When a decision-maker gives retro-reasons

25 October 2013 by

_57148667_012889212-1Lanner Parish Council (R ota) v. the Cornwall Council [2013] EWCA Civ 1290 read judgment

This planning judicial review tackles the problem posed by an authority who says one thing in its formal reasons granting planning permission, and another thing in the court proceedings when the grant is challenged.

Coastline wanted to construct 25 affordable dwellings in Lanner. The Parish in Lanner objected, on the basis that 25 was too many. It referred to a local planning policy (H20) which said that there should be no more than “about 12” houses on any new development in a large village such as Lanner.

The planning officer supported the grant of planning permission, and the Council agreed. The Council’s reasons for grant said that the proposal “accords with” policy H20. But it didn’t, because the policy referred to 12 houses, and the proposal was for 25 houses, and this error in the reasons was one of the Parish’s main points on the judicial review.

The Council adduced evidence in the judicial review that, at the meeting when the proposal was passed, everybody on the Planning Committee knew the terms of the “no more than about 12” policy, and that therefore the proposal was not in accordance with it. So the formal reasons were wrong.

The judge accepted this evidence, and, on this view, the Parish’s point disappeared.

The Parish appealed. It said that the court should disregard the evidence of what happened at the meeting, in the light of the official records of the Planning Committee’s deliberations and decision.

The Court of Appeal agreed. The law was set out in Ermakovwhich said

The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should……be very cautious about doing so. …….. the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons.

Adopting this, Jackson LJ added at [63]-[64] of our case

There is a point of principle here, which is of some importance. Judicial review proceedings involve challenges to the actions and decisions of public bodies. Such cases generally proceed on the basis of the primary documents and records, supplemented by any necessary written evidence (for example, to establish facts relevant to a human rights claim). Oral evidence is only occasionally taken in judicial review proceedings…..

Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached. In the present case the officer’s report, the minutes….and the stated reasons for the grant of planning permission all indicate a misunderstanding of policy H20…..The Council should not have been permitted to rely upon evidence which contradicted those official documents.

And the judge should not have accepted this evidence.

So there is a sort of deal in these cases. Claimants face the problem that in very few cases oral evidence is heard, and therefore generally speaking the public authority’s factual case wins the day. The other side of the deal is that authorities are held to the formal records of their decisions, rather than some later account, which may amount in some cases to no more than – this is what I wished had been said. Ex post facto reasoning is inevitably suspect, as Pill LJ put it in Macrae.

So far, so good for the Parish. But they did not get the decision quashed, for two reasons.

(1) By the time the judge had come up with his judgment, and the case had got to the Court of Appeal, the Council had re-taken its decision, and got its reasons right this time. The proposal did not accord with the policy, but the development was still justified despite that. This second decision could not be challenged.

(2) The Parish had not cited Ermakov to the judge below.

The first is plainly right. The case had in effect become academic, even if the initial grant were quashed. So there was no point. The second is a little harsh, with sins of the lawyers being visited upon their clients.

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