Four cases revealing a revival in the courts of the common law legal obligation for local authorities to provide reasons for making planning decisions
For many years there was no legal obligation on local planning authorities to provide reasons for granting planning permission (as opposed to reasons for imposing conditions). Unsuccessful attempts were made to persuade the courts that there existed a general obligation at common law – eg R v Aylesbury Vale District Council and another, ex parte Chaplin and others [1997] 3 PLR 55 – although it was recognised that, exceptionally, reasons might need to be provided as a matter of fairness (see R v Mendip District Council, ex parte Fabre (2000) 80 P&CR 500).
In 2003 the law changed and a statutory obligation to provide summary reasons was introduced. Cases then tended to centre on the adequacy of reasons given but, following the Growth and Infrastructure Act 2013, the statutory obligation was removed. However, this may not be the end of the matter.
The return of reasons
In R (on the application of Hawksworth Securities plc) v Peterborough City Council [2016] EWHC 1870 (Admin) Lang J dismissed a judicial review of a planning permission involving rival commercial city centre developments.
While the claimant advanced seven grounds of challenge, it is the one based on the adequacy of the reasons volunteered by the planning committee for granting permission to the rival development (even though both were granted permission at the same meeting), and Lang J’s treatment of it, that can be seen as the first significant judicial consideration of this topic following the removal of the statutory obligation.
She referred to both Chaplin and Fabre before agreeing with Jay J in Oakley v South Cambridgeshire District Council [2016] EWHC 570 (Admin) that, despite the removal of the obligation, it remained open to judges to intervene and imply a duty to give reasons, if fairness so required. Fairness did not come into play in either of these cases so the challenges failed.
Two months later, the Court of Appeal in R (on the application of CPRE Kent) v Dover District Council [2016] EWCA Civ 936; [2016] PLSCS 248 quashed a planning permission for significant development of a scale unprecedented within an area of outstanding natural beauty (AONB) and gave a cautious qualified endorsement of Lang J’s approach in Hawksworth Securities.
In quashing the permission, Laws LJ pointed out: “A local planning authority which is going to authorise a development which will inflict substantial harm on an AONB must surely give substantial reasons for doing so.” Furthermore, the planning committee did not follow the officer’s recommendation but departed from it.
Finally, the Environmental Impact Assessment Regulations (“the EIA Regulations”) put the local planning authority under a duty to give reasons which it failed to do in this case. Overall it was clear to the court that the local planning authority had failed to give legally adequate reasons in this case. While it is also important to bear in mind that Laws LJ considered that this was an unusual case and should not be read as “imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions” it does suggest a widening of the scope of the revived common law obligation.
The scope widens
In February 2017 Oakley came before the Court of Appeal ([2017] EWCA Civ 71; [2017] PLSCS 38). Jay J’s decision was overturned and the planning permission was quashed on the basis that the common law duty to give reasons arose in this case and the council had breached that duty. Perhaps the most noteworthy comment is that of Elias LJ when he stated: “…the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.”
Although there is a detectable, albeit nuanced, difference of opinion between Elias LJ and Sales LJ on the question of whether as, a
broad principle, any obligation arose in this case, both considered that, on the facts, the common law duty arose, especially as it involved development in the green belt, in breach of the development plan and against an officer recommendation to refuse. This case suggests a widening of the scope of the common law duty – and that we shall see more cases like this one.
Finally, regarding delegated decisions taken by planning officers, the High Court judgment in R (on the application of Shasha and others) v Westminster City Council [2016] EWHC 3283 (Admin); [2016] PLSCS 355 is also instructive for its treatment of the statutory duty under regulation 7 of the Openness of Local Government Bodies Regulations 2014 to prepare, as soon as reasonably practicable, a written record of a “decision-making officer” making a decision that falls within regulation 7(2). The judge accepted that regulation 7 applied to decisions taken under delegated powers to grant planning permission and quashed it.
Next stop, the Supreme Court
These cases indicate that, by simply removing the statutory obligation, the planning system may not have returned to the state it was a decade earlier. In the intervening period, the common law has developed. Moreover the statutory obligation in the EIA Regulations to provide reasons for granting permission for EIA development remains as relevant as ever and a new statutory obligation has been introduced which affects decisions taken under delegated authority. The final word on this is now to be given by the Supreme Court as permission to appeal in CPRE was granted earlier this month.
Key points
■ The Growth and Infrastructure Act 2013 removed the statutory obligation to give reasons in planning decisions
■ A duty to give reasons in EIA cases remains under the EIA Regulations
■ Recent decisions suggest a widening of scope of the common law duty to give reasons
Martin Edwards is a barrister at Cornerstone Barristers
