Two recent cases have considered the extent to which decision-makers in relation to planning matters are under a duty to give reasons for their decisions. This has never been an easy question and the answer has practical consequences because:
– for decision-makers, articulating reasons is time consuming and sometimes not to easy to get right
– for those benefiting from a decision, there is the risk that the decision is opened up for legal challenge if those reasons appear to be flawed
– for those objecting to a decision, without reasons being given to explain how it was reached, legal challenge, or even proper scrutiny, is made much more difficult.
There is also often a dilemma on the part of decision-makers because if reasons are volunteered, even if not required, they need to be rational and can render a decision susceptible to challenge, which would not have been if no reasons were given.
Dover
Lord Carnwath’s Supreme Court’s judgment in Dover District Council v CPRE Kent (6 December 2017) dismissed an appeal from the Court of Appeal ruling that I blogged on last September in Avoiding Dover-type reasons JRs where a planning permission for a major development proposal had been quashed that had been resolved by councillors to be approved against the recommendation of their officers, who wished substantially to reduce its scale due to perceived effects on an Area of Outstanding Natural Beauty and an ancient monument. In granting permission to appeal, the Supreme Court had indicated that it “would wish to consider generally the sources, nature and extent of a local planning authority’s duty to give reasons for the grant of planning permission“.
In a nutshell, the main implication of the case is that even where there is no statutory requirement to give reasons for granting planning permission, it is now prudent to assume that reasons should always be given by a local planning authority, and particular care is needed where the decision is not fully in accordance with the reasoned recommendations made to the authority by its planning officers.
The judgment itself starts:
“1. When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty? “
The judgment does not confine itself to that question but ranges widely over various decision-making procedures:
“23. The statutory rules relating to the giving of reasons are all to be found in subordinate legislation. It is hard to detect a coherent approach in their development.
The main categories are:
i) Secretary of State decisions (including those delegated to inspectors) –
a) following an inquiry or hearing;
b) on written representations.
ii) Decisions by local planning authorities –
a) Refusing planning permission or imposing conditions;
b) Granting permission;
c) Officer decisions under delegated powers.
iii) Decisions (at any level) on applications for EIA development.”
Working through these one by one:
In relation to appeals determined by inquiry or hearing, there is a specific statutory duty upon the Secretary of State and his inspectors to give reasons for their decisions.
There is no corresponding rule in relation to written representations appeals, although it is the practice for a fully reasoned decision to be given, giving rise in practice to an enforceable duty.
When a local planning authority refuses planning permission there is a statutory requirement that the authority must in their decision notice state “clearly and precisely their full reasons”.
Aside from a blip between 2003 and 2013 (when there was legislation requiring authorities to include on their decision notice “a summary of their reasons for the grant of permission” and “a summary of the policies and proposals in the development plan which are relevant to the decision“), there is no statutory requirement for local planning authorities to give their reasons for granting planning permission, save that:
– since 2014, in the case of officers’ delegated decisions there has been a duty by virtue of the Openness of Government Bodies Regulations 2014
– in relation to EIA development, decision-makers must not grant planning permission “unless they have first taken the environmental information into consideration” and “they shall state in their decision that they have done so“.
As for the necessary standard of reasons, Lord Carnwath sets out the famous passage of Lord Brown in South Buckinghamshire District Council v Porter (2004):
“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 law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
Lord Carnwath explains that even where there is no statutory duty to give reasons, in the interests of transparency (and with reference to, for instance, the requirements of the Aarhus Convention) a common law duty arises upon local planning authorities to give reasons (to that exacting standard) where the circumstances justify it. What circumstances? That is where the judgment is more problematic. The court approves the approach taken by the Court of Appeal earlier this year in Oakley v South Cambridgeshire District Council (15 February 2017) where it held that a duty did arise in the particular circumstances of that case: where the development would have a “significant and lasting impact on the local community”, and involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers’ recommendations.
I don’t find the following passage in Lord Carnwath’s judgment helpful in drawing any practical dividing line between situations where reasons will or will not need to be given for departing from officers’ recommendations, which leads me to the conclusion that the only safe assumption is that they will now always need to be given (to the South Bucks v Porter standard):
“As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, 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 – para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”
The judgment certainly reinforces the care that needs to be taken by an authority where a decision is taken to grant planning permission against officers’ recommendations, if judicial review is to be avoided. It also risks delaying the taking of such decisions, referring to the “important legal principle that a decision-maker must not only ask himself the right question, but “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B). That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account.”
If members are now going to depart from officers in resolving to grant permission, or in their reasons for doing so, in most cases it may now be prudent for the application to return to a subsequent committee meeting for reasons to be properly formulated.
Save
The Dover judgment confines itself to decisions as to whether to approve or refuse planning applications but of course there are many other important decisions within the development management process. Lang J’s judgment in Save Britain’s Heritage v Secretary of State (29 November 2017) concerned a challenge by Save Britain’s Heritage to the decision by the Secretary of State not to call in for his own determination the Paddington Cube application, which had been resolved to be approved by Westminster City Council.
She sets out the statutory position as follows:
“19. There is no statutory duty to give reasons for not calling in an application. However, the Town and Country Planning (Development Management Procedure)(England) Order 2015 envisages that reasons may be given when the minister decides to call in an application. By article 17, if an application is called in, the local planning authority is required to serve on the applicant a notice “setting out the terms of the direction and any reasons given by the Secretary of State for issuing it“.
Save relied on two grounds for their challenge:
“Ground 1. The Claimant submitted that the Defendant’s decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.”
“Ground 2. Alternatively, the Claimant submitted that the court should find that there was a general common law duty to give reasons under section 77(1) TCPA 1990”
Lang J reaches the conclusion that where there is no statutory duty, government practice can change: there was previously a government policy to give reasons but “…in February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons.” Accordingly she could not “accept Mr Harwood QC’s submission that the practice of giving reasons remains in force because it has not been formally and publicly revoked by a ministerial statement or published policy document. It is a fundamental principle of public law that public bodies cannot lawfully fetter the future exercise of their discretion under statutory powers, by adopting policies which cannot be changed.”
The 2014 case was of course the challenge to the decision not to call in the Elizabeth House redevelopment application that had been resolved to be approved by the London Borough of Lambeth. In setting out his reasons for not intervening (even though there was no statutory requirement to give reasons), the then Secretary of State made a number of errors and the challenge only narrowly failed on the strange basis that the reasoning was so bad that it should not be taken as a formal attempt to give reasons, for which there was no statutory requirement:
“Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.” (Collins J)
It is interesting to consider Collins J’s comment in that final sentence, and Lang J’s reasoning, in the light now of Lord Carnwath’s judgment. Lang J distinguished decisions in relations to planning applications from decisions not to call in applications in the following way:
“I accept the submissions of the Defendant and the Second Interested Party that Oakley is distinguishable since a call-in decision is a very different type of decision to a decision by a local planning authority to grant planning permission. A call-in decision is in essence a procedural decision by the Secretary of State on whether to intervene in the planning process; it does not result in the grant of any substantive rights.”
Wouldn’t it be clearer if we had a comprehensive statutory framework that dealt with these basic questions?
Simon Ricketts, 9 December 2017
Personal views, et cetera
SIMONICITY 