The last year saw 121 High Court judgments dealing with planning, 32 in the Court of Appeal and one in the Supreme Court including three cases providing guidance on when and to what degree a local authority should provide reasons in planning matters.

Three recent cases have seen the Courts effectively introducing a common law duty for the planning authority to provide reasons in certain circumstances. If this duty is not complied with then it may provide fertile ground for litigation.

Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71

Background:

  • Planning application submitted in 2013 by Cambridge City Football Club for a 3000 seat football stadium in the Cambridgeshire Green Belt;
  • A very detailed report prepared by the Council's planners recognising economic and community benefits of the scheme;
  • Report concluded that these were not sufficient to constitute 'very special circumstances' to justify development in the Green Belt;
  • Recommended refusal and application went to planning committee;
  • Committee members approved the application however there was no record of reasons for the members' decision in the committee minutes and none were given orally at committee. Manuscript notes suggest certain issues were raised but these did not give the basis for the approval.
  • Permission subsequently granted with a statement that the basis for the approval was available on the Council's website, though only the planner's report recommending refusal was available.
  • Oakley applied for judicial review - dismissed by the High Court, rejecting the argument that members were required to give reasons.

At the Court of Appeal in January this year, the Court considered various cases on reasons and examined whether, as a general principle, authorities were required to give reasons for their decisions.

The Court concluded there is no general duty to give reasons (including in planning cases) except, where a decision is 'aberrant' i.e. it departs from the current standard. Therefore, in circumstances where Green Belt policy was relevant and planners had clearly set out a case for refusal, it was incumbent on members to give a reasoned explanation for why they had gone against the recommendation.

R (oao CPRE Kent) v Dover District Council [2016] EWCA Civ 936

Background:

  • Permission sought for a substantial development in Dover;
  • Site was in the Kent Downs Area of Outstanding Natural Beauty (AONB) and close to a scheduled ancient monument;
  • CPRE and others, including Natural England, objected to the scheme;
  • Detailed report prepared and planners concluded that the proposal would have a significant detrimental impact on the landscape and would result in long term irreversible harm to the AONB;
  • Recommended refusal;
  • Members resolved by majority to grant permission subject to the completion of a section 106 agreement which included payment of £5m for the refurbishment of the scheduled monument and the creation of a visitors centre and museum;
  • Minutes only appear to record individual councillors' contributions, rather than a collective and collaborative reasoning of the merits of the planner's report;
  • CPRE challenged the decision.

The Court considered the detail of the reasons and found that the fact that members departed from the planner's recommendation meant that the planner's reasoning ought to be grappled with. There was no apparent document which did this meaning that members had given inadequate reasons, particularly in relation to the treatment of the planner's assessment of the harm that would be inflicted on the AONB.

R (oao Shasha) v Westminster City Council [2016] EWHC 3282 (Admin)

Background:

  • Landlord of the apartment building applied for permission to install a subterranean gym, estate office and meeting rooms for residents;
  • Claimant was a resident of a sub-ground flat where a wall was to be constructed directly outside the flat and less than 1m from a principal window;
  • Claimant objected, setting out concerns on amenity and the proximity of the wall;
  • Delegated report was prepared acknowledging the impact on the claimant's property however, concluding that as permission had previously been granted for a similar proposal the objections on the loss of daylight did not justify refusal (despite there being a development plan policy which discouraged developments which created a loss of natural light);
  • Permission was subsequently granted.
  • Claimant challenged the decision, arguing that the authority had not considered their objections on their merits and had treated their objections as irrelevant because of the earlier permission.

The Court agreed and quashed the permission on the basis that the delegated report did not properly consider the claimant's objections or the development plan policy which discouraged development that created unacceptable overshadowing or loss of natural light. The reasons for granting permission were therefore considered to be inadequate.

Where does this leave us?

It is clear that local authorities must take care when explaining why decisions have been made in the way they have. Where a decision departs from a recommendation, reasons must be carefully drafted and engage with the planner's recommendation clearly explaining the reasons for departure otherwise, as in each of these cases, the permissions will be at risk of being quashed.

The decision in Oakley does come close to imposing a common law duty to provide reasons, at least in cases where the grant of permission is contrary to the development plan and/or important national policy (such as the Green Belt) and departs from a planner's recommendation.