Shasha & Ors (As Trustees of the Placement Pension Fund) v Westminster City Council

Delegation does not remove the duty to give reasons for granting planning permission. Under the Openness of Local Government Bodies Regulations 2014, the officer must record the decision and adequate reasons; a notice giving reasons only for conditions is insufficient. A previous permission, including an expired permission, may be material but does not bind the authority. Development-plan policies must be interpreted and applied by addressing their distinct thresholds. Material loss of daylight, significant enclosure or overlooking, and unacceptable overshadowing are separate questions. A report must reach conclusions on those matters before deciding whether the proposal accords with the development plan. Further information is not always required, but the authority must understand relevant physical features, including omitted windows.

The trustees sought judicial review of Westminster City Council’s decision to grant planning permission for a subterranean estate office, meeting rooms and residents’ gym at Portman Mansions. The claim alleged that the Council had failed to assess amenity objections on their merits, misinterpreted Policy ENV13, proceeded without sufficient information about daylight and the bay windows, and failed to comply with the statutory planning duties under the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004. The central questions included whether an earlier permission was treated as binding, whether the delegated decision required recorded reasons, and whether the report reached the conclusions necessary for lawful policy and development-plan assessment.

The claim for judicial review succeeded.

1. Under section 70(2)(a) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the authority had to interpret material development-plan policies correctly and determine whether the proposal accorded with the development plan as a whole: see paras [19]-[20].
2. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 applied to the delegated grant of planning permission. The decision-making officer had to produce a written record containing the decision and reasons. The requirements were not satisfied by a notice stating reasons only for conditions. The reasons had to be proper, adequate and intelligible, deal with substantial objections, and could be brief: see paras [27]-[37].
3. The principles in R v Westminster City Council ex p Ermakov (1995) 28 HLR 819 governed evidence about recorded reasons. Evidence could elucidate the reasons, but could only exceptionally correct or add to them. The report had to be read as it appeared to read, and the planning officer who was not the decision-maker could not establish the decision-maker’s reasons by evidence about her own thoughts: see paras [40]-[44].
4. The earlier permission was capable of being a material consideration but did not bind the Council because it had expired. The report wrongly treated the earlier grant as foreclosing the amenity objections. Those objections had not previously been considered on their merits: see South Oxfordshire District Council v Secretary of State [1981] 1 WLR 1092 and paras [47]-[59].
5. No further daylight or overlooking information was legally required on the facts if the impacts could reasonably be assessed from the application material and a site visit. However, the authority had to understand the position of the premises’ bay windows. The omission of those windows from the plans, and failure to account for their 0.8 metre proximity to the proposed building, made the decision unlawful: see paras [60]-[64].
6. Policy ENV13 required conclusions on whether the loss of daylight was material, whether the resulting level was unacceptable, whether enclosure or overlooking would increase significantly, and whether overshadowing would be unacceptable. The report reached none of those necessary conclusions and therefore could not establish compliance with the policy or the development plan: see paras [65]-[74]. The outcome was not highly likely to have been substantially the same absent the unlawful conduct: see paras [75]-[76].

Permission to bring the judicial review claim was granted by Ouseley J. The judgment records no earlier merits determination.