A planning authority’s duty to give reasons

The Supreme Court recently held, in Dover District Council v CPRE Kent [2017] UKSC 79,that in special circumstances a Local Planning Authority may be under a duty to give reasons for its decisions in the interest of fairness and openness, despite there being no general duty under statute.

This case concerned a controversial planning application for over 400 homes which included an incursion into an Area of Outstanding Natural Beauty. The Officer’s report recommended the grant of conditional planning permission with a limit on the number of housing units. However, the Committee granted permission for a higher number of units. Judicial review was sought for the lack of reasons given by the Committee for its decision.

The Supreme Court determined that in special circumstances the need for fairness and openness may lead to a duty to give reasons at common law. The Court indicated that said circumstances would exist, typically, where the permission had been granted:

• despite substantial public opposition;
• against the Officers’ advice; and
• for a project which involved major departures from the development plan or other important polices.

The Court concluded that the standard of reasons summarised by Lord Brown in South Buckinghamshire DC v Porter (No. 2) [2004] 1 WLR 1953 should be applied generally, namely:

• “the reasons for a decision must be intelligible”;
• “the reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law”; and
• “The reasons need refer only to the main issues in the dispute”.

In Dover there was no indication of how the Committee members felt able to reject the Officers’ views without further investigation. The members also failed to address how the harm to the Area of Outstanding Natural Beauty would be minimised – a fundamental issue to the case which therefore cast doubt on the Committee’s decision. The Supreme Court quashed the permission.

The decision has thus far received mixed reviews, with some commentators wary of the heavy-handed intervention by the judiciary in a Planning system that is fundamentally statute-based. However, Lord Carnwath himself, giving the judgement, was cautious of being overly prescriptive and thus sought to limit his intervention to circumstances where it is clear that “the defect in reasons goes to the heart of the justification for the permission”.

It will be interesting to see how local planning authorities adjust to the practical implications of the decision throughout 2018, in order that, in the eternal words of Lord Bridge, “justice should not only be done, but also be seen to be done“.