Thinking about reasons again

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.

The facts

Cambridge City Football Club wants to build a new stadium, with additional floodlit recreational ground, on the outskirts of Sawston, on land within the Green Belt. Development may be allowed in the Green Belt, but it has to fall into certain exceptional categories (of which sports facilities is one). The local planning officer wrote a very detailed report recommending refusal, weighing up the community benefits but deciding that they did not amount to the very special circumstances required for development in the Green Belt.

The planning committee disagreed with their officer, approving the development in principle, subject to various conditions, and to the possibility of development being called in by the Secretary of State because it was in breach of the development plan. But it gave no reasons for its decision, referring only, and unhelpfully, to the officer’s report – which recommended the opposite.

The issues

The objector claimant had to face one potential hurdle. The statutory duty to give reasons on the grant of planning permission was got rid of in 2013, even though the duty still exists on giving refusals. A rather short-sighted way of favouring developers and putting obstacles in the way of objectors, it may be thought, but, as can be seen here, somewhat counter-productive. If the rule has any justification, it is that in a grant case, it may be obvious why the committee granted permission, simply by looking at the favourable officer’s report. That justification is of course entirely absent when the committee is disagreeing with the officer’s report.

The objector put forward two arguments in the CA. The first was that reasons should be given in this case because it was not possible to infer the reasoning of the committee from the materials in the public domain. The second, and wider argument, is that there is a duty upon any committee to explain its reasoning where it was not possible to infer those reasons from publicly available material.

The judgments

Elias LJ started his consideration of the wider argument with the oft-stated but important general reasons for reasons

26. There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made. ….Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.

And going the other way – reasons might involve an “undue burden” on the decision maker.

Summarising well-established cases, Elias LJ thought that the common law

was moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.

The problem is particularly acute where an objector suspects something has gone wrong with a decision but is unsure because no reasons are given. The objector then has the rather risky course of starting proceedings, hoping to get permission for judicial review, and then finding out what those reasons really amount to when the defendant responds and thereby gives its reasons during the proceedings themselves.

Elias LJ thought that there was “considerable force” in the objector’s wider argument.  Planning decisions generally affect individuals other than the applicant for permission and they have a legitimate interest in the outcome. Sometimes, as in this case, a decision whether or not to allow a development impacts on the local community.

The CA could find no previous case when a court had held that there was no duty to give reasons despite the reasoning being opaque – and no strong argument against the need for reasons in these circumstances. After all, the committee has the officer’s report to use as reference, and it could readily state that it agreed with this bit and disagreed with that bit.

But Elias LJ did not decide the case on that basis: see [55] – because the duty to give reasons arose on the very specific circumstances of the case. In short (1) a disagreement with the officer’s report (2) a decision inconsistent with the development plan (3) development in the Green Belt.

Whilst

nobody can expect to live in a time capsule

the common law

would be failing in its duty to deny to parties who have such a close and substantial interest in the decision the right to know why that decision is taken.

This is particularly so where those affected had made representations in the consultation period leading up to the decision.

There are therefore

powerful reasons for imposing a duty to give reasons, at least where the reasoning process is not otherwise sufficiently transparent.

Elias LJ also derived assistance from the Aarhus Convention (see me, passim, and most recently here), and its requirement for public participation and the need for effective judicial remedies in environmental cases –

It does not sit happily with these obligations to deny a party information about how the decision was reached; and for reasons I have given, it may forcefully be argued that the duty to give reasons is required in order to make the judicial review procedure effective.

Patten LJ agreed with Elias LJ.

Sales LJ agreed with Elias LJ’s conclusion, albeit “nuances” remain between the judgments. He is a bit more cautious than Elias LJ was about imposing  a wide-ranging duty on a planning system which is “staffed by lay councillors and reflects democracy in action”. Hence he thought that

the common law should only identify a duty to give reasons where there is a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of an individual case.

so, the narrower argument won the day for him.

Conclusion

It is interesting to consider this against the backdrop of the Dover case (here), where reasons were given but were plainly inadequate as a justification for building in an Area of Outstanding National Beauty. In each case, a planning authority is plainly scenting some advantage out of the development but does not want to face up to the obstacles which rightly are put in the way of development where, prima facie, development should not be. Good solid reasoning is required, and so good solid reasons ought to be set out to explain it.

It may just be me, but the CGI at the top of this post does not perhaps give a full impression of what this 3000-seater stadium will actually look like in practice.

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