Dry, R (on the application of) v West Oxfordshire District Council

Where a planning authority resolves to grant permission but the formal decision is issued later, a delegated officer need not refer the matter back merely because a new material consideration has arisen. The officer may proceed if the authority was aware of the matter, considered it with the application, and the officer is satisfied that the authority would reach the same rational decision on reconsideration.

Flood risk must be assessed by reference to the evidence as a whole, not solely to an outdated flood-map designation. A negative environmental-impact screening decision requires reasons when reasons are requested, but their adequacy is a matter of planning judgment. A planning brief arising from guidance is unnecessary where detailed acceptable development proposals are already under consideration and the brief would serve no useful purpose.

The claimant sought judicial review of the defendant local planning authority’s grant of permission for approximately 100 houses at Eynsham East. Permission had been refused on paper by a Deputy High Court Judge, and the claimant renewed the application.

The claimant challenged the decision on three grounds: failure to reconsider the application after the Environment Agency extended its flood-risk mapping; inadequate reasons for the decision that no environmental impact assessment was required; and failure to prepare a planning brief contemplated by the local plan guidance. The court heard full argument as if on a substantive hearing and considered whether any ground was arguable.

1. Flood-risk reconsideration. Permission to pursue the sequential-testing ground was granted, but the claim was dismissed. Applying the approach in Kides v South Cambridgeshire District Council (2003) JPL 431 at paragraph 126, a delegated officer may issue the decision if the authority knew of the new material consideration, had considered it with the application, and the officer was satisfied that on reconsideration the authority would, rather than might, reach the same rational decision.
2. The planning committee had not treated the original Environment Agency flood map as conclusive. It had considered the site’s actual flooding history, the wider evidence, the need for mitigation, and the Agency’s withdrawal of its objection. The later extension of the mapped flood area therefore did not create a realistic basis for concluding that the committee would have selected different alternative sites or required a different internal design.
3. Environmental impact assessment. The challenge was unarguable. Under Mellor, reasons for a negative screening decision were required when requested. The reasons supplied were brief but adequate when read as a whole. Whether the 2007 flood should be taken into account was a matter of planning judgment, and the authority was entitled not to rely on it for this purpose.
4. Planning brief. The challenge was also unarguable. A planning brief was a product of government guidance, not statute. The guidance contemplated that it might be unnecessary where acceptable proposals were already anticipated or being discussed. Detailed proposals had been submitted and a professional adviser reasonably concluded that a brief would serve no useful purpose.
5. Permission was granted on the flooding ground but refused on the other two grounds. The flooding ground was then rejected. The defendant’s costs were ordered to be subject to the applicable public funding restriction, so that the council did not recover its costs in the ordinary way.

• Deputy High Court Judge: refused permission on paper.
• High Court (Administrative Court): on renewal, granted permission on the sequential-testing ground, refused permission on the other two grounds, and dismissed the substantive challenge.