The High Court decision of Shasha & Ors (As Trustees of the Placement Pension Fund) v Westminster City Council [2016] EWHC 3283 (Admin) has found that officers making planning decisions under delegated authority are caught by the general statutory duty to give reasons pursuant to Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”).
This duty to give reasons applies to most delegated officer decisions but importantly it was found to include officer decisions by delegated authority to grant planning permission notwithstanding there being only a specific planning duty to give reasons in the event of a refusal decision under the Town and Country Planning (Development Management Procedure)(England) Order 2015 (“the 2015 Order”).
The general statutory duty on delegated officers of a Local Authority to give reasons for their decisions arises from Regulation 7 of the 2014 Regulations. It provides:
(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2).
(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either:
(a) under a specific express authorisation; or
(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to:
(i) grant a permission or licence;
(ii) affect the rights of an individual; or
(iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body's financial position.
(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information
(a) the date the decision was taken;
(b) a record of the decision taken along with reasons for the decision;
(c) details of alternative options, if any, considered and rejected; and
(d) where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.
(4) The duty imposed by paragraph (1) is satisfied where, in respect of a decision, a written record containing the information referred to in sub-paragraphs (a) and (b) of paragraph (3) is already required to be produced in accordance with any other statutory requirement.
The High Court found that this general duty to give reasons applied to decisions to grant planning permission by a delegated officer. Moreover, the lack of a specific planning duty to give reasons for granting planning permission and the obligation to give reasons on imposed conditions under the 2015 Order were not sufficient to satisfy Regulation 7(4) of the general duty to give reasons.
The following are key guiding principles for the general duty to give reasons:
(a) reasons should be produced as soon as reasonably practicable after making the delegated decision;
(b) it is a reasonable inference in the absence of contrary evidence that the delegated officer accepted the reasoning and recommendations in any officer’s report to them (albeit it is best practice for such acceptance to be recorded); and
(c) the reasons may be briefly stated but must be proper adequate and intelligible and deal with the main issues and substantial points raised (including objections).
Lesson: any decision of a delegated officer granting permission or licence, or more generally affecting an individual’s rights, pursuant to a statutory function of the Local Authority will invoke the general statutory duty to give reasons of the decision. This includes the grant of planning permission under delegated authority. As such, the lack of proper and adequate reasons will likely compromise any defence to a judicial review of the decision (as was the case in this decision).
