Supreme Court gives definitive guidance on duty to give reasons for the grant of planning permission and opens door to future challenges
When a local authority planning committee grants planning permission for a controversial development against the advice of its own planning officers, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail?
The Supreme Court has now provided definitive answers to these questions in Dover DC v Campaign to Protect Rural England (Kent) [2017] UKSC 79 and, in so doing, upheld the reasoning in another controversial Court of Appeal case dealing with the same issues, Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4.
The Supreme Court has upheld the principle that, although there is no general common law duty to give reasons for a decision to grant planning permission, fairness may in certain circumstances require reasons to be given, even where there is no statutory duty to provide them [at 52]. The justifications underlying that principle include the fact that the giving of reasons is essential to enable the Court to review the legality of the decision (which, in the case of planning decisions, may be of legitimate interest to a wide range of parties, private and public) [at 54 and 55] and because of the importance of ensuring that “justice should not only be done, but also be seen to be done” [at 55].
While each case will turn on its facts, the common law will “typically” require reasons to be given, Lord Carnwath stated, “where, as in Oakley and the present case, 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 as the “specific policies” identified in the NPPF […]). 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.” Lord Carnwath rejected the suggestion that there would be uncertainty as to when reasons would be required, stating that it “should not be difficult” for local planning authorities to identify cases where they are necessary [at 59].
The Court held that there was nothing unduly burdensome in requiring members of a planning committee to provide reasons for their decision so far as those reasons could not be gleaned from the documents available as part of the planning application given, in particular, that the Local Government Model Council Planning Code and Protocol (2013 update) requires planning committee members to “understand the planning reasons leading to [the decision in question]” [at 60].
As to the standard of the reasons required, the Supreme Court rejected the distinction previously drawn in R (Hawksworth Securities PLC) v Peterborough CC [2016] EWHC 1870 (Admin) between the standard of reasons required of a planning inspector conducting an appeal and a local planning authority determining a planning application. In all cases, the question for the court is whether, by reference to all of the information available, the reasons for the decision-maker’s decision leave “genuine doubt … as to what (it) has decided and why” [at 42].
So far as the particular facts of the case were concerned, the Supreme Court upheld the Court of Appeal’s decision that Dover had provided inadequate reasons for is decision to grant planning permission for a large mixed development in the Kent Downs AONB. The Court also found that the decision of the Court of Appeal in Oakley to quash a planning permission for a football stadium in the Green Belt had been rightly decided on the basis that the planning committee in that case had provided no reasons for its decision to grant permission contrary to officer advice.
While the Supreme Court has now provided a definitive answer to the particular issues at stake in both the Dover and Oakley cases and Lord Carnwath was confident that local planning authorities will have no problem in identifying cases which call for reasons to be given, the position in practice is unlikely to be so straightforward. Given that each case needs to be examined on its merits, there will continue to be uncertainty as to whether any particular combination of factors will call for reasons to be given.
Local authorities would be advised to err on the side of caution, therefore, and 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.
Further, the requirement to give reasons will in practice undoubtedly 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. Local authority planning officers will need to be astute to the requirement for their planning committee members to provide legally adequate reasons for any decision made contrary to their advice and lawyers will need to be alert to the possibilities and risks posed by the provision of reasons by a planning committee.
Jack Parker practises in planning law and acted for South Cambridgeshire District Council in Oakley. For further information about this case and the issues it raises, please contact Jack or his clerks at clerks@cornerstonebarristers.com.
