Supreme Court Requires Reasons To Be Given for Controversial Planning Decisions

In an important judgment that reviews the obligation to give reasons in planning cases, the Supreme Court has dismissed the appeal in Dover DC v CPRE Kent [2017] UKSC 79 and affirmed the decision of the Court of Appeal quashing permission for major development in the Kent Downs AONB.

Lord Carnwath (with whom Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agreed) held that:

  • The standard of reasons summarised by Lord Brown in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 applies generally, and is relevant for environmental impact assessment (EIA) development
  • If a party can establish a material defect in reasoning, the appropriate remedy will generally be to quash the planning permission
  • For EIA development in particular “the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation”, so it is insufficient to provide a statement of reasons after the grant of planning permission; in that regard the Supreme Court declined to follow the reasoning in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920
  • At common law, fairness may require the provision of reasons for the grant of planning permission, despite the lack of an express statutory duty
  • A separate statement of reasons will therefore likely be required for the grant of planning permission against officers’ recommendation for controversial development in conflict with local and national policies; Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 was correctly decided

Lord Carnwath noted that members of Dover District Council’s planning committee had “an unenviable task” (para.61) and that “[i]t is difficult to see how the members could have expected to reach a properly considered decision on the material then before them” (para.63). This was particularly true of “the contentious issue of viability”. He considered that with hindsight, nothing would have been lost if members had deferred their decision in order properly to address the issues in hand.

The case is of considerable significance for LPAs, Developers and Objectors alike on the nature, scope and standard of reasons required for planning decisions. For EIA development and especially controversial projects the position is clearer. However, exactly when a separate statement of reasons will be required in other cases and the content of such a statement is not answered.

Direct Action and Natural Justice

The recent case of R (Usher) v Forest Heath DC explored the relationship between decisions to take direct action and requirements of natural justice.

In the case, the Claimants argued that the LPA was under obligations to invite representations from them in respect of proposed direct action and to notify them of its decision to take direct action basing their argument on the principles of natural justice (and the DC’s Constitution) relying upon the serious consequences that would arise, in particular the entry onto the Claimants’ land; the power of recovery of costs; the power to place a charge on the land and finally the potential criminal liability. 

Nathalie Lieven QC, sitting as a Deputy High Court Judge, held that the Claimants’ arguments failed both on the law and on the facts.

The Claimants had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under Section 174 of the TCPA. They had had every opportunity to make representations and indeed had done so. They knew that the LPA intended to take direct action if the building was not removed voluntarily. A decision to take direct action is not a quasi-judicial decision; it is an administrative step to achieve compliance with an enforcement notice. That does not mean that it carries no procedural protection within the rules of procedural fairness, but it is not the type of decision that falls within the Constitution as being ‘quasi-judicial’. That phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision. Nor, as a preliminary view, was the decision to take direct action the determination of a civil right which falls within ECHR Article 6. The Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to the court under Section 289 of the TCPA. There was no breach of procedural fairness.

The Claimants also argued that alternatives to direct action were not properly considered by the LPA, contrary to Government Guidance, the Planning Practice Guidance (“the PPG”).

The Judge observed that the first resort for compliance with an enforcement notice is for the landowner him or herself to comply with the notice. The Claimants had chosen not to do that, despite being given very clear extended deadlines by the LPA to carry out the requisite work themselves. 

She did not read the PPG as suggesting that a LPA must take some other action, e.g. an injunction or a prosecution, before they decide to take direct action. If the PPG had said this, it would not accord with the Act itsel,f which requires no hierarchy or priority of further enforcement steps. There was no legal obligation to seek an injunction before direct action was taken. Equally, there was no requirement to take criminal proceedings first. Criminal proceedings in the enforcement context could only be a way of persuading the landowner to comply with the notice, not an alternative to doing so. Therefore, it may well be more effective for the local planning authority to proceed to direct action rather than take criminal proceedings.