Young, R (on the application of) v Oxford City Council

Where a planning proposal may be approved either on its ordinary planning merits or as enabling development, the planning authority must identify and decide the correct basis. If the proposal is unacceptable on its own merits, the authority must then consider the applicable enabling-development policy. Failure to place a material policy before the decision-makers vitiates a permission granted on that basis.

Committee minutes and officers’ reports should disclose the decision-making process. Evidence from individual committee members will be exceptional, but may be admitted where the official record does not reveal the basis of the decision. Under rule 54.5(1) of the Civil Procedure Rules 1998, promptness remains required, but a claimant may reasonably seek information needed to decide whether judicial review is justified.

Oxford City Council granted planning permission for the conversion of Hill Top House, a listed building, and for five nearby mews houses. The applicant contended that the mews houses had been permitted as enabling development, without the planning committee having considered English Heritage’s relevant policy statement.

Ouseley J refused permission to apply for judicial review. He inferred from the committee material that the mews houses had been regarded as acceptable in their own right. He also held that the claim had not been brought promptly.

On appeal, six councillors provided fresh evidence that the mews houses remained unacceptable in planning terms but had been approved to fund restoration of the listed building. The central issues were whether that evidence should be admitted, whether the omitted policy was a material consideration, and whether the claim was prompt.

Appeal allowed unanimously. Lord Justice Pill gave the principal judgment, with which Lord Justice Potter and Lord Justice Judge agreed.

1. The planning decision potentially required two distinct stages. The committee first had to decide whether the mews development was acceptable on its planning merits. If it was, permission could be granted without reference to the policy statement. If it was not, the committee had to decide whether permission could nevertheless be justified as enabling development, after considering that material policy.

2. The contemporaneous record did not make the basis of the grant clear. The fresh evidence of six councillors, who formed a majority of those present at the decisive meeting, was credible and showed that the mews houses were considered unacceptable in planning terms. The permission was therefore probably granted only as enabling development. Since the policy statement essential to that second-stage decision was not before the committee, the permission could not stand.

3. Statements from committee members should be admitted only rarely. Planning decisions should ordinarily be established from the minutes, officers’ reports and recorded committee decisions. Here, the inadequacy of that material and the reasonable explanation for the applicant’s failure to obtain the evidence earlier justified its admission.

4. Under rule 54.5(1) of the Civil Procedure Rules 1998, the relevant date was the actual grant of planning permission, as established by [2002] 1 WLR 1593, rather than the earlier committee resolution. The claim was within three months. It was also prompt because the applicant reasonably sought information from the council before commencing proceedings. The requirement of promptness remained effective, although the court did not decide the Convention and Community-law doubts discussed in [2002] 1 WLR 1593.

The court admitted the fresh evidence, quashed the planning permission, and awarded the applicant costs here and below.

• Court of Appeal (Civil Division) — in [2002] EWCA Civ 990, granted permission to appeal, allowed the appeal, admitted fresh evidence and quashed the planning permission.
• High Court, Queen’s Bench Division, Administrative Court — Ouseley J, on 18 October 2001, refused permission to apply for judicial review, holding that the policy statement had not been shown to be material and that the claim lacked promptness.