In the recent case of Karen Louise Oakley (Claimant) v South Cambridgeshire District Council (Defendant) & Len Satchell (Interested Party) [2016] EWHC 570 (Admin), the High Court held that the local authority had no duty to provide reasons for granting planning permission contrary to a planning officer's recommendation.
By contrast, in James Joseph Horada (on behalf of the Shepherd's Bush Market Tenants' Association) v Secretary of State for Communities and Local Government [2016] EWCA Civ 169, the Court of Appeal held that the Secretary of State had a duty to give reasons for confirming a compulsory purchase order (CPO) contrary to an inspector's recommendation.
On the face of it, these cases appear to contradict each other. However, read in conjunction, they provide helpful guidance as to when a judicial review challenge based on a lack of reasons may be possible.
Key Points:
- The court will first consider whether there are express provisions governing the duty to give reasons.
- The common law duty to give reasons should intervene only if fairness requires it.
- If reasons are required, they should be intelligible and adequate.
- A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.
- Oakley
This case concerned a planning permission application to build a football ground within the Green Belt. A planning officer had produced a report advising South Cambridgeshire District Council (the "Council") to refuse the application. The Council reviewed the planning officer's report and the proposed development plan, and concluded that planning permission should be granted. Following the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the "DMPO"), which removed the local authorities' duty to give reasons for granting planning permission, the Council did not provide reasons for its decision. The applicant challenged the decision on the basis that the Council should have, in the circumstances, given reasons for its decision to grant planning permission, notwithstanding the DMPO's lifting of the reasons requirement.
The High Court noted the following:
- under the DMPO, the Council did not have a statutory duty to give reasons for granting planning permission;
- delegating decision-making powers to democratically elected councillors is a matter of democratic accountability;
- council members may be expected to have substantial local and background knowledge;
- the purpose of an officer's report is to draw members' attention to the proper approach required by law and material considerations. Such reports may contain recommendations, but the ultimate decision-makers are democratically elected councillors, accountable to the local community which elected them; and
- it is the task of members, not officers or the courts, to weigh the competing public and private interests involved in the exercise of their planning judgment. These are policy judgments made by expert tribunals within their areas of special competence.
The recent abrogation under the DMPO of the express statutory requirement to give reasons was not determinative of the common law position where fairness may still require reasons to be given. In fact, the Court concluded that the legislators had left it to judges to decide when this duty would exist. Imposing such a duty may place "an undue burden on decision-makers, [demand] an appearance of unanimity where there is diversity, [and] call for the articulation of sometimes inexpressible value judgments". As such, the Court concluded that common law fairness did not require the Council to give reasons for disagreeing with the planning officer's recommendation.
Instances where fairness may require reasons to be given include where there is "something peculiar to the decision", or some form of apparent aberration.
- Shepherd's Bush Market
As part of the Shepherd's Bush Market regeneration project, a CPO was approved by the Secretary of State, with conditions which purported to safeguard the existing tenants' interests during and after the project. Following over 200 objections to the CPO, a public inquiry was held and a planning inspector made a detailed recommendation not to confirm the CPO. However, the Secretary of State disagreed with the inspector and confirmed the CPO. The applicant alleged that the Secretary of State had failed to give adequate reasons.
It was conceded that the relevant procedural rules required the Secretary of State to give reasons for the decision. The important question raised was the extent of the duty to give reasons. One of the purposes of giving reasons was to "enable the affected party to decide whether the decision is susceptible to legal challenge". The Court confirmed the established position that the reasons for a decision must:
- be intelligible and adequate;
- enable the reader to understand why the matter was decided as it was, and what conclusions were reached on the "principal important controversial issues" (not every issue), disclosing how any issue of law or fact was resolved; and
- not give rise to a substantial doubt as to whether the decision-maker erred in law.
Lord Thomas also added that reasons should be explained in plain English which the affected party can understand without the need for a lawyer or other professional.
The degree of particularity required would depend on the nature of the issues falling for decision.
Following a detailed examination of the circumstances of the case, the Court held that the Secretary of State did not correctly identify the principal important controversial issues raised in the inspector's report, and he did not give adequate explicit reasons for disagreeing with the inspector.
The Court noted a number of authorities which suggested that where the decision-maker did not agree with the recommendation put to him the reasons may need to be fuller (although it should be noted that most of these cases related to the old statutory duty to give reasons for granting planning permission which no longer exists). In addition, a higher standard of reasoning is generally expected from the Secretary of State than from a local authority.
In this case, the reasons given at the time were little more than "bald assertions" and did not match up to the explanation of the reasoning given during the judicial review proceedings. They did not therefore meet the above standard of the duty to give reasons. The Court also concluded that the traders had been substantially prejudiced by this failure to comply, although the exact nature of this prejudice was not explicitly articulated by the Court.
- Comment
Taking the cases together, it is clear that the key issue is whether there is an established duty to give reasons set out either in statute or express procedural rules. Where such a duty exists, the Court will give detailed and careful consideration to the reasons given and impose a fairly robust standard.
However, the parameters of the common law duty to give reasons where there is no statutory duty remains a grey area. The comments in Oakley as to the situations where a common law duty to give reasons may arise suggest that the duty will only arise in fairly limited circumstances.
