Reasons and planners again: Supreme Court

20 December 2017 by David Hart KC

Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment

The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover. 

The interest is in the breadth of the decision – how far does it extend?

The facts

China Gateway International wanted to develop 155 hectares of land to the west of Dover, with 521 residential units, a 90 apartment retirement village and a hotel/conference centre. CGI also offered to pay £5m out of the profits to repair fortifications from the Napoleonic wars.

The 155 hectares are in an Area of Outstanding Natural Beauty (AONB). National planning policy says that planning permission should be refused for major developments in AONBs except in exceptional circumstances and where the public interest is made out.

The planning officer’s report to the Council’s planning committee ran to 135 pages with appendices, described by Lord Carnwath as a remarkable document. The report recommended a reduction in the number of houses from 521 to 365, thus sparing some 2 hectares of particularly sensitive landscape.  The Council  had taken advice from planning consultants who said that such a development would still be financially viable.

Two days before the decision, 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 disagreed with Smiths Gore’s view as to the viability of the reduced scheme. They asserted that the net land value for the reduced scheme was minus £3.03m.

The Committee approved the original proposal for 521 houses. It gave no reasons. Herein lay the challenge.

Duty to give reasons

Lord Carnwath’s judgment contains a full account of where statutory planning law requires the giving of reasons – a set of rules about which he says it is “hard to detect a coherent approach.” [23]

The Secretary of State and planning inspectors give reasons.

Authorities give reasons for refusing permission or imposing conditions.

For a while (2003-2013) authorities were required to provide a summary of their reasons for granting permission but then someone decided this was “burdensome.”

How someone can think that setting down why you want to grant permission is burdensome is extraordinary. Take this case. Why should not the committee state shortly why they thought that 521 houses should be built with its extra impact rather than the mere 365 supported by the planning officer? The change in the reasons rule shows a rather depressing (and centralised) lack of faith in the rationality of local planning committees. If no reasons are given, then it is of course far more difficult to challenge the decision. Committees are given difficult decisions with wide socio-economic implications, in which case one wonders why they should not say out loud what was in their minds when granting permission.

When decisions are devolved to planning officers, they have to give reasons, whichever way they land.

Development involving EIA development (i.e. that requiring Environmental Impact Assessment) under the relevant EU-derived law (as this was) requires the giving of “main” reasons by the planners. The Aarhus Convention (Art.6.9) supports this.

On this last ground alone, the Court held that there was a duty to give reasons.

Standard of reasons

The starting point on reasons in planning cases is South Bucks.. 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.

Lang J, in Hawksworth, thought that there was some difference between an “adversarial” planning inquiry on appeal and an administrative decision by the local planning committee.

Lord Carnwath was not persuaded:

In both the decision-maker may have to take into account and deal fairly with a wide range of differing views and interests, and reach a reasoned conclusion on them. Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which it is arrived at. Local planning authorities are under an unqualified statutory duty to give reasons for refusing permission. There is no reason in principle why the duty to give reasons for grant of permission should become any more onerous. [41]

Remedy

The question then arose: what to do about the failure to give reasons under the EIA rules? The Council said that all that was needed to be done was a declaration of unlawfulness. CPRE said – no, the decision needed quashing.

Lord Carnwath thought that the decision should be quashed. He accepted that, based upon recent decisions, it did not follow from the fact that it was an EU breach that quashing was mandatory. But no-one could divine, then or later, what precisely had been in the mind of the planning committee when granting permission.

Common law duty to give reasons

Only the larger developments require EIA, so the wider question remained. What does the common law require when granting permissions?

Having decided that the decision should be quashed on statutory EIA grounds, this part of the judgment ([50]-[60]) was not strictly necessary for the decision. But it is very helpful stuff.

1. fairness drives the requirement for reasons, not least the need for the aggrieved party to know why the decision was made, so that they could decide whether it could sensibly be challenged.
2. there is no general common law duty to give reasons when granting permission.
3. where a decision to grant would have a significant and lasting effect on the local community, and where the committee disagreed with its planning officer, the common law duty to give reasons should apply

Per 3, the Supreme Court thus followed the case of Oakley – see my post here.

Lord Carnwath summarised things at [54]:

Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. Doody itself involved such an application of the common law principle of “fairness” in a statutory context, in which the giving of reasons was seen as essential to allow effective supervision by the courts. Fairness provided the link between the common law duty to give reasons for an administrative decision, and the right of the individual affected to bring proceedings to challenge the legality of that decision.

and

That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts

But when should this common law duty of fairness step in?

On the facts here, said Lord Carnwath. But more generally the court, whilst respecting ministerial discretion,

 may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong.

Uncertainty there may be in such a gap-filling role, but it would be wrong for the court to be over-prescriptive in a single case with a single set of policies in play.

However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where….permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance…. Such decisions call for public explanation, not just because of their immediate impact; but also because…they are likely to have lasting relevance for the application of policy in future cases.

And the obvious point. Members, if they depart from the professional planning officer, need to be able to articulate their reasons for doing so. And these reasons must be planning reasons, i.e. reasons which are legally relevant given the laws and policies within which such committees must operate.

Comment

A well-reasoned and pragmatic upholding of a strong Court of Appeal decision (post here) quashing this grant. The narrow ground of the Supreme Court turns on an EIA breach, but the Court said it would have reached the same decision on common law grounds. It has also given some sensible guidance as to when the grant of permission needs to be reasoned in writing – not just in the members’ heads.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Listen to Law Pod UK, discussion and analysis of cases from members of 1 Crown Office Row available for free download from iTunes and Audioboom

Read more

• Thinking about reasons again
• Hard cases need better reasons
• Strasbourg and why you must give reasons on domestic appeals
• When a decision-maker gives retro-reasons
• Reasons and evidence in Europe
• Wind and peat: another step along the reasons trail
• Wind, peat and reasons: do I know why I lost?
• CJEU sets itself against secret “nod and a wink” justice