The Supreme Court has dismissed an appeal against a ruling quashing the planning permission for the biggest ever development proposal in an area of outstanding natural beauty (AONB).
Dover District Council and developer China Gateway International failed to persuade the court to overturn last year’s Court of Appeal decision to quash the consent for the development, which includes up to 521 residential units, a 90-apartment retirement village and a 130-bedroom hotel, partly on a historic site near Dover that falls within an AONB.
The appeal centred on the correct legal standard to be applied in assessing the adequacy of reasons provided by local authorities when granting planning permission.
Duncan Field, UK head of planning at global law firm Norton Rose Fulbright, said: “The judgment of the Supreme Court today underlines the importance of facilitating public participation in the planning application process especially where environmental impact assessment is required. The duty to give reasons in such cases must be complied with in a meaningful way and consistent with the need for the process to be intelligible and accessible.
“There are three important lessons to be learned from this case. First it is time for the duty to give reasons to be codified in primary legislation so that it is consistently applied and widely understood across the entire planning system. Second, in the absence of changes to legislation, a higher standard of reasoning will be required where the issues are ‘finely balanced’ or involve significant harm to protected assets or features.
“Third, at a time when the planning system is under increasing pressure to deliver more homes more quickly, although we must find ways of determining planning applications more efficiently it is important to remember that a good, slower decision will usually ensure faster delivery in the long run.
“Addressing the key issue of reasons in his judgment, Lord Carnwath said: “Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which it is arrived at. Local planning authorities are under an unqualified statutory duty to give reasons for refusing permission. There is no reason in principle why the duty to give reasons for grant of permission should become any more onerous.”
However, in this case he said that it was not in dispute that the council was in breach of a specific requirement under the EIA regulations to make available a statement of “the main reasons and considerations” on which its decision was based, and that the only issue was the nature of the remedy.
The council maintained that a declaration was sufficient and that its reasons could be supplied retrospectively.
But Lord Carnwath said: “In the present case, however, I am satisfied that that is not an appropriate or sufficient remedy. Indeed it is notable that in the three years since the permission was issued, no attempt has been made to formulate the reasons so as to make good the admitted breach. This perhaps underlines the difficulty of reconstructing the operative reasons of the committee on the basis simply of what is in the minutes.”
He noted that the members of the Dover planning committee on the date of the decision, 13 June 2013, had an “unenviable task”, adding: “The meeting started at six in the evening, probably for most of them at the end of a hard-working day. They were faced with probably the most significant planning application for their area for many years. It was no doubt seen as the culmination of an extended process of formal and informal consultation, triggered by the submission of the application over a year before, and they may have felt under some pressure to reach a conclusion.
“The officers’ report, admirable though it was, had arrived on their desks only a few days before the meeting. Not only was it long and detailed in itself, but it introduced into the debate a new element of potentially critical significance (the proposed reduction in the number of houses), on which there was a sharp difference of view between the expert advisers.”
Last year, the Court of Appeal quashed Dover District Council’s grant of planning permission to China Gateway International for upholding a challenge made by the Campaign for Rural England, Lord Justice Laws said that the council’s planning committee “failed to give legally adequate reasons for their decision to grant planning permission”.
He said that it was “unfortunate” that the committee members did not apparently consider deferring detailed discussion of the proposed amendments.
In 2015, the committee granted permission, contrary to its own planning officer’s recommendations, for the development on non-contiguous sites at Farthingloe and Western Heights – the latter of which Lord Carnwath said is “a prominent hilltop overlooking Dover, dominated by a series of fortifications dating from the Napoleonic wars, including the so-called ‘Drop Redoubt’”.
