In Andrew Jedwell v (1) Denbighshire County Council (2) DH (3) Jones [2015] EWCA Civ 1232 the Court of Appeal found that the Council had breached its duty under EU law to provide adequate reasons and that reasons adduced after issuance of proceedings could not cure that deficiency. The case also provides a rare example of a judicial review case in which cross-examination should have been permitted.

1. Key Points

  • A public authority under a duty to give reasons for a decision must provide adequate reasons within a reasonable time and, in any event, before the issuance of judicial review proceedings.
  • Reasons given later in the context of the litigation will be viewed with scepticism and will not cure the original deficiency
  • Even though instances of cross-examination in judicial review proceedings are rare, cross-examination should be permitted if necessary in the interests of justice. 

2. Background

The Council granted planning permission to a development involving the erection of two wind turbines on the outskirts of Denbighshire in Wales. The development site was located near a number of protected areas including Areas of Outstanding Natural Beauty. It was also close to an existing wind farm and immediately adjacent to a proposed wind energy development. However, the relevant planning officer, Mrs Shaw, stated that no Environmental Impact Assessment ("EIA") would be required (though the overall recommendation was that planning permission should be refused).

The Appellant was a local resident who was opposed to the development. His solicitors issued the Council with a pre-action protocol letter which cited as a potential ground of challenge the failure to obtain an EIA. It alleged that the grant of permission was unlawful because the screening opinion was flawed – it did not inform the reader as to how the Council reached their negative screening opinion as there was no apparent consideration given to whether EIA would be required due to cumulative impact with other developments or cumulative environmental effects.

The Council said it was inconceivable that Mrs Shaw could have failed to take into account the cumulative effects of the development. The Council accepted that it was required to make any underlying reasons available upon request, but said it had nothing further to add apart from Mrs Shaw's covering letter to the screening opinion.

The Appellant issued judicial review proceedings alleging that:

  1. the reasoning in Mrs Shaw's   screening opinion was inadequate; and
  2. subsequent events had not cured that inadequacy.

A month later, Mrs Shaw gave a witness statement in the litigation which explained her decision-making process in detail. The Appellant applied to cross-examine Mrs Shaw on that statement to determine whether her evidence was an ex post facto justification of her decision. The High Court judge, Foskett J, refused: he thought it would not be helpful. Ultimately, Foskett J held that although the Council's reasons prior to the proceedings were inadequate, Mrs Shaw's witness statement "rescued the position". The Appellant appealed that decision.

3. The Decision

The Court of Appeal (Lewison LJ with whom Kitchin and Moore-Bick LJJ agreed) allowed the appeal.

Adequacy of the original decision

The Court accepted that there was an obligation to give reasons for a negative screening opinion as a matter of EU law – either in the decision itself or in subsequent communication made at the request of an interested party. To discharge such a duty, the reasoning must be"such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention".

The Court found that Mrs Shaw's original screening opinion"contained no reasoning at all".

The Council needed to demonstrate that it had "actually determined"whether an EIA was required in accordance with the law. The Council's reply letters did not do this and thus failed to repair the"deficiency" in the original screening opinion's reasons.

Accordingly, at the date the Appellant's judicial review claim form was issued the Council was in breach of its legal duty to give adequate reasons for its decision.

Effect of the subsequent witness statement

The Court took the view that a planning authority in these circumstances was required to provide adequate reasons for a negative screening opinion within a reasonable time and, in any event, before the issuance of judicial review proceedings. In this case, the substance of Mrs Shaw's witness statement had not been disclosed to the Appellant before his claim was issued.

Whether Mrs Shaw's evidence was an ex post facto justification of the negative screening opinion was a question of fact and was not an issue for the planning authority to determine: it was a question for the court.

The instant case was "one of those admittedly rare cases in which cross-examination was necessary in order for justice both to be done and to be seen to be done". Instead, the Court held that Foskett J"conducted an examination of events and came to the conclusion, largely based on inference and extrapolation, that there was no inconsistency between Mrs Shaw's evidence and what he deduced must have been her reasons for adopting the negative screening opinion". The High Court judge's approach to the question of cross-examination was therefore "wrong in principle" and his order could not stand.

4. Comment

There will be a number of circumstances where public bodies have a duty to give reasons for a decision within a reasonable time and, where this is the case, reasons should be given at an early stage so as to allow individuals to consider whether they have grounds for a claim. Providing reasons in subsequent proceedings will not be sufficient.

The decision also serves as a reminder that even in judicial review proceedings cross examination will not be ruled out if there are questions raised by the evidence submitted.