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Supreme Court on the duty to give reasons in planning cases

DATE: 07 Dec 2017

On 6 December 2017, the Supreme Court gave judgment in Dover DC & China Gateway International Ltd v CPRE Kent [2017] UKSC 79 concerning the duty on local authorities to give reasons for planning decisions.

Dismissing the appeals by Dover DC and CGI, the Supreme Court (in a judgment by Lord Carnwath, with whom the other members agreed) held that:

  • Lord Brown’s statement on the standard of reasons in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953, para. 36, applies to local planning authority decisions (including on EIA development), and is not confined to decisions by the Secretary of State or an inspector. 

  • The approach to relief for a breach of the statutory duty to give reasons for EIA development is not different to that for any other failure to give reasons. Contrary to R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920, it is irrelevant that the EIA statement of reasons can be published after the notification of the decision. 

  • Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 was rightly decided by the Court of Appeal. Thus, while there is no general duty to give reasons for granting planning permission, special circumstances (in that case widespread public controversy, departure from the Development Plan and national Green Belt policy, and members’ disagreement with the officers’ recommendation, making it impossible to infer the reasons from the officers’ report or other public material) can require reasons to be given for the purposes of openness and fairness to objectors. 

  • Typical cases requiring reasons to be given will be cases where (as in Oakley and CPRE) “ 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 …)”: para. 59.

Applied to the facts of the case, in which planning permission had been granted for residential development in the Kent Downs AONB, Lord Carnwath held that:

  • Dover DC’s planning committee should have considered deferring discussion of the officers’ proposal for significant modifications to the application, which had only arisen a few days before the committee meeting. The modifications gave rise to a significant dispute over viability, over which expert advisers for the applicant and Dover DC disagreed. 

  • The minutes were not sufficient to constitute the required statement of reasons pursuant to the statutory duty for EIA development. The minutes did not explain why the committee preferred the viability advice of the applicant’s experts. Nor were the committee’s views on harm to the AONB sufficiently clear.

Lord Carnwath concluded at para. 68:

“The committee’s failure to address such points raises a “substantial doubt” (in Lord Brown’s words) as to whether they had properly understood the key issues or reached “a rational conclusion on them on relevant grounds”. This is a case where the defect in reasons goes to the heart of the justification for the permission, and undermines its validity. The only appropriate remedy is to quash the permission.”

The judgment is available here.

Landmark Chambers is hosting a Breakfast Seminar on the implications of the Supreme Court’s decision on Wednesday 10 January 2018. To reserve a place, click here.

Neil Cameron QC and Zack Simons acted for Dover DC. Matthew Reed QC and Matthew Fraser acted for China Gateway International Ltd.