The Supreme Court is to give judgment next week in a case involving the correct legal standard to be applied in assessing the adequacy of reasons provided by local authorities when granting planning permission. The issue is raised in a dispute over the biggest ever development proposal in an area of outstanding natural beauty (AONB).
Last year, the Court of Appeal quashed Dover District Council’s grant of planning permission to China Gateway International for development including up to 521 residential units and a 90-apartment retirement village and a 130-bedroom hotel, partly on a historic site near Dover that falls within an AONB.
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 this is an unusual case, adding that “the scale of the proposed development is unprecedented in an AONB”.
The council took the case to the Supreme Court in October, and now Lady Hale, Lord Wilson, Lord Carnwath, Lady Black and Lord Lloyd-Jones will give judgment on Wednesday 6 December.
Roy Pinnock, partner at Dentons, said that the issue raised “is a really important nut for the Supreme Court to crack”.
He said: “Decisions should be intelligible and able to be interrogated. Where the EIA regime does not apply, there is no longer a statutory duty to give reasons. That is sensible, given the legal wrangles that the previous duty to do so gave rise to.
“The Dover case is important because it will calibrate the point at which basic fairness demands proper reasons. The Supreme Court will be striving to avoid the nit-picking, lawyer-fest merry-go-round that often accompanied planning decisions before the statutory duty was abolished. They will also have in mind the need – in an era of public participation and environmental democracy – to limit the recent trend towards faceless, unaccountable and sometimes inexplicable decision making on controversial and important matters where the published minutes are inscrutable. Planning authorities are still under a duty to advertise planning applications that breach the development plan – why not give reasons for approving them too?”
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 the site of historic forts designed to protect the country from invasion.
