Carlton-Conway v London Borough of Harrow

Where a planning delegation permits an officer to approve an application despite written objections only if the proposal does not conflict with agreed policies, the officer must genuinely consider whether the application falls within that exception. The exception applies where the relevant facts and policies are clear and the policies can be applied straightforwardly.

Real issues about the meaning of planning policies or their application require referral to the planning committee. A permission granted outside the delegated power is invalid. A committee’s later indication that it would have approved the application does not provide the fresh, unencumbered consideration to which an objector is entitled.

The appellant owned a house adjoining a property for which the respondent council’s chief planning officer granted permission for extensions under delegated powers. The appellant had submitted a detailed written objection. Paragraph 1.9 of the delegation permitted officer approval following an objection only where the proposals did not conflict with agreed policies, standards and guidelines.

Stanley Burnton J refused the appellant’s application to quash the permission. The appellant challenged both the officer’s authority to determine whether the proposal complied with policy and the reasonableness of treating this application as falling within the delegated exception. The case involved an erroneous description of the development, complex planning policies and uncertainty about which policies applied. The central issue was whether the officer had acted within the delegated power.

1. Appeal allowed and planning permission quashed. Pill LJ delivered the judgment, with which Robert Walker LJ and Sir Martin Nourse agreed.

2. The absence of the words “in his opinion” from paragraph 1.9 did not deprive the planning officer of all power to judge whether a proposal conflicted with agreed policies, standards and guidelines. Some judgment was necessarily required if the exception was to operate.

3. Paragraph 1.9 had to be construed against the policy of public participation in planning decisions. The scope of power delegated to a single officer therefore required careful consideration. The officer had to give careful and genuine consideration to whether the particular application fell within the delegation. Where a written objection had been made, the exception contemplated cases in which the relevant facts and policies were clear and the policies could be applied straightforwardly.

4. This application did not satisfy that standard. The permission seriously misdescribed the proposed development. The council’s policies were complex and subtle; one was accepted to be confusing, while the officer treated another as containing a material error. There was no contemporaneous evidence that the facts had been established or that the officer had considered which policies applied. The complexities meant that reliance on paragraph 1.9 was unreasonable. The only rational course was referral to the committee.

5. Public policy required an officer to exercise such delegated powers circumspectly. Real issues about the meaning of planning policies or their application to the facts required referral to the appropriate committee.

6. Relief was not withheld merely because the committee later stated that it approved the officer’s conduct and would itself have granted permission. An ultra vires grant amounted to no planning permission. The appellant was entitled to fresh consideration by a committee unburdened by a perceived risk that support for its officer or avoidance of judicial review influenced its earlier resolutions.

7. It was desirable for an officer exercising such powers to record the relevant factors before deciding. Although great detail would often be unnecessary, contemporaneous reasons would promote clarity and avoid an unsatisfactory attempt to justify the decision through lengthy reports prepared after the event.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the planning permission was quashed: [2002] EWCA Civ 927. The appellant received the costs of the appeal and the proceedings below.

2. High Court: Stanley Burnton J had refused the appellant’s application to quash the planning permission. No citation for that judgment is stated.