJ set out his conclusions, beginning at page 315G:

While acknowledging that Ermakov was concerned with a different statutory regime, Mr Pereira made the point that planning permission is granted when the notice of decision is issued. Until that time the local planning authority is under a statutory duty to have regard to all material considerations: see R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, [2003] JPL 431. Thus the local planning authority's decision-making power is formally engaged until the time when the notice is issued. On the fact of the present case, the Committee meeting took place on 17th March and the notice was issued the following day, so for practical purposes the resolution to grant planning permission and the issuing of the notice were contemporaneous.

Ms Wigley accepted that local planning authorities were under a duty to have regard to all material considerations up to the point when the notice granting planning permission was issued, but she submitted that where there was no material change of circumstances (and none is suggested in the present case) the local planning authority was under no duty to reconsider its resolution before issuing the notice of the grant of permission. Thus there might be a significant lapse of time between the resolution to grant permission and issuing the notice of the grant of permission. She relied on the Court of Appeal's decision in R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860, [2004] 1 WLR 1920. A decision to grant planning permission for an EIA development, a quarry extension, was challenged in judicial review proceedings. Regulation 21(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regulations) provides:

Regulation 21(1) implements Article 9(1) of Council Directive 85/337/EEC which provides:

The defendant Council accepted that it had not complied with Regulation 21(1), but proposed to place a revised statement, setting out the main reasons and considerations on which its decision was based in the planning register, thus making it available for public inspection. The claimant contended that this was inadmissible and that the planning permission itself had to be quashed. Neither Richards J nor the Court of Appeal accepted that submission. Richards J reviewed the relevant authorities, and in paragraph 33 of its judgment the Court of Appeal endorsed his conclusions, reached in the light of that analysis, which were as follows:

In paragraphs 38 and 39 of his judgment, Simon Brown LJ as he then was, with whom Keene LJ and Scott Baker LJ agreed, said this:

Richardson was followed in Younger Homes (Northern) Limited v First Secretary of State [2004] EWCA Civ 1060, where there had been a failure to send a copy of a screening opinion under the EIA Regulations to the applicant for planning permission and to place a copy in the planning register. The Court of Appeal concluded that these breaches of procedural requirements did not invalidate the planning permission itself. Having referred to the decision in Richardson, Laws LJ said this in paragraph 48 of his judgment:

Mr Pereira submitted that Richardson was distinguishable on two grounds. First, the Court of Appeal concluded that the critical part of Richards J's judgment was that regulation 21(1) looked to the position after the grant of planning permission:

In the present case, after the lapse of some five months two of the councillors did have difficulties in recollecting their reasoning. Councillor Watkins initially said that the new building did not exceed the footprint of the existing house. When it was pointed out that this was wrong he acknowledged that he may have misremembered the size of the footprints. Councillor Hamilton's view that "the footprint of the proposed block does not differ greatly from the footprint of Ruston" was not reasonably open to her in the light of the submitted drawings.

Ms Wigley submitted that, with the exception of a regrettable lapse of memory on the part of the Councillor Watkins, the councillors' responses were clear enough: all those who voted for the grant of planning permission agreed with, or saw no reason to dissent from, the views expressed in the officers' report. She relied on the approach adopted in R v Mendip District Council, ex p Fabre [2000] JPL 810 at page 822:

That approach was adapted by Simon Brown LJ in Richardson (see paragraph 35 of his judgment). She submitted that the circumstances in this case were very different from those in R (Carlton-Conway) v Harrow London Borough [2002] EWCA Civ 927 where the members, who had not themselves taken any decision, were subsequently asked to endorse a planning officer's reasons for taking a decision, purportedly, but wrongly, under delegated authority.

Mr Pereira pointed out that Fabre pre-dated the amendments to article 22(1) which require the local planning authority to give summary reasons for the grant of planning permission. Parliament could have required local planning authorities to give summary reasons for granting planning permission only when they disagreed with an officer's recommendation, but it did not do so. Although he accepted that the letter dated 11th August 2004 was couched in neutral terms, he submitted that the councillors' replies might have been motivated in part by a desire to adopt the reasons in the report as the simplest means of resisting the claimant's judicial review proceedings which were by that stage on foot.

Ms Wigley also relied upon the Court of Appeal's decision in Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303. In that case planning permission had been granted subject to conditions, but no reasons had been given for the imposition of those conditions. The Town and Country Planning (General Development) Order 1950 required the local planning authority to state its reasons in writing if it decided to grant planning permission subject to conditions. It was argued that the lack of reasons meant that the conditions were a nullity and could not be relied upon in enforcement notice proceedings. The Court of Appeal rejected those arguments. Winn J, giving the judgment of the court, said this at pages 313 to 314:

The question of giving post facto reasons does not appear to have arisen in the Brayhead case. As Mr Pereira pointed out, the decision is now over 40 years old and it long pre-dates what Richards J described as the tendency in recent years to adopt a stricter approach to the requirement to give reasons: see paragraph 47 on page 1931 of the Court of Appeal's judgment. In the present case the claimant does not claim that the decision notice is a nullity. She does claim that the notice granting planning permission is legally flawed and that the court therefore has jurisdiction to quash it.

In London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 a certificate of appropriate alternative development was issued but, in breach of the relevant procedural requirements, it did not mention the existence of a right of appeal. The House of Lords concluded that this defect was fatal to the certificate, quashed it and ordered the Council to issue a new certificate. On page 189C Lord Hailsham considered the Council's submission that the defect could have been safely ignored:

Ms Wigley accepted that the court has a discretion to quash the defective notice, but she submitted that, by reference to the policy underlying the requirement to give summary reasons, it should not do so. There are two policy reasons for requiring the local planning authority to give its summary reasons for granting permission: firstly, to inform those who are interested in the outcome of the application why they have "won or lost" and thus enable them to assess whether they have any ground for challenging that decision by way of judicial review; and secondly, to impose a degree of rigour upon the decision-making process itself: see Ermakov at page 316C-D and Richardson paragraph 39.

Looking at the first of those policy reasons, the claimant now knew why the defendant had decided to grant planning permission. She had therefore suffered no real prejudice, much less any substantial prejudice (see Save Britain's Heritage v No. 1 Poultry Ltd [1991] 1 WLR 153 per Lord Bridge at page 167) by reason of the omission of summary reasons from the decision notice itself.

Turning to the latter policy requirement she submitted that it made no practical difference whether summary reasons were formulated before the decision notice was issued or shortly thereafter. In the latter case members would have to recall what were their reasons for deciding to grant planning permission, so a discipline or structure would still be imposed upon the decision-making process.

By contrast with the claimant, who had suffered no prejudice, she submitted that an unnecessary administrative burden would be placed upon the defendant and the applicant for planning permission would be prejudiced by the continued uncertainty. She drew my attention to a letter dated 8th October 2004 from Mrs Sugarman, the owner of Ruston, which encloses a letter from the prospective developers, dated 2nd December 2004, stating that they were willing to proceed with the purchase of the site but were unable to proceed further "until a satisfactory outcome of the proposed judicial review in respect of the planning consent has come about".

Mr Pereira submitted that it was not necessary for the claimant to demonstrate that she had been prejudiced by the absence of reasons on the decision notice, although he accepted that a lack of prejudice would be a relevant factor in the exercise of the court's discretion. The requirement to demonstrate "substantial prejudice" in the context of applications to quash Secretary of State's decision letters under the Town and Country Planning Act 1990 stemmed from the wording of the Act itself (see section 288). If the decision notice was quashed the defendant would have to redetermine the application and the claimant would then have an opportunity to explain in detail her concerns about the impact of the proposed development on No. 6 Lions Gardens.

Development Orders are subject to annulment by a resolution of either House of Parliament: see section 333(5) of the Town and Country Planning Act 1990. In permitting paragraph 1 of article 22 to be substituted by the 2003 Order, Parliament clearly intended not merely that local planning authorities should give summary reasons for their decisions to grant planning permission, but that those reasons should be included in the decision notice itself. The requirement to give summary reasons in the decision notice can fairly be described as "procedural", but the importance of this procedural change, as from 6th December 2003, should not be underestimated. Disappointed applicants who have been refused planning permission, or applicants who have been granted conditional planning permission, have always been entitled to reasons from the local planning authority. In the years immediately after the First Appointed Day, on 1st July 1948, there was a tendency to regard development control as akin to a private matter between property owners and local planning authorities. Public participation in the planning process was very limited indeed. Very few rights were conferred upon the public. They were not consulted on planning applications as a matter of routine, and if there was an appeal against a refusal of planning permission their participation in any inquiry was very much left to the discretion of the inspector.

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.

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 (see Fabre above). 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.

The new requirement does not impose an undue burden upon local planning authorities. Officers' reports customarily include recommended reasons for refusal of planning permission or for the imposition of conditions. Members are free to debate those recommendations and agree or disagree with them, adding or striking out reasons for refusal or conditions. When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officers' report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officers' summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission.

A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void (see Brayhead above). On the other hand, such a failure could not be described as "so nugatory or trivial that the authority can safely proceed without remedial action" (see London & Clydeside above). If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case, where it fits within the "spectrum of possibilities" referred to by Lord Hailsham in London & Clydeside.

The failure to give "full reasons" for refusing planning permission or for imposing conditions could, in theory, be the subject of judicial review proceedings but it is likely that in almost every case there will be a more effective alternative remedy: appeal to the Secretary of State, coupled with the Secretary of State's power to award costs in respect of unreasonable behaviour, which would include failure to give proper reasons for refusing planning permission or for the imposition of a condition.

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.

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. 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. It is not suggested that the members did in fact agree their summary reasons at the meeting on 17th March, but due to an administrative oversight those reasons were omitted from the decision notice on 18th March. It would appear that the, then relatively recent, need to provide summary reasons was not appreciated by members and officers, and it was thought that merely listing the relevant policies would suffice.

Although Ermakov was concerned with a wholly different statutory scheme, where the decision and the reasons for it are contained in a letter sent by a local authority housing officer, and there is no equivalent of an officer's report or committee consideration, the "good policy reasons" given in subparagraph (3) on page 316, as to why a decision that does not contain any reasons should prima facie be quashed as unlawful, apply with no less force to a decision notice granting planning permission. The fact that summary reasons for granting planning permission are provided for the benefit of the public, rather than for an individual applicant for housing assistance, does not lessen the need both to inform those concerned and to avoid sloppy decision making.

Richardson and Younger are distinguishable since they are both concerned with what happens after the grant of planning permission. Although Ms Wigley sought to persuade me that providing reasons after the event would still impose a discipline or structure on the decision-making process because members would have to recollect what their reasons were for granting planning permission, it is plain that the Court of Appeal saw a clear distinction between making information available for the public as to what has been decided, and laying down requirements for the decision-making process and thereby dictating the course or quality of that process: see per Simon Brown LJ at paragraphs 38 and 39 above.

Regulation 21(1) of the EIA Regulations does not prescribe any particular time within which the statement containing (inter alia) the main reasons and considerations on which the local planning authority's decision is based must be made available for public inspection. It is to be inferred that it must be done as soon as reasonably practicable and in any event within a reasonable time: see per Richards J at page 257 of 2004 Env LR 13. Thus it would be lawful for the purposes of Regulation 21(1) of the EIA Regulations if the members of a planning committee, after a lengthy debate, resolved that they would grant planning permission for an EIA development, instructed the officers to issue the decision notice the following day, but decided that because of the lateness of the hour they would reconvene on a convenient day the following week to agree the statement of the main reasons and considerations to be placed in the Register. Such a course would not, however, be lawful for the purposes of article 22(1) of the Order since the decision notice is itself the grant of planning permission. This may also be contrasted with the position in Younger since no time is prescribed for placing the copy of the screening opinion on the Register once planning permission has been granted.

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. 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.

At first sight it might seem somewhat odd that an interested third party who wishes to challenge a Secretary of State's decision letter granting planning permission on the grounds of inadequate reasons has to show that he has been substantially prejudiced by that failure (see Save above), whereas an interested third party challenging a local planning authority's failure to give summary reasons for granting planning permission does not have to show prejudice. The requirement to demonstrate substantial prejudice in the former case is imposed by the 1990 Act (see section 288(5)(b)). Moreover, the two sets of circumstances are not truly comparable. Decision letters from the Secretary of State and his inspectors must contain not merely summary but their full reasons for granting planning permission, even though those reasons may, in appropriate cases, be briefly stated. Some reasons are invariably given in decision letters from the Secretary of State and his inspectors, and challenges are made upon the basis that the reasons given are inadequate, not that they are non-existent. In the unlikely event that a decision letter from the Secretary of State contained no reasons whatsoever, it is difficult to imagine circumstances in which the court would decline to quash the decision upon the basis that the applicant was not substantially prejudiced by the complete failure to give any reasons.

I accept Ms Wigley's submission that this is not a Carlton-Conway type case. The letters dated 11th and 23rd August from the defendant's legal officers to the councillors are scrupulously fair and neutral in their terms. There no reason to believe that the members subconsciously felt that they were under any pressure to endorse the officers' report, or to adopt any other line of reasoning. Reading the letters as a whole, one is left with the clear impression that the members did agree with, or at least did not dissent from, the officers' report, but it is difficult to understand how Councillor Hamilton could have reasonably formed the view that the footprint of the proposed block did not differ greatly from the footprint of Ruston, and Councillor Watkins fairly acknowledged that his recollection may have been (it plainly was) mistaken. A comparison of the footprints of the existing and proposed buildings can fairly be described as a matter of detail in the overall picture, but it is a detail which is of vital concern to the claimant. As the closest neighbour to the proposed development she has a particular interest in being accurately informed of the defendant's summary reasons for granting planning permission. Councillor Watkins' and (to a lesser extent) councillor Hamilton's evidence illustrates the problems inherent in inviting busy Committee members to recall what their reasons were for granting a particular application -- one of many they will have had to consider -- some five months after the event. Ms Wigley referred the approach of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 to those cases where judges at first instance have given inadequate reasons, but the position of the professional judge is not to be equated with that of a lay committee seeking to reach a "collegiate" majority view. Moreover, in most cases the professional judge will have given some, albeit perhaps incomplete, reasons for his decision.

I do not intend to suggest that in an appropriate case a local planning authority cannot remedy a failure to include summary reasons in the decision notice granting permission. The Clydeside case reminds us that each case will very much turn upon its own particular facts. The failure to include summary reasons in a decision notice might be no more than a typographical omission of reasons which have in fact been agreed. There might be cases, for example, where very substantial prejudice would be caused to the applicant for planning permission, or to others interested in the land, if the planning permission was to be quashed on this ground. Building work might have commenced on site; a change of use might have taken place; contracts might have been exchanged. While I have great sympathy for Mrs Sugarman, and the continued uncertainty is most undesirable from her point of view, there is no reason to believe that Gresham Homes would not proceed with the purchase if, on reconsideration, the defendant decided that planning permission should be granted for the reasons set out in the officers' report. Mrs Sugarman certainly would be prejudiced if, on reconsideration, the defendant refused planning permission, and might be prejudiced if it imposed markedly more stringent conditions designed to protect the amenity of No. 6, but in so far as such an outcome is a possibility it is an argument in favour of quashing an unlawful decision notice.

Ms Wigley submits that, the members' views having been ascertained, the outcome of any reconsideration would be in effect a foregone conclusion. That would suggest that it should not be unduly burdensome for the defendant to have to redetermine the application if the decision notice was to be quashed. But in any event I have concerns about the procedure which was adopted by the defendant to elicit the members' recollections of their reasons for granting planning permission. In saying this I do not intend to sound unduly critical, and I accept that the defendant was doing its best to rectify the procedural error. The fact remains that the Committee met in public on 17th March. Thus the public were able to hear the arguments for and against the grant of planning permission. Article 22(1) is intended to ensure that the Committee's summary reasons are agreed upon in public session, not in private correspondence between a local planning authority's lawyers and individual councillors who voted in favour of granting planning permission, which correspondence is made public only because it is produced for the purpose of defending judicial review proceedings.

If there has been a failure to include summary reasons for granting planning permission in a decision notice, and the omission has occurred because the Committee has failed to agree upon the summary reasons for its decision, and the local planning authority wishes to make good that omission, then the proper course would seem to me to be for the officers to take the matter back to committee at the earliest possible opportunity so that the Committee can decide, in public session whilst members' recollection is still fresh, what were its summary reasons for granting planning permission. It must be borne in mind that those reasons might well have been informed by the views of those who were against the grant of planning permission, as well as those who voted in favour. Adopting such a procedure would not necessarily persuade the court that a defective notice granting planning permission should not be quashed, but the fact that a local planning authority had adopted such a procedure would be a factor to take into account in the exercise of the court's discretion, since in practical terms the local planning authority would have undertaken the same exercise that it would have to undertake if the decision notice was quashed, although it would not have been free to change its mind and refuse planning permission.

Standing back from the detail, Parliament intended that the defendant should set out its summary reasons for granting planning permission in the decision notice. This is not a case of summary reasons being inadequate because, for example, the planning authority has failed to mention a particular reason or reasons. No reasons at all were given. While it is true that the claimant cannot point to any specific prejudice having been caused by the defendant's omission, neither can the defendant or any interested party point to any particular prejudice if the decision notice is quashed and the Committee has to reconsider the matter. The defendant's case really amounts to no more than a submission that it should not be put to the administrative inconvenience of having to reconsider the application, but if the Committee's reasons are to be elicited after the event that should have been done by taking the matter back to the Committee and by the Committee discussing and resolving upon summary reasons in public session. Whether they do so following the quashing of a decision notice or as a means of trying to save a defective notice would seem to make little practical difference in terms of administrative burden, save that in the former case the members would retain the option of refusing planning permission on reconsideration.

In the "spectrum of possibilities" this case could be said to be finely balanced. Beyond the complete absence of reasons there are no very strong pointers either way as to how the court's discretion should be exercised. In these circumstances the proper approach must be that it is unlawful for a local planning authority to issue a grant of planning permission that does not include its summary reasons for granting planning permission, and the court should exercise its discretion to remedy that illegality by quashing the defective notice, unless there is some good reason not to do so. For the reasons set out above, no such reason exists in the present case and it follows that the planning permission dated 18th March 2004 must be quashed.

It only remains for me to express my thanks to both counsel for their very helpful submissions.

MR BOOTH: My Lord, I am grateful.

MR JUSTICE SULLIVAN: Yes, Mr Booth.

MR BOOTH: I shall firstly indicate that Mr Pereira does apologise for being unable to attend this afternoon.

MR JUSTICE SULLIVAN: Of course, apology accepted.

MR BOOTH: My Lord, given the judgment which you have just made, it only remains for me to seek that you also make an order for the claimant's costs.

MR JUSTICE SULLIVAN: Yes.

MR BOOTH: As you will be aware, my Lord, the claimant is in receipt of a certificate from the Legal Services Commission and in those circumstances, and the fact that also this case was not heard in a single day, I do not consider this is a case for seeking summary assessment.

MR JUSTICE SULLIVAN: You have to have detailed assessment for public funding purposes if you get your costs.

MR BOOTH: Of course, that is correct.

MR JUSTICE SULLIVAN: Can I see if Ms Grekos has any objection to that?

MS GREKOS: No, my Lord.

MR JUSTICE SULLIVAN: I am not suggesting there really could be one, seriously, but just in case there might be one. Then the order of the court is that the application is allowed; the decision notice dated 18th March 2004 is quashed; the defendant is to pay the claimant's costs; those costs are to be subject to detailed assessment for public funding purposes.