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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wall, R (on the application of) v Brighton & Hove City Council [2004] EWHC 2582 (Admin) (02 November 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2582.html Cite as: [2004] EWHC 2582 (Admin), [2004] 4 PLR 115, [2005] 1 P & CR 33, [2005] JPL 807, [2004] 46 EG 150 |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF WALL | (CLAIMANT) | |
| -v- | ||
| BRIGHTON & HOVE CITY COUNCIL | (DEFENDANT) |
____________________
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS J WIGLEY AND MS M GREKOS (instructed by Brighton & Hove City Council) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
Introduction
The grounds of challenge
Ground 1: Submissions and Conclusions
"I am totally against this as my bungalow is right next door in (Lions Gardens) to the house and it will completely overshadow my bungalow blocking my light and I will have no privacy whatsoever as it would be overlooking into my lounge and also the other 5 bungalows in Lions Gardens. We all use our patio which would be substantially overlooked by the flats."
"The two most vulnerable boundaries are the east, adjoining Lions Gardens and the north, adjoining 6 and 8 Hazeldene Meads. The proposed new building is set back further from the eastern boundary than the existing house and the existing 3 metre high conifer hedge is to remain. Windows in the east elevation of the new building face numbers 1, 2 and 3 Lions Gardens, but the intervening distance is 24 metres, more than adequate to maintain privacy and comparable [to] the distance between the frontages of properties opposite each other in Hazeldene Meads.
"The two houses in Hazeldene Meads are set between 10 and 12 metres back from the boundary with Ruston. The part of the new building closest to this boundary is two storey and is set back 9 metres, the three storey elements, 12 and 15 metres. Again, these combined back to back distances are more than adequate and combined with the existing planting on both sites, will ensure that privacy is maintained.
"The new building would be higher than the existing house. However, due to the existing boundary fences and planting, it would be very difficult to argue that the development would either overshadow or block out day or sunlight to adjoining buildings, as demonstrated in diagrams submitted by the agent."
"The proposal to develop this site to provide 8 new dwellings accords with current national and local planning guidance which seeks to maximise land within built-up areas for residential development. The contemporary design of the new building is restrained, of high quality and refers to local architectural language.
"There will be no adverse effect on adjoining properties by way of overlooking or overshadowing and the maximum level of off-street parking is to be provided.
"The proposal meets all relevant policy requirements and approval is therefore recommended."
Ground 2: Submissions
"This decision to grant Planning Permission has been taken having regard to the policies and proposals in the Brighton Borough Local and Brighton & Hove Local Plan Second Deposit Draft and to all relevant material considerations:
Brighton Borough Local Plan: ENV.1 - General principles, including amenity, ENV.2 - New development within the built-up area, ENV.3 - Design, ENV.61 - Planting and landscaping, H.19 - Amenity space in residential developments, TR.33 - Cycle parking.
Brighton and Hove Local Plan Second Deposit Draft: SU2 - Efficiency of development in use of energy, water & materials, TR12 - Cycle access and parking, TR17 - Parking standards, QD1 - Design quality, QD3 - Full and effective use of sites, QD15 - Landscape design, QD16 - Trees, QD17 - Protection and integration of nature conservation features, HO4 - Dwelling densities, HO (new) - Amenity space in residential development."
"(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and --
(a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;
(b) planning permission is granted subject to conditions, the notice shall:
(i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and
(ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;
(c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision."
Paragraph (1) was substituted from December 6, 2003 (subject to certain exceptions which are not material for present purposes) by the Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003 (the 2003 Order).
"As you may recall, this Application was considered at Planning Committee on 17th March last. The Committee resolved to grant Planning Permission.
"An application has been made for Judicial Review of the Committee's decision, one of the grounds being that the Council has failed to provide satisfactory reasons for their decision to grant Planning Permission. The Applicant's statement of facts states 'the Council's stated reasons to grant permission refers only to the relevant policies. This is insufficient with the requirement to give intelligible reasons dealing with the issues at stake'.
"The Decision Letter on this Application states that the decision to grant permission 'has been taken having regard to the policies and proposals in the Brighton Borough Local and Brighton & Hove Local Plan Second Deposit Draft and to all relevant material considerations' and then goes on to name the policies with their general effect, e.g. 'ENV.1 - General Principles, including amenity'. The relevant material considerations are not specifically detailed in the Decision Letter.
"I have instructed Counsel to act in this matter and her advice is that I should write to you, as a member of the Committee who voted in favour of the Application, to ask that you provide me with a summary of your reasons for approving the Application. Your response will be included in the bundle of documents to be lodged with the Court.
"Unfortunately, I have to ask you to respond as a matter of urgency and I would be very much obliged if you could let me have a letter setting out your summary of reasons by next Monday 16th August ..."
"My reasons for voting in favour of this application were, that I felt that the officers recommendations were sound and that the site was well suitable for the development proposed as well as being in keeping with ODPM recommendations for site utilisation."
"I recall that the decision I made was based upon
* advice from the officers that the proposal was reasonable within Council policy guidelines,
* That the proposal was an attractive one, prepared by a reputable architect, and did not damage the amenity of the area, nor was [it] an unduly 'greedy' proposal,
* The proposal was broadly in accord with Government policy that best use should be made of land in the urban area."
"* I was guided by the Officers recommendation, which was made in accordance with policies in the council's Development Plan and current central government advice regarding the more intensive use of suitable sites for residential development.
* The site is a very large site, and I felt that it could accommodate a development of this size ..."
"I have looked at the Committee report for that meeting dated 17 March and the minutes of that meeting itself. The summary of my reasons for approving the application are as detailed in the Committee report pages 29 to 39, including paragraph 8 'Considerations' ..."
"I supported this application on the Officers' recommendation. In addition this is in line with Government policy to provide more housing in the South-East of England. It is a better use of land in the city to demolish a large house and replace it with 8 self-contained apartments, as this enables more people to be accommodated."
"I had attended the site visit the previous day. The site was well screened by walls and vegetation. The footprint of the proposed block did not differ greatly from the footprint of Ruston. The height was also similar. We visited a nearby property. I did not consider that the proposed apartment block would have any significant detrimental effect on the amenities of neighbouring properties. Officers recommended consent and I could see no material planning issues to lead me to a contrary view. I therefore supported the recommendation."
"In my view, the site is large enough for this development and the proposed new building did not exceed the footprint of the existing house.
"Therefore I could see no reason to refuse to accept the officer's recommendation to grant the planning permission."
"In your letter, there appears to be a factual error. You say that the proposed new building did not exceed the footprint of the existing house. This is incorrect as the footprint of the proposed new building is larger than the footprint of the existing house (please see attached Committee report and site plan).
"In light of this inaccuracy, I need you to explain whether you were under the impression that the footprint of the proposed building did not exceed the existing house at the time when you voted in favour of the application or whether the inaccuracy in your letter is as a result of your misremembering the details of the application at the time when you wrote the letter.
"If the inaccuracy is as a result of a failure to remember properly, please could you remove the inaccuracy from your summary of reasons and amend the summary as necessary to ensure that it represents your thoughts at the time when you voted in favour of the application."
"On further reflection, I feel that my statement of 19th August 2004 may not be entirely accurate. Due to the time that has passed since the application came before the planning committee in March, and the fact that I was unable to make a site visit due to another meeting, I may have misremembered the size of the footprints of the two buildings.
"Therefore, I would like to state that I voted in favour of the application as I could see no reason to go against the officer's recommendation to accept."
"The application was considered by the Planning Applications Sub-Committee on 17th March 2004 when Councillors had regard to the above policies. In light of the large size of the site and the screening around the site, the increase in height and footprint of the proposed building over the existing was not considered to be so great as to have any significant detrimental effect on the amenities of neighbouring properties. The increased number of dwellings on the site was considered beneficial in light of government policy and the need for additional dwellings in Brighton and Hove. The Councillors agreed with the reasoning in the officer's report and accepted the recommendation to grant."
"(1) This is a case in which the obligation to give reasons and to give them at the time the decision is communicated is a statutory one. Section 64(4) of the 1985 Act, as material to the present context, provides:
'If the local housing authority notify the applicant ... (c) that they are satisfied that he became homeless ... intentionally ... they shall at the same time notify him of their reasons.'
"(2) Nowhere in Pt III of the 1985 Act is there any express requirement that the authority shall take a decision on the questions into which s 62 obliges them to inquire. However, that section and s 64 plainly imply such a requirement. The terms of s 64, the marginal note to which reads 'Notification of decision and reasons', to my mind suggest that decision and notification of it are regarded as going very much hand in hand. Of course, it has to be accepted that a decision must always precede notification, for reasons which are obvious. For practical purposes, however, there is much to be said for the view that the decision and its communication to the applicant are contemporaneous.
"(3) The affidavits of Mr Lodge and Mr Humphreys did not merely correct, amplify or explain the reasons given in the decision letter -- they put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and, of course, only after judicial review proceedings had been launched.
"It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable, or invalid and therefore open to challenge. There are numerous authoritative statements to this effect: see e.g. Thornton v Kirklees Metropolitan BC [1979] 2 All ER 349 at 354, [1979] QB 626 at 638 per Megaw LJ and R v Croydon London Borough, ex p Graham [1993] 26 HLR 286 at 291-292 (a case to which further reference will be made), where Sir Thomas Bingham MR said --
'I readily accept that these difficult decisions are decisions for the housing authority and certainly a pedantic exegesis of letters of this kind would be inappropriate. There is, nonetheless, an obligation under the [Housing Act 1985] to give reasons and that must impose on the council a duty to give reasons which are intelligible and which convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning the applicant may take such steps as may be indicated.'"
"It is possible to state two propositions which the judgments in Ex p Graham support. (1) If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision itself will be unlawful; and (2) the court should, at the very least, be circumspect about allowing material gaps to be filled by affidavit evidence or otherwise."
"(1) It is unrealistic to seek to draw any significant distinction, in the context of s 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.
"(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that 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. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
"(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.
"(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.
"(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.
"I also wish to emphasise that all that I have said is with reference only to the provisions of s 64 of the 1985 Act."
"Where an EIA application is determined by a local planning authority, the authority shall ... (c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing (i) the content of the decision and any conditions attached thereto; (ii) the main reasons and considerations on which the decision is based; and (iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development." [Emphasis added by the Court of Appeal.]
"When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
-- the content of the decision and any conditions attached thereto,
-- the main reasons and considerations on which the decision is based,
-- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects."
"47. The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.
"48. The closest decision in point of subject matter, though furthest away in point of time (and divorced from the context of an EC directive), is Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, where it was held that a failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. At the other end of the spectrum, R v Westminster City Council, Ex p Ermakov [1996] 2 All ER 302 provides an example of a case, more recent and in a different statutory context, in which a decision was quashed for a failure to comply with the duty to give adequate reasons at the same time as the decision, and the court adopted a restrictive approach to the admissibility of later reasons. Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377 was concerned with a different context again, namely the duty of a trial judge to give reasons for his decision. In that area a more up to date and detailed analysis is to be found in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, which was not cited by counsel but which makes it clear that it may be appropriate in certain circumstances to remit the case to the trial judge for the provision of additional reasons: pp 2418-2419, paras 22-25. Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.
"49. As to that, the first and most important point in the present case is that regulation 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself. It implements the obligation in article 9(1) of the Directive to make information available to the public 'When a decision to grant ... development consent has been taken' (emphasis added). That is to be contrasted with article 2(1) of the Directive, which lays down requirements as to what must be done before the grant of planning permission (which may be granted only after a prior assessment of significant environmental effects).
"50. The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.
"51. Thus, to take a straightforward example, if the members of the committee had agreed in terms at their meeting on a specific statement of the main reasons for the grant of planning permission but the officers had failed to include that statement on the register, a mandatory order requiring the statement to be placed on the register (or, perhaps more accurately, requiring it to be made available for public inspection at the place where the register is kept) would plainly be the appropriate remedy.
"52. The difficulties in this case arise out of the fact that there was no such agreement. The need to make a statement of main reasons available for public inspection appears to have been overlooked by the officers, so that members were not advised about it. That was a most unfortunate oversight. It meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available. It also meant that they missed the opportunity to agree in terms on a specific set of reasons. The most obvious way in which that might have been done was by expressing agreement with the reasoning in the director's report, subject to any agreed departures from or additions to that reasoning.
"53. The resulting situation is very unsatisfactory. I have reached the conclusion, however, that it is still capable of being remedied by a mandatory order and that what has happened does not justify the quashing of the grant of planning permission. My reasons are as follows. (i) Although it is necessary to view with caution any subsequent statement of reasons for a decision, especially where the reasons have not been articulated until many months after the decision, I do not think that the exercise of obtaining reasons ex post from the individual members who voted for the resolution is inherently flawed or of such doubtful reliability that the evidence should be rejected. All that the individual members have been asked to do is to cast their minds back to the reasons that actually motivated them to vote for the grant of planning permission. There is no suggestion that they have had any difficulties of recollection. In my view there is nothing in the nature of the exercise or in the evidence obtained to cause concern that the answers might have been distorted by the existence of these proceedings or other extraneous considerations. The process does not involve changing a decision or reconsidering it or anything of that kind. This is a very different exercise from that found unacceptable in R (Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927; The Times, 11 July 2002 or in R (Goodman) v Lewisham London Borough Council [2003] 2 P&CR 262. In both those cases the councils had engaged in a later decision-making process and there was an understandable concern that that might be vitiated by a wish to sustain a former invalid decision. In this case it is simply a matter of being satisfied that the reasons now put forward were the actual reasons that motivated the decision-makers at the time. (ii) On the face of it, a greater difficulty is created by the fact that, although all the members were 'motivated by factors referred to in the report or in the public session', each of them has given a different set or 'particular reasons' for voting for the resolution and those 'particular reasons' do not of themselves provide a sufficiently reasoned basis for a departure from the development plan and the grant of planning permission. (iii) It requires only a limited degree of beneficence, however, to read the evidence as meaning that all the members accepted the reasoning and conclusion in the director's report but each attached particular significance to the 'particular reasons' that they have identified. If the evidence is read in that way, everything seems to me to fall into place and a reasoned basis for the decision is immediately provided. That is evidently how the author of the proposed substitute notice understood the information being provided by the individual members."
"38. I turn, therefore, to the claimants' main criticism of this part of the judgment, Mr McCracken's argument that, in a case falling as this one does within the scope of the Directive, the court is simply not permitted to regard a breach of the implementing regulations as curable other than by the outright quashing of the development permission granted. Mr McCracken not surprisingly emphasises certain features of the judgment below: the judge's recognition that the need to make a statement of reasons appears to have been overlooked by the council's officers so that the members of the planning committee were not advised of it; that this 'most unfortunate oversight ... meant that members did not have imposed upon them the same disciplined and structured approach as might have been thought appropriate had they been aware of the duty to make a statement of main reasons available', the resulting situation being 'very unsatisfactory'. These, of course, are powerful considerations. But are they such as to compel the court to quash the permission itself? In common with the judge below I conclude not. The critical part of the judge's reasoning I conceive to be that expressed in para 49 or his judgment, namely that:
'regulation 21(1) looks to the position after the grant of planning permission. It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself.'
"39. Mr McCracken submits that an irresistible inference arises from the requirement to give reasons following an EIA decision that at the time the decision is taken those reasons must be openly discussed and formulated in public. Whenever there is a legislative requirement for reasons, he argues, there are necessarily twin objects to be served. One is to enable those aggrieved by the decision to challenge it if its reasoning can be seen to be deficient. The other is to improve the quality of decision-making. Often, of course, that will be so. But to contend that it is invariably so seems to me extravagant: the requirement for 'the main reasons and considerations on which the decision is based' to be made available to the public -- after, it should be noted, the decision 'has been taken' -- was first introduced by the amending Directive 97/11/EC in 1997. To suggest that there then suddenly arose a duty upon planning committees to discuss their detailed reasoning in public I find absurd. As Mr Straker points out, an EIA planning application can on occasion be decided by a council officer under his delegated powers when, of course, there would be no public hearing at all. In any event it seems to me plain that the particular requirement for reasons imposed upon planning authorities here was to inform the public retrospectively of the basis for the decision rather than to dictate the course or even quality of the decision making process itself. Be it noted that the recital quoted in the Berkeley case [2001] 2 AC 603 (set out in para 9 above) was from the unamended Directive 85/337/EEC, when therefore, there was no requirement for reasons to be stated. Yet the Directive already contemplated its central purpose being achieved irrespective of whether reasons were or were not to be given. Nor, of course, is this the only context in which the law regards it as acceptable to formulate and state the reasons for a decision subsequent to the decision itself. Courts on occasion follow this practice (for example announcing a decision for reasons to be given later, or, following English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, requiring additional reasons to be stated by the judge below). So too do certain tribunals -- employment tribunals, for example, under the provisions of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171). So too, in my experience, do various other public bodies."
"I accept of course and have already stated that Richardson deals with a breach occurring after the grant of planning permission. But with respect I would simply apply parallel reasoning to the facts of this case."
Wall LJ and the President agreed.
"It is concerned with making information available to the public as to what has been decided and why it has been decided, rather than laying down requirements for the decision-making process itself."
By contrast, article 22(1) laid down requirements for the decision-making process itself, since the local planning authority's summary reasons for granting planning permission would have to be formulated in committee so that they could be included in the decision notice granting planning permission. Secondly, Richards J had said that there was no suggestion in Richardson that the councillors in that case had had any difficulties in recollection: see paragraph 53 of his judgment set out on page 1933 of the Court of Appeal's judgment.
"One is concerned with the members' reasons not the planning officer's, but where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary."
"As a matter of construction it seems clear that article 5(9)(a) requires (1) that the notice of decision be in writing; (2) the reasons be stated in writing; (3) that the notice be accompanied by a notification in the prescribed form; these requirements can be satisfied by a single document or by three physically separate documents.
"Should requirement (1) not be complied with, disputes might well arise as to the calculation of the time limit for appeal to the Minister fixed by section 16(1) of the Act; should requirement (3) not be satisfied an applicant might be left in ignorance of his rights. Each of those requirements is therefore essential to the statutory purposes. The interposition of requirement (2) militates strongly against any view that it can be regarded as merely directory; all three requirements appear to be mandatory. It does not follow necessarily that non-compliance with any one of them will render the notice null in law, still less that the decision of which notice purports to be given is itself of no legal effect. The court is not concerned in the instant case with any non-compliance with requirement (1) or requirement (3): the effect of non-compliance with requirement (2) must be decided.
"No doubt such a non-compliance may be and often will be inconvenient for an applicant; he may find it necessary to give notice of appeal to the Minister before he knows the strength or weakness of the case which he will have to meet. However, he could undoubtedly demand, as of right, a statement of reasons and by threat or effect of an order of mandamus secure them, and it would be strange if the Minister did not adjourn his appeal until the reasons had been delivered and considered. In the sense that there is a duty to state the reason in writing requirement (2) is undoubtedly mandatory. Comparison may be made of the provisions of section 12 of the Tribunal and Enquiries Act, 1958, requiring that reasons, if requested, be stated, in general, for a decision: a non-compliance with those provisions would certainly found a mandamus.
"It is another matter whether the notice of condition in the present case, or such a tribunal decision is rendered null by a failure to state reasons in writing: notwithstanding the obiter dicta of Salmon J this extreme result is not required for the effective achievement of the purposes of the statute nor intended, as a matter of construction, by Parliament."
"In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions. In the reported decisions there is much language presupposing the existence of stark categories such as 'mandatory' and 'directory', 'void' and 'voidable', a 'nullity', and 'purely regulatory'.
"Such language is useful; indeed, in the course of this opinion I have used some of it myself. But I wish to say that I am not at all clear that the language itself may not be misleading in so far as it may be supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (e.g. 'void' and 'voidable') are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative law.
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory', 'directory', 'void', 'voidable', 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."
Ground 2: Conclusions
