In R (Hill) v Cornwall Council and another [2016] EWHC 1264 (Admin), a judicial review challenge in which the claimant sought to quash the grant of planning permission for a synthetic pitch on land within sports fields belonging to a community college, the court referred to the approach that should be adopted towards the reports of planning officers. Although the legal principles set out below were made in the context of a planning officer’s report and the planning regime contained in the Town and Country Planning Act 1990 (TCPA 1990), they serve as a useful reminder of the relevant principles that those preparing a report for a public body taking a decision that they are required to take should have in mind.
Brief facts
For the purposes of this blog, it is not necessary to set out in great detail the facts of the case. The claimant had sought to challenge the grant of planning permission on various grounds, one of which was that the planning officer’s report failed to deal adequately or fairly with the evidence about potential noise generation if the planning permission for the pitch was granted. What was important was that the report that the officer provided to members of the planning committee was 39 pages and 133 paragraphs long. It included information on the site, the proposal, the relevant constraints, the consultation process that had been conducted, the representations that had been received and an assessment of the key planning issues. It also included a recommendation that members approve the application.
Summary of the legal principles applying to an officer’s report (in the context of a planning decision)
In support of his challenge that the report to members did not deal adequately or fairly with the evidence about potential noise generation of the proposal, the claimant made various submissions on the approach that should be adopted in relation to the officer’s report to members of the planning committee, referring to the following legal principles that were summarised in R (Trashorfield Ltd) v Bristol City Council and others [2014] EWHC 757 (Admin):
- In relation to a planning permission application, planning authorities are required by statute to have regard to all material considerations (section 70, TCPA 1990). What amounts to a material consideration is a question of law. In the planning arena, statements of central government policy (which since March 2012 are set out mainly in the National Planning Policy Framework) are material considerations.
- The weight to be given to such considerations however – and the part any particular material consideration should play in a decision-making process – is a question of judgment and is a matter entirely for those whom Parliament has assigned the task of decision-making (here the democratically elected body of planning committee councillors). It is an important principle that planning decisions, which inevitably involve the public interest, are made by those who are democratically accountable. This means that an application for judicial review is not an opportunity for a disappointed party to contest the planning merits of a decision. The court will only intervene on conventional public law grounds that focus on process. If the challenge is successful, the court will remit the matter back to the planning decision-maker to determine the planning application lawfully.
- Given that a local planning authority usually delegates its planning functions to a planning committee of councillors, who act on the basis of the information that is provided by the planning officer, the officer’s report is a crucial document. It will usually include a recommendation as to how the application should be dealt with. In the absence of contrary evidence, it is reasonable to infer that, where a recommendation is adopted, members follow the reasoning of the report. Therefore, it has to be sufficiently clear and full to enable the decision-making councillors to understand the important issues and the material considerations that bear on those issues and to decide those issues within the limits of the relevant law. While any report must be sufficient for those purposes, the courts have stressed the need for reports to be concise and focused and pointed out the dangers of a report that is too long, elaborate or defensive. If the court imposes too high a standard on report making, there is a risk the whole purpose of the report will be defeated as the relevant decision-maker will not read it or not have a clear enough grasp of the issues to make their own decision. In relation to challenges to decision-making, the court therefore will focus on the substance of a relevant report to see whether it has sufficiently drawn the decision-makers’ attention to the proper approach that is required by law and the material considerations, rather than an elaborate citation of underlying background materials that may undermine the willingness and ability of busy councillors (or other time-pressured decision-makers) to read and digest such reports properly.
- The assessment of how much and what information should go into a report is a matter for the individual preparing the report, exercising their own expert judgment.
- If the material included in the report is insufficient to enable the decision-maker to perform its function or is misleading, the decision that is taken may be challenged. However, an application for judicial review based on criticisms of a report will not usually begin to merit consideration unless the overall effect of the report significantly misleads the decision-maker about material matters which are then uncorrected at any meeting where the decision is taken.
- When challenged, a report that has been prepared by an officer is not to be subjected to the same critical explanation or examination that might be appropriate for the interpretation of a statute. What is required is a fair reading of the report as a whole (R (Zurich Assurance Limited trading as Threadneedle Property Investments v North Lincolnshire Council [2012] EWHC 3708 (Admin)).
- In construing reports, it has to be borne in mind that they are addressed to a knowledgeable readership. In the case of councillors on a planning committee, they are likely to have a substantial local and background knowledge, which will include a working knowledge of the statutory test for determining a planning application. Furthermore, deciding whether such individuals have sufficient information to make a properly informed decision (or request further information or analysis) involves the exercise of judgment on their part. Certainly given the experience and expertise of planning committee members, case law demonstrates that the courts are cautious about interfering when considering a challenge to such a decision.
On the basis of the report, in this particular case, the court rejected the claimant’s submissions. It was satisfied that the committee decision-makers had all the relevant material they needed to address the noise impact of the proposal. Further, the committee was not as alleged, misled about the concerns the environmental health officer had in relation to the use of whistles on the site. The committee, making the decision, knew that the planning proposal would extend the hours of use at the site and that whistles would be used. Therefore, the court rejected the claimant’s judicial review challenge.
So what should the individual responsible for drafting a report for a decision-maker have in mind?
When drafting a report for decision-makers, remember that:
- The report must take all relevant factors or considerations into account so that the public body reaches a rational and evidence-based decision.
- The decision-maker does not have to consider all the material. What is important is that those taking the decision have as much information as possible that is relevant to the decision to be taken. Deciding what is relevant will depend upon the subject of the decision but may include details of the proposal, responses to the consultation or the written representations that have been received, guidance on the parameters for the decision, the cost of the decision, the effect of the decision on others and the advice that has been received on the proposal.
- Those preparing the report should bear in mind that decision-makers need rigorous and accurate advice and analysis, not statements of what those preparing the report think they want to hear.
For more information on decision-making generally, see Practice note, Decision-making by public bodies: avoiding legal challenge.