Lanner Parish Council, R (on the application of) v The Cornwall Council & Anor

A public decision-maker must understand a material planning consideration correctly, although the weight given to it remains a matter for the decision-maker. Where a public authority must publish reasons, supplementary evidence may elucidate or exceptionally correct them. It should not fundamentally alter those reasons or contradict the authority’s official records.

Judicial review normally proceeds from primary documents and official records. Courts should be cautious about resolving disputed facts which properly require oral evidence. A flawed administrative decision will not necessarily be quashed because the remedy is discretionary. The court may refuse relief where the decision is no longer operative and quashing it would serve no useful purpose.

A parish council sought judicial review of a planning authority’s permission for 25 affordable homes on a rural exception site. A draft local plan contemplated no more than about 12 dwellings, depending on evidence of local need. The Administrative Court dismissed the claim in [2013] EWHC 37 (Admin), relying on witness evidence that the planning committee understood the policy despite its official documents stating that the proposal accorded with it.

Before the appeal was heard, an unchallenged fresh permission had been granted and construction had begun. The Court of Appeal nevertheless considered whether the original committee misunderstood the policy, whether evidence contradicting its official records was admissible, and whether it received sufficient information about affordable housing need.

1. Appeal dismissed unanimously. Jackson LJ, with whom Lewison and Rimer LJJ agreed, held that the original planning permission was flawed and had initially been liable to be quashed. Relief was nevertheless refused because that permission was no longer operative, quashing it would serve no useful purpose, and the decisive argument based on Ermakov had not been advanced below.

2. The draft policy was a material consideration even though the draft plan had never been adopted and was therefore not a development plan engaging section 70(2) of the Town and Country Planning Act 1990. The committee had to understand and take the policy into account, although the weight assigned to it was for the committee. The proposal for 25 dwellings conflicted with a policy contemplating no more than about 12. The officer’s report and published reasons wrongly treated the policy as supporting the proposal.

3. Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 required the authority to state its reasons. Applying R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, supplementary evidence could elucidate or exceptionally correct those reasons. It could not validate the decision by contradicting them fundamentally. Save in exceptional circumstances, an authority should not be permitted to contradict its official records of what it decided and how it reached its decision.

4. Judicial review under Part 54 of the Civil Procedure Rules generally proceeds on primary documents and necessary written evidence. A court should be cautious before resolving factual disputes which may require oral evidence. The judge should therefore have disregarded the witness evidence contradicting the officer’s report, minutes and published reasons.

5. The committee received accurate and sufficient evidence of housing need. It was told that 29 locally connected applicants fell within bands A to D and that the remainder were adequately housed. A full breakdown within bands A to D would have been preferable, but the aggregate supplied the essential information. The relevant housing surveys were also presented accurately.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1290, the court held that the original permission was flawed but unanimously dismissed the appeal because quashing it would serve no useful purpose. It also upheld the Administrative Court’s conclusion that the committee had received sufficient information about housing need.

2. Administrative Court: In [2013] EWHC 37 (Admin), Judge Anthony Thornton QC dismissed the judicial review claim. He found that the committee understood the draft policy despite the wording of the official records and that it had received sufficient evidence of housing need.