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Is there a duty to give reasons when granting planning permission?

In planning decisions such as Environmental Impact Assessments (EIA) and planning appeals, a duty to give reasons is provided for in statute. But since its abolition in 2013, the duty to give reasons for the grant of planning permission by local planning authorities (LPAs) has not been a statutory requirement. Ros Trotman examines the growing body of case law where a common law duty to give reasons may arise.

The recent High Court judgment of R (on the application of Walker) v Bath and North East Somerset Council[1] adds further meat to the bones in terms of when a duty to give reasons may arise on the grant of planning permission.

The two starting points when considering whether a duty arises are the Court of Appeal case of R (Oakley) v South Cambridgeshire DC[2] – which concerns a planning permission to build a 3,000-seater football stadium on green belt land – and the Supreme Court judgment of Dover District Council v CPRE Kent[3], which relates to a scheme for more than 500 residential units and other buildings within an Area of Outstanding Natural Beauty (AONB) and at the site of a scheduled monument.

Between these two judgments, we can see that a duty to give reasons may typically arise where:

  • a committee disagrees with the recommendation of the officer;
  • a matter is of such potential significance to very many people;
  • permission has been granted in the face of substantial public opposition; or
  • there is a departure from the development plan, or from specific policies in the National Planning Policy Framework (NPPF) i.e. those restricting development such as habitats, national parks, green belt, heritage assets and AONB.

In isolation, one factor is unlikely to be enough, but a combination can give rise to a duty to give reasons.

While some practitioners may assume such a duty only arises in cases on a scale akin to the Oakley and Kent cases, the judgment in R (on the application of Hollings) v Bath and North East Somerset Council[4] showed this is not so. The Hollings case concerned a substantial two-storey extension to a Grade II-listed building in a conservation area and World Heritage site for additional care home provision. The court found a duty to give reasons after deciding it was of “significant scale and public importance”.

Adding to the typical factors that can give rise to a duty, the judge in the Hollings case referred to the fact that permission had previously been refused upon a very similar application on the same site. This effectively meant the duty to explain what had changed and why the officer’s recommendations had not been followed.

The Walker case concerned the partial demolition of a Grade II-listed building in a conservation area and World Heritage site for the provision of a replacement skittle alley to the public house and the erection of nine residential units.

Extracts from the judgment help practitioners understand when a duty may arise:

  • “The particularly strong reasons, or sufficiently strong accumulation of reasons of particular force, for concluding that reasons should have been given that existed in Oakley are not, as it was put in argument, a minimum standard. Oakley illustrates the factors that may give rise to a duty to give reasons and, indeed, Sales LJ considered that departure from the development plan or from the policy in relation to the green belt would be sufficient.”
  • “I would infer that departure from the policy of protecting listed buildings would similarly be sufficient…..”
  • “Both considered that the interference with the green belt, the departure from the development plan, and the departure from the recommendation of the officer were more than sufficient individually or cumulatively to give rise to the duty to give reasons.”
  • “Whilst the imperative to give reasons may be, in a sense, greater the more substantial the development ….it is not the case that the less substantial the development, the less likely it is that there will be powerful reasons to give reasons, if the other factors identified in these cases are in play.”

Once the duty to give reasons exists, those reasons do not need to be extensive but should be adequate to enable understanding.

In the Walker case, the committee minutes revealed discussions around various factors. However, these were not sufficient to discharge the duty to give reasons. The judge explained that “the officer’s report identified an accumulation of reasons for not recommending that permission be granted and made an overall assessment….the minutes neither give reasons for the committee’s decision on the main points of difference nor give any indication as to why it reached a different overall assessment.

“The nature of scope of that duty must then have been one in which, as a minimum, the council was required to give reasons which demonstrated it had taken into account the matters that weighed on each side of the balance and, in this case, that included the officer’s reasons for refusal.”

Following these cases, it is clear that committees need to take care when granting planning permission and listed building consent that they have fulfilled any duty to give reasons that may arise from the circumstances of the case. Moreover, these reasons need to be clear and deal with the main issues.

Ros Trotman is a partner at Thrings. she can be reached This email address is being protected from spambots. You need JavaScript enabled to view it. or by telephone at 07920 482651.

Thrings solicitors and No5 Chambers acted for the claimants in the successful judicial reviews in the Hollings and Walker cases.

[1] R (on the application of Walker) v Bath and North East Somerset Council 2020 EWHC 1836 (Admin)

[2] R (Oakley) v South Cambridgeshire DC [2017] EWCA Civ 71

[3] Dover District Council v CPRE Kent 2017 UKSC 79

[4] R (on the application of Hollings) v Bath and North East Somerset Council 2018 5 WLUK 375
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