Court of Appeal reconsiders the duty to provide reasons

In the decision of Karen Louise Oakley v South Cambridgeshire District Council [2017] EWCA Civ 471, the Court of Appeal re-examined the question of whether planning authorities are under a common law duty to provide reasons. In the particular circumstances of the case, the Court of Appeal decided that the respondent planning authority was in breach of its common law duty to provide reasons for the grant of permission for a football stadium.

Key points

• Although there is no general duty to provide reasons for planning decisions, certain factual circumstances may give rise to such a duty.
• In general, the common law is moving towards a position where reasons should be provided by decision-makers unless there is good reason for not doing so.

Background

Cambridge City Football Club had sought permission to develop a football stadium on Green Belt land. The Council’s Senior Planning Officer, through a detailed report, recommended that the planning application be rejected as it did not comply with the National Planning Policy Framework. The planning committee, however, did not accept the recommendation and granted permission without giving reasons for its decision.

The key argument before the High Court was that the planning committee ought to have given reasons for its decision to grant planning permission, and its failure to do so was in breach of its common law duty. Although the settled position is that there is no general common law duty to provide reasons in planning cases, certain circumstances could give rise to such a duty. According to Mrs Oakley ("the Appellant"), the decision of the planning committee to disagree with the Planning Officer's recommendation was so aberrant that it triggered a duty to give reasons. Jay J in the High Court rejected this submission, and found that there were good reasons for not imposing a common law duty given the nature and character of the decision-making process, including the administrative burden that would be involved.

Court of Appeal judgment

The arguments made by the Appellant before the Court of Appeal were slightly different. It was first argued that where reasons underlying a decision are not intelligible from the publicly available materials, a common law duty to provide such reasons arises. As an alternative (and narrower) argument, the Appellant argued that, regardless of the general position on the duty to provide reasons in planning decisions, the nature of this particular planning decision required reasons to be given.

Elias LJ (with Patten LJ concurring) allowed the appeal on the second, narrower, argument. He noted that the case involved construction on the Green Belt and was also in breach of the development plan. He observed that public policy requires strong countervailing benefits before such development can be allowed, and affected members of the public must, therefore, be informed of the Committee’s reasons. Elias LJ relied on the duty of fairness, which, in the context, required that the decision be transparent. That the committee had disagreed with a strongly worded recommendation of an experienced senior officer on a matter of such gravity further justified the imposition of the duty. In upholding the appeal, Elias LJ found that the “dictates of good administration and the need for transparency” were particularly strong in the particular circumstances of the case. Elias LJ also derived assistance from the Aarhus Convention, particularly its requirement for public participation and the need for effective judicial remedies, suggesting that denying the public information on how a decision was reached did not "sit happily with these obligations".

Sales LJ agreed with Elias LJ’s decision on the appeal, but disagreed with the reasoning "at least in nuance". In his view, the duty arose in this case because the decision to grant the planning permission appeared to contradict the local development plan, and appeared to subvert the policy concern that the Green Belt be protected. Either of the factors alone, in his view, would have been sufficient to give rise to the duty.

Discussion on the wider ground

Although the appeal was not decided on the basis of the first, much broader argument, Elias LJ engaged with the argument in detail. He found the argument appealing and suggested that the common law is moving towards a position where, even though there is no general duty to provide reasons, they should be provided unless there is a proper justification for not doing so. He found that there was considerable force behind this for a number of reasons.

First, planning decisions in general affect individuals beyond just the applicant for permission (for instance, the local community) and they have a legitimate interest in the outcome of any decision. Secondly, there was little or no precedent that supported the proposition that reasons need not be given even if the reasoning is otherwise opaque. Elias LJ was strongly attracted to the argument that a common law duty arises in all such cases where the reasons are not intelligible. As the judgment goes on to observe, there is no strong argument against giving reasons and it would not be unduly burdensome for the planning committee to have to produce reasons. Further, the judgment notes that the requirements of fairness and good administration mean that reasons should be provided where a committee disagrees with the planning officer just as reasons would be required if a committee changed its mind.

Ultimately, however, Elias LJ stopped short of fully endorsing a general duty to give reasons.

Comment

Although the case was not decided on the basis of the broader argument (that a duty to give reasons arises in all cases where the reasoning is not otherwise intelligible), the judgment of Elias LJ is an interesting one. Elias LJ saw considerable force in the broader argument, and supported his view with a number of reasons. In particular, he disagreed with the High Court that it would be unduly burdensome for a planning committee to have to produce reasons in a case like this. This approach could have wider ramifications for all public authorities as it indicates a greater willingness from courts to expect decision makers to provide reasons "unless there is a proper justification for not doing so".

On a more practical level, the judgment highlights that where there is a departure from the development plan, particularly where a development affects the Green Belt, a planning committee should carefully consider whether it has a common law duty to provide reasons for granting planning permission (even in circumstances where it is not disagreeing with a planning officer's recommendation).

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email