Planning permissions and the duty to give reasons

A High Court judge has shed further light on the duty to give reasons for grants of planning permission and has disagreed in part with another recent decision. Jenny Wigley explains why.

The High Court has quashed a planning permission for six bungalows in Babergh District for a failure to give adequate reasons for the decision and for failing to comply with s.38(6) Planning and Compulsory Purchase Act 2004.

The permission had been granted contrary to officer recommendation and it was not clear from the members’ debate whether, and the extent to which, they found a conflict with the development plan.

In Gare, R (On the Application Of) v Babergh District Council [2019] EWHC 2041 (Admin) the Court (Martin Rodger QC, Deputy President of the Upper Tribunal (Lands), sitting as a High Court Judge) found that, in the circumstances of the case (including previous inconsistent decisions and a previously quashed permission) there had been a common law duty to give reasons for the permission.  However, no statement of reasons had been given, only an officer’s report and a record of the members’ debate in the minutes of the meeting.

The Court accepted the claimant’s submission that, where reliance is placed on the officer’s report and minutes as providing, by inference, the reasons for a committee’s decision, the report should be subjected to the standard of scrutiny appropriate to reasons, rather than being assessed for its sufficiency simply as advice. The relevant standard is well known and was explained by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, at [36]: the reasons relied on must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved and giving rise to no substantial doubt as to whether the decision-maker erred in law. The application of the same standard (and not a lesser standard which might suffice for an officer’s report) was considered by the Judge to be necessary as a matter of principle where the report is said to stand as reasons. In this the Court was following the view taken by Lang J in R (Rogers) v. Wycombe DC ([2017] EWHC 3317 (Admin), at [56].

The Judge also expressly stated that, to the extent that Mrs Justice Andrews may have taken a different view from Lang J in the very recent case of Pagham Parish Council v Arun District Council [2019] EWHC 1721 (Admin) (at [35]), he preferred the views of Lang J, to which it does not appear she was referred.

Jenny Wigley is a barrister at Landmark Chambers. She represented the successful claimant.

A copy of the judgment may be viewed here.

(c) HB Editorial Services Ltd 2009-2019