Town and country planning – Planning permission – Reasons – Respondent council granting planning permission for football stadium on green belt land – Decision contrary to recommendation in detailed report of respondents’ planning officer – Whether respondents under common law duty to give reasons for decision – Appeal allowed
The interested party applied to the respondent council for planning permission to develop a football stadium on green belt land on the outskirts of Sawston, Cambridgeshire. The proposal was for a stadium capable of seating 3,000 people, for use by Cambridge City Football Club, together with associated training ground and parking facilities, plus a partially floodlit recreational ground which would be gifted to the local parish council for community use.
The respondents’ planning officer produced a detailed report in which she recommended that planning permission be refused. She considered that the proposal would be inappropriate development in the green belt which did not meet the requirements of paras 87 and 88 of the National Planning Policy Framework (NPPF) and the equivalent local development plan policy. She took the view that the proposal did not fall within the exception in para 89 for the provision of “appropriate facilities” for outdoor sport and recreation since it did not meet the requirements that it should preserve the openness of the green belt and not conflict with the purposes of including land within the green belt.
The respondents did not follow the recommendation of their planning officer, but instead approved the development in principle and delegated the power to grant permission to their officers; planning permission was ultimately granted, subject to conditions, in April 2015.
The appellant challenged the grant of planning permission on the ground that the respondents had failed to give reasons for their decision. That claim was rejected in the court below: see [2016] EWHC 570 (Admin). The appellant appealed.
The appellant relied on the statutory duty to give reasons under regulation 7 of the Openness of Local Government Bodies Regulations 2014. More generally, she argued that: (i) there was a common law duty to give reasons for planning decisions in all cases, save where it was clear from the relevant publicly-available materials how the decision must have been reached; alternatively (ii) reasons had to be given in the particular circumstances of the case, where the respondents had departed from the very strong recommendation of their planning officer and where the development constituted a departure from the development plan and, more specifically, involved development in the green belt.
Held: The appeal was allowed.
(1) The effect of regulation 7 of the 2014 Regulations was not to require the officer who granted planning permission to obtain from the respondents’ planning committee the reasons why they gave their “in principle” consent to the development. The reasons to be given were those for the officer’s decision. While the officer had to give reasons why, starting from the premise of the “in principle” consent, he was satisfied that permission should be granted, he was not obliged to obtain from the committee the reasons for their separate and earlier decision conditionally to approve the development.
(2) There was no general common law duty to give reasons in planning cases: R v Aylesbury Vale District Council, ex parte Chaplin (1998) 76 P&CR 207; [1997] PLSCS 246 applied. Nor was any such duty imposed by statute. However, the common law was moving towards the position that, while there was no universal obligation to give reasons in all circumstances, in general they should be given unless there was a proper justification for not doing so. Apart from cases where fairness required it, or where there was something “aberrant” in a particular decision which called out for explanation, the duty had also been imposed where a party had a legitimate expectation that reasons be given, or where the failure to give reasons might frustrate a right of appeal, because without reasons a party would not know whether there was an appealable ground: Norton Tool Co Ltd v Tewson [1973] 1 WLR 45 applied. There was a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. While that consideration would not always provide grounds for requiring reasons to be given, there would nonetheless be many cases where it was in the public interest that affected parties should be able to hold the administration to account for their decisions.
(3) The court was not prepared to hold that there was a general duty to give reasons in all planning cases save where they were not necessary because a consideration of the publicly-available planning materials demonstrated the basis on which planning permission was granted. The courts developed the common law on a case-by-case basis, and it was possible that there might be particular circumstances, other than where the reasoning was transparent in any event, where there was a justification for not imposing a common law duty.
(4) However, reasons were required in the instant case, where the committee had not only disagreed with the officer’s recommendation but had done so in circumstances where their decision was not consistent with the local development plan and involved development in the green belt, which was prima facie inappropriate development. Public policy required strong countervailing benefits before such a development could be allowed, and affected members of the public should be told why the committee considered the development to be justified notwithstanding its adverse effect on the countryside. Those considerations demanded that reasons should be given. Even if there were some planning decisions which did not attract the duty to give reasons, there was an overwhelming case for imposing the duty in the instant case.
The development of the football stadium would have a significant and lasting impact on the local community. Local inhabitants therefore had a close interest in the outcome of the application. An important objective of environmental policy was to protect and preserve special features of the landscape and certain important buildings, the preservation of which was in general considered to enrich quality of life. For many citizens, a development that had an adverse impact on the countryside, or caused a change in the character of the landscape in their locality, would be perceived as lessening the quality of their every-day lives, particularly if the development brought in its wake a corresponding increase in noise, traffic and lighting pollution. For some third parties, a development of that nature might also have some economic impact if it affected the value of their property. The common law would be failing in its duty if it were to deny to parties who had such a close and substantial interest in the decision the right to know why that decision had been taken.
That might be considered an aspect of the duty of fairness, which, in the present context, required that decisions be transparent. The right for affected third parties to be treated fairly arose because of their strong and continuing interest in the character of the environment in which they lived. There were powerful reasons for imposing a duty to give reasons, at least if the reasoning process was not otherwise sufficiently transparent.
That conclusion was reinforced where the committee departed from the officer’s recommendation. The fact that the committee was disagreeing with a careful and clear recommendation from a highly-experienced officer, on a matter of such potential significance to very many people, suggested that some explanation was required. The dictates of good administration and the need for transparency were particularly strong in such a case and reinforced the justification for imposing the common law duty.
(5) Moreover, the development fell within the terms of the Aarhus Convention, given its impact on the environment. The Convention emphasised the importance of the public having access to environmental information, the right to participate in decision-making, and access to effective judicial remedies. It did not sit happily with those obligations to deny a party information about how the decision was reached; it might forcefully be argued that the duty to give reasons was required in order to make the judicial review procedure effective.
(6) The respondents’ reasoning in the instant case could not adequately inferred. There was a complex assessment of numerous factors in play but there was no indication at all of how they were assessed. The reasoning was not sufficiently transparent to relieve the committee of the duty to provide reasons. The respondents were therefore in breach of a common law duty to provide reasons for their decision to grant planning permission for the development. Further submissions were invited on the issue of the appropriate relief.
Zack Simons (instructed by Howes Percival LLP, of Cambridge) appeared for the appellant; Jack Parker (instructed by nplaw, of Norwich) appeared for the respondent.
Sally Dobson, barrister
To read a transcript of Oakley v South Cambridgeshire District Council, click here
