Hard cases need better reasons

13454123443_80fef9d87e_bR (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment

The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.

It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.

The facts

China Gateway International wants to develop 155 hectares of land to the west of Dover, with a mix of 521 residential units, a retirement village and a hotel. The proposal came with a willingness to spend £5m to repair some fine but decrepit 19th century fortifications (via a proposed s.106 agreement, to those in the know, but cynics may regard it more bluntly as a “bung”).

This might have been all well and good, except that those 155 hectares are in an Area of Outstanding Natural Beauty (AONB). National planning policy says, unsurprisingly, that planning permission should be refused for major developments in AONBs except in exceptional circumstances and where the public interest is made out. Not really much point in having AONBs if you go and build over them.

Equally unsurprisingly given that policy, the planning department of the local council was unconvinced by the proposal. Constructively, however, they took advice from planning consultants (Smiths Gore) to see whether a lower density scheme could be devised to allow some development with less of an impact on the AONB. Smiths Gore said that a 375 residential unit scheme would still be financially viable. The department therefore drafted a careful and thoughtful officer’s report recommending refusal of the scheme, but inviting such a revised proposal.

Two days before the critical committee meeting, the developer’s consultants (BNP Paribas) came up with a short letter, shown to the chair of the planning committee, but no-one else, but the gist of which was discussed at the meeting. BNP Paribas, in an analysis which Laws LJ described as

(to say the least), thin,

disagreed with Smiths Gore’s view as to the viability of the reduced scheme. Again the cynic might say, well they would say that, wouldn’t they? Oddly, even with the 375 units etc etc, the net land value was said now to be minus £3.03m.

The Committee approved the original proposal. Its key links in its reasoning as given in the minutes:

However, it was felt that the application should not be restricted in the way proposed in the recommendation as this could jeopardise the viability of the scheme, deter other developers and be less effective in delivering the economic benefits.  The Committee had to assess whether the advantages outweighed the harm that would be caused to the AONB.  When seen from the ground and with effective screening, it was believed that this could be minimised.  In these exceptional circumstances it was considered that the advantages did outweigh the harmful impact on the AONB.

And later

…it was imperative that the development went ahead as planned to ensure that heritage assets were restored.

Laws LJ held that these reasons were not legally adequate.

The law and planning context

The “mainstream” approach on reasons in planning cases is Lord Brown in South Bucks. The key requirements are these. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.  The reasons need refer only to the main issues in the dispute, not to every material consideration. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

This was said in the context of an Inspector’s decision letter after a contested planning inquiry.

To what extent were its requirements directly transposable into the current context, namely an administrative decision to grant permission, not involving some formal adjudication? Lang J had doubted this in the recent case of Hawksworth. She thought that only the main reasons needed to be summarised, and the committee was not required to set out each step in its reasoning, nor indicate which factual matters were accepted or rejected To do otherwise, it was said, may delay or complicate the processing of planning applications.

At [20], Laws LJ was a little doubtful about this doubt. Whilst not “wrong in principle”

That said, I think that Lang J’s approach needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State.

The other legal element in play was the statutory duty under the 2011 Environmental Impact regulations to give “the main reasons and considerations upon which the decision is based.”

Inadequacy

As I have said, Laws LJ thought that the reasons given were inadequate. [29]-[30] of his judgement does an excellent hatchet job on them, not least exposing the ambiguities in what the Committee did say. In particular, the reasons did not grapple with the implications of the officer’s view that the development would have a significant detrimental impact on the landscape and long-term irreversible harm to the AONB. The best they could do was invoke the prospect of effective screening (by trees), despite officers being sceptical about its effect  – reasoning of the Committee which was

fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes. [30]

If, as Laws LJ was inclined to accept, the Committee was acknowledging that detriment

They would have opted to inflict irreversible harm on the AONB on the exiguous material before them from BNP Paribas – whose letter of 11 June 2013 made no reference at all to harm to the AONB – without apparently considering whether some of Smiths Gore’s modifications might be put in place. [29]

In terms of the general impact of the decision, [32] should be noted

This is an unusual case…. the scale of the proposed development is unprecedented in an AONB. This judgment…should not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions, far removed from the approach outlined by Lang J in Hawksworth.  As Lord Brown said in South Bucks, “the degree of particularity required depend[s] entirely on the nature of the issues falling for decision”.

Simon LJ agreed, and specifically endorsed this paragraph.

Conclusion

Beneath most successful reasons challenges there lurks the sense that the reasons are expressed inadequately principally because the reasoning which in fact underlay the decision was defective. The headline reason for approval here was up loud and clear. Dover needs new development, and it wants its early 19C fort mended at some else’s expense. But that is not good reasoning within the terms of national planning policy, if there is an unprecedented impact on an AONB. The dots need joining up rather more obviously and competently than that.

The major lesson is that when planning committees decide to depart from their planning officers, particularly on controversial projects such as this, they must take time to formulate their reasons in a way which they have not been used to doing. After all that is what the regulations now require. The irony in these departure cases is that the people who end up drafting those reasons for the Committee to endorse are not the councillors themselves, but, er, the hapless planning officers who advised against the thing in the first place.

By contrast, in the far commoner case where the committee is following its officer’s recommendation, the reasons can be far shorter – at least in circumstances where the report itself has grappled with the issues in the case. To that extent, Lang J’s views (expressed in such a case) are understandable. So the spectre, raised by the council, of an unduly onerous duty to give reasons in streams of cases is not realistic.

Hard cases should require careful thought and drafting by those responsible for the decisions.  That way, decision-makers work out what can or cannot be done lawfully within the terms of the policies under which they operate.

 

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