UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Joanna Bell: Dover DC v CPRE Kent: Legal Complexity and Reason-Giving in Planning Law

Where a public authority determines an application for planning permission in what form, and in what level of detail, must the authority set out the reasons for their decision? What, furthermore, are the consequences of failing to provide reasons which meet the requisite standard? The Supreme Court’s recent decision in Dover DC v Campaign to Protect Rural England (CPRE), Kent is a clear reminder that there is no singular, straightforward answer to these questions. Thus reason-giving requirements vary in planning law according to, at least, the decision-maker under review (local authority, officer exercising delegated powers or the Secretary of State), whether planning permission is refused or granted, the nature of the development for which permission is sought and the type of land to which the application relates.

The major reason for this complexity is not hard to find: reason-giving in planning law, arguably like reason-giving in English administrative law more generally, is not overseen by some singular, cohesive legal framework. It is, rather, governed by the complex interaction of an array of different legal and quasi-legal standards and values. In CPRE Kent alone, for instance, the Supreme Court was required to navigate at least four different levels of provision – (i) EU statutory provisions, (ii) domestic statutory provisions, (iii) central government policy and (iv) common law values – in order to find an answer to the legal question at the heart of the case. This blog post cannot discuss each of these levels of provision in detail. It will accordingly, after briefly introducing the facts of CPRE Kent, focus on two: (i) and (iv). Readers interested in (ii) and (iii) may like to see my analysis of the earlier Court of Appeal judgment in Joanna Bell, Kent & Oakley: A Re-Examination of the Common Law Duty to Give Reasons in Grants of Planning Permission and Beyond (2017) 22(2) JR 105.

CPRE Kent: The Facts

CPRE Kent concerned an application made by China Gateway International Ltd (‘CGI’), for planning permission for a new housing development. The proposed development would span across two sites, one of which is located within the Kent Downs, a designated Area of Outstanding Natural Beauty (‘AONB’). Dover DC’s planning officer’s report, a lengthy and comprehensive document which was made publicly available, noted that CGI’s proposed development would result in significant damage to AONB which, as the proposal stood, could not be justified in light of the national policy commitment to protect AONBs. In the officer’s view, however, a scaling back of the project so far as it related to the Kent Downs would remedy this defect while still, according to the council’s financial advisers, being economically profitable for CGI (an assessment which CGI resisted). The final determination of CGI’s application for planning permission was made by Dover DC’s planning committee. Following a meeting, the minutes of which were made available to the public and in which a variety of views were expressed, the committee decided to reject the planning officer’s recommendation and to grant permission for the original proposal to go ahead.

The applicant NGO, CPRE, initiated judicial review proceedings. Their main ground of challenge was the legal inadequacy of Dover DC’s reasons. It was, argued CPRE, essential that Dover DC set out in the clearest possible terms, in a published statement of reasons, why it had rejected its planning officer’s conclusion that the project was inconsistent with the national AONB policy and why it had preferred the economic assessment of CGI over that of its own advisers. A quashing order should be issued in light of Dover DC’s failure to do this.

EU Statutory Provisions

In deciding CPRE Kent the Supreme Court was required to navigate multiple levels of legal and quasi-legal provision. The first such level was EU statutory law. In a sense, this dimension of CPRE Kent was extremely simple: the Environmental Impact Assessment (EIA) Directive (and implementing domestic law) require that when a local authority grants planning permission for an ‘EIA development’ it must make available for public inspection a statement containing, among other things, ‘the main reasons and considerations on which the decision is based.’ It was common ground in CPRE Kent that Dover DC had acted in breach of this requirement.

Contention arose, however, on the matter of the proper remedial response to this unlawfulness. Relying on Simon Brown LJ’s judgment in Richardson, Dover DC argued for a monolithic approach to remedies for breach of the EIA reason-giving requirement ([46]-[47]); the limited purpose of this obligation was to ensure, in the interests of transparency, that a local authority which had elected to grant planning permission for an EIA development disclosed the basis of its decision to the public. Where a local authority acted in breach of the duty, therefore, there was no need for a quashing order; a mandatory order or a declaration requiring the retrospective disclosure of reasons would be sufficient to fulfil the statutory aim.

Lord Carnwath took a different view of the legislative purposes of the duty ([48]). For his Lordship, intermingled with concerns about transparency, was the aim of ensuring that a local authority, by being required to spell out its reasons, had close and careful regard to all of the important environmental aspects of the decision. This understanding of the duty’s aims, in turn, meant that a more nuanced approach to remedy was warranted ([49]). The key question was always whether the failure to give reasons in a particular case gave rise to a concern that authority had misunderstood or failed to properly address an important issue. In Richardson where the planning committee had fully endorsed the detailed reasoning of the planning officer, opined Lord Carnwath, there was no evidence of this and thus a mandatory order was probably sufficient ([49]). In CPRE Kent itself, however:

The committee’s failure to address [the issues identified by CPRE] raises a “substantial doubt” as to whether they had properly understood the key issues. ([68])

For his Lordship, therefore, ‘the only appropriate remedy was to quash the permission’ ([68]).

This aspect of CPRE Kent’s case is interesting not only from an environmental law perspective, but also serves as a reminder of the argument for remedial discretion in administrative law more broadly. There has often been a tendency among legal scholars, in thinking about the consequences of administrative unlawfulness, to search for a monolithic judicial approach to remedy. CPRE Kent, however, indicates at least two reasons why it may well be too hopeful to search for such simplicity. Firstly, the courts’ remedial response to unlawfulness must always be shaped by the legislative purpose of the provision which a public authority has been found to have breached and there is no reason to think fulfilment of every legislative purpose will necessitate the same remedial approach. Secondly, the statutory purposes underlying a given provision can be both complex and multi-dimensional such that, even if relation to a singular legal duty, the proper approach to remedy may be variable and sensitive to fact.

Common Law Values

The Supreme Court’s conclusion on the EIA issue was, of course, sufficient to dispose of the case. Lord Carnwath, however, went on to consider the position from a non-EU perspective.

In the course of this part of his judgment, Lord Carnwath had recourse to two important common law values. Firstly, ‘fairness,’ a value which his Lordship noted had played an important role in English reason-giving cases such as Doody. CPRE Kent, of course, was a very different type of case from Doody. In Doody, the House of Lords held that considerations of fairness to the individual required that the Home Secretary, in setting the minimum prison tariff to be served by a convicted murderer, provide the prisoner with a detailed statement containing the basic reasons for the decision. It was, by contrast, no part of CPRE’s argument that Dover DC had failed to treat CPRE fairly, nor that Dover DC was obligated to provide CPRE with an individualised statement of reasons. CPRE’s argument, rather, was that Dover DC had acted unfairly towards the public. Lord Carnwath, nonetheless, did not see this as diminishing the bite of the common law because:

…here a further common law principle is in play… [The] principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the court. ([55])

Here we see further extension of the Kennedy decision. In Kennedy the Supreme Court extended the application of open justice from its original context (decisions by ordinary courts) to statutory inquiries carried out by the Charities Commission. CPRE Kent marks a further expansion: open justice can seemingly now apply in the planning context, not only when the Secretary of State exercises statutory inquiry functions similar to those of the Charity Commission, but also when a local planning authority takes an initial administrative decision ([55]). This gives rise to an important, but under-explored question: what is the rationale underlying open justice and how far does it extend? Two things are clear from Kennedy and CPRE Kent. Firstly, open justice is no longer confined to courts or, even, public authorities exercising functions closely resembling those exercised by judges. Secondly, however, it is also clear that open justice will not require a public authority to disclose information in any case in which an applicant seeks it. Thus one theme which played an important role in Lord Carnwath’s in CPRE Kent was the strong public interest he saw in favour of imposing a higher standard of reason-giving ([59]). Whether a clearer rationale for open justice than protection of public interest can be identified is in need of serious and lengthy exploration.

Conclusion: Implications for the ‘General Common Law Duty to Give Reasons’?

CPRE Kent is a case with many legal dimensions: in determining the question at the heart of the case the Supreme Court was required to navigate many layers of legal and quasi-legal provision. By way of conclusion, it is interesting to note that this legal complexity may help to supply one part of the answer to an important but under-explored question: why, despite the numerous and cogent calls by eminent scholars and practitioners for the courts to embrace a ‘general common law duty to give reasons’ do the courts continue to resist this idea?

The first important point to note is that the ‘general common law duty to give reasons’, as urged by most commentators, would take the form, not of a simple, universal obligation on all public authorities to publish a statement of summary reasons for their decisions, but of a duty to provide adequate reasons. ‘Adequacy,’ furthermore, is said to be a variable standard, the application of which in any given case would depend on the particular legal and factual considerations which arose therein. Consider again, CPRE Kent. Here is a case in which a public authority, far from taking its decision behind closed doors, has disclosed a considerable body of documentation (including both the planning officer’s 135-page report and the committee meeting minutes) relating to its decision. The applicant’s argument, however, is that this level of disclosure is not good enough and there remain core issues in relation to which Dover DC’s reasoning remains too obscure. Against this background, one way of framing the question the Supreme Court had to decide was whether Dover DC’s reason-giving was legally adequate.

In order to answer this question there were many sub-questions with which the Supreme Court had to grapple. Some of these have been discussed here (what is the purpose of the EIA reason-giving requirement? What bearing does common law open justice have on the case?), and others elsewhere (what is the relevance of the removal of the statutory duty to give summary reasons for grants of planning permission in 2013? What is the relevance of the central government’s policy commitment to preserve AONBs?) But the core point is this: the idea that all public authorities should be regarded as under a ‘general common law duty’ to provide adequate reasons simply could not help the judges to find answers to the really difficult legal questions at the heart of the case. Perhaps one reason why the courts have so far failed to embrace the idea of the general common law duty of reason-giving, in other words, is that it is not an intellectual tool which offers meaningful guidance as to how to navigate the sorts of legal question which tend to arise in reasons challenges. Whether this concern applies broadly and outside of the planning context, however, must be a question for another day.

Dr Joana Bell is College Lecturer and Fellow at St John’s College and Affiliated Lecturer at the Faculty of Law, University of Cambridge.

(Suggested citation: J. Bell, ‘Dover DC v CPRE Kent: Legal Complexity and Reason-Giving in Planning Law’, U.K. Const. L. Blog (22nd Jan. 2018) (available at https://ukconstitutionallaw.org/))

One comment on “Joanna Bell: Dover DC v CPRE Kent: Legal Complexity and Reason-Giving in Planning Law

  1. Pingback: Joanna Bell: Dover DC v CPRE Kent: Legal Complexity and Reason-Giving in Planning Law | Top 100 Blog Review

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: