Why Reasons Need to Be Clear in Controversial Planning Decisions?
The latest decisions on reasons have served to emphasise that planning decisions – from sensitive areas to delegated reports – need to be explained with the greatest possible clarity. Read on for our complete analysis of the Oakley green belt case and similar decisions.
The decision, given on CPRE (Campaign to Protect Rural England) Kent vs Dover District Council, is headed to the Supreme Court. Until the matter is settled, examining the way in which the Court of Appeal handled the standard of reasons applied to a developmental planning authority, in that case, is useful. Given the enormous scale (“unprecedented in any prior AONB”) of the development, it makes sense to demand reasons for approval even when the approving authority has no statutory obligation to provide them. Reasons are particularly appropriate given the breaches of policy involved. Finally, the decision’s relationship to the EIA regime makes a statement of reasons especially important.
Proposals Mired In Controversy
Conveyancer providing housing in the sensitive area obliged officers of the authority to suggest a less dense but still (according to authority advisors) viable scheme. That approach was rejected as unviable, but the members’ rejection was challenged on the basis of inadequate reasons.
Were Reasons Required?
The authority’s defence was rooted in the observation that planning authorities differ from the Secretary of State in that they have no obligation to explain the grants of permission they make. The precedent cited here touched especially on the ‘light touch’ approach outlined in Hawksworth Securities Plc vs Peterborough City Council & Ors. A clear line was drawn between run of the mill ‘administrative’ decisions handed down by local planning authorities and decisions on appeal and different standards were proposed for each category.
The Court of Appeal was hesitant to embrace this abrogation of responsibility wholeheartedly. The Court noted specifically that both the general public and interested parties were entitled to understand the reasoning behind a planning decision whether it is made by the Secretary of State or by a local authority. Several specific qualities of the Dover case were cited as justification for more detailed reasons:
- Decisions which authorise developments that will harm an AONB significantly require ‘substantial reasons’ to satisfy the NPPF policy.
- The decision contradicted officers’ advice.
- The Town and Country Planning Regulations 2011 on Environmental Test Impact, Regulation 21(1)(c) requiring a statement of reasons and mitigation might apply.
Expensive Errors In Administration
By the standard outlined here, the Committee minutes, provided, failed to present reasons meeting the applicable rules and regulations.
First, the minutes did not establish whether or not the Committee accepted the assessment of harm provided by their own officers. If they did accept that assessment, their decision would “inflict irreversible harm on the AONB” based on the information they had available.
Second, the minutes did not establish their attitude toward viability concerns. If these issues were considered a mere risk, they would have had a more acute obligation to consider the possibility of hard to the AONB.
Third, the minutes did not make it clear whether or not AONB protections had received a unweighted balance.
Finally, their conclusions based on visual screening were “fragile at best,” and should have received far more substantial support than the single sentence of reasoning recorded in the minutes.
A Goalie for the EIA?
Based on the judgment as it stands, the omission of a regulation 24 statement may save a decision without a clear record of adequate reasons. Additionally, such a statement may not be enough to kill a decision with such a record.
When the Supreme Court weighs in on the case, the necessary basis and scope applied to approval reasons should become much clearer. Until that judgment is rendered, striving to maximise transparency and justification in controversial decisions is a very good idea.