Monday, 13 March 2017

“Planning involves no law”, says QC


Country Life magazine is not exactly a bundle of laughs, but it did make me laugh out loud last week, when I read an interview in the magazine with Christopher Boyle QC of Landmark Chambers.

In the course of this he is reported to have said on the subject of town planning: “There’s almost no law in it. Most of the public law principles were established in about 1965 and haven’t changed since.” My wife spotted this article, and handing it to me with a broad grin said, “So you’ve been wasting your time for the past 35 years on all those cases you’ve fought, and doing all that writing about planning law!”

Actually, I think I know what Christopher Boyle meant, because he added, “It’s about evidence, facts arguments, and particularly expert opinion.” If one thinks purely in terms of section 78 appeals against the refusal of planning permission, I wouldn’t disagree with this second remark. In the past, I did a fair number of housing appeals, and major retail appeals (superstores), and quite frankly I found it rather boring, precisely because it involved so little law. This is why I moved away from that sort of work into what I would broadly describe as “troubleshooting” – enforcement, compliance, lawful uses, and the legal interpretation of the voluminous body of legislation, both primary and subordinate, that makes up the corpus of our planning law.

Those of us who enjoy a good legal argument (and I certainly include my colleagues in Keystone Law’s planning law team among this number) find the law involved in town and country planning absolutely fascinating, not least because it is ever-changing. Quite apart from endless tinkering with the legislation by successive governments, there is a constant flow of judgments from the superior courts on all sorts of planning law topics, often involving issues of interpretation (of which the East Herts case on which I reported last week is a typical example).

Actually, the interview in Country Life (written by Clive Aslet) is an entertaining read. I see that Christopher Boyle and I do in fact have two interests in common. His favourite building is the Radcliffe Camera (I agree), and we clearly share a love of P G Wodehouse’s Blandings Castle novels. I suspect, however, that our political views might be rather different.

But enough of this airy persiflage; I must get back to the riveting contents of the Town and Country Planning (Use Classes) Order 1987 (as amended), which will form a central part of my next book, currently in draft and due to be published later this year. I’m afraid it won’t be as much fun to read as one of Wodehouse’s period farces. But it’s what I do.

© MARTIN H GOODALL

Friday, 10 March 2017

Barn conversions under Class Q - Sustainability of location


On Friday, 13 May 2016, I published a post on this topic in which I drew attention to the fact that, notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there were still some LPAs seeking to resist permitted development under Class Q on the basis of ‘sustainability of location’. The appeal decision that prompted me to pen that piece was at Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675]. The LPA had attempted to argue that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The appeal was nevertheless allowed, and I speculated that East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. (This rather upset the legal people at East Herts, and I got a tetchy email from them about it.)

The Sawbridgeworth appeal decision was pretty-well judge-proof on this issue, because as a matter of fact and degree the Inspector had found that the location was not unsustainable in any event. Whether the LPA were deliberately spoiling for a fight on this issue or not, they did later find another appeal decision (at Broxbourne Common ) which they decided to take to the High Court. This challenge was heard on 1 February, and judgment was given by Dove J yesterday, 9 March - East Herts DC v. SSCLG [2017] EWHC 465 (Admin). I wrote in my review of forthcoming cases on New Year’s Eve that my money would be on the Secretary of State to win this one, and so it proved.

The dispute, as before, centred around the words of paragraph Q2(1)(e) - “whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within class C3 (dwelling houses)”, and the gloss put on these words by the Secretary of State in the revision of the online PPG published in March 2015. This stated that “The permitted development right does not apply a test in relation to location as it is recognised the many agricultural buildings are not likely to be in villages and are unlikely to rely on public transport for their daily needs.” It suggested that the LPA should therefore judge whether the location and siting of the building would make it impractical or undesirable to change use to a house, and explained that impractical or undesirable are not defined in the regulations but the LPA should apply a “reasonable ordinary dictionary meaning”. Impractical would mean “not be sensible or realistic” and undesirable would mean “harmful or objectionable”, and it emphasised that if the building is in a location “where the local planning authority would not normally grant planning permission for a new dwelling” this is “not a sufficient reason for refusing prior approval”. The developer had argued that if the meaning of these words is to be an ordinary dictionary definition found in the English dictionary this would not refer to planning definitions, so that the use of the word “Harmful” would not automatically mean harmful to the green belt.

The Council, on the other hand, relied on the NPPF (and in particular paragraph 55). The planning officers considered that the location of the building was in an unsustainable location and no significant enhancement would be achieved by the conversion. They had reviewed the changes made to the PPG, in terms of what is meant by impractical or undesirable for the change to residential use, but remained of the view that the site was undesirable, in that it would be harmful and objectionable to allow a change of the use of the building to residential in a fundamentally unsustainable location. The Council therefore refused the prior approval application on the grounds that: “the proposal would create an isolated dwelling in the countryside away from key services and infrastructure such as public transport, schools and shops. The location of the building is undesirable for use falling within Class C3(dwelling houses) of the Schedule to the Use Classes Order and it would result in an unsustainable form of development contrary to the provisions of the National Planning Policy Framework.”

In the appeal that followed, the LPA contended that there was conflict between the PPG’s guidance and the terms of the Order. It was contended that the guidance could not alter the proper interpretation of the 2015 Order. The Council had sought legal advice as to whether its interpretation of this matter was correct as a matter of law. The advice received stated that as a matter of law, the GPDO requires the Council, when considering whether or not to grant prior approval for the conversion of an agricultural barn to a dwelling, to take into account all policies of the NPPF that would ordinarily be relevant to the question of the practicality or desirability of allowing such development in whatever location is proposed. They therefore argued that paragraphs. 108 and 109 of the PPG (which suggested that an LPA must exclude such policies of the NPPF from consideration) were wrong. For that reason the Council had taken account of the NPPF in determining this prior approval application, as required by the Order.

In allowing the appeal, against this decision, the Inspector pointed out that the Planning Practice Guidance (PPG) provided the most up-to-date guidance on the interpretation of Class Q and she had attached substantial weight to paragraphs 108 and 109 of this document. In the appeal, the Council had contended that the proposal would create an isolated dwelling in the countryside, and that the location of the building was unsustainable. On this basis, the Council stated that the building is undesirable for a use falling within Class C3. However, in the Inspector’s view, the PPG makes it clear that it does not apply a test in relation to the sustainability of the location. As such, she could not agree with the approach adopted by the Council in terms of the sustainability issues raised in relation to paragraphs 49 and 55 of the NPPF. The Council claimed that there was a conflict between the PPG and the requirements of the Order. However, in the Inspector’s view there is no conflict between the general presumption in favour of sustainable development set out within the NPPF and the very clear guidance identified at paragraphs 108 and 109 of the PPG in relation to this part of the GPDO. In light of all the evidence, it could not therefore be argued that it would be impractical or undesirable to convert the building to residential use.

Whilst the PPG spoke in terms of “sustainability” of location it was agreed between the parties at the hearing before the Court that in truth what is being addressed in paragraph 108 is “accessibility” of location, both in terms of the generation of travel demand and distances to work, services and facilities and also in terms of the ability to obtain access to destinations by choice of modes of travel and in particular slow modes. This concept is of course a key ingredient in the much broader multi-faceted concept of sustainable development.

Counsel for the Secretary of State drew the judge’s attention to the Explanatory Memorandum to the GPDO at the point when the class was introduced. He submitted, based on the Explanatory Memorandum, that the purpose of introducing this class of permitted development was to promote the provision of new homes. Thus he submitted that the interpretation of the term “undesirable”, and the application of the NPPF, had to be undertaken bearing in mind that the purpose of introducing this class of permitted development was to enable the change of use of agricultural buildings to dwellings in circumstances where permission might not be granted pursuant to a conventional application. On this point, having considered the provisions of the Explanatory Memorandum, his lordship was satisfied that the purposes of the creation of this new permitted development right was clearly to “deliver more homes” and to increase housing supply. The outcome which the legislation has in mind is clear and is intended to lead to the development of residential uses in locations which would not ordinarily be contemplated by the undiluted application of, for instance, policies in the NPPF relating to location.

Turning to the meaning of the term “undesirable” in this context, the judge was satisfied that it is a word that calls for an exercise of planning judgment. He had reached that conclusion since it is an adjective with a potentially broad meaning and purview, used within the context of an approval process in planning legislation. The planning judgment to be made arises in the context of the qualified entitlement that Class Q creates. Given that conclusion, an error of law could only arise if that planning judgment were affected by one of the traditional public law grounds of challenge.

The assessment of location, as distinct perhaps from other aspects of the desirability of location such as the impact of odour or dust from adjacent developments, has to be examined through the prism of the purpose of the legislation. To apply to the Class Q prior approval process, in making this planning judgment, the policies of the NPPF with the same rigour in respect of accessibility of residential development as would be applied to an application for planning permission for residential use would have the potential to frustrate the purpose of the introduction of the class, namely to increase the supply of housing through the conversion of agricultural buildings which by definition will very frequently be in the open countryside. Thus whilst accessibility is not an irrelevant consideration when considering paragraph Q2(1)(e), the bar in relation to the test of unacceptable inaccessibility will necessarily be set significantly higher than it would in the context of an application for planning permission.

His lordship did not consider that this approach to the exercise of the planning judgment of what may be “undesirable” about the location of the agricultural building in the context of Class Q is in any way undermined by the reference within paragraph W(10)(b) to the requirement for the local planning authority to have regard to the NPPF when considering a prior approval application “as if the application were a planning application”. That application of the NPPF must be undertaken in the context of a proper understanding of the test being considered, namely in this case undesirability of location. It is in the context of an understanding of paragraph Q2(e) that the NPPF must be applied. The NPPF cannot be applied so as to frustrate the purpose of identifying the class of permitted development in the first place.

He therefore concluded that the PPG, in paragraphs 108 and 109, reflects this approach. These paragraphs helpfully explain that there is no specific requirement within paragraph Q2(1) in relation to accessibility of location, and also that the fact that an agricultural building is in a location where planning permission would not normally be granted for accessibility reasons will not amount to a sufficient reason for refusing prior approval. Both of those observations are apposite and reflect the approach to requiring a far stronger objection on accessibility grounds than would be required to resist a planning application, for the reasons which have already been set out above.

The judge specifically rejected the LPA’s argument that, by virtue of paragraph 55, the location of the agricultural building to be converted was in a location which was unacceptable for accessibility reasons, and that the application of paragraph 55 to the location leads to the conclusion that the proposal should be refused. In essence this argument was the equivalent of an argument that the prior approval should be refused because the agricultural building was in a location where the LPA would not normally grant planning permission for a new dwelling on accessibility grounds. That was a contention which was contrary to the guidance in paragraphs 108 and 109 which, for the reasons he had already given, his lordship accepted is consistent with sensible parameters for the exercise of the planning judgment required. It followed that the Inspector was entitled, as she did in her decision letter, to conclude that the Council’s objections based on paragraph 55 of the NPPF could not be maintained. Having rejected that contention, the Inspector was entitled to form the view that it could not be argued that “it would be impractical or undesirable to convert the building to residential use”.

It followed that the Inspector was entitled to form the conclusions which she did. Her rejection of the LPA’s argument that paragraph 55 of the NPPF should be applied with full rigour to this prior approval in forming her planning judgment on whether the change of use of this agricultural building was in an “undesirable” location, was clearly open to her and reflected the particular context in which her judgment had to be reached.

In the appeal, an application for the costs of the appeal was made on behalf of the developer, on the basis that the LPA had ignored the “precise and specific” PPG guidance and continued to take decisions contrary to earlier appeals where their views had been rejected. The Inspector had made an award of costs for this reason. On this basis, her decision on the costs application was also unassailable. Having reached the justifiable conclusions which she did, and having disagreed with the approach of the Council for entirely proper reasons, she was entitled to form the view in reliance upon earlier appeal decisions of a like nature that the Council’s refusal in the present case was one which was unreasonable and that costs should be awarded.

The Council’s challenge to both the appeal decision and the costs decision was accordingly dismissed.

Bearing in mind that a number of similar planning appeals had already been allowed where LPAs had sought to resist permitted development under Class Q on grounds similar to those canvassed by East Herts in this case, applying the very clear ministerial guidance in paragraphs 108 and 109 of the PPG, it is hardly surprising that the Council lost this appeal, with costs, and that their challenge to that decision in the High Court then failed. East Herts have, however, done us all a favour by putting an end to any lingering doubts that LPAs may have had on this issue.

© MARTIN H GOODALL

Monday, 6 March 2017

Reasons for granting planning permission yet again (and finally?)


I have reported on several cases in the past few weeks in which the need for a local planning authority to state its reasons for granting planning permission has been reviewed by the courts. On Tuesday, 17 January, I reported on the case of R (CPRE Kent) v Dover DC [2016] EWCA Civ 936, in which judgment was given on 14 September 2016. The Supreme Court has now given permission to the LPA and the developer to appeal against the Court of Appeal’s decision.

The appeal should be heard in the Supreme Court towards the end of the year, and it is to be hoped that a definitive ruling will then be given as to whether or not an LPA is under any legal obligation to state its reasons for granting planning permission and, if so, in what circumstances and to what extent.

Watch this space around the end of the year.

© MARTIN H GOODALL

Wednesday, 1 March 2017

Jumping the gun on permitted development


In my book (A Practical Guide to Permitted Changes of Use), I warned both in paragraphs 13.0 and 14.10 of the consequences of commencing development before the happening of one or other of three events – (a) notification that the LPA’s prior approval will not be required, (b) notification that prior approval is granted, or (c) the expiry of 56 days following the date on which the application was received by the LPA. I cited as an example an appeal decision [3136527] in February 2016, and I made the point that this was only one of a number of such appeal decisions where the developer had “jumped the gun”.

A judgment of the High Court in Winters v. SSCLG [2017] EWHC 357 (Admin), which was issued on 24 February, has provided further confirmation of this point. This case involved the erection of a larger domestic extension under Part 1, Class A of the Second Schedule to the GPDO, but exactly the same principle applies to developments requiring prior approval under Part 3 (Classes C, J, M, N, O, P, PA, Q, S, T and, in some cases, R).

In Part 1, Condition A.4(2) stipulates that “Before beginning the development” the developer must make a prior approval application, including all the information prescribed by this condition. In the same way, each of the Classes in Part 3 mentioned above is “subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required” as to the matters specified in respect of that Class of permitted development.

Furthermore, in Part 1, Condition A.4(10) clearly states that –

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;
(b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 42 days following the date on which the information referred to in subparagraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

In Part 3, paragraph W.(11) similarly provides that :

“The development must not begin before the occurrence of one of the following—
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

It is therefore clear that the judgment in Winters is equally applicable to developments under Part 3. The provisions in Part 3, including paragraph W.(11), are unequivocal. Before beginning the development the developer must make a prior approval application and, furthermore, the development must not begin before the occurrence of one of the three events mentioned above.

In Winters, the LPA did not give notice of their determination within the 42-day period that applies under Part 1, and it was contended on behalf of the claimant that this entitled her to continue with and to complete the development. However, as the learned Deputy Judge observed, whilst it is true that once the 42-day period [56 days in the case of Part 3] has expired without receipt by the developer of written notice that prior approval is not required or has been granted, the developer’s proposed development can be carried out in accordance with the details provided in the application, the planning permission granted by the GPDO does not authorise the carrying out of any development any part of which was begun before an application for prior approval was made to the LPA. Accordingly, in the Winters appeal, the Inspector was not obliged to allow the Claimant’s appeal if works to provide the extension had begun before she submitted her application to the Council.

It was contended on behalf of the claimant in that case that the Inspector had erred in law in finding that development had in fact commenced, but the court found nothing amiss in the Inspector’s treatment of the evidence or in respect of his observations on his site visit, and so the challenge to the Inspector’s conclusion that works on constructing the extension had begun before the claimant applied to the Council therefore failed and, for the reasons given in the judgment, the claimant’s challenge to the Inspector’s appeal decision was dismissed.

© MARTIN H GOODALL

Monday, 27 February 2017

Housing White Paper


Readers may be wondering why there has been such a deafening silence on my part since the publication of the Housing White Paper, while other planning professionals have busied themselves in publishing briefing notes and organising seminars left, right and centre.

However, the plain fact is that this was only a White Paper – a statement of various aspirations on the part of government, some of which may be realised in due course while others are quietly forgotten. I really see no point in wasting time on the White Paper itself, preferring to comment on particular changes in planning law and procedure when they come forward in due course.

Meanwhile, I remain sceptical of the government’s stated aim of building a million new homes by 2020. This would require an annual completion rate as high as, if not higher than, the building rate achieved under the dynamic leadership of Harold Macmillan as Minister of Housing and Local Government in the early 1950s, which included a substantial proportion of publicly funded social housing [“council houses” – remember them?]. Does the government seriously expect the private sector now to match that building rate without such a significant public sector input? Let’s be realistic – it simply won’t happen.

© MARTIN GOODALL

GARETH HUGHES JOINS KEYSTONE LAW


Time has not allowed me previously to note here the arrival of the latest addition to Keystone Law’s planning law team. This is Gareth Hughes, who joined us late last year, bringing our planning law team up to six in number.

Gareth is a skilled barrister who acts for an impressive portfolio of clients in the hospitality and entertainment sectors on both licensing and planning matters. He regularly acts as an advocate on behalf of clients before licensing committees all over the country and on appeal to the Magistrates’ Court, having dealt with cases right up to the Court of Appeal and the House of Lords on major points of law.

With over 25 years’ experience acting for many of the leading companies and individuals in the hospitality sector he has built up a significant network of relationships with elected councillors, council officers and police as well as residents groups particularly in the City of Westminster.

Gareth’s arrival is just one element in Keystone Law’s continuing growth. The firm now numbers over 200 lawyers in its ranks (both solicitors and barristers), and has recently extended its practice to Northern Ireland. This leaves Scotland as the only jurisdiction in the British Isles in which Keystone Law does not yet practise (having previously established offices in the Isle of Man and the Channel Islands). The continued expansion of the firm has prompted a move of our London headquarters to smart new offices in Chancery Lane, and there is no sign of the pace of growth slowing down.

As I have said on several previous occasions, this blog is not (and never has been) intended as a marketing tool, but it is nevertheless a source of pride and satisfaction to be part of this award-winning and innovative legal practice, and so I make no apologies for blowing a small toot on the trumpet occasionally.

© MARTIN GOODALL

Thursday, 16 February 2017

Reasons for granting planning permission (3)


In my second post on this topic, on 20 January, there was a brief passing reference to the High Court decision in Oakley v S Cambs DC [2016] EWHC 570 (Admin) (at [35]-[41]). That judgment has now been reversed by the Court of Appeal in a judgment handed down yesterday (15 February) - [2017] EWCA Civ 71.

In the High Court, Kay J had referred to a passage in the decision of the Court of Appeal in R v Aylesbury Vale DC, ex p. Chaplin (1997) 76 P&CR 207 (at page 212) which, he accepted, offered some weak support for the proposition that there may be cases – perhaps multiple issue cases – where a duty to give reasons may arise. Chaplin was decided before the advent of a statutory duty to give reasons, but he did not believe that this altered the approach he should be taking to it. The correct, and “parsimonious”, approach to Chaplin, he observed, is that it is not authority for the proposition that complexity is the touchstone. In his view, there might be situations where planning committee decisions do appear aberrant, and in that specific context the complexity of the case may be a relevant factor. Thus, he was not to be understood as holding that a duty to give reasons could never arise; he was “simply keeping the judicial powder dry”.

The present case, involving the development of a football stadium, was one in which a planning committee had resolved to grant planning permission against the recommendation of their officers that it should be refused. In the Court of Appeal, Elias LJ noted that, as Mr Justice Kay had pointed out, between 2003 and 2013 there was a statutory duty to give summary reasons for all planning decisions, but this was removed for planning approvals. The statutory obligation now is to give reasons only where permission is refused, although if it is granted subject to conditions, reasons must be given explaining why the conditions have been imposed. However, it was common ground (both at first instance and in the Court of Appeal) that although there is no statutory obligation to give reasons where permission is granted, it does not follow that there is never any obligation to do so. A common law obligation may arise in appropriate circumstances. The decision of the Court of Appeal in ex p. Chaplin held that there is no general common law duty to give reasons in planning cases; the question in issue was whether it arose in the particular circumstances here.

Following R v. Home Secretary ex p. Doody [1994] AC 531 and R v HEFC ex p Institute of Dental Surgery, Kay J agreed that these authorities showed that there are two distinct circumstances where reasons should be given. The first, as in Doody, was where the nature of the decision required it on grounds of fairness; the second was where, to use the terminology of Sedley J in the Dental Surgery case, there was something “aberrant” in the particular decision which called out for explanation. The former justifies the imposition of a duty to give reasons in a class of case whereas the latter justifies it by reference to the particular decision in issue.

It was submitted by the appellant before Kay J that the present case was similarly “crying out for an explanation”, given that the planning committee had departed from the considered recommendation of the officer. The judge had rejected that submission. He did not accept that there was anything intrinsically peculiar or aberrant in the committee disagreeing with the officer’s recommendation. He had therefore held that this fact alone was not enough to trigger a duty to give reasons.

Moreover, in the judge’s view, there were good reasons for not imposing a common law duty given the nature and character of the decision-making process. The judge had referred to observations made by Sedley J in the Dental Surgery case when he said that giving reasons “may place an undue burden on decision makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments”. In the judge’s view, that fairly characterised the position here.

In the Court of Appeal, the argument that the committee’s decision had been “aberrant” was not pursued, and would clearly not have met with the court’s sympathy. Elias LJ agreed with the judge at first instance that a decision could not fairly be characterised as aberrant simply because the committee disagrees with an officer’s recommendation. However, for the reasons that Elias LJ went on to explain, the fact that the committee has departed from the officer’s report may in some contexts be a relevant factor supporting the conclusion that a common law duty to give reasons should be imposed.

There were two distinct issues in the present case which needed to be considered. The first was whether it is possible to infer the reasoning of the committee from the materials in the public domain, and in particular the officer’s report. The second, assuming that this is not possible, is whether there is a duty on the committee to explain its reasoning. The latter issue raises a point of general principle whilst the former was particular to the facts of this case.

There are arguments for and against a common law requirement to give reasons. On the one hand, it may generally be desirable for administrative bodies to give reasons for their decisions. It would focus the mind of the decision-making body, thereby increasing the likelihood that the decision will be lawfully made, thereby promoting public confidence in the decision-making process; it would provide, or at least facilitate, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and it would respect the individual’s interest in understanding (and perhaps thereby more readily accepting) why a decision affecting him has been made. This last consideration, Elias LJ observed, is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.

On the other hand, the disadvantage (accepted by Kay J in this case) is that having to provide reasons, particularly where they have to withstand careful scrutiny by lawyers [!], might involve an undue burden on the decision maker.

Statute frequently, and in a wide range of circumstances, obliges an administrative body to give reasons, although the content of that duty, in the sense of the degree of specificity of the reasons required, will vary from context to context. However, absent some statutory obligation, the question whether reasons are required depends upon the common law.

Elias LJ accepted that it is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in ex p. Doody . However, the tendency increasingly is to require them rather than not. Indeed, almost twenty years ago, when giving judgment in Stefan v GMC (No.1) [1999] 1 WLR 1293, at 1300, Lord Clyde observed: “There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.

In view of this, his Lordship said, it may be more accurate to say that the common law is moving to the position that, whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.

A further basis for requiring reasons to be given arises where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not (see e.g. Norton Tool Co. Ltd v Tewson [1973] 1 WLR. 45). Elias LJ felt that there is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. However, if this were always to ground a basis for requiring reasons to be given, it would be inconsistent with the lack of any general common law obligation to give reasons. Nonetheless, he observed, there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt.

If reasons are not given, there are considerable difficulties facing a potential claimant who suspects that something may be wrong with a decision but is unsure. Unless the decision is plainly perverse, the assumption will necessarily be that the decision was lawfully made. There is a presumption to that effect, given that the burden of establishing illegality is on the applicant. No doubt there will be cases where a party has sufficient material to be able to mount some sort of legal challenge and get beyond the leave stage. In those circumstances, the respondent will effectively be compelled to provide reasons in order to defend the case, because if no reasons are given, the court may infer that the decision is bad (see the House of Lords decision in Padfield [1968] AC 997). Even then, however, the applicant may not be given full reasons, merely such explanation of the reasoning as meets the particular ground of challenge. Moreover, if the basis of the claim is too speculative - as it may well be where no reasons are available - the application is likely to fail at the leave stage.

Elias LJ then reviewed the circumstances in which a statutory requirement to give summary reasons for the grant of planning permission had been introduced in 2003, and the justifications for that change. However, that duty was removed in June 2013. The reason for doing so was explained in an Explanatory Memorandum prepared by DCLG and laid before Parliament. It was thought that the requirement to provide a summary statement of reasons added little to the officer’s report “and therefore adds little to the transparency or the quality of the decision-making process, but it does add to the burdens on local planning authorities”. The memorandum pointed out that much of the relevant documentation relating to planning applications was now available on-line. It explained that the removal of the duty sought “to reduce the regulatory burden and offer time-saving benefits to local authorities, without reducing the transparency or accountability of the decision-making process”. The assumption, therefore, was that where permission is granted, typically the reasoning will be sufficiently transparent since it can be gleaned from the available materials so that there is no need for a formal statement of reasons.

It seems clear that the Court of Appeal’s decision in the present case was influenced by the fact that the decision under challenge had a number of distinct features relied upon by the appellant. Not only had the committee disagreed with the officer’s recommendation, but in addition it had done so in circumstances where its decision was not consistent with the local development plan and involved development in the Green Belt. Prima facie this is inappropriate development and the planning committee was required to conclude that the adverse effects “by reason of inappropriateness and any other harm” are clearly outweighed by other considerations.

In these circumstances, public policy requires strong countervailing benefits before such a development can be allowed, and affected members of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In Elias LJ’s judgment, these considerations demanded that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there was in his judgment an overwhelming case for imposing the duty here.

That conclusion was, in his judgment, reinforced where the committee had departed from the officer’s recommendation. The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required. As Elias LJ said, he would not impose the duty to give reasons on the grounds that the committee’s decision appears to be “aberrant”, but the dictates of good administration and the need for transparency were particularly strong here, and they reinforced the justification for imposing the common law duty on the committee to state their reasons for the grant of planning permission.

Sales LJ gave a reasoned judgment in agreeing with Elias LJ. Patten LJ also agreed. The appeal was therefore allowed unanimously.

As the Court of Appeal recognised, there are arguments both for and against imposing a common law duty on LPAs to give reasons for the grant of planning permission. The position after this judgment clearly remains that there is no general duty to give reasons, but the Court of Appeal appears to have widened further the circumstances in which reasons will nevertheless be required.

I can fully understand why the court came to their decision in the particular circumstances of this case, but I have misgivings in principle about a common law duty to give reasons for the grant of planning permission (as distinct from such a duty to give reasons in other situations where public law principles apply). My reason for this is that planning law is entirely the creature of statute. Planning law is not derived from our common law, and when the courts have been tempted to apply common law principles to planning cases, it has been necessary for the House of Lords (or now the Supreme Court) to correct this tendency, for example in Reprotech, which confirmed that the general law of estoppel has no application in planning law. Other examples could be cited.

What makes it particularly undesirable that LPAs should be put under an obligation by the courts to give reasons for granting planning permission is that a specific statutory requirement to do so (or at least to give a brief summary of their reasons) was imposed in 2003, and then removed in 2013 for reasons that were clearly explained to parliament. Planning law is a single and comprehensive body of statutory provisions governing every aspect of the planning system. It seems to me, therefore, that it is for parliament in primary legislation and ministers in subordinate legislation made under powers granted to them by parliament to determine whether or not reasons for the grant of planning permission should or should not be made explicit by an LPA, and if so to what extent. Both ministers and the courts appear to be in agreement that there is, and should be, no general duty to this effect; on the other hand, there may well be very good grounds for imposing such a duty in certain circumstances (such as those canvassed in this case and in other judgments which were drawn to the attention of the court), but I would still maintain that is for parliament and/or ministers, not for the courts, to impose such a duty on LPAs.

© MARTIN H GOODALL