Dover District Council v CPRE Kent

The Supreme Court considered the legal duty of a local planning authority to state reasons when it grants planning permission, in particular where the decision departs from officers' recommendations and affects protected landscapes (here the Kent Downs Area of Outstanding Natural Beauty) and where the development is EIA development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The court treated the EIA regulations (regulation 24(1)(c)(ii) and related provisions) as imposing an enforceable duty to state the main reasons and considerations, including measures to avoid, reduce or offset major adverse environmental effects. It held that, where permission is granted against the advice of officers on a controversial and significant proposal, fairness and transparency (supported by the Aarhus Convention and the EA Directive) may also give rise to a common law duty to give reasons.

The committee's decision to grant permission for major development in an AONB without an adequate statement of the reasons, and without explaining how harm to the AONB would be minimised or how economic benefits would be secured in the absence of mechanisms identified by officers, left room for substantial doubt as to what had been decided and why. That defect was material and went to the heart of the justification for the permission. The appropriate remedy was to quash the permission.

The appeal concerned a major mixed development proposal to the west of Dover (Farthingloe and Western Heights), the former lying within an Area of Outstanding Natural Beauty. The proposal, submitted by China Gateway International Ltd, comprised several hundred dwellings, a retirement village, hotel and conversion of a scheduled monument into a visitor centre. The development was EIA development and was accompanied by an environmental statement.

The planning officers produced a detailed 135-page report recommending approval but subject to substantial amendments (notably a reduction in dwellings at Farthingloe from 521 to 365 and a safeguarded area) and to a section 106 agreement securing benefits including a hotel. The Planning Committee, after debate, resolved to grant permission contrary to the officers' recommended limit on dwelling numbers and without adopting the officers' proposed implementation safeguards. The committee minutes recorded some reasons but did not produce a full statement explaining how the claimed economic benefits would be secured or how the officers' view of likely significant harm to the AONB would be overcome.

The claimants (CPRE Kent) sought judicial review on multiple grounds, including the failure to give reasons under the EIA regulations. Mitting J dismissed the claim; the Court of Appeal allowed the appeal and quashed the permission ([2016] EWCA Civ 936). The Supreme Court, having granted permission to appeal on the reasons issue, considered whether any statutory, regulatory, European or common law duty required a local planning authority to give reasons for granting permission, and what remedy should follow from breach.

Key issues framed by the court were: (i) whether the EIA regulations require a statement of reasons and the content and standard of such reasons; (ii) whether there is a standalone common law duty to give reasons for grants of planning permission and, if so, in what circumstances; and (iii) what remedies follow from a breach of any such duties. The court reviewed the statutory framework (including section 70(2) Town and Country Planning Act 1990 and section 38(6) Planning and Compulsory Purchase Act 2004), subordinate legislation on decision notices, the EIA regulations (regulations 2(1), 3(4), 24(1)(c)), the EA Directive and the Aarhus Convention, and relevant authorities (including Doody, Porter, Save Britain’s Heritage, Richardson, Oakley and others).

The court concluded that the EIA regulations do require a statement that environmental information has been considered and a public statement of the main reasons and considerations, and that the reference to "main" reasons does not materially lessen the ordinary duty to give adequate reasons. It rejected the distinction that a breach of the EIA duty should be remedied only by supplying reasons retrospectively, finding that an intrinsic part of the procedure is to give reasons so as to enable effective public participation and scrutiny. The court also accepted that, in appropriate circumstances (especially where a decision departs from officers' recommendations on a controversial proposal affecting important policy such as AONB protection), the common law will require disclosure of reasons to ensure fairness and transparency.

Applying these principles, the court found that the committee's reasons were inadequate in material respects: they did not explain why the members rejected expert officer and adviser analysis on viability, how the claimed economic benefits would be secured in the absence of mechanisms identified by officers, and how landscape harm would be minimised in contradiction of the officers' view that screening would be ineffective. The defect undermined the validity of the permission and the appropriate remedy was quashing. The court dismissed the appeal and affirmed the Court of Appeal's order.

Appeal dismissed. The Supreme Court held that the EIA regulations require a statement of the main reasons and considerations and that in cases where a planning committee grants permission contrary to officers’ advice for a controversial and policy-sensitive proposal (such as major development in an AONB), fairness and transparency may require an express statement of reasons under the common law. The committee’s failure to explain critical aspects of its reasoning (on viability, securing benefits and the mitigation of AONB harm) materially undermined the decision and justified quashing the permission.

First instance: Mitting J, permission for judicial review dismissed, [2015] EWHC 3808 (Admin). Court of Appeal: appeal allowed and permission quashed, [2016] EWCA Civ 936. Appeal to the Supreme Court: appeal dismissed; Court of Appeal order affirmed, [2017] UKSC 79.