Grants of planning permission against officer recommendation – managing the legal risk

Author: Annika Holden, Associate (Australia), Planning, London

The Court of Appeal has recently upheld challenges in two cases where planning permission was granted by planning committee against officer recommendation (see Oakley v South Cambridgeshire District Council & Anor [2017] EWCA Civ 71 and Campaign To Protect Rural England, Kent (CPRE), R (On the Application Of) v Dover District Council [2016] EWCA Civ 936). From a legal perspective, Oakley is particularly interesting as a rare look by the Court of Appeal at the question of whether planning authorities have a general common law duty to give reasons on the grant of planning permission - see the excellent e-bulletin from my public law colleagues here for more on that. On a practical level, the cases represent a good reminder of how carefully all parties need to tread whenever planning permission is granted against officer recommendation.

That is not to say that it is wrong or inappropriate for planning committees to disagree with officers. The planning system places responsibility for planning decisions in the hands of democratically elected councillors, who are accountable to their local communities, for good reason. It is perfectly legitimate - and to be expected - that planning committees may come to a different conclusion after weighing the competing considerations at hand. However, while the courts may not be willing (yet) to impose a general duty to give reasons on the grant of planning permission, it is clear that the momentum is shifting that way and the court in Dover did hint that reasons should be provided in a case where permission is granted against officer recommendation.

With the current legal situation unclear, it is difficult for developers to know what standard of reasons is required when a planning permission has been granted against officer recommendation. For EIA development the position is clear - reasons are always required when granting permission for EIA development. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (in force since 16 May 2017) place a duty on authorities to provide specific information when publishing their decision as to whether or not to grant planning permission including, among other things, a "reasoned conclusion" on the significant effects of the development on the environment, taking into account the results of their examination of the environmental information (see regulation 29). This is a high standard and a planning committee which fails to comply leaves its decision open to a successful legal challenge.

The position is murkier in the case of a non-EIA application but Oakley and Dover provide some clear hints about the direction in which the courts are heading. As such, to mitigate the risk of a successful legal challenge, a planning committee proposing to grant planning permission against officer recommendation would be well advised to provide written reasons which:

1. clearly identify (preferably with paragraph references) those parts of the officer's report with which the committee agrees;
2. even more importantly, clearly identify those parts of the officer's report with which the committee disagrees;
3. set out clearly the reasons for the disagreement;
4. make a finding as to whether the application is in compliance or conflict with the development plan; and
5. where the decision engages any statutory duties (such as the section 66 duty), clearly demonstrate proper consideration of those duties.

One difficulty with the above suggestion is practical: a planning committee often only considers a scheme for an hour or less. As the planning committee in the Dover case found, often even comprehensive minutes won't engage with the officer's report to the extent that the law requires.

The solution may be for planning committees which are inclined to grant a planning permission to make their recommendation conditional on (1) the preparation of a written report containing reasons and (2) the matter returning to committee to consider and approve those reasons and make a final decision. This process would allow planning authorities to issue reasons which are comprehensive and robust – something which is in the interest of planning authorities, developers and the public.

As a final note, the above relates only to the grant of planning permission. Where planning permission is refused, including when refused by a planning committee against officer recommendation, the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires that clear and precise reasons must be given which specify all policies and proposals in the development plan which are relevant to the decision.

For more information please contact: