Court of Appeal gives significant judgment on common law duty to give reasons for the grant of planning permission
Since 2013, local planning authorities have not been statutorily obliged to give reasons for a decision to grant planning permission. That said, it has long been recognised that the common law may, in the interests of procedural fairness, impose a duty on a public authority to give reasons for a decision in particular circumstances (R v Aylesbury Vale DC ex p Chaplin [1998] 76 P & CR 207). In Oakley v South Cambridgeshire DC [2017] EWCA Civ 71, the Court of Appeal has handed down a significant Judgment on the scope of that common law duty in the context of decisions to grant planning permission. The Judgment will have ramifications for planning committee decision making and will require careful attention from local authority planning lawyers and others.
In Oakley, the Council’s planning committee had decided to grant permission for the construction of a 3,000-seat football ground for Cambridge City FC in the Green Belt, contrary to the planning officer’s recommendation. The committee had given no reasons for the decision either at the meeting or following it.
The Claimant challenged the decision, arguing that the committee should have provided reasons for it. The High Court had dismissed the claim for judicial review on the basis that there was no general common law duty to give reasons for the grant of planning permission even contrary to officer advice (ex p Chaplin) and, absent some suggestion that the decision in question was aberrant, no common law duty arose in the circumstances.
The Court of Appeal, reversing that decision, held that a common law duty to give reasons did arise (and was breached) in the circumstances of the case.
Lord Justice Elias and Lord Justice Sales, giving separate Judgments, held that reasons were required because the proposed development was in conflict with the development plan and constituted inappropriate development in the Green Belt. While the duty might be discharged (without the need for the planning committee to giving separate reasons) if the committee’s decision was in accordance with the recommendation of the officer (because one could infer that the committee agreed with the reasoning in the officer’s report), the position was different, as in this case, where members of a planning committee disagreed with the officer’s recommendation. In those circumstances, it was likely (albeit not inevitable) that the planning committee would be required to explain why they reached the decision they did, notwithstanding the officer’s advice.
Comment
The Judgment represents a novel extension of the common law duty to give reasons in the planning sphere (and arguably more generally) and has significant practical ramifications for planning committee decision making.
The grant of planning permission contrary to officer advice is, of course, not an uncommon occurrence. While, strictly speaking, the Court of Appeal’s Judgment would only require a committee to give reasons where a proposed development was in conflict with the development plan or particular policy protection applied, the reality is that local planning authorities would now be well advised to ensure that in all but the most straightforward of cases where a planning committee grants planning permission contrary to officer advice, the committee sets out separate reasons for its decision in written form.
Both Lord Justices Elias and Sales emphasised the importance of providing reasons for planning decisions in the interests of good administration and transparency. While it cannot be disputed that those considerations are powerful factors weighing in favour of a duty to give reasons, the effect of the Judgment will undoubtedly be to impose an additional administrative burden on planning committee decision making and is likely to lead to a greater number of challenges to committee decisions, based on the reasons provided for them. Scrutiny will no doubt be brought to bear on the adequacy of the reasons given by planning committees (in relation to which there already exists a significant body of case law) and lawyers will need to be alert to the possibilities and risks posed by the provision of reasons by a planning committee.
Outside the confines of the planning sphere, the Judgment is also significant in the wider public law context. Whereas it has often been said that there is no general common law duty to give reasons for administrative decisions, Elias LJ expressed the view that “the common law is 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” [paragraph 30] (albeit that his decision was not based on this broadly expressed principle). Sales LJ was far more circumspect on the issue, noting that “this court should be wary of stepping in to impose a general duty where Parliament has chosen not to do so. In my view, 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.” The adoption of the view expressed by Elias LJ would undoubtedly represent a paradigm shift in approach from the position taken in cases such as R v SSHD ex p Doody [1994] AC 531 and R v HEFC ex p IDS [1994] 1 WLR 242 (which until now, have provided the most authoritative guidance on the issue) where the court emphasised that reasons would not in general be required unless there were particular matters which made them necessary in the circumstances. There remains, therefore, a divergence of views as to whether the common law should recognise a general duty to give reasons and it remains to be seen (and it would presumably require a decision of the Supreme Court to determine the point) whether the Court will eventually recognise such a general duty.
Jack Parker of Cornerstone Barristers represented South Cambridgeshire District Council in the High Court and Court of Appeal. For a copy of the Judgment, please click here. For more information about the case, please contact Jack or his clerks at clerks@cornerstonebarristers.com.
