December 23rd, 2016 by James Goudie KC

R (Shasha) v Westminster City Council (2016) EWHC 3283 (Admin) concerned a grant of planning permission under delegated powers.  An issue was as to the giving of reasons. It was submitted that there was an obligation to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”).

Part 3 of the 2014 Regulations (which contains Regulation 7) was made under Section 40(3) of the Local Audit and Accountability Act 2014. For the purposes of that Part a “relevant local government body” includes bodies which are local planning authorities.  Regulation 7(1) provides that a decision-making officer must produce a written record of any decision which falls within paragraph (2).  A “decision-making officer” is “an officer of a relevant local government body who makes a decision which falls within Regulation 7(2)”. As soon as reasonably practicable after the required record is made it must be made available to the public, together with any background papers, in accordance with the provisions of Regulation 8. 

The Judge ruled (paras 27-31 inclusive) that Regulation 7 is applicable to a decision taken under delegated powers to grant planning permission.  There was an obligation on the decision-making officer to produce a record of the decision to grant planning permission and the reasons for it and as soon as practicable after the decision-making officer made the decision.

Regulation 7(3) of the 2014 Regulations replicates the requirements imposed on an officer of a local authority operating executive arrangements taking an “executive decision”. What such provisions require by way of reasons for any decision will vary depending on the nature of the decision to which they apply.  Regulation 7(3) requires reasons (not merely summary reasons) to be produced for the decision. The Judge said:-

“36.     In my judgment the reasons to be produced for such a decision should make clear whether or not the decision to do so was in accordance with the development plan and, if it was not, what material considerations indicated that planning permission should be granted otherwise than in accordance with it. It may be clear whether or not the development was considered to be in accordance with the development plan, however, even when that is not stated explicitly: …

  1. … In my judgment, … the reasons given by an officer for a decision granting planning permission also need to “deal with the substantial points that have been raised” and that may well involve giving reasons for rejecting any objections which raise substantial points to the grant of planning permission. Such reasons, however, may be briefly stated.”

“40.     In my judgment, when a local authority is required to give a notice of its decision with reasons (as it was when it was obliged to give notice of the grant of planning permission with a statement of its summary reasons for the grant), it may not adduce evidence to contradict its stated reasons or its own “official records of what it decided and how its decisions were reached” including any relevant officer’s report: …

  1. It does not follow, however, that it may not adduce any evidence of any description as to the reasons for its decision. … where the officer has to produce a written record of the decision along with the reasons for it, in my judgment the principles enunciated in ex p Ermakov should govern the admissibility of evidence as to the reasons for the decision.
  1. Those principles allow for the admission of evidence to elucidate but only exceptionally to correct, or to add to, the reasons required to be produced. The examples of the corrections which may be exceptionally be considered (which do not amount to an impermissible contradiction or alteration) include errors in transcription or expression and words inadvertently omitted. An example of an addition that may be permitted exceptionally is where the language used may be lacking in clarity in some way: see ex p Ermakov at p833. Such corrections or additions ought now to emerge in any event before any claim for judicial review is brought if the pre-action protocol is complied with.”

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