Housing White Paper

Readers may be wondering why there has been such a deafening silence on my part since the publication of the Housing White Paper, while other planning professionals have busied themselves in publishing briefing notes and organising seminars left, right and centre.

However, the plain fact is that this was only a White Paper – a statement of various aspirations on the part of government, some of which may be realised in due course while others are quietly forgotten. I really see no point in wasting time on the White Paper itself, preferring to comment on particular changes in planning law and procedure when they come forward in due course.

Meanwhile, I remain sceptical of the government’s stated aim of building a million new homes by 2020. This would require an annual completion rate as high as, if not higher than, the building rate achieved under the dynamic leadership of Harold Macmillan as Minister of Housing and Local Government in the early 1950s, which included a substantial proportion of publicly funded social housing [“council houses” – remember them?]. Does the government seriously expect the private sector now to match that building rate without such a significant public sector input? Let’s be realistic – it simply won’t happen.

© MARTIN GOODALL

GARETH HUGHES JOINS KEYSTONE LAW

Time has not allowed me previously to note here the arrival of the latest addition to Keystone Law’s planning law team. This is Gareth Hughes, who joined us late last year, bringing our planning law team up to six in number.

Gareth is a skilled barrister who acts for an impressive portfolio of clients in the hospitality and entertainment sectors on both licensing and planning matters. He regularly acts as an advocate on behalf of clients before licensing committees all over the country and on appeal to the Magistrates’ Court, having dealt with cases right up to the Court of Appeal and the House of Lords on major points of law.

With over 25 years’ experience acting for many of the leading companies and individuals in the hospitality sector he has built up a significant network of relationships with elected councillors, council officers and police as well as residents groups particularly in the City of Westminster.

Gareth’s arrival is just one element in Keystone Law’s continuing growth. The firm now numbers over 200 lawyers in its ranks (both solicitors and barristers), and has recently extended its practice to Northern Ireland. This leaves Scotland as the only jurisdiction in the British Isles in which Keystone Law does not yet practise (having previously established offices in the Isle of Man and the Channel Islands). The continued expansion of the firm has prompted a move of our London headquarters to smart new offices in Chancery Lane, and there is no sign of the pace of growth slowing down.

As I have said on several previous occasions, this blog is not (and never has been) intended as a marketing tool, but it is nevertheless a source of pride and satisfaction to be part of this award-winning and innovative legal practice, and so I make no apologies for blowing a small toot on the trumpet occasionally.

© MARTIN GOODALL

Reasons for granting planning permission (3)

In my second post on this topic, on 20 January, there was a brief passing reference to the High Court decision in Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). That judgment has now been reversed by the Court of Appeal in a judgment handed down yesterday (15 February) - [2017] EWCA Civ 71.

In the High Court, Kay J had referred to a passage in the decision of the Court of Appeal in R v Aylesbury Vale DC, ex p. Chaplin (1997) 76 P&CR 207 (at page 212) which, he accepted, offered some weak support for the proposition that there may be cases – perhaps multiple issue cases – where a duty to give reasons may arise. Chaplin was decided before the advent of a statutory duty to give reasons, but he did not believe that this altered the approach he should be taking to it. The correct, and “parsimonious”, approach to Chaplin, he observed, is that it is not authority for the proposition that complexity is the touchstone. In his view, there might be situations where planning committee decisions do appear aberrant, and in that specific context the complexity of the case may be a relevant factor. Thus, he was not to be understood as holding that a duty to give reasons could never arise; he was “simply keeping the judicial powder dry”.

The present case, involving the development of a football stadium, was one in which a planning committee had resolved to grant planning permission against the recommendation of their officers that it should be refused. In the Court of Appeal, Elias LJ noted that, as Mr Justice Kay had pointed out, between 2003 and 2013 there was a statutory duty to give summary reasons for all planning decisions, but this was removed for planning approvals. The statutory obligation now is to give reasons only where permission is refused, although if it is granted subject to conditions, reasons must be given explaining why the conditions have been imposed. However, it was common ground (both at first instance and in the Court of Appeal) that although there is no statutory obligation to give reasons where permission is granted, it does not follow that there is never any obligation to do so. A common law obligation may arise in appropriate circumstances. The decision of the Court of Appeal in ex p. Chaplin held that there is no general common law duty to give reasons in planning cases; the question in issue was whether it arose in the particular circumstances here.

Following R v. Home Secretary ex p. Doody [1994] AC 531 and R v HEFC ex p Institute of Dental Surgery, Kay J agreed that these authorities showed that there are two distinct circumstances where reasons should be given. The first, as in Doody, was where the nature of the decision required it on grounds of fairness; the second was where, to use the terminology of Sedley J in the Dental Surgery case, there was something “aberrant” in the particular decision which called out for explanation. The former justifies the imposition of a duty to give reasons in a class of case whereas the latter justifies it by reference to the particular decision in issue.

It was submitted by the appellant before Kay J that the present case was similarly “crying out for an explanation”, given that the planning committee had departed from the considered recommendation of the officer. The judge had rejected that submission. He did not accept that there was anything intrinsically peculiar or aberrant in the committee disagreeing with the officer’s recommendation. He had therefore held that this fact alone was not enough to trigger a duty to give reasons.

Moreover, in the judge’s view, there were good reasons for not imposing a common law duty given the nature and character of the decision-making process. The judge had referred to observations made by Sedley J in the Dental Surgery case when he said that giving reasons “may place an undue burden on decision makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments”. In the judge’s view, that fairly characterised the position here.

In the Court of Appeal, the argument that the committee’s decision had been “aberrant” was not pursued, and would clearly not have met with the court’s sympathy. Elias LJ agreed with the judge at first instance that a decision could not fairly be characterised as aberrant simply because the committee disagrees with an officer’s recommendation. However, for the reasons that Elias LJ went on to explain, the fact that the committee has departed from the officer’s report may in some contexts be a relevant factor supporting the conclusion that a common law duty to give reasons should be imposed.

There were two distinct issues in the present case which needed to be considered. The first was whether it is possible to infer the reasoning of the committee from the materials in the public domain, and in particular the officer’s report. The second, assuming that this is not possible, is whether there is a duty on the committee to explain its reasoning. The latter issue raises a point of general principle whilst the former was particular to the facts of this case.

There are arguments for and against a common law requirement to give reasons. On the one hand, it may generally be desirable for administrative bodies to give reasons for their decisions. It would focus the mind of the decision-making body, thereby increasing the likelihood that the decision will be lawfully made, thereby promoting public confidence in the decision-making process; it would provide, or at least facilitate, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and it would respect the individual’s interest in understanding (and perhaps thereby more readily accepting) why a decision affecting him has been made. This last consideration, Elias LJ observed, is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.

On the other hand, the disadvantage (accepted by Kay J in this case) is that having to provide reasons, particularly where they have to withstand careful scrutiny by lawyers [!], might involve an undue burden on the decision maker.

Statute frequently, and in a wide range of circumstances, obliges an administrative body to give reasons, although the content of that duty, in the sense of the degree of specificity of the reasons required, will vary from context to context. However, absent some statutory obligation, the question whether reasons are required depends upon the common law.

Elias LJ accepted that it is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in ex p. Doody . However, the tendency increasingly is to require them rather than not. Indeed, almost twenty years ago, when giving judgment in Stefan v GMC (No.1) [1999] 1 WLR 1293, at 1300, Lord Clyde observed: “There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.”

In view of this, his Lordship said, it may be more accurate to say that the common law is moving to the position that, whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.

A further basis for requiring reasons to be given arises where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not (see e.g. Norton Tool Co. Ltd v Tewson [1973] 1 WLR. 45). Elias LJ felt that there is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. However, if this were always to ground a basis for requiring reasons to be given, it would be inconsistent with the lack of any general common law obligation to give reasons. Nonetheless, he observed, there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt.

If reasons are not given, there are considerable difficulties facing a potential claimant who suspects that something may be wrong with a decision but is unsure. Unless the decision is plainly perverse, the assumption will necessarily be that the decision was lawfully made. There is a presumption to that effect, given that the burden of establishing illegality is on the applicant. No doubt there will be cases where a party has sufficient material to be able to mount some sort of legal challenge and get beyond the leave stage. In those circumstances, the respondent will effectively be compelled to provide reasons in order to defend the case, because if no reasons are given, the court may infer that the decision is bad (see the House of Lords decision in Padfield [1968] AC 997). Even then, however, the applicant may not be given full reasons, merely such explanation of the reasoning as meets the particular ground of challenge. Moreover, if the basis of the claim is too speculative - as it may well be where no reasons are available - the application is likely to fail at the leave stage.

Elias LJ then reviewed the circumstances in which a statutory requirement to give summary reasons for the grant of planning permission had been introduced in 2003, and the justifications for that change. However, that duty was removed in June 2013. The reason for doing so was explained in an Explanatory Memorandum prepared by DCLG and laid before Parliament. It was thought that the requirement to provide a summary statement of reasons added little to the officer’s report “and therefore adds little to the transparency or the quality of the decision-making process, but it does add to the burdens on local planning authorities”. The memorandum pointed out that much of the relevant documentation relating to planning applications was now available on-line. It explained that the removal of the duty sought “to reduce the regulatory burden and offer time-saving benefits to local authorities, without reducing the transparency or accountability of the decision-making process”. The assumption, therefore, was that where permission is granted, typically the reasoning will be sufficiently transparent since it can be gleaned from the available materials so that there is no need for a formal statement of reasons.

It seems clear that the Court of Appeal’s decision in the present case was influenced by the fact that the decision under challenge had a number of distinct features relied upon by the appellant. Not only had the committee disagreed with the officer’s recommendation, but in addition it had done so in circumstances where its decision was not consistent with the local development plan and involved development in the Green Belt. Prima facie this is inappropriate development and the planning committee was required to conclude that the adverse effects “by reason of inappropriateness and any other harm” are clearly outweighed by other considerations.

In these circumstances, public policy requires strong countervailing benefits before such a development can be allowed, and affected members of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In Elias LJ’s judgment, these considerations demanded that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there was in his judgment an overwhelming case for imposing the duty here.

That conclusion was, in his judgment, reinforced where the committee had departed from the officer’s recommendation. The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required. As Elias LJ said, he would not impose the duty to give reasons on the grounds that the committee’s decision appears to be “aberrant”, but the dictates of good administration and the need for transparency were particularly strong here, and they reinforced the justification for imposing the common law duty on the committee to state their reasons for the grant of planning permission.

Sales LJ gave a reasoned judgment in agreeing with Elias LJ. Patten LJ also agreed. The appeal was therefore allowed unanimously.

As the Court of Appeal recognised, there are arguments both for and against imposing a common law duty on LPAs to give reasons for the grant of planning permission. The position after this judgment clearly remains that there is no general duty to give reasons, but the Court of Appeal appears to have widened further the circumstances in which reasons will nevertheless be required.

I can fully understand why the court came to their decision in the particular circumstances of this case, but I have misgivings in principle about a common law duty to give reasons for the grant of planning permission (as distinct from such a duty to give reasons in other situations where public law principles apply). My reason for this is that planning law is entirely the creature of statute. Planning law is not derived from our common law, and when the courts have been tempted to apply common law principles to planning cases, it has been necessary for the House of Lords (or now the Supreme Court) to correct this tendency, for example in Reprotech, which confirmed that the general law of estoppel has no application in planning law. Other examples could be cited.

What makes it particularly undesirable that LPAs should be put under an obligation by the courts to give reasons for granting planning permission is that a specific statutory requirement to do so (or at least to give a brief summary of their reasons) was imposed in 2003, and then removed in 2013 for reasons that were clearly explained to parliament. Planning law is a single and comprehensive body of statutory provisions governing every aspect of the planning system. It seems to me, therefore, that it is for parliament in primary legislation and ministers in subordinate legislation made under powers granted to them by parliament to determine whether or not reasons for the grant of planning permission should or should not be made explicit by an LPA, and if so to what extent. Both ministers and the courts appear to be in agreement that there is, and should be, no general duty to this effect; on the other hand, there may well be very good grounds for imposing such a duty in certain circumstances (such as those canvassed in this case and in other judgments which were drawn to the attention of the court), but I would still maintain that is for parliament and/or ministers, not for the courts, to impose such a duty on LPAs.

© MARTIN H GOODALL