The decision of the Supreme Court in Dover District Council v CPRE Kent [2017] UKSC 79 has provided a welcome summary of the regulatory and common law provisions which govern the requirement to give reasons in planning decisions.
In his leading judgment, Lord Carnwath outlined the nature of the common law duty to give reasons, as it relates to the planning regime.
While not going so far as to confirm that there is a general duty on local planning authorities to give reasons for the grant of planning permission, it has clearly indicated that there will be circumstances in which a local planning authority should call for a statement of reasons under the fairness demanded by common law, beyond any strict statutory requirement.
We outline the key aspects from the judgment.
1. There is a special duty to give reasons where an application involves an EIA development
Where an environmental impact assessment (EIA) application is determined by a local planning authority, the authority must make a statutory statement setting out ‘the main reasons and considerations on which the decision is based', as required by the EIA Regulations. The statement must be an intelligible and adequate explanation of the ultimate decision, and must enable the reader to understand why that particular decision was reached.
The Supreme Court explained that this function is usually performed by the planning officers’ report. However, if a planning committee disagrees with the planning officers’ recommendation, an additional statement of reasons should be published. This standalone statement should leave no doubt as to what the committee has decided and why.
This was the basis for the decision in Dover itself. The application involved an EIA development and the planning committee disagreed with the officers’ report in regard to the number of houses to be built. The planning committee failed to publish an additional statement of reasons setting out why it disagreed with the officers’ report, and for this reason the Supreme Court quashed the decision to grant planning permission altogether.
2. In certain circumstances, there is a separate common law duty to give reasons
Although there is no general common law duty to give reasons for a planning decision, a duty may arise in certain exceptional circumstances. This common law duty may arise irrespective of whether an EIA development is involved.
What is crucial is fairness and transparency; justice should always be ‘seen to be done’. Therefore, if a planning committee disagrees with an officers' recommendation, a common law duty arises to give its reasons for the decision. The planning committee has a legal obligation to provide a separate statement of reasons setting out why it disagrees with the officers' report. This duty comes into play even if it means going above and beyond its statutory requirements.
Worryingly for developers and local planning authorities, there will be other circumstances where the common law duty is triggered. Whether the duty arises or not is a matter of public policy and there are no pre-prescribed set of circumstances. The duty could arise, for instance, where there is substantial public opposition to a development, significant departure from a local plan, or where the development is in green belt land or in an Area of Outstanding Natural Beauty. Given there is not a closed category of cases, we would expect challenges on reasons to continue.
The effect of this decision may be that local authorities will now seek to provide statements of reasons for all grants of permission. Ironically, that is a bureaucratic hurdle government expressly sought to overcome when removing the statutory requirement to do so in 2013.
3. Failure to comply with a duty to give reasons could lead to the quashing of a decision to grant planning permission
Failure to provide an adequate statement of reasons could lead to the grant of planning permission being quashed altogether. Making a retrospective declaration sometime after the grant of planning permission will not usually be sufficient. The Supreme Court ruled that the statement of reasons should be considered ‘an intrinsic part of the procedure, essential to ensure effective public participation’.
Failure to provide such a statement should therefore be taken seriously by both developers and local planning authorities.
4. The statement of reasons for the decision should be published separately from the committee minutes
The statement of reasons should ideally be published separately from the planning committee minutes as a standalone document. This is because the reasons for the decision should be the reasons of the committee as a whole.
The minutes alone will not usually be enough to discharge a duty to give reasons, even if they actually do discuss the reasons behind the decision. Clearly, this is particularly important when the planning committee is not unanimous.
It will be dangerous for developers and local planning authorities to rely on committee minutes as the basis for the statement of reasons behind a decision. In Dover, the committee minutes failed to indicate whether the reasons were shared by the majority and did not adequately explain why the opinion of the planning officers was dismissed without further investigation.
Conclusion
Dover provides us with a much-needed clarification of the duty to give reasons when granting planning permission. The judgment summarises the various statutory requirements to give reasons in difference circumstances. It also confirms for the first time that the common law doctrine of duty to give reasons in exceptional circumstances will apply to decisions made within the statutory planning regime.
However, the judgement will be of some concern to developers and local planning authorities as they will need to consider in any given case whether, as a matter of public policy, the duty applies. This creates an uncertainty and is likely to give rise to concerns where local authorities do not provided a statement of reasons in support of a grant of planning permission.
The safest approach is for planning authorities to be as transparent as possible, especially when contentious decisions are being made with substantial public opposition. This means, whenever they can, reasons for a decision should be given.
For more information, please contact Gary Soloman or Alex Minhinick.