Cousins, R (on the application of) v London Borough Of Camden

Permission to appeal from a judicial review decision will be refused where the proposed grounds merely challenge an evaluative conclusion that was reasonably open to the first-instance judge. An alternative view of the evidence does not establish an error of law.

A planning authority must have regard to the relevant statutory considerations. The persistence of an existing planning condition may inform the decision, but cannot lawfully prevail so as to exclude consideration of current material issues. A general duty to give reasons does not ordinarily require detailed reasons for every planning decision where the decision-making material and the basis of the decision are sufficiently apparent.

Mr Cousins sought permission to appeal against Mr Justice Sullivan’s dismissal of his application for judicial review. The challenge concerned Camden’s renewal of planning permission for a roof terrace overlooking his home.

He alleged that the planning sub-committee had been advised to exclude overlooking from consideration, relied on late evidence, failed to apply the principle in R (Barker) v Waverley Borough Council [2001] EWCA Civ 566, and failed to give adequate reasons. Lord Justice Sedley considered whether any of those points disclosed an arguable error of law warranting permission to appeal.

1. Permission refused. The application for permission to appeal was dismissed.
2. The first-instance judge was entitled to resolve the conflict between the applicant’s evidence and the council’s evidence on the written material. Although cross-examination could have been permitted, its absence did not make the judge’s conclusion unlawful. The possibility that another judge might have reached the opposite conclusion was insufficient to establish an appealable error of law.
3. The council’s evidence had been served out of time, but it had been available weeks before the hearing. The applicant had not claimed that the delay impeded the proper conduct of his case. His conduct amounted to a clear waiver of any objection to admissibility.
4. The principle stated in R (Barker) v Waverley Borough Council [2001] EWCA Civ 566 was not infringed. The accepted evidence showed that the councillors had considered overlooking, while taking account of the fact that it had been tolerated for ten years. That historical consideration had not unlawfully displaced the current issue.
5. The duty to give reasons is context-sensitive. Planning decisions will not readily fall within a class requiring separately articulated reasons where officers’ reports are disclosed, oral representations are made, and the decision-maker’s basis is otherwise sufficiently apparent. On the facts, there was adequate information about why the council reached its conclusion.

• Court of Appeal (Civil Division): permission to appeal from the decision of Mr Justice Sullivan was refused; the application was dismissed.
• Administrative Court, High Court: Mr Justice Sullivan dismissed the application for judicial review on 20 February 2002.