Tuesday, 12 December 2017

Reasons for granting planning permission – Supreme Court

There have been several cases in the past year or two, on some of which I have commented in this blog, which have examined the extent of any duty that may be laid upon an LPA to state their reasons for granting planning permission, notwithstanding the removal of the statutory duty to do so which formerly applied.

This issue finally came before the Supreme Court in October of this year, in the case of Dover DC v CPRE Kent (on appeal from [2016] EWCA Civ 936), and the Court’s judgment was given on 6 December ( [2017] UKSC 79 ).

The issue before the Court was succinctly summarised by Lord Carnwath in this way: 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 common law? And what are the legal consequences of a breach of the duty? As he observed, those issues were presented by this appeal in a particularly striking form.

Strong views were expressed both for and against the two major housing proposals that were before the LPA for determination, and these representations were faithfully summarised in the officers’ report to the Planning Committee, which contained a comprehensive exposition of the various elements of the proposed development, the various responses (both public and private) to consultations, and the applicable national and local policies, followed by a detailed appraisal of the relevant issues. The report ended with a recommendation for the grant of conditional planning permission (part outline, part full) for the various elements of the proposal, but with a limit on the number of residential units, and subject to the completion of a 106 agreement to secure various proposed benefits, including a hotel and conference centre.

The applicants, however, fundamentally disagreed with the proposed reduction in the scale of the development, arguing that this would seriously undermine its viability. The committee’s discussion of these issues was recorded in a very full set of minutes, which noted that the Principal Planner had advised the Committee that, having considered the further views of the consultants on both sides, the officers stood by their analysis that a lower density scheme would be viable and would deliver the same monetary benefits as currently on offer. The officers therefore recommended that a lower density scheme should be approved, as it was viable, not excessive for the site and would be compliant with the Core Strategy. The discussion of the application was also summarised in the minutes, and at the end of the discussion a motion was proposed that the officers’ recommendation be approved, but subject to amendment of the number of houses to the larger number originally proposed in the application. This motion was carried. The meeting was adjourned for 25 minutes to enable the officers to re-word their recommendation with consequential amendments. A vote was then taken on the amended recommendation, which was approved. A planning permission was subsequently issued, following execution of the proposed 106 agreement. The permission itself included a long list of approved documents supporting the application, and 183 conditions. It concluded with a note (“for the avoidance of doubt”) that the Environmental Statement accompanying the application had been taken into account, but it contained no reference to any obligation to give reasons under the EIA regulations, nor any formal statement of the reasons for the grant.

An application by CPRE for judicial review of the permission on various grounds was dismissed by the High Court, but permission to appeal to the Court of Appeal was granted solely on the issue of reasons. As I reported here, in a blog post on 10 January this year, the Court of Appeal allowed that appeal and quashed the permission, although I see that I had the temerity to disagree with the Court of Appeal, for the reasons explained in that blog post. In granting permission to appeal that decision, the Supreme Court 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.

The basic rule is that, following the repeal of a previous requirement to do so (which applied only between 2003 and 2013), there is no general statutory duty to state the reasons for granting planning permission. The Explanatory Memorandum that accompanied the repeal of that requirement pointed out that the duty had become “burdensome and unnecessary”. In view of the fact that officer reports “typically provide far more detail on the logic and reasoning behind a particular decision than a decision notice”, the requirement to provide a summary of the reasons for granting planning permission “adds little to the transparency or the quality of the decision-taking process” Attention was also drawn to the “greater level of transparency in the decision-taking process”, resulting from increased ease of access to information, both online and through the Freedom of Information Act 2000.

Nevertheless, since 2014 there has been a duty on a local authority officer making any decision (under delegated powers) involving the “grant [of] a permission or licence” to produce a written record of the decision “along with the reasons for the decision”, as well as “details of alternative options, if any, considered and rejected” ( - Openness of Local Government Bodies Regulations 2014 (SI 2014/2095), Regulation 7(2) to 7(3)). Shortly before the Court of Appeal’s judgment in CPRE Kent v Dover DC, the High Court had drawn attention to this provision in Shasha v Westminster City Council [2016] EWHC 3283 (Admin). (See my blog post of 20 January this year.)

The development in the Dover case was EIA development, and where an EIA application is determined by an LPA, the authority must inform the public of the decision and make available for public inspection a statement, containing -
(i) the content of the decision and any conditions attached to it;
(ii) the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and
(iv) information regarding the right to challenge the validity of the decision and the procedures for doing so ( - regulation 24(1)(c) of the EIA Regulations).

Lord Carnwath also drew attention (by way of background) to Article 6 of the Aarhus Convention, which applies to any activities where public participation is provided for under national procedures for environmental impact assessment, so that when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party must make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.

Lord Carnwath then went on to review the appropriate standard that should be met where a statement of reasons is required. A “broad summary” of the relevant authorities governing reasons challenges was given by Lord Brown in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at para 36, although this referred primarily to decisions by the Secretary of State. In particular, he examined the duty as it applies to the duty to give reasons under the EIA Regulations, as determined by the Court of Appeal in R (Richardson) v North Yorkshire CC [2004] 1 WLR 1920. Lord Carnwath, however, declined to follow the reasoning in that case. In the EIA regulations (as in the Aarhus Convention, which is now expressly referred to in the European Directive to which the EIA Regulations give effect) the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation. Nevertheless, the grant of relief in respect of a breach of the regulations still lies in the discretion of the court. If the claimant has not in practice suffered any substantial prejudice, the court may refuse relief (per Lord Carnwath in R (Champion) v North Norfolk DC [2015] UKSC 52 at para 54, following Walton v Scottish Ministers [2012] UKSC 44 at paras 139 and 155).

Finally, Lord Carnwath turned to the question of whether there is any duty to give reasons at common law. Given the existence of a specific duty under the EIA regulations, and the views he had expressed on its effect, it was strictly unnecessary in the present appeal to decide what common law duty there may be on a local planning authority to give reasons for grant of a planning permission [my emphasis]. However, since it has been a matter of some controversy in planning circles, and since the court had heard full argument, Lord Carnwath felt it was right that they should consider it.

The basic rule is that public authorities are under no general common law duty to give reasons for their decisions; but it is well-established that fairness may in some circumstances require it, even where no express duty is imposed by statute (see R v Home Secretary, Ex p Doody [1994] 1 AC 531; R v Higher Education Funding Council, Ex p Institute of Dental Surgery [1994] 1 WLR 242, at 263A-D; and De Smith’s Judicial Review 7th ed, para 7-099). A principal justification for imposing such a common law duty was seen in those cases was the need to reveal any error that would entitle the court to intervene, and so make the right to challenge the decision by judicial review effective.

In the planning context, the Court of Appeal has held that an LPA generally is under no common law duty to give reasons for the grant of planning permission (R v Aylesbury Vale DC, Ex p Chaplin (1998) 76 P & CR 207, at 211-212 per Pill LJ). Although this general principle was reaffirmed recently in Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 (on which I commented in this blog on 16 February this year), the court 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. In Oakley, the court had clearly been influenced by the fact that the committee was disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people, and this suggested that some explanation was required. 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 ( - para 61).

This conclusion had been reinforced by reference to the United Kingdom’s obligations under the Aarhus Convention ( - para 62) (See also Lord Carnwath’s comments on the relevance of the Convention, in Walton v Scottish Ministers [2012] UKSC 44.). Nonetheless, Sales LJ, whilst agreeing with the result in that case, had expressed concern that the imposition of such a duty might also introduce “an unwelcome element of delay into the planning system” ( - para 76).

In Lord Carnwath’s view, Oakley was rightly decided, and consistent with the general law as established by the House of Lords in Doody. Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. In Doody, Lord Bridge also saw the statutory duty to give reasons as the analogue of the common law principle that “justice should not only be done, but also be seen to be done”. As applied to the environment, Lord Carnwath held that this also underpins the Aarhus Convention, and the relevant parts of the EA Directive. In this respect the common law, and European law and practice, march together. In the application of the principle to planning decisions, he saw no reason to distinguish between a public inquiry conducted by the Secretary of State, and the less formal, but equally public, decision-making process of a local planning authority such as in the Dover case.

Lord Carnwath held that the existence of a common law duty to disclose the reasons for a decision, supplementing the statutory rules, is not inconsistent with the removal in 2013 of the specific duty imposed by the former rules to give reasons for the grant of permission. As the explanatory memorandum to that repeal made clear, it was not intended to detract from the general principle of transparency (which was affirmed), but was a practical acknowledgement of the different ways in which that objective could normally be attained without adding unnecessarily to the administrative burden. In circumstances where the objective is not achieved by other means, Lord Carnwath considered that there should be no objection to the common law filling the gap.

Notwithstanding this, Lord Carnwath did concede that his endorsement of the Court of Appeal’s approach in Oakley may be open to the criticism that it leaves some uncertainty about what particular factors are sufficient to trigger the common law duty, and indeed as to the justification for limiting the duty at all (and he referred to the analysis by Dr Joanna Bell in Kent and Oakley: A Re-examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond in (2017) 22 Judicial Review 105-113). However, the answer to the latter, Lord Carnwath suggested, must lie in the relationship of the common law and the statutory framework. [This would appear to be the most tendentious passage in this judgment.] Putting it diplomatically, he acknowledged that the court should respect what he described as “the exercise of ministerial discretion, in designating certain categories of decision for a formal statement of reasons [but not others]” [ - or, to put it more bluntly, the clear words and intention of a statutory instrument laid before parliament by the Secretary of State in 2013 removing the statutory requirement on LPAs to summarise their reasons for granting planning permission!], but asserted that the court may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate, he said, for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong.

It does seem that Lord Carnwath recognised that he was perhaps going out on a legal limb in expressing this view. As to the charge of uncertainty, he said, 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, he felt, to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically, he suggested, 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). 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.

It was for these reasons that the Supreme Court unanimously dismissed the appeal and affirmed the order of the Court of Appeal.

[I must confess that I have distinct misgivings about this judgment. Lord Carnwath is a judge for whom I have always had the very greatest respect, and he has delivered many important and authoritative judgments over the years, but I feel that in this judgment the Supreme Court has gone too far in purporting to develop the law in this way. One can see the logic of the argument that led to the court’s conclusion in this case (and also the Court of Appeal’s similar conclusion in Oakley), but our planning system is and always has been solely the creature of statute. It is for parliament (and for ministers acting under statutory powers granted to them by parliament) to make and amend planning legislation to govern the planning process and its procedures. Intervention by the courts, unless it is firmly based on the interpretation and application of the statutory code, serves only to introduce uncertainty into an already complex system of development management.

I have not followed the previous course of the Dover litigation in any detail, having concentrated solely on the legal issue that brought the case first to the Court of Appeal and then to the Supreme Court. However, I have gained the impression that the planning permission in this case could (and should) have been quashed simply on the basis of the failure of the LPA to comply with the EIA Regulations, and in particular the statutory requirement to give reasons for their decision. It seems to me that it was entirely unnecessary to import any alleged common law duty to give reasons into a case in which there was a clear failure on the part of the LPA to comply with a simple statutory duty.

I expressed the hope at the beginning of the year that we would get a judgment from the Supreme Court that would finally put this issue of stated reasons to bed. I suppose my unspoken assumption was that the decision of the Court of Appeal would be reversed, for the reasons that I have explained. However, this would have left an arguably undesirable planning permission in place, and I strongly suspect that this was a factor which was at the back of several judicial minds in this case. If so, then it rather confirms the old saying that hard cases make bad law.]


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