The duty to give reasons in planning decisions

Three cases in rapid succession have highlighted the issue of giving reasons for the grant of permission in planning cases. From 2003 to 2013 there was a statutory duty to give summary reasons for all planning decisions, but that was removed in the case of planning approvals.

Since 2013 the statutory obligation is only to give reasons for planning refusals or for the imposition of conditions – the justification presumably being that the applicant for permission is entitled to know the reasons for which the application has been rejected or conditions imposed in the event that they wish to appeal that decision.

The requirement to give reasons for planning approvals, however, is relevant to third-party objectors who may well be affected by the proposed development. In most cases the reasons will be readily understood from the planning officer’s report to the planning committee. But what if there is no written record or if the available materials do not support the decision taken?

Delegated authority

R (oao Shasha) v Westminster City Council [2016] EWHC 3283 (Admin) dealt with the first situation where a planning decision was made by an officer acting on delegated authority. John Howell QC, sitting as a deputy High Court judge, agreed with the claimant that, under regulation 7 of the Openness in Local Government Bodies Regulations 2014, there was a duty on an officer in those circumstances to produce a record of the decision to grant planning permission and the reasons for it as soon as practicable after the decision was made.

The judge went on to say that the reasons should make clear whether the decision to do so was in accordance with the development plan, or, if not, what material considerations indicated that planning permission should be granted otherwise than in accordance with that plan. The reasons should also deal with ‘substantial points that have been raised’, although they do not have to refute all objections. It also was observed by the judge that it may be appropriate in some cases for the decision maker to adopt explicitly any relevant officer’s report when granting permission as it cannot be presumed that the reasons were drawn from a report produced to inform that decision.

Impact on an AONB

In Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 and R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936, two differently constituted Courts of Appeal considered planning approvals where the respective officers’ reports had recommended refusal or substantial modifications, but the committees’ decisions were to grant approval for the application as made. It was therefore not possible, the claimants argued, to understand the reasons for the decisions as the recommendations and reasoning in the officers’ reports did not correlate with the respective outcomes.

In CPRE Kent, the application was for a development of a scale ‘unprecedented in an AONB [area of outstanding natural beauty]’, which have the highest level of protection in regard to landscape and scenic beauty. According to paragraphs 115 and 116 of the National Planning Policy Framework, planning permission for major development in an AONB should be refused unless there are ‘exceptional circumstances’ and the development satisfies the stated criteria relating to the public interest.

There was also a significant dispute between the applicant and the council officers as to whether the modifications proposed to make the development more acceptable would have resulted in it becoming commercially unviable. The officer’s report recommended refusal of the scheme if unmodified due to the extent of harm to the AONB. There was no record of whether the members accepted the officer’s view as to the extent of the harm, but if it were assumed that they did, it was not clear whether they then also accepted that the proposed modifications of the scheme would have made it unviable.

Lord Justice Laws, giving the lead judgment, concluded that this was an ‘unusual case’ given the scale of the potential impact on an AONB. It should not be taken as imposing in general a duty to give reasons for the grant of permission, which would continue to depend on the nature of the issues raised.

Public interest

In Oakley, the application was for development of a 3,000-seat football stadium within the green belt of Cambridge. It was also contrary to the development plan. The officer had recommended refusal due the applicants’ failure to demonstrate ‘very special circumstances’ justifying the proposal. The committee, however, resolved in favour of approval in principle but delegated the decision to officers subject to conditions and consequential matters.

Lord Justice Elias rejected the argument made by the claimant that there was a general duty arising from the common law to give reasons for a decision unless the reasoning is intelligible from publicly available materials. However, the judge found that where it was not possible to make out the reasons from the relevant materials, particularly when the committee departs from the officer’s views, a duty to give reasons may arise.

The judge went on to make a number of observations as to the particular interest held by members of the public who are affected by the planning decision. In situations like the one in Oakley, the committee would often be disagreeing with the ‘careful and clear recommendation from a highly experienced officer on a matter of... potential significant to very many people’.

The judge referred to the Aarhus Convention on decision making in matters affecting the environment, although that was not raised in argument before him. The judge observed that the convention emphasises the importance of the public having access to environmental information and having the right to participate in decision making, as well as the obligation on member states to provide effective judicial remedies. He commented: ‘It does not sit happily with these obligations to deny a party information about how the decision was reached.’

Elias LJ also rejected the argument, which had been accepted by Mr Justice Jay in the court below, that a requirement to give reasons for approval in cases such as this one would be unduly burdensome for a planning committee. He stated that the removal of the statutory duty to give express reasons could not have been intended to ‘reduce transparency’. If reasons are required for refusals, for conditions, when the development is subject to an environmental impact assessment, when required otherwise by statute, and particularly where there is a detailed officer’s report to refer to, it cannot be an unreasonable effort to require reasons in cases such as these.

It is notable that in both the Oakley and CPRE Kent cases the courts rejected the minutes of the meetings as sufficient to stand for the reasons for the decision as they did not provide a clear statement of reasoning. In Shasha, the court also cautioned against relying on post-decision witness statements from officers which go further than what was allowed in Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432 and R v Westminster City Council ex p Ermakov (1995) 28 HLR 819, namely elucidating or exceptionally to correct or add to the reasons already given in materials existing at the time of the decision.

It must be said that when the statutory regime required decisions to be given for all planning approvals, they tended to be rote recitals of compliance with policy rather than any meaningful statement of the decision maker’s thinking. Imposing a blanket duty does not mean that transparency is guaranteed. But these judgments show that where a decision raises significant land use issues, particularly in relation to protected landscapes, where there is a disagreement between the officers and the committee, or no committee involvement at all, resources should be devoted to ensuring the public have access to a cogent statement of reasons justifying the decision.

In our practice we have spoken with countless members of the public who are aggrieved by planning decisions. They almost always assume the planning authority has made its decision either out of ineptitude or a desire for gain at the expense of the public as a whole. When an application raises a great deal of public concern, the planning authority should make plain that its decision has a rational and justified basis, if only to ensure members of the public do not assume the worst.

However, it should be noted that these cases may not be the end of the matter –the respondents in CPRE Kent have been granted permission to have their appeal heard by the Supreme Court later on this year.

Adrienne Copithorne is a partner at Richard Buxton, which is acting for CPRE Kent

@lacopithorne www.richardbuxton.co.uk