In South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] UKHL 33; [2004] 4 PLR 50, Lord Brown – in a frequently cited speech – set out a broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. At the heart of that summary is his statement, in [36]: “The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of fact or law was resolved.” Equally importantly, however, he pointed out that a reasons challenge will succeed only if the party aggrieved can satisfy the court that it has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.
Although the claim for judicial review in Berry & Marshall (Bolton Wood) Ltd v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC 2367 (Admin); [2010] PLSCS 251 concerned the failure of an inspector on appeal to grant a permit under the (then) Pollution Prevention and Control (England and Wales) Regulations 2000, the underlying issue was the existence or otherwise of planning permission.
The claimant had applied for a permit under the regulations to dispose of inert waste at a quarry that it owned. Under regulation 10(4)(b), the Environment Agency was bound to refuse a permit unless planning permission was in force for this use. It did so, a decision that the secretary of state’s inspector upheld. The claimant had argued that planning permission had been granted by earlier general development orders (GDOs) and before the court it contended that the inspector had failed to deal adequately with this argument.
The court concluded that the inspector’s reasons were inadequate. The decision letter had not dealt with the claimant’s argument in a satisfactory way. The claimant could not therefore discover why it had failed. However, since this was a reasons challenge, the claimant would succeed only if it could show that it had genuinely been substantially prejudiced by the lack of adequate reasons. It was clear from the inspector’s findings of fact – in relation to the claimant’s activities on site – that the claimant had failed to establish on the balance of probabilities that the GDOs bestowed planning permission. It followed that the claimant could not establish the necessary prejudice to enable the reasons challenge to succeed. Accordingly, the claim was dismissed.
John Martin is a freelance writer
