Planning permission overturned for failure to give reasons

Out-Law News | 09 Aug 2019 | 10:51 am | 2 min. read

The High Court has overturned the decision of a local planning authority (LPA) to grant planning permission for a small housing development against the advice of its own planning officers, on the grounds that the LPA had failed to give adequate reasons for its decision.

Planning officers had recommended that Babergh District Council refuse permission for the six-dwelling development due to its impact on the countryside and inaccessibility. The site was also located outside of the development plan area. The LPA granted permission without providing reasons in a decision notice issued on 20 December 2018, referring to it only in minutes from the related planning committee meeting.

The LPA had previously granted permission for the development in February 2018, also against the advice of its planning officers. That permission was later quashed by the High Court, after the parties agreed that the LPA had not provided adequate reasons for its decision. The High Court has now ruled against the LPA again, granting a judicial review sought by local resident Clive Gare.

Planning judge Mr Martin Rodger QC said that there was no statutory obligation for an LPA provide reasons for its decision. However in this case, given the history of the development and that the council had gone against the officers' recommendation, it was under a "common law duty" to do so.

"I consider that the combination of circumstances in this case clearly required that the council provide reasons for its decision," he said. "This was the third occasion in two and a half years on which a decision had been taken in relation to the site ... The council's disagreement with the advice of its officers is an important additional feature."

Anna Coyle

Solicitor

In some circumstances there will be a common law duty to give reasons for the grant of planning permission – including, specifically, where decisions are made against officer advice – but there remains considerable uncertainty about when this common law duty will apply.

"The fact that the decision was a redetermination following the quashing of the planning permission granted in February is also of significance. The council's concession that it had failed to give adequate reasons for its previous decision to grant permission for the same proposal was inconsistent with a suggestion that it was not obliged to do so. [Gare] and other members of the public were entitled to expect that the same error would not be made again and that the council would explain its thinking on the redetermination," he said.

The judge added that the application was "clearly controversial, with eight objections and five supporting submissions received from a village of fewer than 500 inhabitants". Despite this, the only indication of the planning committee's position was found in the minutes of the meeting, which "ma[d]e no attempt systematically to record the reasons of any individual councillor, or those of the committee as a whole".

The judge was particularly concerned that the notes from the meeting did not clearly show that the council had complied with its duty to decide on an application for planning permission in accordance with the local development plan unless material considerations to the contrary indicated otherwise.

Planning law expert Anna Coyle of Pinsent Masons, the law firm behind Out-Law, said that the judgment was "exactly what we could expect in view of the 2017 Supreme Court ruling in the Dover/Kent case", in which Pinsent Masons acted for an interest party.

"In some circumstances there will be a common law duty to give reasons for the grant of planning permission – including, specifically, where decisions are made against officer advice – but there remains considerable uncertainty about when this common law duty will apply," she said.

"When a local authority grants a controversial development such as this, they should ideally prepare a statement of reasons and ensure that the minutes of the meeting are comprehensive in order to prevent challenge. In this case the minutes were insufficient; the judge commented that there was 'no attempt systematically to record the reasons of any individual councillor, or those of the committee as a whole' and 'it is not possible to know by what route any of those on the committee arrived at their conclusion'. Combined with the lack of reasons the Council was unable to show how or why it made the decision it did," she said.

Coyle said that the judgement was a "cautionary" one, "especially as the judge also agreed that where a local authority doesn't give reasons for a decision different interpretative standards are applied to the report".