In R (on the application of Campaign To Protect Rural England, Kent (CPRE)) v Dover District Council [2016] EWCA Civ 936, the Court of Appeal considered the standard of reasons required of an authority granting permission for development of a scale “unprecedented in an AONB”. The authority’s officers had recommended a less dense, but – according to its advisors – no less viable approach to delivering housing in the sensitive area. Members rejected that approach on what appeared to be viability grounds and the claimant’s judicial review was ultimately formulated as a reasons challenge.
The defendant authority started from the position that there is no duty on planning authorities – unlike the secretary of state – to give detailed reasons for the grant of permission (per Lang, J in R (on the application of Hawksworth Securities plc) v Peterborough City Council and others [2016] EWHC 1870 (Admin)).
Laws LJ held that this approach “needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the secretary of state.” Several factors justified detailed reasons: the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by “substantial reasons” given; so too a departure from officers’ advice (citing Mevagissey Parish Council [2013] EWHC 3684 (Admin)); and the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
Against that backdrop, the minutes failed to give legally adequate reasons: it was unclear whether members accepted their officers’ assessment of harm; if they did, they would have “opted to inflict irreversible harm on the AONB” on the [limited] material before them; it was unclear whether they viewed viability issues as a mere a risk, which would have made their obligation to address the issue of harm was “all the more acute”; it was not clear if they had applied a simple unweighted balance to AONB protections; and they had reached conclusions on visual screening which were “fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes”.
The judgment reflects the principle that fairness may itself require reasons in planning matters (Lloyd v McMahon [1987] AC 625), particularly where significant policy breaches are being entertained. It also confirms that while the lack of a regulation 24 statement may not necessarily kill a decision where reasons are adequate on the record, it could save it where they are not.
Roy Pinnock is a partner in the planning and public law team at Dentons
