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The Court of Appeal and the duty to provide reasons in planning cases

Is a planning authority required to provide reasons for its decision to grant or deny planning permission? This question was discussed in the Court of Appeal earlier this year but whose judgment was only released much later. The case revolved around a planning decision taken by South Cambridgeshire District Council to Cambridge City Football Club. The city’s local club asked for planning permission to build a new stadium on Green Belt land, together with associated training and parking facilities. A local resident objected but was told by the High Court, in the first instance, that the local authority was not obliged to give reasons as to why permission was granted, going against its senior planning officer’s recommendation to deny planning permission.

There is no statutory duty for planning authorities to provide reasons for its decisions, with only a few exceptions, such as any application for planning permission for an Environmental Impact Assessment development. However, authorities do have a statutory obligation to give reasons only where permission is refused. The reason why there is no such general duty (which there was until 2013), is that the Government believes it 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.”Conference brochure

According to one of the judges in the current case, building a stadium on Green Belt land will undoubtedly have a significant and lasting impact on the communities around it. The law remedies this by giving them the opportunity to make their voices heard through a public consultation. By not providing the reasoning for granting planning permissions, the Council was, in effect, not telling them how such an important decision was reached. Lord Justice Elias says: “… as citizens they have a legitimate interest in knowing how important decisions affecting the quality of their lives have been reached. This is particularly so where they have made representations in the course of consultation. They cannot expect their detailed representations to be specifically and individually addressed, but as participants in the process, they can expect to be told in general terms what the committee perceived to be the advantages and disadvantages of a particular development, and why the former clearly outweighed the latter.” Furthermore, Elias believes that the process of consultation is “arguably undermined if potential consultees are left in the dark as to what influence, if any, their representation had.”

In addition, reference is made to the Aarhus Convention, and which, according to LJ Elias, is breached in this case. As a signatory party, the UK and all its public bodies must provide all environmental information available in a particular case available to the public, and it must give them the right to participate in decision-making processes. For the former, the judge is of the opinion that not providing reasoning for this decision, does not sit well with the Convention as it denies “a party information about how the decision was reached.”

Does this mean that planning authorities now have a duty to give reasons? The short answer, no! Lord Justice Sales, the other presiding judge, is cautious to impose a wider common law duty to give reasons as it is not up to the Courts to do this and it might create an “unwelcome element” of delay in the planning process. He also believes that a general duty might deter “public-spirited volunteers” (i.e. Councillors) if they are obligated to do so.  Lord Justice Elias, also weary to create a wider duty, says that the Courts develop common law on a case-by-case basis and there are always cases where it is justified to not provide reasoning.

In this particular case, by building a stadium on Green Belt land, going against the senior planning officer’s recommendations, and a breach of South Cambridgeshire District Council’s local development plan, sufficient reasons to demand a reasoning from the planning authority were present.

Although the duty to give reasons is still non-statutory, the Court of Appeal has made valid arguments as to why common law is moving towards a position where reasons should be provided by decision-makers unless there is a good justification not to. It is now up to Parliament and other judges to debate this.

About the Author

Remmert worked as the Institute’s Policy & Communications Manager and has a BA in Law and an MA in European Policy from the University of Amsterdam. He is well versed in open policy-making and distilling evidence based recommendations into policy actions. Remmert is an expert on the United Nation’s Aarhus Convention for which he has developed a unique risk-assessment tool and is currently involved in a European Union funded project to explore how e-participation can foster young people’s empowerment and active participation in democratic life.

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