Legal Viewpoint: Why councils may have to flesh out reasons for consent

The Court of Appeal's judgment in a recent case from Kent raises crucial questions on local planning authorities' duty to give reasons for granting planning permission.

In 2012, China Gateway International applied to Dover District Council for outline permission for a scheme including 521 dwellings in the Kent Downs area of outstanding natural beauty (AONB) west of Dover.

The council gave permission in 2015. The Campaign for the Protection of Rural England (CPRE) Kent challenged this on a number of grounds, which were dismissed by Mr Justice Mitting in the High Court last year. The key issue for the Court of Appeal was whether the committee’s reasons for granting permission were legally adequate. Lord Justice Laws endorsed "in principle" Mrs Justice Lang’s comment in R (Hawksworth Securities) v Peterborough City Council [2016] that councils need only give brief summaries of their reasons for granting permission.

He did find three factors "pointing away" from that approach in this case - the "pressing nature" of the AONB policies in paragraphs 115 and 116 of the National Planning Policy Framework (NPPF), the council committee’s decision to disregard its officer’s recommendation, and the duty for the council to provide a statement of reasons under the Environmental Impact Assessment (EIA) Regulations 2011.
The court found that the committee did not give adequate reasons for its views on how much harm the scheme would cause to the AONB, or whether it could be modified to mitigate this harm without becoming unviable. The court held that the council’s reasons were not adequate and quashed the permission.

The judgment gives rise to several questions. In what other kinds of case will this heightened standard for reasons apply? What other factors "point away" from the Hawksworth approach? AONB policies are not the only "pressing" matters in the NPPF. What if a proposal is in the green belt, or affects heritage assets, or is in an area of high flood risk? The ruling may open the door to further challenges on the adequacy of councils’ reasons for granting permission.

Authorities should maintain detailed minutes of committee meetings. In EIA cases, they must not overlook the obligation to create a statement containing the "main reasons and considerations on which the decision is based". The case of Oakley v South Cambridgeshire District Council, which will be heard by the Court of Appeal in January, may shed further light on these points.

Campaign to Protect Rural England v Dover District Council; Date: 14 September 2016; Ref: [2016] EWCA Civ 936.

Zack Simons is a barrister at Landmark Chambers

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