Appeal judges quash football stadium permission over failure to give reasons

The Court of Appeal has quashed a council’s grant of planning permission for a new football stadium over the failure of its planning committee to give reasons for its decision.

The case of Oakley v South Cambridgeshire District Council & Anor [2017] EWCA Civ 71 related to Cambridge City Football Club’s plans to build a 3,000-seat stadium in the village of Sawston, in the Green Belt.

Officers at South Cambridgeshire District Council had recommended against giving planning permission but councillors subsequently gave their approval.

Local resident Chris Oakley appealed against the permission on the grounds that the committee had failed to give reasons for their decision in breach of a common law obligation to do so.

Between 2003 and 2013 there was a statutory duty to give summary reasons for all planning decisions, but that duty was removed for planning approvals. The statutory obligation now is to give reasons where permission is refused, although if it is granted subject to conditions, reasons must be given explaining why the conditions have been imposed.

It was common ground in both the High Court and the Court of Appeal that although there is no statutory obligation to give reasons where permission is granted, it does not follow that there is never any obligation to do so. A common law obligation may arise in appropriate circumstances, Lord Justice Elias noted in the Court of Appeal.

In the High Court Mr Justice Jay found that it remained open to judges to intervene to imply a duty to give reasons, if fairness so required.

However, he found no duty arose in this case because the council’s planning committee was to be taken to have engaged properly with the issues in its officer’s report.

Mrs Oakley appealed. Her counsel, Zack Simons of Landmark Chambers, argued before the Court of Appeal more widely that the common law should always require reasons to be given, even where planning permission was granted and even though there was no statutory obligation to do so, unless it was clear from the relevant publicly available materials how the decision must have been reached. He submitted that in this case  the reasoning of the committee was opaque and consequently the common law required reasons.

Mr Simons also advanced an alternative and narrower ground that whatever the general position with respect to planning decisions might be, the nature of this particular planning decision required reasons to be given.

The claimant’s counsel said two features of the decision distinguished it from most other planning determinations: the committee had departed from the officer’s very strong recommendations; and it did so in circumstances where the development constituted a departure from the development plan and, more specifically, where it involved development in the Green Belt.

Counsel for South Cambridgeshire, Jack Parker of Cornerstone Barristers, rejected these arguments. He argued that the wider formulation proposed by the appellant would undermine the well-established principle that there was no general duty to give reasons in planning cases.

He also said that there was no principled basis for saying the duty should arise because of the features identified by the appellant, and Mr Justice Jay had been right to conclude that there were powerful policy reasons for not requiring the imposition of the duty to give reasons.

Mr Parker also submitted that although there was a departure from the officer’s recommendation, the essence of the committee’s reasoning could be discerned from the material in the planning file.

The Court of Appeal found for Mrs Oakley. Lord Justice Elias said he was “strongly attracted” to the wider submission advanced by Mr Simons, but added that it was not necessary for him to rely upon the broad argument because in his judgment the duty arose under the alternative, narrower argument.

The judge said that in this case the common law “would be failing in its duty” if it were to deny to parties who had such a close and substantial interest in the decision the right to know why that decision had been taken.

“This is partly, but by no means only, for the instrumental reason that it might enable them to be satisfied that the decision was lawfully made and to challenge it if they believe that it was not,” Lord Justice Elias explained.

“It is also because as citizens they have a legitimate interest in knowing how important decisions affecting the quality of their lives have been reached. This is particularly so where they have made representations in the course of consultation. They cannot expect their detailed representations to be specifically and individually addressed, but as participants in the process, they can expect to be told in general terms what the committee perceived to be the advantages and disadvantages of a particular development, and why the former clearly outweighed the latter.”

Lord Justice Elias said: “In a general sense this may be considered an aspect of the duty of fairness which in this context requires that decisions are transparent. The right for affected third parties to be treated fairly arises because of the strong and continuing interest they have in the character of the environment in which they live.

“Even if the decision to allow a development does not affect any property or financial interest, it may damage other non-pecuniary interests which affected parties may value equally highly. In my judgment, these are powerful reasons for imposing a duty to give reasons, at least if the reasoning process is not otherwise sufficiently transparent.”

Lord Justice Elias noted that the decision in this case involved a development on the Green Belt and was also in breach of the development plan.

Public policy required strong countervailing benefits before such a development could be allowed, and affected members of the public should be told why the committee considered the development to be justified notwithstanding its adverse effect on the countryside, he said.

“In my judgment these considerations demand that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there is in my judgment an overwhelming case for imposing the duty here.”

That conclusion, the judge said, was reinforced where the committee departed from the officer's recommendation. “The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required.

“As I have said, I would not impose the duty to give reasons on the grounds that the committee's decision appears to be aberrant within the Cunningham principle, but the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty.”

Lord Justice Patten agreed. Lord Justice Sales also agreed, but gave his reasons separately as there were some differences “at least in nuance” between his own reasons and those of Lord Justice Elias.

Lord Justice Sales said the foundation for the identification of a duty to give reasons for the decision of the council in this case was the fact that the decision to grant planning permission appeared to contradict the local development plan and appeared to subvert the usual pressing policy concern that the Green Belt be protected (I think either of these factors alone would be sufficient), which engaged a particular onus of justification on the part of the council which could only adequately be discharged by the giving of a sufficient indication of its reasons for making the decision it did.”