Due to a number of decisions on reasons, there has been a focus on the need for care when it comes to the explanation of planning decisions, including everything from delegated reports to more sensitive areas. You will find a full guide to the Oakley green belt case here, along with other decisions.
In a campaign to protect Rural England, Kent (CPRE) vs. Dover District Council (2016), EWCA Civ 936, permission for appeal was granted by the Supreme Court. Therefore, this article will analyse the decision and look into the approach from the Court of Appeals to the standard of reasons as required of any authority that is granting permission for the development of a scale that is “unprecedented in an AONB” in the case. Such judgement confirms reasons for approval that may be needed when it comes to planning matters in which basic fairness calls for it, even though there is the absence of statutory duty, especially in cases where significant breaches in policy are taking place. “It highlights benefits of dealing the right way without the need for any statements of reasons while under the EIA regime” claims an expert at Bates Solicitors.
It had been recommended by authority officers that there be a less dense, but no less viable solution for delivering housing in a sensitive area. The members rejected this approach upon viability grounds and the objectors challenged through judicial review using the basis of inadequate reasoning.
There Are No Reasons Required?
The defendant authority got started in the position there is no duty for planning authorities, unlike with the Secretary Of State, for giving detailed reasons on grant of permission, or adopting the lighter touch approach in R (for Hawksworth Securities PLC) vs. Peterborough City Council and Ors (2016) in EWHC 1870 (Admin) where standards applicable to the inspector’s decision on the appeal were distinguished from mere “administrative” decisions by the local planning authorities.
The Court of Appeal went on to recognise that the approach should be treated with care and that any interested parties, and the public, will be just as entitled to knowing why the decision is as is when it is made via authority, as when it is made through the Secretary of the State. In the Dover instance, several factors did justify detailed reasons:
- The nature of the protective NPPF policies will mean decisions to authorising development that will inflict any major harm on an AONB will have to be accompanied by ‘substantial reasons’;
- The departure from the officers’ advice;
- Applicability of statutory duty for making a statement of reasons and the mitigation under Regulation 24(1)(c) for the Town and Country Planning (EIA or Environmental Impact Assessment) Regulations 2011.
- Costly administrative errors
Against that standard, the Committee minutes in question failed to give adequate reasons from a legal standpoint:
- It was unclear as to whether or not members accepted assessment of harm by their officers; if they did, they would have been inflicting irreversible harm on the AONB for limited material before them;
- It was unclear as to whether or not they view the viability issues as mere risk, which would have brought the obligation to address the issue of harm that was even more acute;
- It was unclear as to whether or not they had applied basic, unweighted balance to the AONB protections; and
- They had reached conclusions for visual screening where it was fragile at best and it would have to be supported by reasons a bit more substantial than the sentence found in the minutes.
This judgement confirms that despite the lack of regulation on 24 statements, it may not kill a decision where the reasons are on the record adequately and it could save it where they are not.
Supreme Court Judgement always give a definitive position on the scope and basis for reasons of approval. Nevertheless, a bit of transparency and coherence for any controversial decisions can be a more sensible approach.