On the existence of a general duty at common law to give reasons
Coulson LJ expressed unease with the way in which s.77 has come to be used as a "de facto appeal process" of local planning decisions; the intent behind s.77 was to provide a simple binary choice between the Secretary of State and the Local Planning Authority as to who would be the ultimate decision maker. It was not a substantive decision determinative of the planning application itself. He concluded that "as a matter of common sense, there can be no general duty…to give reasons for that procedural decision." Equally, no such requirement has been established by case law; indeed "all of the authorities are to the opposite effect." A decision under s.77 is the "exercise of a procedural discretion" and reasons are not required.
Coulson LJ commented that the Supreme Court decision in CPRE, relied on by the applicant, provided no assistance. The principles he derived from Lord Carnwath's judgment in CPRE were summarised as follows:
- There is no general common law duty on public authorities to give reasons for their decisions;
- Fairness may in some circumstances require reasons to be given, even where there is no express statutory duty;
- In the planning context, an LPA is generally under no common law duty to give reasons for the grant of planning permission, although special circumstances may require it;
- The common law principle of open justice or transparency also applies to whether reasons are required to be given for planning permission;
- In deciding whether reasons should be given, the court should "respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons", but recognise that "the present system of rules has developed piecemeal and without any apparent pretence of overall coherence";
- "It is appropriate for the common law to fill the gaps [and require reasons to be given] but to limit that intervention to circumstances where the legal policy reasons are particularly strong."
Coulson LJ considered that there were no good legal policy reasons to extend the duty to procedural decisions which are not directly determinative of the parties' rights and obligations. On that basis, he concluded, there was no general requirement to give reasons.
Singh LJ commented, however, that he would not be so categorical in deciding that there should never be a duty to give reasons for the exercise of a procedural discretion, instead this was a question that should be decided depending on the particular context of each case.
On the existence of a legitimate expectation that reasons would be given
Re-affirming the distinction between those legitimate expectation cases that turn on an "express promise" and those that turn on "a practice, even where there has been no promise or assurance that a particular procedure will be followed", Coulson LJ reasoned that the current case was a "straightforward promise case".
He concluded that the events in 2001 constituted an express promise that reasons would be given for decisions not to call in an application under s.77, a promise that had been reiterated in 2010. On his analysis, these promises "plainly" gave rise to a legitimate expectation that reasons would be given for non-intervention. Departing from the first instance decision, he concluded that the promise had not been withdrawn: there had been no public announcement to that effect.
Setting out his reasons for considering as erroneous the first instance conclusion that the change in established practice could defeat the legitimate expectation, he stated:
- The first instance judge's reasoning appeared to confuse the distinction between legitimate expectation cases based on a promise and those based on an established practice; this was clearly a case of the former.
- It would be a "recipe for administrative chaos" if a legitimate expectation could be generated by a ministerial promise, only then to be lost as a result of an "unadvertised change of practice".
- On the Secretary of State's own case, the promise to give reasons was never consciously withdrawn; it had instead been forgotten altogether. Coulson LJ went on: "[i]t is difficult to see how a person can be said to have changed a policy of which they were unaware at the relevant time."
- Given that the policy had been publicly promised, as a matter of good administration and transparent governance, any change to the policy had to be announced publicly. This did not happen because the policy had been forgotten.
Furthermore, Coulson LJ rejected the suggestion that the applicant needs to show specific detrimental reliance in promise cases, noting that this was not a hard and fast rule and that "a public law claim based on an unequivocal promise is not to be treated as if it were some species of estoppel."
