Skip to main content

T: 020 7353 8415

Supreme Court Requires Reasons for Controversial Planning Decisions

Ned Westaway

The Supreme Court has dismissed the appeal in Dover DC v CPRE Kent [2017] UKSC 79 (judgment here; press summary here) and affirmed the decision of the Court of Appeal quashing permission for major development in the Kent Downs AONB.

In an important judgment that reviews the obligation to give reasons in planning cases, Lord Carnwath (with whom Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agreed) held that:

  • The standard of reasons summarised by Lord Brown in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 applies generally, and is relevant for environmental impact assessment (EIA) development
  • If a party can establish a material defect in reasoning, the appropriate remedy will generally be to quash the planning permission
  • For EIA development in particular “the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation”, so it is insufficient to provide a statement of reasons after the grant of planning permission; in that regard the Supreme Court declined to follow the reasoning in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920
  • At common law, fairness may require the provision of reasons for the grant of planning permission, despite the lack of an express statutory duty
  • A separate statement of reasons will therefore likely be required for the grant of planning permission against officers’ recommendation for controversial development in conflict with local and national policies; Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 was correctly decided

In the present case, Lord Carnwath noted that members of Dover District Council’s planning committee had “an unenviable task” (para.61) and that “[i]t is difficult to see how the members could have expected to reach a properly considered decision on the material then before them” (para.63).  This was particularly true of “the contentious issue of viability”.  He considered that with hindsight, nothing would have been lost if members had deferred their decision in order properly to address the issues in hand.

The reasons recorded in the minutes were legally inadequate both to meet the requirements of the EIA Regulations and at common law.  So, for example, Lord Carnwath said that “[i]t was not enough to rely on the possibility of the scheme being jeopardised, simply on the say-so of the applicants’ advisers without any reference to the expert view to the contrary” (para.66). 

The case is of considerable significance on the nature, scope and standard of reasons required for planning decisions.  To some extent, the judgment supports a unified approach.  As it notes, “the common law, and European law and practice, march together” (para.55).  For EIA development and especially controversial projects the position is clearer.  However, exactly when a separate statement of reasons will be required in other cases and the content of such a statement is not answered.

Ned Westaway (instructed by Richard Buxton Environmental and Public Law) appeared as junior counsel for the Respondent, CPRE Kent.

Press coverage: The Planner, BBC, Kent Online, Local Government Lawyer.

Related article by Ned Westaway and Charlie Merrett (Pupil Barrister)