Tuesday, 10 January 2017

Reasons for granting planning permission

Planning professionals among my readers will no doubt recall that some years ago a requirement was introduced in the planning legislation for LPAs to give written reasons for the grant of planning permission, in the same way as reasons are required for the imposition of each condition attached to the permission, and similarly reasons for refusal are stated in a notice of refusal.

The requirement to state the reasons for granting permission gave rise to challenges to the grant of planning permission in a number of cases, and this statutory requirement was eventually dropped, so that there is no longer a statutory requirement for the LPA to state its reasons for granting planning permission.

The decision of the Court of Appeal in R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016, therefore came as something of a surprise. It was alleged in the grounds of appeal that the Committee had failed to give legally adequate reasons for the grant of permission. However, the underlying claim was that it was impossible to understand from the minutes of the committee meeting at which it had been resolved to grant planning permission why one of the principal issues that were in contention had been determined in that way.

The point at issue is not an easy one. Notwithstanding certain judicial statements to the contrary (including those of the Court of Appeal in this case), I would still maintain that there is no legal duty on an LPA and, in particular on the person or persons taking the decision on behalf of the authority (a committee or sub-committee or an officer acting under delegated powers) to state their reasons for reaching their decision to grant planning permission (although they are under an obligation to state the reasons for a refusal of planning permission and also for imposing conditions on a planning permission). This is in contrast to the duty of the Secretary of State, or of an inspector determining a planning appeal on his behalf, to explain in sufficiently clear terms the reasoning on which their appeal decision is based.

On the other hand, all actions and decisions of a public body or authority (or a failure to act or to take a decision) are potentially subject to the supervisory jurisdiction of the courts by way of an application for judicial review, which may lead to the court making a quashing order, a mandatory order or a prohibitory order or, in some cases, granting a declaration. In such a case, the adequacy of the authority’s reasoning in reaching that decision may well be called in question, and compliance with the well-known Wednesbury principles may be an issue to be considered. To this extent, the authority’s reasons for reaching its decision will inevitably be called in question. But it is the adequacy of the decision-making process itself from a legal and procedural point of view that will be in question, rather than whether the reasons for the decision were explicitly stated, either adequately or at all.

Where there is a committee report which clearly explains the reasons for the recommendation of the council’s officers, and the relevant committee accepts that recommendation, for example to grant planning permission, the committee report itself has often been accepted by the courts as a sufficient explanation of the reasons that led councillors to determine the application in that way, and there is really no need for the committee minutes to expand on that. However, difficulties do potentially arise in a case where a decision made by councillors differs from that which their officers recommended. In such a case, it may not be clear why the committee came to a different conclusion, and it is in that type of case that there may well be a legal challenge based on the apparent perversity of the decision. It may also be alleged that the committee took into account immaterial considerations or failed to take account of considerations that should have been material to their decision. Misinterpretation of, or a failure to apply, relevant planning polices might also be a factor. In all these cases, it may be important to the authority’s defence of its decision to be able to show lawful and proper reasons for the committee’s decision, and (bearing in mind that the committee report may be of only limited, if any, assistance in these circumstances) the best defence would be a clearly written minute that explains the reasoning of the councillors in debating the matter in committee. It was the absence of sufficiently clear minutes that ultimately led the Court of Appeal to quash the planning permission in the Dover case.

This may perhaps seem like legal hair-splitting on my part, because irrespective of whether there is a legal duty on the part of a public body or authority to state explicitly in its Minutes the reasons for decisions being reached, a failure to do so may make it difficult to defend those decisions in the event of legal challenge, especially where the decision departed significantly from the recommendation in a relevant committee report.

So far as R (CPRE Kent) v Dover DC is concerned, I therefore find myself in disagreement with the Court of Appeal’s conclusion that the Committee failed to give legally adequate reasons for their decision to grant planning permission, but I do nevertheless agree that the Committee’s reasons for reaching that decision were in fact legally inadequate (which is not quite the same thing), so that the grant of planning permission in this case had to be quashed.

That being the case, this judgment was effectively dependent on its facts, and it would be unsafe to cite the judgment as authority for the proposition that reasons must be explicitly stated for the grant of planning permission. It is particularly misleading to cite in this context Lord Brown’s speech in South Bucks v Porter (No 2) [2004] 1 WLR 1953, which was concerned with the quality of reasons given by the Secretary of State’s inspector on a planning appeal.

The observations of Lang J in R (Hawksworth Securities) v. Peterborough City Council [2016] EWHC 1870 (Admin) (also cited in the Dover case) appear to me to be more apposite to the position where the grant of planning permission by an LPA is in question. However, the alleged need for reasons actually to be stated even in these circumstances is, as I have suggested above, a red herring.

Nevertheless, as the Court of Appeal recognised in the Dover case, a difficulty can clearly arise in those cases where a Planning Committee does not accept their officers’ recommendation but departs from it. Reference was made in this context to the judgment of Hickinbottom J in R (Mevagissey Parish Council) v. Cornwall Council. [2013] EWHC 3684 (Admin). Like the Dover case, this concerned an application for a housing development in an AONB. However, even in that case, we find the judge opining that in coming to a different conclusion from that of the officers (which they were perfectly entitled to do) the committee could not do so "without, in their summary reasons, indicating that they had correctly identified, understood and applied the relevant policies and explaining, if only briefly, why they had come to the conclusion they had, and thus why they considered the officer’s conclusion wrong".

I fully accept that in defending a decision that is under challenge in the courts, the authority may be called upon to satisfy the court on these points, and a written summary of the elected members’ reasons for reaching that decision duly recorded in the Minutes of the committee meeting would clearly be the most efficacious way of doing so. But such a written record is not in itself a legal requirement.

As the Court of Appeal made clear, this judgment should not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions, far removed from the approach outlined by Lang J in Hawksworth. The case does, however, illustrate a practical need to minute the reasons leading to a grant of planning permission against officers’ recommendations.

UPDATE: Since this blog post was published, I have become aware of the judgment in Shasha v. Westminster City Council. This confirmed the general rule that an LPA is not obliged to give reasons for granting planing permission, but identified a requirement to do so in the case of planning permission granted under delegated powers, by virtue of regulation 7 of the Openness of Local Government Bodies Regulations 2014. I propose to blog on this judgment shortly.


No comments: