The approach taken by the Courts in three recent judicial review cases set in a planning law context provides a useful overview of relevant factors considered by the Courts when evaluating the adequacy of reasons given by public bodies.

Key Points

  • Subject to any relevant statutory duty, there is no general common law duty on public bodies to give reasons for their decisions. 
  • The Courts have indicated that reasons should be given where either (1) a decision without reasons is insufficient to achieve justice or (2) the decision appears aberrant.  
  • Recent caselaw highlights that:
  • It is imperative not only for the reasons given to be clear, but also for any relevant documentation in which they are set out to be adequately cross-referred to in the decision document.
  • The degree of particularity required for the provision of adequate reasons depends on the extent to which affected individuals are aware of the pertinent issues behind a particular decision, and any relevant statutory context in which a duty to give reasons is imposed.

Heard v Broadland District Council

The claimant, Mr Heard, challenged the defendant local authorities’ (the "Authorities") adoption of a Joint Core Strategy ("JCS"), which earmarked the North East Growth Triangle ("NEGT") in Norwich as an area for major urban growth. Under EU Directive 2001/42, the JCS is subject to a Strategic Environmental Assessment ("SEA").

Mr Heard claimed that the JCS was unlawful as the SEA conducted by the Authorities did not comply with two key requirements: (1) to explain the Authorities' reasons for selecting certain alternatives for evaluation; and (2) to examine the alternatives in the same depth as the preferred option.

The claim was successful on both points.  Whilst considering the first point, Ouseley J noted that although the Authorities had assessed alternatives, the outline reasons for the selection of alternatives at any particular stage of the decision-making process had not been clearly given. This made it difficult to establish whether there was a major deficiency in the decision not to evaluate alternatives for development outside the NEGT. He held that while it was not necessary for the Authorities to repeat their reasons for selecting alternatives at each stage, they could and should have clearly cross-referred to earlier documents which did set out the relevant reasoning in their final decision. This was provided that these documents contained the required information and were organised and presented in such a way that they could readily be ascertained with no paper chase.

With regards to the second issue, Ouseley J held that although the relevant EU Directive did not require the Authorities to equally appraise all options, the aim of the Directive is more obviously met by and is best interpreted as requiring an equal examination of the alternatives because “it is part of the purpose of this process to test whether what may start out as preferred should still end up as preferred after a fair and public analysis of what the authority regards as reasonable alternatives”.

Macrae v Herefordshire District Council

Mr Macrae appealed against a decision of the High Court to refuse his request for a judicial review of the grant of planning permission by Herefordshire District Council ("HDC") to build a house in open countryside, alleging amongst other matters that HDC had failed to provide adequate reasons as required by the Town and Country Planning (General Development Procedure) Order 1995, in force at the time.

The Court of Appeal allowed the appeal, holding that although the High Court had been correct in concluding that HDC's summary of reasons was inadequate, it had erred in its conclusion that other available evidence countered the need for reasons to be given.  Indeed, the officer’s reports, to which HDC's summary reasons referred for a more detailed analysis of its decision, advised the HDC to refuse permission. In addition, the Court of Appeal noted that although it was permissible to refer to contemporaneous evidence (such as minutes from meetings) when providing reasons, it was not permissible to require the parties to look through extraneous documents to which the summary reasons did not refer in order to understand the reasons for the particular decision.

RWE Npower Renewables Ltd v Welsh Ministers

The Welsh Ministers appealed a decision by the High Court to quash their refusal to grant planning permission to Npower for a wind farm. The High Court had found amongst other matters that the Welsh Ministers had provided inadequate reasoning for the denial of planning permission.

The appeal was allowed.  The Court of Appeal concluded that the inspector for the Welsh Ministers, upon whose recommendations the refusal was made, could not be criticised as he had clearly and carefully considered all of the relevant factors before him. Most important was the fact that the proposed location of the wind turbines and tracks was over areas of deep peat, which would cause an unacceptable degree of harm to the environment.

The Court of Appeal followed the then House of Lords' interpretation of the requirement to give reasons under the Town and Country Planning Act 1990 in South Buckinghamshire District Council v Porter [2004] 1 WLR 193 namely, that reasons should: 1) be intelligible; 2) focus on the principal controversial issues (in this case the peat habitat); 3) assist an applicant in assessing their prospects of obtaining some alternative planning permission; and 4) reflect the fact that they are addressed to parties well aware of the issues involved. In this case, it was held that the reasons could be stated briefly as it was clear from an early stage of the planning permission process that the respondents were aware of the concerns concerning the construction of turbines over areas of deep peat.

Comment

The three cases discussed above highlight that the approach taken by the Courts to assessing the adequacy of reasons will very much turn on the extent to which the affected parties are already aware of the pertinent issues behind a particular decision. For example, the Court of Appeal held that Npower's prior awareness of the deep peat issue left them in no doubt as to why they had "lost" and therefore the reasoning required no further elaboration. In contrast to Npower, Mr Macrae was found to have no knowledge as to why the particular application had succeeded, as the minutes from relevant planning meetings revealed confusion as to which policies justified the grant of the planning permission.

Heard v Broadland District Council, South Norfolk District Council, Norwich City Council [2012] EWHC 344 (Admin); R. (on the application of Macrae) v Herefordshire District Council [2012] EWCA Civ 457; RWE Npower Renewables Ltd v Welsh Ministers [2012] EWCA Civ 311