Out-Law News | 22 Sep 2016 | 3:10 pm | 3 min. read
The appeal judges found that the particular circumstances of the case meant the council should have given more substantial reasons for its decision than might usually have been required.
Dover District Council's planning committee resolved in July 2013 to grant planning permission for two proposed developments to the west of Dover. The plans included 521 homes and a retirement village on a farm in the Kent Downs AONB. The developers also planned a hotel, more than 30 homes and a museum or visitor centre at the site of a protected fortress on a hill overlooking Dover.
Planning officers had recommended that the application in its current form should be refused. The officers' report said the proposals for the farm site "would have a significant detrimental impact on the landscape and would result in long-term irreversible harm to the AONB and the urban edge of the town".
The officers said modifications reducing the number of homes at the farm site by nearly 30% would help offset the landscape harm and "provide a finely balanced exceptional justification for this major AONB development". However, experts appointed by the developers said reducing the housing density would reduce the financial viability of the scheme to the extent that it would be unable to secure financial backing.
In a judgment handed down last week, appeal judges Lord Justice Laws and Lord Justice Simon said the council's planning committee had "failed to give legally adequate reasons for their decision to grant planning permission" against the planning officers' advice.
The judges said it was unclear from committee minutes whether the committee accepted the officers' assessment of the harm that would be caused by the development. They said there was no acknowledgement in the minutes that there would be "a significant detrimental impact on the landscape and would result in long-term irreversible harm to the AONB". It was also unclear whether the committee thought the recommended modifications to the scheme would make it unviable.
Lord Justice Laws noted the established principle that the standard of reasoning that should be provided for a planning decision depends on the nature of the issues being considered.
The appeal judge acknowledged a High Court ruling 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." However, Lord Justice Laws said "there are ... a number of features in the present case which point away from [this] approach".
National planning policy requires that "great weight should be given to conserving landscape and natural beauty in ... AONBs" and that "planning permission should be refused for major developments in these designated areas except in exceptional circumstances". Given the "pressing nature" of this policy, the appeal judge said, "a local planning authority which is going to authorise a development which will inflict substantial harm on an AONB must surely give substantial reasons for doing so."
Lord Justice Laws also found that where a committee decides to disagree with an officer's recommendation, especially in a case relating to an AONB, "it must ('if but briefly') engage with the officers' reasoning".
In addition, the appeal judge said that environmental regulations applied to the case, meaning that the council was obliged to make and keep a statement of reasons for its decision and any measures it considered necessary to avoid, reduce or mitigate any adverse effects. The council had not produced such a document. "In those circumstances it seems to me that the decision should be quashed unless the reasons disclosed in the minutes were, so to speak, just as good," Lord Justice Laws said.
The appeal judges dismissed the council's appeal. However, they agreed that the case was unusual and their decision "should not be read as imposing in general an onerous duty on local planning authorities to give reasons for the grant of permissions, far removed from the approach outlined [in the earlier High Court ruling]."
Planning expert Elizabeth Wiseman of Pinsent Masons, the law firm behind Out-Law.com, said: "The decision is an important reminder to local planning authorities that they must set out clear and adequate reasons for authorising a development. Whilst the Court of Appeal acknowledged that there are differences between an inspector’s decision and a planning authority’s resolution they held that it should be clear to the public why a decision has been made."
"However, it is important to note that the Court of Appeal accepted that this was an unusual case given the scale of the proposed development was unprecedented in an AONB. Therefore local authorities should not read the case as imposing a general onerous duty on them to give reasons for the grant of permission. Nevertheless they are required consider the nature of the issues involved in the decision and how this might impact on the degree of particularity required. In this instance the importance of the status of AONBs and the departure from the planning officer’s recommendations meant that the reasons provided by the local planning authority were inadequate,” Wiseman said.