Authors: Matthew White, Partner and Head of Planning; Lucy Morton, Professional Support Lawyer, Planning, London
It is good practice for a local planning authority to give reasons for the grant of planning permission. Failure to give adequate reasons may be serious enough to justify quashing the permission.
There is a statutory duty to give reasons for the grant of permission for EIA development. However, even if it is not EIA development, reasons will need to be given where the grant of permission does not follow the planning officer’s recommendation; where the development would not comply with planning policy; and where there is significant public interest in the proposals. The law on the duty to give reasons was summarised and confirmed recently in a Supreme Court case, Dover District Council v CPRE Kent (2017) UKSC 79.
The Dover case related to a planning application for a large residential development in an area of outstanding natural beauty (AONB). Before the local authority granted permission, the planning officer’s report had made several recommendations, including reducing the number of residential units, to reduce the harm caused to the AONB. The report stated that this would preserve scheme viability and retain the economic benefits of the development, which helped to provide the finely balanced exceptional justification needed for causing harm to the AONB. The officer’s report also recommended implementation as a ‘single comprehensive scheme’ to secure those economic benefits (including a hotel and conference centre) and conditions or planning obligations to achieve this.
Planning permission was granted by the local authority without following these recommendations. No reasons were given by the local authority for this departure from the officer’s report.
The planning permission was challenged and proceedings reached the Supreme Court. The Court gave thorough consideration to the statutory duties to give reasons which apply to the Secretary of State, local planning authorities, planning officers and any authority making a decision in relation to development which is the subject of environmental impact assessment. The Court also considered the standard of reasons required, the remedies for breach of the duty, and reviewed the duty under common law to give reasons.
There is a statutory duty on local planning authorities to give reasons for refusing planning permission and for imposing planning conditions. The statutory duty for local planning authorities to provide a summary of reasons for granting planning permission was repealed in 2013, but there are special duties which require them to give reasons for granting permission for EIA development. The EIA regulations applied in the Dover case, so the Court found that the statutory duty to give reasons for the grant of planning permission had been breached.
But even where there is no statutory duty to give reasons, fairness may in some circumstances, under common law, require reasons to be given anyway. The Court considered that a common law duty to give reasons would have been likely to arise in this case, due to the special circumstances involved. Those circumstances included the unexplained disagreement with the officer’s recommendation, a departure from planning policy and significant public interest.
The case also considered the appropriate standard of reasons and suggested that local planning authorities will be held to the same standard as other decision makers, such as planning inspectors or the Secretary of State, when providing reasons for a planning decision.
In light of this decision, even where a development is not EIA development, it would be prudent and sensible for local planning authorities to give full reasons for any decision to grant planning permission against an officer’s recommendation or where the grant of planning permission would be contrary to relevant local or national planning policies.
The implications of not giving proper reasons for planning decisions can be serious. In the Dover case, the Supreme Court considered that the defect in reasons went to the heart of the justification for the permission and therefore held that this was enough to justify quashing the planning permission. Developers therefore need to take steps to ensure that decision notices include adequate reasons, including checking draft notices prepared by planning officers in advance of permission being granted wherever possible.
For more information please see the HSF public law team bulletin on this case, Public bodies’ reasoning must leave no room for genuine doubt Or contact one of our team:
Lucy MortonProfessional Support Lawyer, Planning, London
+44 20 7466 2626