Giving reasons for planning decisions

Ned Westaway and Charlie Merrett consider the duty to give reasons for planning decisions in light of the Supreme Court's ruling in Dover District Council v CPRE Kent.

The decision of the Supreme Court in Dover District Council v CPRE Kent [2017] UKSC 79 is an important new authority on when the duty to give reasons in public law cases arises and the standard of reasons expected. Of particular note is the court’s consideration of the common law duty to give reasons, helping bring together the Court of Appeal decisions of Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 and R (Campaign to Protect Rural England, Kent) v Dover District Council [2016] EWCA Civ 936. Lord Carnwath, giving the leading judgment, held that there was no general duty to give reasons at common law but that the circumstances of a decision could result in a common law duty arising.

The decision in question was the decision by Dover District Council to grant planning permission for the development of 521 homes on the western edge of Dover. The site of the proposed development was comprised of two conjoined but separately identifiable sites, Western Heights and Farthingloe. Development on either of these sites was a contentious proposal.

Western Heights is a scheduled monument overlooking a series of fortifications which date to the Napoleonic Wars. Although Farthingloe contains no fortifications, it is situated entirely within the Kent Downs Area of Outstanding Natural Beauty.

The application was made to the Council by China Gateway International Ltd in May 2012. The original officers’ report, dated 7 June 2013, recommended the grant of permission on the condition that the number of houses be reduced from 521 to 365. It concluded that the level of harm to the AONB was significant but would be lessened by the proposed reduction. The reduction of housing was made, in part, to protect 2 hectares of safeguarded land to the south-west of the site. The officer considered that any development on this area would be particularly harmful.

Smiths Gore produced a viability report that stated that the reduction of houses to 365 would not jeopardise the viability of the scheme. They also concluded it would result in the scheme being more marketable. However, the developer’s consultant (BNP Paribas) disagreed with both of these conclusions. With regards to viability, BNP Paribas said that reducing the housing would change the scheme from having a positive land value of £5.85m to a negative land value of - £3.09m.

The planning committee met on 13 June 2013. They decided to grant permission without the recommended reduction in houses. No separate reasons were provided for this decision by the Council.

In court, both the Council and the developer submitted that adequate reasons for this decision could be ascertained from the minutes of the meeting. This submission was rejected by both the Court of Appeal and Supreme Court. The Supreme Court upheld the Court of Appeal’s decision to quash the decision to grant planning permission.

When does the Common Law duty arise?

The court emphasised the decision in Oakley that “public authorities are under no general common law duty to give reasons for their decisions” (paragraph 51). The reasons for this are not explained in depth in this judgment (although some guidance is provided in both Oakley and the Court of Appeal decision in this case). However, the pertinent question for this case is not why is there no general common law duty to provide reasons, but rather what circumstances will give rise to a common law duty to providing reasons?

No prescriptive answer is given as to precisely when the common law duty to give reasons does arise. This is not the result of poor decision making but rather an appreciation by the court that this decision was made on “a single case and a single set of policies” (paragraph 59). However, the judgment does give a clear set of guidelines as to the types of cases in which this duty will arise:

“Typically they will be cases 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 – para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”

It would be inappropriate to try and turn this guidance into a set of rules that explicitly state when the duty to give reasons arises. However, as noted by Lord Carnwath, it shouldn’t be difficult for councils and their officers to identify the types of cases in which a requirement for formulated reasons arises (paragraph 59).

The standard of reasons required

If a Common Law duty to give reasons does arise, the question therefore becomes what is the standard of reasons required to fulfil that duty?

As noted above, both the Council and the developer contended that the minutes of the committee meeting disclosed adequate reasons so as to discharge the duty. This was rejected by both the Court of Appeal and the Supreme Court.

In the Court of Appeal Laws LJ (paragraph 31) concluded that “A statutory statement of reasons made under the EIA Regulations would have been required to grapple with the issue of harm much more closely than what the minutes disclose; and the strictures of NPPF para.116 demand no less.”

The Supreme Court, in upholding the lower court’s finding, made a number of decisions regarding the standard of reasons.

i. Firstly, it was confirmed that the ‘broad summary’ of the relevant authorities for the standard of reasons given by Lord Brown in South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953 (paragraph 36) is applicable to decisions made by a local planning authority as well as decisions taken by the Secretary of State on a planning appeal.

ii. Secondly, it was held that the duty to give reasons in an EIA context is no different from the duty to give reasons under another statutory scheme. The requirement to give the “main reasons” (Regulation 24(1)(c)(ii) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 SI 2011/1824) did not serve to “materially limit” the ordinary duty to give reasons and as such Porter is equally applicable in EIA cases as it is elsewhere.

iii, Thirdly, it was held that the distinction between a planning inspector conducting an Inquiry and a local planning authority reaching a decision was not a significant one and gave rise to no reasons why the duty to give reasons should be lesser for an authority than for an inspector.

The practical question of what standard of reasons are required is that it has not changed following this judgment. Lord Carnwath concluded at paragraph 42 that “the essence of the duty remains the same, as does the issue for the court: that is, in the words of Sir Thomas Bingham MR, whether the information so provided by the authority leaves room for ‘genuine doubt… as to what (it) has decided and why.” Decision makers must therefore ensure that both the public and the courts can genuinely understand the reasons for the decision taken, without taking a forensic or overly legalistic approach to the reasons for the decision.

The basis of the Common Law duty

An interesting question arises as to the jurisprudential basis for the duty to give reasons. The court identifies fairness as requiring reasons to be given in certain circumstances. An example of fairness requiring reasons is R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 which concerned the power of the Home Secretary to fix the minimum penalty a prisoner would serve under a mandatory life sentence until they were eligible for consideration for parole. Fairness can, in this context, be understood as the requirement for open justice or transparency that is analogous to the common law requirement that “justice should not only be done, but also be seen to be done” (per Lord Bridge in Save Britain’s Heritage v Number 1 Poultry [1991] 1 WLR 153 at pg. 170).

However, as noted by Dr Joanna Bell in Kent and Oakley: A Re-examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond (2017) 22 Judicial Review 105 – 113 (cited at paragraph 58 of the judgment), making fairness the basis on which the duty to give reasons arises reflects a different normative understanding of the separation of powers than basing the duty to give reasons on protecting public interests In particular, with fairness as the basis it is the courts who “have a greater legitimate role in identifying and protecting certain interests in which the public as a whole has an interest” (paragraph 31 of Kent and Oakley).

Although not inherently objectionable, this could open the doors to criticism of judicial law-making. This appears to have had at least some significance in the court’s decision in the current case, as Lord Carnwath states at paragraph 58 that “the court should respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons. But it 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 particular strong.” The basis for the common law duty therefore appears to be a middle-ground between fairness and protecting individual rights for their own sake on the one hand, and recognising the role of Parliament in identifying and protecting rights on the other.

Moving forward

Whilst this case provides relatively clear guidance and helps draw the pre-existing case law together, there is some ambiguity that may leave decision takers unsure of when they need to provide reasons. If in doubt, it is suggested that if an authority is disagreeing with the recommendation of its officers on a proposal for significant or controversial development, a prudent authority would publish a separate statement of reasons. This statement should outline the decision taken and the reasons for that decision, drawing particular attention to departures from the officer’s report and explaining the reasons for those disagreements. This is especially important given the court’s confirmation that the appropriate remedy for a failure to give reasons is to quash the original decision.

Furthermore, if in doubt, it is worth emphasising that an authority sometimes should defer the decision making process rather than give an inadequately reasoned decision. As noted in the Model Council Planning Code and Protocol (quoted in paragraphs 60 and 62 of the judgment) “If you [the decision taker] feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse.” This emphasises, as done throughout this judgment, the importance of being able to understand both what is decided and why that decision is taken.

Ned Westaway is a barrister and and Charlie Merrett is a pupil barrister at Francis Taylor Building. Ned (instructed by Richard Buxton Environmental and Public Law) appeared as junior counsel for the Respondent, CPRE Kent.