High Court considers what constitutes sufficient reasons

In R (Gare) v Babergh District Council [2019] EWHC 2041, the High Court quashed a planning permission granted by Babergh District Council (the "Council") on the basis that the Council failed to provide sufficient reasons for this decision. In doing so, the Court gave guidance on what constitutes sufficient reasons by a public body for a decision.

Key Points

• Public bodies' reasons for a decision will be sufficient if they are clear enough to allow a reader to understand why that decision was ultimately reached, including any conclusions on "the principal important controversial issues".
• It will be difficult for public bodies to meet the required standard where their reasons are contained in separate documents which ultimately arrive at different conclusions.

Background

Lewis Morgan Limited, a developer, applied to the Council for planning permission to build six new homes in the village of Hartest in August 2017. Planning officers recommended refusal for a number of reasons, including the fact that the developer's proposal was inconsistent with certain requirements set out in relevant development plan policies.

The Council's planning committee (the "Committee") considered the application in February 2018 and resolved to grant planning permission against the officers' advice. The only reasons given for the decision at this stage were those set out in the minutes of the Committee's meeting, which was that "the proposal represented sustainable development which would support existing services and that there would be benefits to this hinterland village because of the type and scale of housing proposed, particularly for those wishing to downsize."

This initial grant of planning permission was successfully challenged by way of judicial review on grounds which included a failure by the Council to give proper, intelligible and adequate reasons and misdirection in relation to a planning policy. This planning permission was therefore quashed in June 2018.

The project was reported to the Committee for redetermination on 12 December 2018. The accompanying planning officers' report still recommended that planning permission be refused. The Committee nonetheless resolved to approve the application and a decision notice granting permission but containing no reasons was issued in December 2018.

The claimant sent a pre-action protocol letter to the Council with their proposed grounds of challenge, including a failure from the Council to provide reasons. The response from the Council provided draft minutes of the Committee meeting on 12 December 2018 (the "Minutes"). The Minutes recorded the Committee members' discussion but were not drafted as a full statement of reasons.

The claimant challenged the Committee's decision by way of judicial review.

Judgment

The Planning Court accepted two of the claimant's six grounds of challenge and so quashed the Council's decision. In particular, it found that the Council had failed to give sufficient reasons for the decision to grant planning permission.

The Court found that the Council had failed to give sufficient reasons for its decision. Although there was no specific statutory obligation on the Council to give reasons, the Court considered that a common law duty arose in this situation. The "combination of circumstances" in this case made the Council's duty clear, including the fact that the Council was choosing to disagree with its planning officers' report and that this decision was a redetermination following the quashing of the previous planning permission in June 2018. It was particularly significant that this had been quashed at least in part because the Council had failed to provide adequate reasons on that occasion. The public was entitled to expect that the same error would not be repeated and that the Council would provide reasons for its controversial decision. Moreover, the Council's reasons could not be inferred from publicly available materials.

The Court then considered the separate question of what constituted sufficient reasons. The Court stated that sufficient reasons must "enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved and giving rise to no substantial doubt as to whether the decision-maker erred in law." The Court considered that meeting this standard of clarity was likely to be more difficult where the reasons were not contained in a single document but had to be pieced together from separate documents which arrived at different conclusions. The Court therefore held that, in this instance, the combination of the planning officers' report and the Minutes did not constitute sufficient reasons.

The Council suggested that the "no difference" principle under section 31(2A) of the Senior Courts Act 1981 applied. This principle provides that the Court must refuse relief to a claimant in judicial review proceedings if it appears to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. The Council argued that the planning permission should not be quashed on the basis that it was highly likely that it would have resolved to grant planning permission to the developer in any event. The Court disagreed – because it was not possible to know how the Council had reached the decision it was also not possible to conclude that it would have been highly likely to reach the same conclusion had it conducted itself lawfully.

Comment

There is no general duty in English law upon public bodies to give reasons for their decisions. However, the Courts have recognised many circumstances where procedural fairness requires that reasons should be provided. The Planning Court's judgment in Gare is one example of such a situation. The Court in this case was clearly influenced by the history of the planning application, in particular the previous failure by the Committee to give reasons and the fact that the Committee's decision was contrary to the planning officer's recommendation. The general propositions however described by the Court are of wider application to the recording of reasons for public body decisions. The reasons given must allow a reader to understand why a decision was ultimately reached and any in particular set out conclusions on "principal important controversial issues". Although the format of the reasons is not determinative, it will be harder for public bodies to meet the required standard where the reasons are contained in separate documents which ultimately arrive at different conclusions.