R. (on the application of Campaign to Protect Rural England) v Dover DC [2016] EWCA Civ 936
The Court of Appeal in R. (on the application of Campaign to Protect Rural England) v Dover DC [2016] EWCA Civ 936 has provided additional clarification on the degree of detail required for the reasons of Local Authorities in planning decisions. The reasons for a decision are likely to need to be of greater detail than the norm where members go against officer's recommendations (whereby stepping outside the recommendations in the officer's report) and (a) where the EIA Regs are engaged and/or (b) where there are specific exceptional planning policies such as those relating to AONB.
The case concerned a proposed development of a scale 'unprecedented' in an area of outstanding natural beauty (AONB). Planning permission was granted by the council's planning committee against officer recommendations to refuse. The proposed development invoked consideration of paragraphs 115 and 116 of the NPPF, and the central grounds of challenge for the judicial review centred on the adequacy of the reasons as they evidenced the planning committee's consideration of these national planning policies contrary to the commendations in officer's report.
The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (EIA Regs) also applied to the case which obliged the council to make and keep a statement containing "the main reasons and considerations on which the decision is based…" and "a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development". No such document was produced although during the High Court hearing it was noted that such failure alone would not give rise to a quashing order.
The Court of Appeal supported the principles as to the requirement of reasons for Local Authority planning decisions of Lang J in Hawsworth Securities PLC [2016] EWHC 1870 (Admin) where she stated:
"whereas a minister's decision on appeal is intended to be a 'stand alone' document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal, a local planning authority's reasons for granting planning permission by their very nature do not present a full account of the local planning authority's decision making process, in which the planning officer's report is a crucial part. It is expected that the report will form the background to the reasons. I also consider it would be unduly onerous to impose a duty to give detailed reasons, as proposed by the Claimant, given the volume of applications which have to be processed. For these reasons, I consider that where a Local Authority planning committee gives reasons for a grant of planning permission it need only summarise the main reasons for the decision and can do so briefly. The committee is not required to set out each step in its reasoning, nor indicate which factual matters were accepted or rejected…'
However, the Court of Appeal stated that such approach should be treated with some care and not applied in all circumstances. The overall principle being that "the degree of particularity required depend(s) entirely on the nature of the issues falling for decision".
In the recent case there were several factors which by their nature gave rise to an obligation of greater detail in the council's reasons for the decision. These were:
- there was the important nature of the policy in paragraph 115-116 relating to AONB. A local planning authority that was going to authorise a development that would inflict substantial harm to an area of outstanding natural beauty had to give substantial reasons for doing so;
- where the planning committee departed from the officer's recommendations, especially in an AONB case, it had to, if but briefly, engage with the officer's reasoning; and
- the council had not fulfilled its statutory duty under the EIA Regs to give reasons.
The Court of Appeal quashed the planning permission finding that the planning committee had not given adequate reasons as to whether (a) they had adopted the officer's assessment of harm to AONB; and (b) they considered the proposed modifications would, or might, render the proposal unviable from an economic perspective (a matter of dispute between the council and the applicant's experts). Further, the EIA Regs statutory statement of reasons would have been required to grapple with the issue of hard much more closely than the committee's minutes disclosed, and the strictures of paragraph 116 demanded no less.
Lesson: Where significant planning policies and statutory duties arise more detailed reasons than normal will likely be necessary should members' decision depart form the officer's recommendations in their detailed report. This is the case whether or not EIA Regs apply (although invoking the later will likely highlight significance of policies invoked).
