In a recent decision ( EWHC 2007 (Admin)), the High Court (Dove J) has rejected a challenge brought by Historic England against the grant of planning permission for the redevelopment of the railway works at Wolverton, for residential and railway use. The claim raised issues concerning the duties arising from the Planning (Listed Buildings and Conservation Areas) Act 1990, and the duty to give reasons arising from the EIA regime following the decision of the Supreme Court in R (CPRE Kent) v Dover DC. Historic England was represented by Leading Counsel. Dove J considered the decision-making process by planning committees, and whether it can be inferred that the reasoning in an Officer Report is the reasoning of such a committee. Dove J held at paras 50-51:
50. In reaching a conclusion in relation to this issue it is important in my judgment to appreciate that, as emphasised by the defendant and interested party, the committee reaches a collective decision undertaken by means of a resolution. What that means in practice is that the individual members of the committee determine whether they propose to support the resolution as to whether or not planning permission should be granted (and if so subject to what conditions or obligations), or refuse it. Individual members may have their own particular reasons for choosing to vote for or against a resolution (which may or may not be articulated) but firstly, it is the terms of the resolution which they are voting to support in a collective decision which is their decision and therefore the focus of the court’s enquiry. Secondly, and consequentially, little useful purpose is going to be served by a forensic enquiry into the particular reasons why individual members may have voted in a particular way. I share the “grave reservations” of Schiemann J (as he then was) in ex parte Beebee in relation to the utility or purpose of an enquiry into the individual reasons which members may have for supporting a resolution absent allegations of bad faith. As Schiemann J observed, there are difficulties in establishing on a proper footing the reasoning process of a corporate body which acts by resolution, other than by scrutinising the resolution which was in fact passed.
51. As a matter of principle therefore I do not consider that it is consistent with authority, or an appropriate approach to practical decision making in this area, to endorse the analysis of the claimant seeking to enquire into the individual reasons of members for supporting a recommendation, whatever may have been noted as comments by an unidentified number of them during the debate. This is not an appropriate enquiry in circumstances where the only issue before the committee is whether at the time of voting they are willing to support the resolution before them or not. As set out above there is consistent authority deprecating such an approach.
The decision can be found here.
Alistair Mills appeared as sole counsel for Milton Keynes Council
Reuben Taylor QC appeared for St Modwen Developments Ltd, the Interested Party, instructed by Clyde & Co.