The Supreme Court quashed a controversial planning recommendation made by Dover District Council, contrary to the recommendation of the Council’s planning officers. While the decision provides helpful guidance on when reasons are required for the grant of planning permission, the Court’s comments on the common law duty to provide reasons have wider significance outside the planning context. The decision potentially opens the door for more challenges in particular circumstances, namely where a public authority has made a decision, against the recommendations of its officers, in the face of substantial public opposition and contrary to published plans/policies: Dover District Council v CPRE Kent; CPRE Kent v China Gateway International Ltd [2017] UKSC 79

A controversial grant of planning permission

When a local planning authority, against the advice of its own professional advisers, grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision and in how much detail? Was such a duty to be found in European or domestic statute, or in the common law, and what were the legal consequences of a breach of that duty?

This case concerned a controversial residential development in a conservation area on the Dover coast. The planning permission did not adopt recommended conditions contained in a lengthy planning officers’ report (namely a reduction in the number of planned houses) required for the “finely balanced” public interest in the development to outweigh the significant level of harm that it posed to the area. Nor did the decision appear to take account of a further report from the planning officers highlighting that the project did not guarantee recommended economic benefits such as a planned hotel.

A local campaign group challenged the decision by way of judicial review on a number of grounds, but this appeal was based solely on the alleged absence of reasons for the authority’s decision.

Statutory v common law duty to give reasons

The court did not actually need to consider the common law duty to give reasons, given that it was common ground (by the time the matter reached the Supreme Court) that the Council had breached a requirement of the Town and County Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations) to provide a statement of “the main reasons and considerations” on which its decision to grant planning permission was based. However, the Supreme Court went on to consider the common law duty given its importance and the Court confirmed that it would have found such a duty had it been necessary.

Common law duty to give reasons for a public body’s decision

It is uncontroversial that public bodies have no general obligation to give reasons for their decisions, although fairness may in some circumstances require it (see generally R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and, in the planning context, Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4). In Doody, the court wanted to ensure that sufficient information was provided to reveal any error which would entitle the court to intervene. This is consistent with the common law principles of good administration and transparency.

A duty to give reasons could arise even where, as in the planning context, statute does not require an explanation for a decision. However, there are limits on how far the common law can go: the court should respect Parliament’s choice of designating certain categories of decision as requiring reasons (and some not). Nonetheless, where statutory rules have developed piecemeal, there are occasions (ie where the legal policy reasons were particularly strong) where it would be appropriate for the common law to fill any statutory gaps.

Guidance on when a duty to give reasons arises

The Supreme Court did not attempt to prescribe the situations where a common law duty to give reasons would arise. Instead it provides guidance. A common law duty to give reasons for a public body’s decision to grant planning permission would typically arise where permission has been granted:

• in the face of substantial public opposition;
• against the advice of officers; and
• for projects which involve major departures from a development plan, or from other policies of recognised importance.

It was justifiable to call for reasons for decisions made in these circumstances because of the immediate impact of such decisions and also because they are likely to have lasting relevance for the application of policy in future cases.

Guidance will not give rise to uncertainty

In response to concerns that a duty to give reasons in this context would give rise to uncertainty, the court considered that it should not be difficult for councils to identify cases which call for a formulated statement of reasons and public explanation. For example, in Oakley a common law duty to give reasons arose as the development in question would have a significant and lasting impact on the local community, involved a substantial departure from government policies, and the planning committee had disagreed with its officers’ recommendations. Indeed similar factors arose in the present case.

Reasons must provide an adequate and intelligible explanation

The Supreme Court made clear that where there is a legal requirement to give reasons, there needs to be an adequate explanation of the ultimate decision. The essence of the duty to give reasons is whether the information provided by the authority leaves room for “genuine doubt…as to what has [been] decided and why”¹. They must² be intelligible, adequate and proper, and must enable the reader to understand what conclusions were reached on the “principal important controversial issues”.

Comment

This case illustrates the need for careful and considered decision making by public bodies, particularly in controversial planning matters or where there is a departure from the recommendation of experienced officers. It also demonstrates the stark consequences of getting this wrong and the categories of planning decision that are particularly ripe for challenge for lack of any, or any adequate, reasons.

While the issue before the court was an application for planning permission, the authorities considered were not limited to the planning context so the court’s guidance on decisions calling for explanation could be exported to a variety of public body decision making. This may help affected persons to challenge other public bodies’ decisions where the common law, through the vehicle of fairness, could fill the vacuum left by statute for inadequately explained conclusions.

Footnotes:
1 Recalling the words of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263.
2 As per Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953; and Westminster City Council v Great Portland Estates plc [1985] AC 661.