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.

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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.

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Local authorities and judicial review: they should not put their heads completely in the sands

728631_de6cf1deMidcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here

Out of what some may think to be an everyday spat between the Co-Op (existing  supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.

A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.

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Judicial review changes: inevitably the same result if no unlawfulness?

baconsthorpe-castleNorth Norfolk District Council v. Secretary of State for Communities and Local Government, [2014]  EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment

In my last post, I explained how Chris Grayling’s proposed reforms might affect planning and environmental challenges, and, hey presto, within the week, a perfect illustration of one of the points which I was making – with implications for all judicial reviews.

One of the proposals in the Criminal Justice and Courts Bill (see here) is that a challenge to an unlawful decision should fail if it is highly likely that the outcome for the applicant would not have been substantially different, had the public authority not acted unlawfully. This compares with the current test which is that the decision should be quashed unless it is inevitable that the decision would be the same.

 Cue a proposed wind turbine (86.5m to blade tip) to be placed on one of the highest points of Norfolk and affecting the setting of two Grade I listed buildings (Baconsthorpe Hall and Barningham Hall) and a number of Grade II* churches. The Inspector allowed the turbine on appeal from the local planning authority, which decision the judge has now set aside. Continue reading