In Dover District Council v CPRE Kent [2017] UKSC 79, the Supreme Court considered the correct legal test to be applied in assessing the adequacy of reasons provided by local planning authorities when granting planning permission where the application involves environmental impact assessments.

Key Points

  • Where there is a legal requirement to give reasons, an adequate explanation of the ultimate decision is needed, leaving no room for genuine doubt as to what it has decided and why.
  • Committees of elected members of local authorities are to be held to the same standard as is applicable to others (such as inspectors or the Secretary of State).
  • Where a defect in reasons goes to the heart of the justification for planning permission, the only appropriate remedy is to quash the permission.
  • Public authorities (in any context) are under no general common law duty to give reasons for their decisions; however fairness may in some circumstances require reasons to be given.

Background

An application for planning permission was submitted to the local planning authority, Dover District Council ("the Council"). The planned proposal was for a major development on two sites, one being within an Area of Outstanding Natural Beauty ("AONB"). The development was categorised as "EIA development" for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the "2011 Regulations") and was accompanied by an environmental statement.

These proposals attracted strong support and strong opposition from different groups, with the planning officers' report concluding with a recommendation for the grant of permission but with a reduction of the number of houses at one of the sites. The Council's economic advisers advised that the reduction would not jeopardise the viability of the development. The applicants' economic advisers however expressed fundamental disagreement with the Council's appraisal of viability after the proposed reduction of housing. Against the advice of its professional advisers, the planning committee rejected the planning officers' recommendation as it considered that these were exceptional circumstances in which the advantages of the development outweighed the harmful impact on the AONB.

Proceedings for judicial review were brought on a number of grounds, including lack of reasons. The proceedings were dismissed at first instance however permission to appeal was granted solely on the issue of reasons. The Court of Appeal subsequently quashed the planning permission on the grounds that the reasons given were insufficient. The local authority appealed, conceding that the reasons given for granting permission had not complied with the 2011 Regulations, however arguing that the breach of the EIA duty alone could have been remedied by a declaration.

The Judgment

The Court unanimously dismissed the appeal.

Duty to give reasons

The Court considered that special duties arose under the 2011 Regulations where an application involves a development which is "likely to have significant effects on the environment by virtue of factors such as its nature, size or location." Under regulation 3(4), decision-makers must state in their decision that they have taken environmental information into consideration and under regulation 24(1)(c), the local authority has to inform the public of the decision and make available a statement containing the "main" reasons on which the decision was based.

The Court found the reference in the 2011 Regulations to providing the "main" reasons in relation to EIA developments did not materially limit the local authority's ordinary duty. Case law which concerned the Secretary of State and planning inspectors was found to be applicable to a decision by a local planning authority, holding elected committee members to the same standard.

Where there is a legal requirement to give reasons, an adequate explanation of the ultimate decision is required. The essence of the duty was the same whether the local authority accepted the planning officers' report or not; the information provided must not leave room for doubt about what had been decided and why. However, if the officer's report is accepted that will often contain the necessary reasons such that nothing further would be required.

Remedy

Previous case law indicated that if there was a material defect in reasoning, quashing the permission was the appropriate remedy. The local authority however argued that where there was only a breach of the EIA duty, a declaration of breach was sufficient. The Court found no distinction was to be drawn between the notification of a decision and of the reasoning on which it was based. The defect in reasons went to the heart of the justification for permission; therefore the only appropriate remedy was to quash the permission.

Common law duty to give reasons

The Court considered it strictly unnecessary in this case to decide what common law duty there may be on a local authority to give reasons for granting planning permission due to the existence of a specific duty under the 2011 Regulations. Nevertheless the Court did make observations on this question due to the controversy it has caused in planning circles.

Public authorities are under no general common law duty to give reasons for their decisions; however it was found to be well-established that fairness may in some circumstances require reasons to be given. This would particularly be the case where the principles of open justice and transparency would not otherwise be satisfied, such as where there was an unexplained disagreement with the recommendation of an officer and where there was significant public interest.

The Court acknowledged that this may leave uncertainty as to when additional reasons are required, but refused to accept that an unacceptable burden would be imposed on public authorities whose reasons should be open to public scrutiny.

Comment

This decision provides some important observations on the duty to give reasons in the planning context, which has been an area of much debate. It appears local planning authorities will be held to the same standard as others, such as inspectors or the Secretary of State, when providing reasons for a planning decision.

Even where there is no statutory duty to give reasons, fairness may in some circumstances, under the common law, require reasons to be given. The Court emphasised the importance of open justice and transparency, particularly in a decision where there is significant public interest. This is a principle of general application, which is not restricted to the planning context. Public authority decision-makers should therefore look at the context as a whole and consider whether sufficient reasoning has been given to prevent genuine doubt as to why a particular decision has been taken.

Local authorities are already under a statutory duty to give reasons where a planning application is refused, but not where permission is granted. In light of recent case law in this area however, and even where a development is not EIA development, it would be prudent and sensible for local planning authorities to give full reasons for any decision to grant planning permission against an officer's recommendation for refusal or where the grant of planning permission would be contrary to relevant local or national planning policies.