Planning Controversies Demand Clear Reasons

A flurry of decisions on reasons have underlined the need for care in explaining planning decisions, from delegated reports to sensitive areas. Our comprehensive guide to the Oakley green belt case and other decisions is here.

The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal's approach to the standard of reasons required of an authority granting permission for development of a scale "unprecedented in an AONB" in that case. The judgment confirms that reasons for approval may be required in planning matters where basic fairness demands it, despite the absence of a statutory duty, particularly where significant policy breaches are being entertained. It also highlights the benefits of dealing properly with the need for statements of reasons under the EIA regime.

Controversial proposals

The authority's officers had recommended a less dense, but - according to its advisors - no less viable approach to delivering housing in the sensitive area. Members rejected that approach on viability grounds and objectors challenged by judicial review on the basis of inadequate reasons.

No reasons required?

The defendant authority started from the position that there is no duty on planning authorities - unlike the Secretary of State - to give detailed reasons for the grant of permission (adopting the 'light touch' approach in R (Hawksworth Securities Plc) v Peterborough City Council & Ors [2016] EWHC 1870 (Admin)) where the standards applicable to an inspector's decision on appeal were distinguished from merely an 'administrative' decisions by local planning authorities).

The Court of Appeal recognised that this approach "needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State." In the circumstances of Dover, several factors justified detailed reasons:

the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by "substantial reasons"; a departure from officers' advice; the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations...