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.