Judicial review proceedings generally proceed on the basis of primary documents and records, supplemented by any necessary written evidence. (Oral evidence is only very occasionally taken.) This approach is recognised as efficacious, and leads to a saving of costs. Earlier authority warns, however, that the court should be cautious at all times when admitting evidence. The function of such evidence should be elucidation and not fundamental alteration; confirmation and not contradiction. Examples cited are cases where an error has been made in transcription, where words have been inadvertently omitted or where the language used may be lacking in clarity.
In R (on the application of Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; [2013] PLSCS 254 the appellant had applied to quash the decision of the local planning authority (“LPA”) to grant planning permission for a development of twenty-five affordable homes. One of its grounds of challenge was that the LPA’s planning committee had failed to understand policy H20 of a draft district local plan. (All parties accepted that this policy was a material consideration.) The proposed development was clearly not in accordance with policy H20.
In support of this ground, the appellant relied upon the planning officer’s report, the minutes of the planning committee meeting and the written reasons for granting planning permission, all of which stated that the development did accord with policy H20.
At first instance, the LPA served a witness statement by a councillor to the effect that two members of the planning committee had played a major role in drafting the district local plan, and that all members of the planning committee were familiar with the terms of policy H20. The judge accepted that evidence and concluded that the planning committee had exercised its discretion to grant planning permission despite non-compliance with policy H20. He dismissed the claim.
The Court of Appeal held that the grant of planning permission was flawed. The judge should have disregarded the witness statement. In such circumstances, he would not then have made the crucial finding of fact, namely that the planning committee proceeded on the basis that policy H20 prohibited the proposed development. As a matter of principle, only in exceptional circumstances should a local planning authority be permitted to adduce evidence that directly contradicts its own official records of what it decided, and how its decision had been reached.
John Martin
