A cautionary note on reasons

September 22, 2016

The Court of Appeal has handed down a significant decision on the standard of reasons required when granting planning permission. Caroline Daly explains the ruling.

The case of R (CPRE Kent) v. Dover District Council [2016] EWCA Civ 936 concerned the grant of planning permission for what Laws LJ described as development of an “unprecedented” scale (521 residential units, 90 apartment retirement village and hotel) in the Kent Downs Area of Outstanding Natural Beauty at Farthingloe, close to Dover.

The Officer’s Report had recommended refusal of the scheme, making “trenchant criticisms” of the density, layout and design of the scheme. However, the Council’s Planning Team, having taken advice from a consultancy to the effect that a lower density scheme of some 375 dwellings would have a lesser effect on the AONB and continue to be viable, suggested in the Report that a revised proposal be put forward for consideration. The developer argued before the Planning Committee that a reduced density scheme would not be viable.

The Planning Committee approved the application. The reasons given for departing from the recommendation were summarized in brief terms in the Committee Minutes, which referred to the benefits of the scheme, a view that an alternative lower density scheme could jeopardise its viability, and the belief that effective screening could minimize the harm caused to the AONB. The Committee concluded that the advantages did outweigh the harm that would be caused to the AONB.

Laws and Simon LJJ allowed the appeal against Mitting J’s decision ([2015] EWHC 3808 (Admin)) on the basis that the Council’s Planning Committee had failed to give legally adequate reasons for granting permission.

The Court of Appeal summarised the applicable law in relation to the standard of reasons, setting out Lord Brown’s “mainstream” approach in South Bucks v Porter (No 2) [2004] 1 WLR 1953, given in the context of an Inspector’s decision on appeal. The “mainstream” approach is that the reasons for a decision must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, that reasons need refer only to the main issues in the dispute and not to every material consideration, and that the reasons can be briefly stated, with the “degree of particularity required depending entirely on the nature of the issues falling for decision”.

Laws LJ referred to Lang J’s recent judgment in R (Hawksworth Securities PLC) v Peterborough City Council [2016] EWHC 1870 (Admin), in which she made a distinction between Inspectors’ decisions on appeal and the administrative decisions of local planning authorities. Lang J was of the view that where a local planning authority was granting planning permission, it would be unduly onerous to impose a duty to give detailed reasons “given the volume of applications to be processed”.

The Court considered that Lang J’s approach needed to be “treated with some care” and that “interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State”. Laws LJ considered that three factors pointed away from Lang J’s approach in this case, namely:

The pressing nature of the AONB policy expressed in NPPF paragraphs 115 and 116;
The fact that the Committee was departing from the Officer’s recommendation, which meant that the Officer’s reasoning ought (if but briefly) to be engaged with; and
The fact that there was a statutory duty to give reasons by virtue of Regulation 24(1)(c)(ii) and (iii) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which had not been fulfilled by any document.

On the facts, the Court found that the reasons given were inadequate, particularly in relation to the treatment of the Officer’s assessment of the harm that would be inflicted on the AONB by the proposed development. Laws LJ found 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 paragraph 116 demand no less.”

The Court of Appeal made it clear that this judgment is not to be seen as anything other than an application of Lord Brown’s statement to the effect that the degree of particularity required of reasons will depend on the circumstances of the case. Laws LJ emphasised that this was an “unusual” case and said that the judgment should “not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions”. The judgment does not throw open the doors to a stream of challenges based on reasons grounds. However, the Court of Appeal has sounded a cautionary note. From this decision, it is apparent that an extremely cautious approach will be required by a planning committee that chooses to depart from its officers’ recommendations. In such circumstances, the reasons given for the grant of permission must be carefully drafted and must engage with the recommendations of the officer and explain the reasons for departure from those recommendations.

Caroline Daly is a barrister at Francis Taylor Building.