Duty to Give Reasons

Duty to Give Reasons

Published:

Author: Tim Johnson

Applies to: England and Wales

The Supreme Court has clarified the circumstances in which a local planning authority must give reasons for the grant of a planning permission.

A failure to give reasons, when required, can lead to the planning permission being quashed by the courts and unnecessary delay in developing property.

Background

When must a local planning authority give reasons for the grant of planning permission?

This fairly innocuous question has caused more problems and litigation than it really deserves, ending up in the Supreme Court, who, on 6 December 2017, gave its judgement on this question in the two cases of Dover District Council v CPRE Kent and CPRE (Kent) v Chine Gateway International1 .

The facts of these cases are important. They concerned the grant of two planning permissions on sensitive sites to the west of Dover. One was situated within the Kent Downs Area of Outstanding Natural Beauty and the other on a prominent hilltop overlooking Dover, dominated by Napoleonic wars-era fortifications. Both applications for planning permissions were controversial but were recommended by the planning officer for approval with some changes to the developments, including a reduction in the number of dwellings from 521 to 365. The applicants did not accept that reduction, stating that it would render the development unviable.

The planning committee agreed with the applicants and resolved at a meeting on 13 June 2013 (ratified following negotiations on the section 106 agreement at a further meeting on 18 December 2014) to grant planning permissions for the original 521 dwellings. The section 106 agreement was concluded and planning permission granted on 1 April 2015.

The case

The permissions were challenged on a number of grounds, of which only one was allowed to be argued - that Dover District Council should have given reasons for granting the planning permission.

The Supreme Court upheld the decision of the Court of Appeal to quash the planning permissions. In giving the leading judgement, Lord Carnworth stated that:

  • Where a development is an EIA Development (that is, it requires an environmental assessment), there is a requirement to give reasons for the grant of planning permission in all cases. The decision to grant the planning permission must explain the reasoning of the planning committee, particularly where committee members, or some of them, do not agree with the reasons given in the planning officer's report. In the cases in issue, Lord Carnworth pointed out that there was, for instance, a requirement to give a properly reasoned statement as to why the planning committee rejected the planning officer's judgement that the viability of the scheme would not be jeopardised by the reduction in dwellings;
  • Although not strictly binding, he also stated that, for all other applications, there is a duty to give reasons for the grant of planning permission when permission has been granted (for instance, but not exclusively) for controversial proposals, against planning officer's advice or where there is major departure from the development plan or the National Planning Policy Framework. In most cases where the planning committee follows the planning officer's recommendations, they can simply adopt those recommendations and the reasoning behind them.

What does this mean in practice?

The Supreme Court has reaffirmed that, as we all understood, there is a requirement to give reasons for granting an application for EIA Development. They have, however, clarified that those reasons must be sufficient to understand where there has been any disagreement within the committee, not just that the majority resolved to grant permission as set out in the planning officer's report. That could be quite onerous on the committee.

The decision has also breathed new life into the requirement to, in certain circumstances, give reasons for all other developments.

This could be fertile ground for challenging the grant of planning permission. Except in straightforward cases where the planning officer's recommendations and reasoning is accepted by all of the planning committee, we would advise that reasons should be given. If not forthcoming, they should be requested, before the grant of the planning permission.

As an aside, it is worth noting that the period from the submission for the application (13 May 2012) to the grant of permission was more than three years - a depressingly familiar time period for large complex developments. Add to this the time taken for the legal challenge up to the Supreme Court decision, the applicants have spent the past five years and seven months effectively getting nowhere. The application is now back with Dover District Council for redetermination. So much for speeding up the delivery of housing developments.

1 [2017] EWCA Civ 936

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.