Delegated decisions and the Shasha case

March 2, 2017

Meyric Lewis considers the consquences of a High Court ruling as to whether reasons need to be given for delegated decisions to grant planning permission.

The High Court has held in R (Shasha) v. Westminster City Council [2016] EWHC 3283 (Admin) that officers granting planning permission under delegated authority are required to give reasons for their decisions. This is on the basis of reg. 7 of the Openness of Local Government Bodies Regulations 2014 which requires a written record of reasons to be produced where an authority grants any “permission or licence” in the exercise of delegated powers.

It is surprising that the Regulations should have this effect. They were made “to make councils, including parish and town councils, and other local government bodies such as fire and rescue authorities, more transparent and accountable to their local communities”, see the accompanying guidance: Open and accountable local government – A guide for the press and public on attending and reporting meetings of local government 2014.

The regulations are broad in their coverage in that they make provision for authorising certain means of communication (tweeting, blogging recording of meetings), access to meetings and (as in the case of reg. 7) access to information. The enabling power under which the regulations were made in the Local Audit and Accountability Act 2014, which is not of course obviously concerned with planning.

Moreover, in affecting delegated decisions by officers in planning matters, they contradict the conscious repeal in 2013 of the requirement to give summary reasons for a grant of planning permission imposed by amendments to the then GPDO 1995 in 2003.

But this is what the court has decided. This article considers the implications of the Shasha decision for planning authorities.

Regulation 7

Reg 7 provides (so far as material for present purposes):

“(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2).

(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body... but it has been delegated to an office and, the effect of the decision is to

(i) grant a permission or licence;

(ii) affect the rights of an individual; or

(iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information

(a) the date the decision was taken;

(b) a record of the decision taken along with reasons for the decision;

(4) The duty imposed by paragraph (1) is satisfied where, in respect of a decision, a written record containing the information referred to in sub-paragraphs (a) and (b) of paragraph (3) is already required to be produced in accordance with any other statutory requirement”.

Shasha – facts

The facts of Shasha are not really relevant to the court’s decision concerning the application of the regulations. But they assist in understanding the background. In a nutshell, planning permission was granted in 2013 for development of a mansion block fronting Marylebone Road including excavation of a bank outside the claimant’s basement level office windows and construction in the space created of an estate office and gym to serve the block as a whole.

The permission expired in 2016 and an application was made to renew it, relying on the same plans and application documents. The council’s case officer was the same on both applications. She visited the site in 2013 and took photos including views of the bank area outside the claimant’s windows.

In 2013, the claimant did not make any objection to the application (but another resident raised impact on sunlight and daylight in another part of the building – so it was a “live” issue considered in the determination of the planning application).

But the claimant did object to the 2016 renewal application specifically on grounds of loss of sunlight and daylight, overlooking and increased sense of enclosure.

The officer produced a delegated report addressing the claimant’s objection. She referred to the development plan policies cited by them and she acknowledged their point that there would be a “sheer wall” outside their basement office windows. But she concluded her analysis with the sentence “As permission has previously been granted for the proposal the objections on the loss of daylight and increase sense of enclosure are not considered sustainable to justify a reason for refusal of the scheme”.

Permission to apply for judicial review was granted on the basis that, in the light of the sentence just quoted, it was arguable that the previous permission granted in 2013 was “treated as the reason for treating the various objections raised by the Claimants... as ‘not sustainable to justify refusal’”.

So the case officer put in a witness statement to explain the background to the decisions in 2013 and 2016 and to respond to the point raised by the judge in granting permission. She explained that she had taken into account the amenity impacts in considering the 2016 planning application but did not regard them as amounting to sufficient grounds for refusing planning permission, especially since it was the same development as she found acceptable in 2013.

But the claimant objected to the admissibility of the witness statement relying on the line of cases including R v. Westminster City Council ex p Ermakov (1995) 28 HLR 819 to the effect that a decision maker cannot “fundamentally alter” or “contradict” the stated “reasons” for a decision by evidence after the event. Such evidence can only be used to “elucidate, correct or add to” the reasons.

It therefore became necessary to decide whether the contents of the officer’s delegated report were a statement of “reasons” for the decision.

The court held that they were, given that the terms of reg. 7 could not be disapplied just because the requirement to give reasons for a grant of planning permission is no longer to be found in the DMPO.

The Judge’s reasoning

The Judge set out his reasoning in paras. [27] to [31] of his judgment. He concluded that it did not matter that planning is supposed to be a “comprehensive code” in that other areas of substantive law can govern how local authorities conduct their business. He did not regard the anomaly of the abolition of duty to give reasons on non-delegated decisions as a reason for construing the regulation otherwise than in accordance with its terms (referring to a grant of a “permission or licence”) saying that you could not read the words “other than a planning permission” into the regulation. He pointed out that there was otherwise no express requirement to produce a report in support of a delegated decision. He dismissed the argument that reg. 7(4) could be read as being satisfied by observation of the limited requirement to give reasons for only for imposing conditions on a grant of planning permission as “misconceived”.

Consequences of the decision

The Shasha decision is not to be appealed. But it is hard to believe that the re-imposition of duty as found by the judge would have been intended by those responsible for abolishing the requirement to give reasons for granting planning permission which was imposed in 2003 but then consciously repealed in 2013 as part of the red-tape challenge.

The rationale for removing the requirement was set out in the Explanatory Memorandum to the DMPO (Amendment) Order 2013 as follows:

“officer reports (either for delegated decisions or for decisions to be taken by committee) typically provide far more detail on the logic and reasoning behind a particular decision than a decision notice. In order to understand the full rationale for the decision the officer report would need to be obtained. The requirement to provide this summary therefore adds little to the transparency or the quality of the decision-taking process, but it does add to the burdens on local planning authorities.

Since the requirement was introduced, ease of access to planning information has grown. Officer reports for both minor and major applications are now generally available online. In addition, the minutes and decisions of planning committee meetings are also published electronically. Furthermore, familiarity with the rights granted under the Freedom of Information Act 2000 has increased. As a result of these advances, there is now a greater level of transparency in the decision taking process”.

So the Government acknowledged that there was little benefit in increased transparency of decision making (the objective behind the 2014 Regulations) for maintaining a requirement to give reasons in the planning context. They also identified a positive disbenefit in requiring officers to devote energy to discharging the obligation to give reasons when most of the information those interested in the rationale for a decision might wish to see was already readily available in the form of an officer’s report.

But the fact remains that, unless Shasha is not followed in subsequent cases, authorities will need to ensure that they “produce a written record” of a delegated decision to grant planning permission containing the information required by reg. 7(3) including “the reasons for the decision”. Otherwise they will risk being challenged for failing to observe the duty to which they are held to be subject in Shasha. Note: reg. 7 was held not to apply so as to require a statement of the committee’s reasons by the officer delegated to grant permission in the recent decision in Oakley v. South Cambridge District Council [2017] EWCA Civ 71 – although the authority in that case was held to be under a duty to give reasons for the members decision at common law because of the particular facts (development in the green belt granted permission contrary to officer’s recommendation).

The reasons authorities give will also have to be of an adequate standard, with no dispensation for the fact that the decision is being made at officer level as distinguished from an Inspector’s decision following a planning inquiry, see caution expressed by Laws LJ in R (CPRE Kent) v. Dover DC [2016] EWCA Civ 936 about Lang J’s decision in R (Hawksworth Securities plc) v. Peterborough CC [2016] EWHC 1870 (Admin). Note: CPRE is subject to an appeal in the Supreme Court. Indeed, Oakley and CPRE may justify a further article on the law of reasons in their own right.

Conclusion

So what will be required in the future of officers making delegated decisions to grant planning permission? Will it be sufficient just to state in a decision notice that “the local planning authority’s reasons for its decision to grant planning permission are set out in the accompanying officer’s report”? This would accord with the “fair inference” that the contents of an officer’s report will reflect the LPA’s views as in eg ex parte Fabre (2000) 80 P & CR 500 and see the similar reference in Shasha at 32.

What if (heaven forbid!) the senior officer who had to sign off the decision took a slightly different view from their colleague who produced the report?

It may be that the courts would regard the formulation suggested above as being adequate (subject to compliance with the other requirements of reg. 7). Only time will tell. But, come what may, the senior officer’s mind would of course have to go along with the statement they were putting their name to.

A final observation to make is that it has been suggested that local planning authorities might wish to consider lobbying for some clarification as to what the Government would really require of them where their decision making duties in respect of delegated planning matters are concerned. The current situation is certainly unsatisfactory in as much as the requirement to give reasons arising post-Shasha seems clearly not to have been intended by Government.

But, for the time-being at least, authorities will have to ensure that they do “produce a written record” of a decision to grant planning permission containing the information required by reg. 7(3) including “the reasons for the decision” where the decision is made by an officer acting under delegated authority.

Meyric Lewis is a barrister at Francis Taylor Building.