Duty to give reasons

In a landmark decision, the Supreme Court in Dover DC v Campaign to Protect Rural England (Kent) [2017] UKSC 79 has upheld the principle that, although there is no general common law duty to give reasons for a decision to grant planning permission, fairness may in certain circumstances require reasons to be given, even where there is no statutory duty to provide them. In so doing, the Supreme Court upheld the reasoning in the Court of Appeal case Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4. Giving reasons is essential to enable the court to review the legality of the decision (which, in the case of planning decisions, may be of legitimate interest to a wide range of parties, private and public) and because of the importance of ensuring that “justice should not only be done, but also be seen to be done”. Typical cases requiring reasons to be given will be cases where permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF). Such decisions call for public explanation, not just because of their immediate impact, but also because they are likely to have lasting relevance for the application of policy in future cases. As to the standard of the reasons required, the Supreme Court rejected the distinction drawn in R (Hawksworth Securities PLC) v Peterborough CC [2016] EWHC 1870 (Admin) between the standard of reasons required of a planning inspector conducting an appeal and a local planning authority determining a planning application. In all cases, the question for the court is whether, by reference to all of the information available, the reasons for the decision-maker’s decision leave genuine doubt as to what it has decided and why. Applied to the facts of the case, the Supreme Court upheld the Court of Appeal’s decision that Dover DC had provided inadequate reasons for is decision to grant planning permission for a large mixed development in the Kent Downs AONB. This was because: Dover DC’s planning committee should have considered deferring discussion of the officers’ proposal for significant modifications to the application, which had only arisen a few days before the committee meeting. The modifications gave rise to a significant dispute over viability, over which expert advisers for the applicant and Dover DC disagreed; and The minutes were not sufficient to constitute the required statement of reasons pursuant to the statutory duty for EIA development. The minutes did not explain why the committee preferred the viability advice of the applicant’s experts. Nor were the committee’s views on harm to the AONB sufficiently clear. Given that each case needs to be examined on its merits, there will continue to be uncertainty as to whether or not any particular combination of factors will call for reasons to be given. Local authorities would be advised to err on the side of caution and ensure that in all but the most straightforward of cases where a planning committee grants planning permission contrary to officer advice, the committee sets out separate reasons for its decision in written form. Martha Grekos is partner and head of planning, Howard Kennedy LLP