In Riki Shasha v Westminster City Council [2016] EWHC 3283 (Admin), the High Court has established that there is a duty to give reasons for delegated planning decisions under Regulation 7 of the Openness of Local Government Regulations 2014 (“the 2014 Regulations”). This is despite the fact that the requirement to give reasons for a grant of planning permission was consciously repealed in 2013 as part of the red tape challenge.
The case centred around a judicial review claim of the defendant local authority’s decision to grant the interested party planning permission for a basement development at a block of flats. The interested party had applied for permission to develop the neighbouring block by excavating a subterranean building below a ground level roof covered by soft landscaping. The accompanying design and access statement asserted that, given the site’s location, there were no issues of overlooking or loss of amenity to adjacent sites. The claimants objected on the basis that, since the main facing elevation of the new building would be less than 1.5 metres from their premises’ windows, it would overshadow their premises and reduce the level of daylight currently enjoyed. A planning officer concluded that the claimants’ objections were not sustainable as a reason for refusing the scheme, and the local authority granted permission.
The claimants argued, inter alia, that the planning officer was under an obligation to produce a record of her decision and the reasons for it. Regulation 7 of the 2014 Regulations covers decisions made by a local planning authority under delegated authority, by virtue of Regulation 7(2)(a)(i). Under Regulation 7(3) the decision-maker must produce a written record of the decision, together with reasons for the decision.
The High Court rejected the notion that the fact the requirement to give reasons for a grant of planning permission was consciously repealed in 2013 could imply words into the 2014 Regulations mirroring this. As there was no explicit exclusion of a “planning permission” from the wording of Regulation 7, this could not be read into simply because the 2013 Order, and current 2015 Order, do not contain the same requirement.
The case will have inevitable implications for decision making by local planning authorities where officers are acting under delegated powers. It is significant that the High Court separated the obligation under Regulation 7 of the 2014 Regulations, from the common law position that reasons may be required as a matter of fairness, or to comply with Article 6 of the European Convention on Human Rights.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
