Planning recommendations and decisions: R (Shasha and another) v Westminster City Council [2016] EWHC 3283 (Admin)

Sharpe Pritchard

This important case emphasises the importance for local planning authorities to ensure that the reasons for their planning recommendations and decisions are comprehensive. Sharpe Pritchard planning lawyer and partner Brian Hurwitz explains the case.

Background

In April 2016 Westminster City Council (‘WCC’) granted planning permission (the ‘2016 Permission’) for a development at Portman Mansions. The application replicated an earlier application granted by WCC in April 2013. The claimants objected to the grant of the 2016 Permission based partly on the closeness of the new building to their premises, raising concerns regarding the potential impact of the development on the levels of daylight and overshadowing. In April 2016 a council officer completed a report (the ‘Report’) recommending the grant of planning permission. The Report acknowledged the claimants’ objection but concluded that, in light of the earlier permission, the objections on loss of daylight and increased sense of openness were not sustainable to justify refusal.

The claimants brought a judicial review of WCC’s decision to grant the 2016 Planning Permission and argued that WCC’s decision was flawed on 4 grounds. The grounds were that WCC had failed to:

  • consider the effect of the development on the amenity of their premises on the merits;
  • correctly interpret and apply the relevant policy – part of the development plan for WCC;
  • ensure that there was sufficient information on the impact of the development on the amenity of the Claimants’ premises and to take into account the proximity to bay windows;
  • comply with the requirements of s70(2) of the Town and Country Planning Act 1990 (‘TCPA 1990’) and s38(6) of the Planning and Compulsory Purchase Act 2004 (‘PCPA 2004’).

The claimants were successful on all four grounds and the High Court held that the grant of the 2016 Planning Permission was unlawful.

Decision

John Howell QC (sitting as Deputy High Court Judge) reiterated the general rule that a local planning authority is under no statutory or general duty to give reasons or a summary of reasons for the decision to grant planning permission. However, he held that WCC was under a duty under regulation 7 of the Openness of Local Government Bodies Regulations 2014 to produce a written record of a decision where (1) the decision has been delegated under an express or general authorisation, (2) the decision would otherwise have been taken by a local government body or a committee, and (3) the effect of the decision is to grant a permission or licence. The record must state the date that the decision was taken, the reasons for the decision and details of any alternative options considered.

The judge held that, although planning legislation provides a comprehensive code of planning control, it does not govern by whom and how planning decisions are to be taken: instead, that is governed by more general legislation regulating the discharge of functions by local authorities. To satisfy the duty under regulation 7, the reasons given should make clear whether the grant of planning permission was in accordance with the development plan and, if not, what material considerations indicated that permission should be granted. The reasons should deal with substantial points raised and, in this case, that meant giving reasons for rejecting the objections.

When a local authority is required to give reasons for a recommendation (for example in a planning report) it may not later adduce evidence to contradict or add to those reasons. The judge reiterated the principle that evidence can be adduced so long as it merely explains the reasons originally given. Only exceptionally can further evidence correct or add to reasons. On the facts, the judge held that the officer’s report had to be taken to say what it appeared to say and the evidence that was adduced did not explain the reasoning in the report, but attempted to add new reasons.

Ground 1: whether the claimants’ objections were considered on their merits

The judge held that although WCC had described the objections in the report, the decision maker had not considered whether these could provide a reason for refusal on their merits. The decision maker had treated herself as bound by the earlier permission (to which no objections had been received). The judge held that this was an error of law as the relevant amenity objections had not been considered when the earlier permission was granted nor were they considered when the 2016 Planning Permission was granted.

Ground 3: whether the decision-maker had sufficient information on the amenity impacts of the proposed development

The judge held that a local planning authority cannot determine a planning application without the information that a reasonable planning authority would require in the circumstances. Although the judge held that WCC had sufficient information to make an informed decision, he agreed with the claimant that WCC had unlawfully failed to take into account the correct distance from the bay windows to the new building.

Grounds 2 and 4: whether WCC failed to interpret correctly and to apply its policy and to comply with the relevant statutory duties

Section 70(2) of the Town and Country Planning Act 1990 requires that when dealing with a planning application, a local planning authority should have regard to the provisions of the development plan so far as material to the application, to any material local finance considerations and any other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination to be made in accordance with the development plan unless material considerations indicate otherwise. The judge held that, when dealing with an application for planning permission, it was not enough for a local planning authority to reference relevant policies, it must also interpret these correctly and determine whether the individual policies support or count against the proposed development and consider whether the development is in accordance with the development plan as a whole.

On the facts, the judge held that although the report recited the relevant policy, it did not properly apply the policy to the facts by considering whether there was a material loss of daylight/sunlight. For the policy to be applied lawfully a conclusion had to be reached on that point and, as it had not been, WCC had not considered whether the proposed development was in accordance with the development plan. Therefore WCC had failed to interpret and correctly apply the policy and had failed to comply with the statutory requirements mentioned above.

Implications

The decision made in this case is of particular importance to Sharpe Pritchard’s local planning authority clients. When considering whether to grant planning permission under delegated authority, a case officer needs to be concerned not only with planning legislation, but also with other local government legislation relating to the discharge of duties by local authorities. The extent to which this decision will be followed in future cases remains to be seen.

Sharpe Pritchard’s planning lawyers regularly provide advice to planning authorities on committee reports and the decision-making process and offer a full range of planning law services to authorities and developers.


This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.