Dover District Council v CPRE Kent

A local planning authority determining environmental impact assessment development must publish intelligible and adequate main reasons. The reasons must explain the decision on the principal controversial issues and leave no genuine doubt about what was decided and why.

An officer’s report may supply the reasoning where its recommendation is accepted. A committee departing from that recommendation may ordinarily confine its statement to the points of difference, but it must explain fundamental disagreements concerning policy harm, viability, promised benefits and mitigation.

Fairness and openness may also impose a common law duty where permission attracts substantial opposition, departs materially from important policies and contradicts officers’ advice. A defect going to the heart of the permission’s justification may require quashing, although relief remains discretionary where statutory rights were enjoyed without substantial prejudice.

A developer sought permission for a major housing, hotel and heritage scheme at Western Heights and Farthingloe. Part of the site lay within the Kent Downs Area of Outstanding Natural Beauty. Planning officers recommended reducing the Farthingloe housing from 521 to 365 units to limit serious landscape harm, but the Council’s planning committee authorised all 521 units without issuing a formal statement of its reasons.

The High Court dismissed CPRE Kent’s judicial review claim: [2015] EWHC 3808 (Admin). The Court of Appeal allowed CPRE Kent’s appeal and quashed the permission because the Council had inadequately explained its departure from the officers’ recommendation: [2016] EWCA Civ 936.

The appeals concerned the sources and content of a planning authority’s duty to give reasons, the standard applicable to environmental impact assessment development, and the remedy for breach.

1. The appeals were dismissed unanimously. The Council had breached regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Its failure to state the main reasons and considerations for granting permission rendered the permission invalid and required it to be quashed.

2. The reference to “main reasons” in the Regulations does not prescribe a lower standard than the ordinary standard stated in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953. Reasons must be intelligible and adequate. They must explain the decision on the principal important controversial issues and must not leave substantial doubt whether relevant policies and considerations were properly understood.

3. A local authority’s reasons need not reproduce the contents of its officers’ report. If members accept the recommendation, they may ordinarily be taken to adopt the report’s reasoning. If they depart from it, the additional statement may usually be confined to the material points of disagreement. The available documents must nevertheless leave no genuine doubt about what the authority decided and why.

4. The recorded views of three supporting members could not safely be attributed to the committee as a whole. Even on that assumption, the minutes did not explain why the committee rejected its professional advisers’ assessment that a reduced scheme remained viable. They also failed to explain the omission of a mechanism securing the hotel and other economic benefits, or how screening could mitigate landscape harm when officers considered it largely ineffective. Those omissions concerned matters fundamental to the officers’ conditional support for the development.

5. The Court disapproved the reasoning in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 that the duty to publish reasons was merely a post-decision information requirement normally curable by a later statement. Reasons form an intrinsic part of the environmental assessment procedure and facilitate effective public participation. The court nevertheless retains discretion to refuse relief where the rights conferred have been enjoyed in practice and no substantial prejudice has resulted.

6. Although unnecessary to determine the appeal, fairness and openness may impose a common law duty to state reasons. Such a duty will typically arise where permission is granted despite substantial public opposition, against officers’ advice, and in major departure from the development plan or another policy of recognised importance. The combination existed here.

1. United Kingdom Supreme Court: In Dover District Council v CPRE Kent [2017] UKSC 79, the court unanimously dismissed the appeals and affirmed the order quashing the planning permission.
2. Court of Appeal: In [2016] EWCA Civ 936, the court allowed CPRE Kent’s appeal and quashed the permission because the Council had not adequately explained its decision.
3. High Court, Administrative Court: In [2015] EWHC 3808 (Admin), Mitting J dismissed the judicial review claim.