Macrae, R (on the application of) v Heath

A judicial-review claim brought within the three-month period may still be prompt where inadequate reasons leave the claimant unable to identify the basis of a planning decision. It is reasonable to seek clarification before commencing proceedings, particularly where the authority has departed from officers’ advice and no prejudice results from the short interval.

A local planning authority’s summary reasons for granting permission must disclose whether the proposal was treated as compliant with the development plan or as a justified departure from it. Unreferenced minutes cannot ordinarily cure inadequate reasons, since that would require the paper chase which the statutory duty seeks to avoid. Relief remains discretionary: where quashing would be disproportionate, a declaration may provide sufficient vindication.

The appellant, a local resident, sought judicial review of planning permission granted by the respondent council for a dwelling in open countryside. Planning officers had consistently recommended refusal, but members approved the proposal. The decision notice gave an informative identifying relevant development-plan policies and referring to an unspecified application report for further detail.

David Elvin QC, sitting as a deputy High Court judge in the Administrative Court, refused permission for judicial review. He held that the claim was not prompt, although the summary reasons were inadequate, because the committee minutes enabled the members’ views to be understood: [2011] EWC 2810 (Admin).

The appellant challenged the findings on promptness and the adequacy of the reasons. The central issues were whether it was reasonable to seek clarification before issuing the claim and whether extrinsic minutes could cure deficient statutory reasons.

1. Appeal allowed. Sullivan LJ, with whom Rix and Pill LJJ agreed, set aside the refusal of permission and granted a declaration that the council’s summary reasons did not comply with the statutory requirement. The planning permission was not quashed.

2. Whether a claim is brought promptly under Civil Procedure Rules, CPR 54.5, depends on all the circumstances. The reasons given here left the appellant in the dark as to why members had granted permission contrary to repeated officers’ recommendations. It was therefore reasonable to seek clarification of the reference to an application report before litigating. The claim followed shortly after the council’s response, remained within three months, and any slight delay caused no relevant prejudice.

3. The summary reasons were plainly inadequate under article 22(1)(b) of the Town and Country Planning (General Development Procedure) Order 1995. They did not reveal whether members considered the development compliant with the plan or accepted non-compliance but relied on material considerations to depart from it. The officer reports, which recommended refusal, added confusion. The statutory purpose is to avoid a claimant having to conduct a paper chase through extrinsic material to discover the authority’s real reasons. Minutes not incorporated into the summary reasons could not cure that defect. A cross-referred officer’s report may, however, flesh out reasons where it recommends the grant.

4. Quashing was disproportionate. The dwelling had been built and occupied; the merits of the grant had not been challenged successfully; and a fresh decision would inevitably grant retrospective permission. A later attempt to reconstruct the committee’s reasons would also be inappropriate. Declaratory relief sufficiently vindicated the appellant and marked the council’s significant default.

• Court of Appeal (Civil Division): Allowed the appeal and granted declaratory relief: [2012] EWCA Civ 457.
• High Court, Administrative Court: David Elvin QC, sitting as a deputy High Court judge, refused permission to apply for judicial review. He found the claim insufficiently prompt and declined relief despite inadequate summary reasons: [2011] EWC 2810 (Admin).