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The Dover case as a further example of the (ever) growing influence of the Aarhus Convention on domestic planning and environmental law

There has already been a lot of comment and discussion about the Supreme Court’s decision in R (CPRE Kent) v Dover District Council [2018] 1 W.L.R. 108 on the duty to give reasons for the grant of a planning permission and which handed down at the end of last year.

One interesting thing to note from the judgment of Lord Carnwath with whom the rest of the Court agreed is that the Aarhus Convention featured in multiple places in the analysis. Thus:

  1. In the analysis of EIA development it was said:

“33 Also relevant by way of background is the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) to which this country is a party. The Preamble to the Convention recognises the right of all people to live in a healthy environment and their duty “both individually and in association with others” to protect it for the benefit of present and future generations; and the consequent need for effective public participation, access to information, transparency in decision-making and access to justice in environmental matters.

34 Article 6, which is mentioned in the recitals to the EA Directive, is headed “Public Participation in Decisions on Specific Activities”. In addition to certain listed activities and others which “may have a significant effect on the environment”, it extends to any activities where public participation is provided for under national procedures for environmental impact assessment: article 6(1)(9), annex I, para 20. Article 6.9 provides:

“Each Party shall ensure 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 shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.”” 

2. In (somewhat controversially) disagreeing with the Court of Appeal’s decision in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 it was said:

“48 With respect to the judges concerned [in the case of Richardson], I would decline to follow that reasoning. I find the distinction drawn between notification of the decision, and of the reasons on which it is based, artificial and unconvincing. In the Regulations (as in the Aarhus Convention, which is now expressly referred to in the Directive) the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation …”

3. In discussing the duty to give reasons at common law it was said (emphasis added):

“52 … in R (Oakley) v South Cambridgeshire District Council [2017] 1 WLR 3765 , 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. Of the last point, Elias LJ (giving the leading judgment, with which Patten LJ agreed) said, at para 61:

“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 … the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty.”

His conclusion was reinforced by reference to the United Kingdom's obligations under the Aarhus Convention: para 62 ….”

4. Finally, and in the same section, it was said (emphasis added):

“55 Doody concerned fairness as between the state and an individual citizen. The same principle is relevant also to planning decisions, the legality of which may be of legitimate interest to a much wider range of parties, private and public: see Walton v Scottish Ministers [2013] PTSR 51 , paras 152–153 per Lord Hope of Craighead DPSC. Here a further common law principle is in play. Lord Bridge 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” (see para 25 above). That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts: see Kennedy v Information Comr (Secretary of State for Justice intervening) [2015] AC 455 , para 47 per Lord Mance JSC, para 127 per Lord Toulson JSC. As applied to the environment it 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 (compare Kennedy para 46 per Lord Mance JSC). In the application of the principle to planning decisions, I see no reason to distinguish between a ministerial inquiry, and the less formal, but equally public, decision-making process of a local planning authority such as in this case.”

It was, of course, Carnwath LJ (as he then was) who was the first English Judge to refer to the Aarhus Convention in a judgment: see the Addendum to his judgment in R. (Burkett) v Hammersmith, Fulham LBC (Costs) [2005] C.P. Rep. 1. That was back in 2004 before the Convention had been ratified in the UK.