Loud and clear: amplified reasons in public law

It is clearly established that a court should approach with great care a submission that a decision-maker should be able to put in further reasons to justify a decision they have made. Such ‘amplified reasons’ should, generally, be submitted in exceptional circumstances.

In R (on the application of KVP Ent Ltd) v South Bucks DC [2013] EWHC 926 (Admin), amplified reasons were accepted by the High Court along with a useful reminder of the principles.

This case centred on what the claimant viewed as inconsistent and irrational decision-making
by the defendant Council’s licensing sub-committee. He argued that the council could not rely on amplified reasons produced after the impugned decision was made.

The claimant had been granted planning permission for change the use of its public house to a lap- and pole-dancing club (aka sexual entertainment venue or SEV). One week after the planning committee granted permission, the defendant’s licensing sub-committee refused the claimant’s application for an
SEV licence. The sub-committee knew that the claimant had planning permission for the change, but did not read
the planning report.

The sub-committee decided that the licence would be inappropriate having regard to the character of the locality, pursuant to schedule 3, paragraph 12(3)(d)(i) of the Local Government (Miscellaneous Provisions) Act 1982.

The claimant made complaints about the sufficiency of the reasons given for the decision. Some ten weeks after the refusal, the sub-committee provided amplified reasons for its decision. These related to the location of the premises and the extent of opposition from local residents.

The claimant sought to judicially review the refusal of an SEV licence. It argued inter alia that the defendant misdirected itself in applying the ‘character of the locality’ ground for refusal under the Act, bearing in mind the planning committee’s
recent grant of planning permission and its views on
this issue, and that the sub-committee gave inadequate reasons for its decision.

The claim failed. Mr Justice Sales was unimpressed with the argument that the licensing sub-committee could not lawfully reach the conclusion that it had, given the grant of planning permission.

The licensing sub-committee has a ‘very broad power’ under the Act to make an evaluative judgment whether the grant of a licence would be inappropriate having regard to the character of the locality.

Despite an overlap between the objectives of the licensing and planning regimes, the SEV licensing regime was a separate regime, with a different focus. The licensing sub-committee was not bound by the views of the planning committee.

Furthermore, applying the principles in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 and, in particular, the judgments of Stanley Burnton J in Nash and the London Fire & Emergency Planning Authority, the judge felt it was “plainly appropriate” to allow the defendant council to rely on the amplified reasons put forward by the licensing sub-committee.

There was no inconsistency with the original reasons, and the judge was satisfied the amplified reasons were not a change or modification. They elucidated the sub-committee’s original reasons and explained the genuine reasons for its conclusion.

That explanation for allowing amplified reasons to be relied on is of wider importance in public law decision-making generally and particularly in the good administration of local authority licensing regimes.

 

POINTS TO TAKE AWAY A defendant public authority can produce ‘amplified reasons’ to supplement reasons originally given with an allegedly unlawful decision.   The defendant will be permitted to rely on the amplified reasons insofar as they elucidate the original reasons, but do not change or modify them.    The amplified reasons must be the defendant’s genuine reasons for reaching the decision that it did.   The giving of reasons is one of the fundamentals of good administration; amplified reasons follow the initial notification, but before the commencement of proceedings, assist in forgoing unnecessary litigation.    Such elucidation is typically to be found in the pre-litigation correspondence of the parties and ought not to be discouraged. Given the role of lay persons in making licensing decisions, there is considerable scope to consider the value of genuine post-decision elucidation.

 

SJ

Leo Charalambides is a barrister practising from Francis Taylor Building