Supreme Court rejects appeal by council over reasons for planning decision

The Supreme Court has unanimously rejected a council’s appeal over the quashing of the grant of planning permission for a controversial residential development in an area of outstanding natural beauty.

The case of Dover District Council v CPRE Kent [2017] UKSC 79 concerned an application for planning permission submitted in May 2012 by China Gateway International Limited (“CGI”), which sought approval for a large residential development on two sites, one of which is within the Kent Downs AONB.

A planning officers’ report was circulated to Dover’s Planning Committee on 7 June 2013. This recommended the grant of permission with amendments to CGI’s proposal, including a reduction in the number of planned houses at one site from 521 to 365.

The report also recommended ensuring, through a Section 106 agreement with CGI, various economic benefits including a planned hotel and conference centre.

The planning officers’ report had regarded the level of harm to the AONB as “significant” but concluded that the suggested amendments created a “finely balanced” public interest.

The planning committee met on 13 June 2013. Three members of the committee expressly stated that harm to the AONB could be “minimised” by “effective screening”, although the planning officers’ report had suggested that screening would be “largely ineffective".

After discussion, the committee carried a motion approving the planning officers’ recommendation, but without the proposed reduction in the number of houses.

On 18 December 2013 the application for planning permission returned to the planning committee with an updated planning officers’ report. The updated report confirmed that, contrary to the officers’ earlier recommendation, the Section 106 agreement did not require CGI to provide the hotel but instead served “to create an opportunity” for a hotel.

The Section 106 agreement was executed on 1 April 2015. Planning permission was granted on the same day.

Campaign to Protect Rural England Kent then sought a judicial review of that decision. Although it was unsuccessful at first instance, the Court of Appeal allowed the subsequent appeal and quashed the decision to grant permission.

In the appeal to the Supreme Court it was not in dispute that Dover was in breach of a specific requirement under the Town and County Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”) to provide a statement of “the main reasons and considerations” on which the decision was based.

The issue was whether the Court of Appeal was right to quash the decision on that basis.

The Supreme Court unanimously dismissed the appeal. Lord Carnwath gave the judgment, with which Lady Hale, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed.

Lord Carnwath noted that the various statutory rules relating to the provision of reasons for planning decisions were are to be found in subordinate legislation and that it was hard to detect a coherent approach to their development.

The three main categories of planning decision were:

(i) decisions of Secretaries of State and inspectors,

(ii) decisions by local planning authorities in connection with planning permission, and

(iii) decisions, at any level, on applications for EIA development.

Lord Carnwath said special duties arose under the EIA Regulations where an application (as in this case) involved a development which was “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” (an “EIA development”).

Regulation 3(4) provides that decision-makers shall not grant planning permission, where the application involves an EIA development, without first taking the environmental information into consideration, and that they must state in their decision that they have done so.

The judge also noted that article 6.9 of the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), to which the United Kingdom is a party, also required each party to make accessible to the public the text of certain decisions involving an EIA, along with reasons and the considerations on which it is based.

Lord Carnwath said that “where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision”.

He added: “The content of that duty should not in principle turn on differences in the procedures by which the decision is arrived at. Local planning authorities are under an unqualified statutory duty to give reasons for refusing permission. There is no reason in principle why the duty to give reasons for grant of permission should become any more onerous.”

The essence of the duty, and the central issue for the court, was whether the information so provided by the authority leaves room for genuine doubt as to what it has decided and why.

The Supreme Court rejected Dover’s argument that a breach of the EIA duty alone should be remedied by a mere declaration of the breach.

Dover had sought to rely on R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 in which the Court of Appeal remedied a failure to provide a statement of reasons without quashing the decision, by ordering only that the statement be provided.

However, Lord Carnwath said in that case it was possible to take the planning committee as adopting the reasoning in the officer’s report which had recommended granting permission.

The Supreme Court judge said that in view of the specific duty to give reasons under the EIA regulations, it was strictly unnecessary to decide what common law duty there may be on a local planning authority to give reasons for grant of a planning permission. “However, since it has been a matter of some controversy in planning circles, and since we have heard full argument, it is right that we should consider it.”

Lord Carnwath said the particular circumstances of the Dover case would, if necessary, have justified the imposition of a common law duty to provide reasons for the grant of permission.

The judge said that although planning law was a creature of statute, the proper interpretation of the statute was underpinned by general common law principles, including fairness and transparency.

He added that it was appropriate for the common law to fill the gaps in the present system of rules, but its intervention should be limited to circumstances where legal policy reasons for it were strong.

In this case the meeting on 13 June 2013 occurred only days after receipt of the planning officers’ long and detailed report, which proposed new and controversial amendments including the reduction in the number of houses.

Lord Carnwath said it was an important legal principle that a decision-maker must not only ask himself the right question, but must take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

Even if there was pressure to reach a decision in this case, Lord Carnwath said, “it seems unfortunate that the committee members did not apparently consider deferring detailed discussion of the officer’s proposed modifications, including the contentious issue of viability”. It was difficult to see how the members could have expected to reach a properly considered decision on the material then before them.

Lord Carnwath said that he was satisfied that a mere declaration of the breach of the EIA duty was not an appropriate or sufficient remedy. “Indeed it is notable that in the three years since the permission was issued, no attempt has been made to formulate the reasons so as to make good the admitted breach. This perhaps underlines the difficulty of reconstructing the operative reasons of the committee on the basis of what is in the minutes.”

He added that the recorded views of those members who supported the proposal did not indicate whether those views were shared by the majority, nor why the members felt able to reject the view of their own advisers without further investigation. Their omission of any legal mechanism to secure the proposed economic benefits, in particular the hotel and conference centre, required explanation.

Furthermore, it was critical, the judge said, to understand the basis of the members’ belief that the harm to the AONB could be “minimised”, which conflicted with the planning officers’ view that screening would be largely ineffective.

Lord Carnwath said these points were not merely incidental, but were fundamental to the officers’ support for the amended scheme. “The committee’s failure to address such points raises a ‘substantial doubt’…. 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 Supreme Court therefore affirmed the quashing order of the Court of Appeal and dismissed the appeal.

In a statement in response to the ruling Dover District Council said: “This is a lengthy and complex judgment and we are currently considering its implications. The judgment affirms the decision of the Court of Appeal (14 September 2016) and the planning permission remains quashed.

“Notwithstanding the decision of the Supreme Court, the underlying planning application remains live. The application, or an amended version of it, could be considered again by Dover District Council’s Planning Committee. The Council will discuss the redetermination of the application with the applicant.”

CPRE Kent Director Hilary Newport said: “This case is not just important to the people of Dover but for the principles of planning law; AONBs merit the highest possible level of protection. Today’s judgment confirms that not only was the decision flawed, but so was the planning committee’s decision-making process.”

Kristina Kenworthy of CPRE Kent’s solicitors Richard Buxton Environmental and Public Law said: “This decision brings much needed clarity to the need for public authorities to give reasons for their decisions. The Supreme Court has confirmed that planning is not a special case: the need for transparency and scrutiny means that people are entitled to know what has been decided and why, and if necessary enable effective recourse to the courts. This decision should lead to more rigour, better planning – and less argument.”

[This article is based in large part on the press summary provided by the Supreme Court]