Dover District Council v CPRE Kent and related appeal

Town and country planning – Planning permission – Area of outstanding natural beauty – Appellant council granting planning permission for extensive development in AONB – Respondent challenging lawfulness of decision – Claim dismissed at first instance but allowed by Court of Appeal – Whether court properly quashing decision on basis of failure to provide statement of main reasons and considerations – Appeal dismissed In June 2013, the first appellant council resolved to allow an application for planning permission by the second appellant for an extensive development on two sites on the western fringe of Dover. Part of the development was to comprise 521 residential units and a retirement village of 90 apartments on land at Farthingloe, within a designated area of outstanding natural beauty (AONB). A further 31 residential units, plus a hotel and conference centre, were proposed on the nearby Western Heights, a prominent hilltop which featured a series of early 19th century fortifications. That site was a scheduled monument although the surviving fortifications were in a poor state of repair and on the English Heritage “at risk” register. Permission was also sought for the conversion of part of the fortifications into a visitor centre and museum. The planning application included proposals for pedestrian access and landscaping between the two sites. Planning officers considered that the proposals would result in long-term, irreversible harm to the AONB and recommended that permission be granted only for a lower-density development. However, the planning committee resolved to approve the application as submitted. The only reasons given for that decision were in the minutes of the planning committee meeting, which referred to the benefits of the proposed development for regeneration and investment and the restoration of heritage assets. Those benefits were stated to outweigh any harm to the AONB which could be minimised with effective screening. Although the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations) applied, so that the appellants were obliged to make and keep a statement of the main reasons and considerations for their decision, no such document was in fact produced. The respondent applied for judicial review of the decision to grant planning permission. It contended, amongst other things, that the appellants had failed to give adequate reasons for their decision. The claim was dismissed at first instance: see [2015] EWHC 3808 (Admin), but allowed on appeal: see [2016] EWCA Civ 936; [2016] PLSCS 248. The appellants appealed. Held: The appeal was dismissed. (1) Special duties arose under the EIA Regulations where an application (as in this case) involved a development which was “likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Regulation 3(4) provided that decision-makers should not grant planning permission, where the application involved an EIA development, without first taking the environmental information into consideration, and that they had to state in their decision that they had done so. Where there was a legal requirement to give reasons, an adequate explanation of the ultimate decision was needed. The content of that duty should not in principle turn on differences in the procedures by which the decision was arrived at. The essence of the duty, and the central issue, was whether the information so provided by the authority left room for genuine doubt as to what it had decided and why. (2) The appellants had argued that a breach of the EIA duty alone should be remedied by a mere declaration of the breach, relying on R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 in which the Court of Appeal remedied a failure to provide a statement of reasons without quashing the decision, by ordering only that the statement be provided. However, the court declined to follow the reasoning in that case. The distinction drawn between notification of the decision, and of the reasons on which it was based, was artificial and unconvincing. Further, in Richardson, although the planning committee had not given its own reasons, it could be taken to have adopted the reasoning in the officer’s report which had recommended granting permission. (3) In view of the specific duty to give reasons under the EIA regulations, it was unnecessary to address the common law position. However, the circumstances of this case would, if necessary, have justified the imposition of a common law duty to provide reasons for the grant of permission. Planning law was a creature of statute, but the proper interpretation of the statute was underpinned by general common law principles, including fairness and transparency. It was appropriate for the common law to fill the gaps in the present system of rules, but its intervention should be limited to circumstances where there were strong legal policy reasons for doing so. (4) In the present case, the meeting of the planning committee on 13 June 2013 occurred only days after receipt of the planning officers’ detailed report, which proposed new and controversial amendments. A decision-maker not only had to ask himself the right question, but had to take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. The recorded views of those members who supported the proposal did not indicate whether those views were shared by the majority, nor why the members felt able to reject the view of their own advisers without further investigation. Their omission of any legal mechanism to secure the proposed economic benefits required explanation. Furthermore, it was critical to understand the basis of the members’ belief that the harm to the AONB could be “minimised”, which conflicted with the planning officers’ view that screening would be largely ineffective: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 followed. Neil Cameron QC and Zack Simons (instructed by Legal Services, Dover District Council) appeared for the first appellants; Matthew Reed QC and Matthew Fraser (instructed by Pinsent Masons LLP) appeared for the second appellant; John Howell QC and Ned Westaway (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent. Eileen O’Grady, barrister Click here to read transcript: Dover District Council v CPRE Kent and related appeal