Dover District Council v CPRE Kent

Facts

Dover District Council, as local planning authority, considered an application by a developer for a major mixed development, including several hundred homes, a hotel and a retirement village, at Farthingloe within the Kent Downs AONB. The planning officers recommended that only a reduced scheme be approved, because of the harm the full scheme would cause to the AONB. The planning committee nonetheless resolved to grant permission for the full scheme. The project was EIA development, so the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 applied. CPRE Kent, a conservation charity, sought judicial review of the grant.

History

The High Court (Haddon-Cave J) dismissed the claim. The Court of Appeal allowed the appeal of CPRE Kent and quashed the permission for want of adequate reasons. The council and the developer appealed to the Supreme Court.

Issue

Whether the council had given legally adequate reasons for granting permission, under the EIA Regulations or at common law; what standard of reasons is required where a committee departs from the advice of its officers on a major development affecting a protected landscape; and whether the permission should be quashed.

Held

Appeal dismissed. The reasons given were inadequate and the grant of planning permission was quashed.

Ratio

• Where a statutory duty to give reasons for a planning decision applies, the reasons must enable the reader to understand why the matter was decided as it was and how the principal controversial issues were resolved; a committee which grants permission for a major development in an AONB contrary to the reasoned advice of its officers must explain, at least briefly, why it took a different view of the planning balance.
• Even absent a statutory duty, the common law may require reasons for a planning decision where the importance of the decision, its departure from officer advice or from policy, and the interests of those affected make fairness and transparency demand them.

The judgments

Key reasoning

• The officer report had identified serious harm to the AONB and recommended a smaller scheme; national policy required exceptional circumstances for major development in an AONB, so the committee needed to explain how it reached the opposite conclusion.
• The committee minutes recorded only general references to economic benefits and did not engage with the harm identified by officers, so a reader could not tell how the main controversial issue had been resolved.
• The adequacy of reasons is judged by the standard in South Bucks DC v Porter (No 2): reasons may be brief and need not deal with every point, but must not leave genuine doubt as to what was decided and why on the principal important controversial issues.
• The common law duty to give reasons, though not general, can be triggered by the circumstances of a decision, including where a planning authority grants permission in the face of substantial public opposition and against officer advice, as the Court of Appeal had held in R (Oakley) v South Cambridgeshire DC [2017] EWCA Civ 71, which Lord Carnwath approved.
• A failure to give adequate reasons on a central issue is not cured by later explanation; the appropriate remedy was to quash the permission rather than to allow the council to supplement its reasons.

Obiter

• Lord Carnwath observed that the statutory reasons requirements in planning law had developed piecemeal, and that the common law could fill gaps where statutory duties did not reach a decision, while cautioning against imposing burdensome reasons requirements on every planning committee decision.

Where it fits in the module

On the topic of giving reasons, Dover sits alongside R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 and R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310 in the debate about whether the common law should recognise a general duty to give reasons. It shows the courts continuing to refuse a general duty while expanding the categories in which reasons are required, and it links the duty to the values of transparency, public confidence and the ability to challenge decisions.

Criticisms

• The refusal to recognise a general duty while finding duties in an expanding range of circumstances leaves the law uncertain, since decision-makers cannot readily predict when reasons will be required.
• Tying the content of reasons to whether a committee departed from officer advice arguably privileges the views of officials over elected members, who are entitled to weigh the planning balance differently.
• Quashing a major permission for inadequate reasons may be thought disproportionate where the decision-maker might well reach the same result on reconsideration, though the court treated reasons as integral to the legality of the decision.