Berky, R (on the application of) v Newport City Council & Ors

A planning authority’s reasons for deciding that an environmental impact assessment is unnecessary must enable a potential objector to understand the basis of the decision. A screening letter may be read with the material to which it expressly refers.

Elected councillors may hold and express prior views on planning proposals. The relevant inquiry is whether a decision was made with a closed mind. Predetermination or bias affecting one member does not automatically invalidate a multi-member committee’s decision where that member did not influence the result.

A planning committee may rationally depart from its officers’ recommendation. In the absence of a duty to give detailed reasons, it need not answer every point in the officers’ report.

A local resident sought permission to challenge Newport City Council’s grant of planning permission for a food store and the restoration of a former workingmen’s institute. The Administrative Court refused permission on the merits and because the claim had not been brought promptly or within three months.

The proposed challenge alleged that the environmental impact assessment screening process was legally flawed and inadequately reasoned; that a councillor’s support for the scheme created bias or predetermination; and that the committee acted irrationally by departing from its officers’ recommendation.

The appeal also raised whether the claim was filed within three months, whether the requirement of promptness could govern a challenge based on European environmental law, and whether relief could nevertheless be withheld for undue delay under section 31(6) of the Senior Courts Act 1981.

1. Appeal dismissed. Carnwath LJ gave the leading judgment. Moore-Bick LJ and Sir Richard Buxton agreed that every substantive ground failed.

2. The environmental impact assessment screening decision was lawful. Its letter should have given fuller reasons, but it expressly referred to the developer’s supporting letter. Read together, the documents showed that the planning officer had accepted the information and reasoning in that letter. The site and project were below the relevant indicative criteria, and neither the committee report nor the evidence disclosed any significant environmental consideration that had been omitted. Moore-Bick LJ agreed that the combined material sufficiently revealed the basis of the decision.

3. The bias and predetermination challenge failed. Applying the guidance in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, elected councillors are entitled and expected to hold and express planning views. The judge’s factual findings could not be displaced because the councillor had not been cross-examined. The decision was carried by eight votes to one, and there was no evidence that he influenced the other members.

   Moore-Bick LJ and Sir Richard Buxton further concluded that one member’s closed mind does not automatically invalidate a multi-member body’s decision. They disapproved the contrary view in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin), particularly where the affected member had no direct or indirect effect on the result.

4. The committee’s decision was rational. It was entitled to find that regeneration benefits outweighed development-plan objections and to depart from its officers’ recommendation. No statutory duty required detailed reasons or a point-by-point answer to the officers’ report. Whether the unlisted institute could have been protected from demolition was immaterial to the planning balance actually undertaken.

5. The claim was filed within three months. Time began on the day after permission was granted, and the intervening Bank Holiday was disregarded. The separate promptness and remedial issues did not determine the appeal because the grounds failed on their merits.

6. On delay, Carnwath LJ considered that domestic grounds remained subject to promptness and that section 31(6) of the Senior Courts Act 1981 permitted relief on the European ground to be refused for undue delay, prejudice and detriment to good administration. Moore-Bick LJ and Sir Richard Buxton disagreed on the section 31(6) point. In their obiter view, using that discretion to defeat a timely European-law claim would reproduce the uncertainty prohibited by Uniplex [2010] PTSR 1377. No final ruling on that issue was necessary.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2012] EWCA Civ 378. The substantive challenges all failed. The court held that the claim had been filed within three months, but did not finally resolve the European-law issue concerning delay and relief.
2. Administrative Court: HHJ Cooke QC, sitting as a judge of the High Court, refused permission for judicial review on the merits and because the application had been brought neither promptly nor within three months. No citation for that decision is stated in the judgment.