In recent years, we have seen a number of cases on the duty of a local planning authority (LPA) to provide reasons. In an appeal by Dover District Council and developer China Gateway International Limited, the Supreme Court has made it clear that the public is entitled to an explanation for such decisions.
In the unanimous decision, Lord Carnwath stated that "Local planning authorities are under an unqualified statutory duty to give reasons for refusing permission. There is no reason in principle why the duty to give reasons for grant of permission should become any more onerous."
So what does this mean for the planning process?
The Dover case concerned a large development over two sites, including housing, a hotel and conference centre and the conversion of a scheduled monument into a visitor centre and museum.
Owing to its location in an Area of Outstanding Natural Beauty (AONB), the development was categorised as "EIA development" and was, therefore, accompanied by an environmental statement.
Until 2003, there was no statutory duty on local planning authorities to give reasons for the grant of planning permission. Then, there was a sea change and, between 2003 and 2013, local planning authorities were required to include in the notice of the decision "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 that decision."
However, that was followed by yet another change in June 2013, owing to a view that the duty had become too burdensome. Under article 35(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015, reasons are only required if planning permission is refused. If permission is granted subject to conditions, the LPA only needs to give reasons in relation to those conditions.
Special duties arise in relation to such applications, and the LPA is under a duty to inform the public of the decision and make available a statement which must include the main reasons and considerations on which the decision is based.
In granting planning permission, the Council did not set out its reasons as required under the EIA Regulations and did not give any formal statement of the reasons for the grant. The decision of the Supreme Court considered the level of reasoning as set out by Lord Brown in South Buckinghamshire District Council v Porter (No 2) , and whether it is applicable to decisions made by local authorities rather than the Secretary of State or an inspector. Lord Carnworth considered that Lord Brown's words were relevant in the EIA context and that the reasons for a decision must be intelligible and adequate. He concluded that "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."
Although there is no statutory duty to give reasons for the grant of planning permission, the Court of Appeal recently held in Oakley v South Cambridgeshire District Council  that a duty did arise in the particular circumstances of that case, where the development was against Green Belt policy and where the committee had disagreed with its officers' recommendations.
The Supreme Court's decision in the Dover case looks to be a move towards a common law duty to give reasons. In Lord Carnwath's view as local planning authorities are under an unqualified statutory duty to give reasons for refusing permission there is no reason in principle why the duty to give reasons for the grant of permission should be any more onerous. Where an officer's report had recommended approval, no further reasons may be needed.
LPAs are going to need to ensure that they do not grant planning permissions without providing adequate reasons. If they do, they risk them being challenged and quashed. This could have an impact on developers, who could see the grant of permissions, particularly those that involve controversial schemes, being challenged.
Contributor: Alexandra Holsgrove JonesThis publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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