Wall, R (on the application of) v Brighton & Hove City Council

A local planning authority acts unlawfully if a notice granting planning permission omits the summary of reasons required by article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995. The omission does not make the permission a nullity, but the court should ordinarily quash a notice containing no reasons unless a good reason justifies withholding relief.

Prejudice is relevant to that discretion but is not a prerequisite. Post-decision evidence may amplify summary reasons, but it should not supply entirely new reasons or replace reasons which the committee never agreed. Where no reasons were agreed, any attempted correction should normally be considered by the committee promptly and in public session.

The claimant sought judicial review of the council's permission for the demolition of a house and its replacement by eight flats beside her bungalow. She contended that the planning committee had failed to consider the development's effect on her property and that the decision notice contained no summary of the council's reasons, contrary to article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995.

After proceedings began, the council obtained individual statements from the seven councillors who had supported permission and prepared an amended notice. The issues were whether the committee had overlooked a material consideration and whether the statutory omission could be cured without quashing the permission.

1. The application was allowed and the decision notice quashed. The committee had not overlooked the development's effect on the claimant's property. Its members had the officers' report, plans, a site visit and oral objections. An officers' report should concentrate on the principal issues and need not address separately every affected property. The first ground therefore failed.

2. Article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 required the council's summary reasons to appear in the decision notice itself. That requirement promoted public participation, informed interested people why permission had been granted and imposed discipline on the committee's reasoning. It applied even where members could reasonably be inferred to have accepted an officer's recommendation.

3. Failure to give the summary reasons did not make the permission a nullity, applying Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303. Nevertheless, it was a material illegality capable of supporting a quashing order. The consequence depended on the statutory purpose, the facts and the position occupied by the defect within the spectrum described in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182.

4. R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 and Younger Homes (Northern) Ltd v First Secretary of State [2004] EWCA Civ 1060 were distinguishable. Their requirements concerned publication after permission had already been granted. Article 22(1), by contrast, required reasons within the notice that itself granted permission and therefore affected the decision-making process.

5. There was no objection in principle to amplifying summary reasons. A council could not, however, rely on entirely different or wholly new reasons formulated after the event. The policy reasoning in R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 applied: a complete absence of reasons should prima facie lead to quashing. If a committee had omitted to agree reasons, the proper corrective course was to return the matter promptly to the committee for public consideration while recollections remained fresh.

6. The claimant did not have to establish prejudice or substantial prejudice, although prejudice remained relevant to discretion. Here there was no good reason to withhold relief. The later correspondence revealed problems of recollection, and private responses by individual councillors could not replace collegiate reasons agreed in public. The defendant was ordered to pay the claimant's costs, subject to detailed assessment.

This was a first-instance judicial review claim. Permission to apply for judicial review was granted on 21 July 2004. The Administrative Court allowed the application and quashed the planning decision notice dated 18 March 2004.