February 17th, 2017

The appeal in Oakley v South Cambridgeshire District Council (2017) EWCA Civ 71 raised the issue whether, in the particular circumstances of the case, the Planning Committee of the South Cambridgeshire District Council ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people. The proposed construction is in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt. The application for planning permission was not only for the erection of the ground, together with associated training and parking facilities, but also for the creation of a partially floodlit recreational ground which would be gifted to the Sawston Parish Council for community use.

There were two distinct issues which needed to be considered. The first was whether it was possible to infer the reasoning of the Committee from the materials in the public domain, and in particular the officer’s report. The second, assuming that this was not possible, was whether there was a duty on the Committee to explain its reasoning. The latter issue raised a point of general principle, with respect to which Elias LJ said as follows:-

“26.   There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.


  1. The disadvantage, accepted by Jay J in this case, is that having to provide reasons – particularly where they have to withstand careful scrutiny by lawyers – might involve an undue burden on the decision maker. Exceptionally, there may be some powerful public interests, such as national security, which could justify withholding reasons, but there is no such competing public interest under consideration here.
  2. Statute frequently, and in a wide range of circumstances, obliges an administrative body to give reasons, although the content of that duty, in the sense of the degree of specificity of the reasons required, will vary from context to context. However, absent some statutory obligation, the question whether reasons are required depends upon the common law.
  3. It is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in the ex parte Doody case. However, the tendency increasingly is to require them rather than not. Indeed, almost twenty years ago, when giving judgment in Stefan v General Medical Council (no.1) [1999] 1 WLR 1293, 1300, Lord Clyde observed:


“There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.”


  1. In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.


  1. There are certain categories of case where the courts have required reasons to be given at common law, although the jurisprudence is relatively under-developed, perhaps because statutory requirements are so common. Apart from cases where fairness requires it, or a particular decision is aberrant, the duty has also been imposed where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not: see e.g. Norton Tool Co. Ltd v Tewson [1973] 1 WLR 45; and where a party has a legitimate expectation that reasons will be given: see Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin) where Lindblom LJ held that there was a legitimate expectation that inspectors would give reasons in a written representations planning appeal generated by the Secretary of State’s long established practice of giving reasons in such cases.


  1. There is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. However, whatever the merits of the analogy, if this were always to ground a basis for requiring reasons to be given, it would be inconsistent with the lack of any general common law obligation to give reasons. Nonetheless, there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt.


  1. Absent reasons, there are considerable difficulties facing a potential applicant who suspects that something may be wrong with a decision but is unsure. Unless the decision is plainly perverse, the assumption will necessarily be that the decision was lawfully made; there is a presumption to that effect given that the burden of establishing illegality is on the applicant. No doubt there will be cases where a party has sufficient material to be able to mount some sort of legal challenge and get beyond the leave stage. In those circumstances the respondent will effectively be compelled to provide reasons in order to defend the case because if no reasons are given, the court may infer that the decision is bad: see the seminal case of Padfield [1968] AC 997 (HL). Even then, however, the applicant may not be given full reasons, merely such explanation of the reasoning as meets the particular ground of challenge. Moreover, if the basis of the claim is too speculative – as it may well be where no reasons are available – the application is likely to fail at the leave stage.


  1. There are a number of circumstances where statute requires reasons to be given in the planning context. This duty needs to be considered against the background that whereas an applicant for planning permission has the right to appeal a decision which is adverse to him, whether it be a refusal of permission or a grant of permission but subject to unacceptable conditions, there is no right for third parties to appeal in any circumstances. The only remedy is by way of judicial review.


  1. A statutory obligation to provide reasons has long been established where planning permission is refused or is granted but subject to conditions. …”


“43.    The decision of the Court of Appeal in the Chaplin case confirms that there is no general duty to provide reasons in planning cases. …”


“44.    … The question is whether a planning authority can at common law refuse to reveal its process of reasoning even where that process is not otherwise clear.


  1. I see considerable force in this wider argument advanced by the appellant for a number of reasons …. First, planning decisions generally affect individuals other than the applicant for permission and they have a legitimate interest in the outcome. Sometimes, as in this case, a decision whether or not to allow a development impacts on the local community. …
  2. Second, there do not appear to be any decisions (apart from Jay J in this case) where a court has held that reasons need not be given even though the reasoning is otherwise opaque. Although the mantra that there is no general duty to give reasons is oft repeated, in practice in the cases where a reasons challenge has failed, the courts have concluded that reasons can be inferred in any event.


  1. For example, in the Chaplin case itself, which confirmed that reasons were not generally required in planning cases, the duty was held not to arise because the explanation for the decision was obvious. …”


“49.    The analysis was … that no reasons needed to be given because the basis of the reasoning was obvious and did not need spelling out. …


  1. Third, if reasons are required when a committee changes its mind, there is a powerful case for asserting that they should also be required when the committee disagrees with the planning officer. The situations are very similar and there is no reason why the requirements of fairness and good administration should not require reasons in this situation too, at least where the reasoning is otherwise obscure. …


  1. Fourth, I accept the appellant’s submission that if there is no duty to give reasons when the committee disagrees with the officer’s recommendation, there would be something of an anomaly between that situation and the case where the permission is in line with the officer’s views. In the latter situation, the reasons can be inferred on the basis that the committee’s reasons are taken to be those of the officer and the decision can be challenged on that premise. In the latter, because that inference cannot be drawn, the reasons will often be obscure and therefore it will be much more difficult to challenge what is in fact precisely the same decision to grant permission.


  1. Fifth, counsel observed that planning history may have an influence upon a planning decision and ought to be taken into consideration where relevant. However, for past decisions properly to be taken into account, the basis of those earlier decisions needs to be known in addition to the decisions themselves: …


  1. Finally, in my judgment, there is no strong argument against giving reasons. I respectfully disagree with the submission which appealed to Jay J below, to the effect that it would be unduly burdensome for the planning committee to have to produce reasons in a case such as this. In my view it lacks merit for four reasons. First, as we have seen, there is the statutory duty to provide reasons – and relatively detailed reasons – in many planning determinations including, in EIA cases, where permission is granted. If reasons can be required in those circumstances, it is difficult to see why it should be unduly onerous to produce them in cases when permission is granted. Second, … the committee has the planning officer’s report as a point of reference and a point of departure. It will often be relatively easy to indicate which aspects of that report it accepts and which it disagrees with, and why. Third, the content of a common law reasons duty is likely to be less rigorous than where the duty arises in the statutory context. Finally, members have access to officers and lawyers who can assist them in the formulation of their reasons.”

“55.     For these various reasons I am strongly attracted to the wider submission … It would not mean that any busybody could seek reasons where permission is granted. The rules of standing ensure that only those who have a proper interest in doing so can challenge a decision. However, I would not decide the appeal on this broad principle. The courts develop the common law on a case by case basis, and I do not discount the possibility that there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common law duty. It is not necessary for me to rely upon the broad argument because in my judgment the duty arises under the alternative argument.”


“59.    … The right for affected third parties to be treated fairly arises because of the strong and continuing interest they have in the character of the environment in which they live. Even if the decision to allow a development does not affect any property or financial interest, it may damage other non-pecuniary interests which affected parties may value equally highly. In my judgment, these are powerful reasons for imposing a duty to give reasons, at least if the reasoning process is not otherwise sufficiently transparent.


  1. The decision in this case involved a development on the Green Belt and was also in breach of the development plan. Public policy requires strong countervailing benefits before such a development can be allowed, and affected members of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In my judgment these considerations demand that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there is in my judgment an overwhelming case for imposing the duty here.


  1. That conclusion is in my judgment reinforced where the committee departs from the officer’s recommendation. The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required. … the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty.


  1. … the Aarhus Convention … in my view … reinforces the conclusion I have reached. …”


Patten LJ and Sales LJ agreed. Sales LJ agreed with Elias LJ that a common law duty arose in this case requiring the Council to give reasons for its decision and that the Council was in breach of that duty in failing to do so. Since there are some differences, at least in nuance, between his own reasons and those of Elias LJ as to the basis for the duty which arose in this case, he explained his reasons separately.  He said:-


“70.    … the arguments presented to us, … operate at three different levels of generality. At the highest level, Mr Simons for the appellant submits in effect that the common law should now be taken always to impose a duty on a local planning authority to give reasons for granting planning permission, but that such a duty may be satisfied where it can be inferred from the reasoning in the officer’s report what the planning authority’s reasons were … or where it is obvious from inference in the circumstances what the planning authority’s reasons were, even though not specifically set out in the officer’s report …


  1. I think it is worth elaborating on these two qualifications a little. In many cases, an officer’s report will set out arguments for and against a particular grant of planning permission, or for and against a particular view on an issue which arises in the structured reasoning path which the planning authority is required to follow, and then give the officer’s recommendation that permission be refused or that a particular view be adopted on that issue. But the planning authority may grant permission or adopt a view on that issue contrary to the officer’s recommendation, without saying more. In such a case, even though the planning authority has departed from the recommendation, the fair and proper inference is that it has simply adopted the contrary reasoning as set out in the report. …


  1. Mr Simons advanced three points in support of his primary, general submission: (i) the importance of consistency in planning decisions, in relation to which knowledge of the reasons for grant of permission in one case may be relevant to decisions in other cases …; (ii) the importance of assessing proper compliance by a planning authority with its duty under section 38(6) of the 2004 Act to act in accordance with the development plan for its area, unless there is a sufficient good reason for departing from it …; and (iii) that it would be anomalous to conclude that where planning permission is granted in accordance with the officer’s recommendation, the reasons for that decision are open to view by reason of the ex p. Fabre approach with the consequence that a legal challenge to them can be mounted, whereas if the officer recommends refusal but the planning authority grants permission without giving reasons, its reasons for doing so are not open to scrutiny and the opportunity to test them by bringing court proceedings is accordingly diminished.


  1. I do not consider that these reasons, taken individually or cumulatively, support the general duty for which Mr Simons contends. As to (i), the significance of the planning history of one site when planning permission is sought for another site will usually be relatively peripheral to the main arguments on the planning merits in relation to the latter site. This is not a factor of such force as to be capable of generating the general duty for which Mr Simons contends. Moreover, at various points when Mr Simons was pressed on the potential onerousness for a planning authority acting by a committee of lay councillors having to give collectively agreed reasons for all their decisions, he retreated into a submission that they might not have to give very detailed reasons. But if detailed reasons are not given, that will reduce the ability to check whether and to what extent one planning case really is like, or unlike, another case.


  1. Elias LJ regards point (ii) as being in reality a reason in support of the appellant’s alternative, fall-back argument rather than her primary general argument, and I think he is right about that. In many cases planning authorities will grant permission in a way which appears to accord with the development plan. That does not seem to be something which particularly calls for explanation, whereas a departure from the development plan may do. If permission is granted in accordance with the development plan, the fair inference is that the reasons for that decision reflect the underlying reasons for the development plan being framed in that way in the first place.


  1. Point (iii) has some force, but the absence of reasons is not something which immunises a decision of a planning authority which is contrary to the officer’s recommendation from legal challenge. If, as here, the planning authority makes a decision to grant planning permission which is contrary to both the substantive reasoning and the recommendation in the officer’s report, it will be open to an objector to launch legal proceedings to challenge that decision, relying on the apparent absence of any proper reasons in favour of the decision. If the planning authority files an acknowledgement of service which identifies its reasons, then – subject to any scepticism whether they have simply been invented after the event … the objector will have the opportunity to amend to challenge those reasons. If the planning authority does not say in the acknowledgement of service what its reasons were, then the inference will be strong that it has no proper reasons and any attempt to introduce some in evidence later in the proceedings may well prove ineffective, …


  1. Also against Mr Simons’ primary submission are statements in the cases that there is no general duty to give reasons for decisions to grant planning permission: see e.g. ex p. Chaplin at p. 211. There are, moreover, reasons which are not without force why a court applying the common law should be cautious about imposing a general duty of the kind for which Mr Simons contends. The planning system at local planning authority level is staffed by lay councillors and reflects local democracy in action. If onerous duties to give reasons are imposed across the board, it might deter otherwise public-spirited volunteers. The need to prepare and agree reasons might also introduce an unwelcome element of delay into the planning system: … These sorts of factor are difficult for a court to assess and I think this court should be wary of stepping in to impose a general duty where Parliament has chosen not to do so. In my view, the common law should only identify a duty to give reasons where there is a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of an individual case. This observation leads me to Mr Simons’ alternative submission.


  1. Secondly, as an alternative submission at a lower level of generality, Mr Simons says that a duty to give reasons arose on the particular facts of this case. He relied on two additional matters here, either alone or in combination with (i) to (iii) above: (a) the fact that the planning permission granted was for development in the Green Belt, which is subject to a high degree of protection in planning policy terms (and, moreover, involved a departure from the development plan: see (ii) above) and (b) the fact that the permission granted was contrary to the recommendation in the officer’s report and, I would add, contrary to the whole thrust of the substantive reasoning in that report. …”


“79.    Where the public interest in ensuring that the relevant decision-maker has considered matters properly is especially pressing, as in cases of grant of planning permission as a departure from the development plan or in cases of grant of planning permission as a departure from the usual protective policy in respect of the Green Belt, that is a factor capable of generating an obligation to provide reasons. This is because requiring the giving of reasons is a way of ensuring that the decision-maker has given careful consideration to such a sensitive matter. Similarly, where a person’s private interest is particularly directly affected by a decision, that may also provide a normative basis for imposition of a duty to give reasons, as exemplified in the Doody and Cunningham cases. In the planning context, I think that there is particular force in this point where the decision appears out of line with a natural and reasonable expectation on the part of the public that decisions will comply with the local development plan and with national policy to protect the Green Belt. Although it might be said that decisions to allow development in the Green Belt or contrary to the development plan are not aberrant as such, in that such decisions are not uncommon and cannot be assumed to be irrational, I think that they do give rise to an important onus of justification on the part of the decision-maker which, taken with the parallel public interest considerations in such cases, grounds an obligation under the common law to give reasons in discharge of that onus.


  1. In my judgment, the foundation for the identification of a duty to give reasons for the decision of the Council in this case is the fact that the decision to grant planning permission appeared to contradict the local development plan and appeared to subvert the usual pressing policy concern that the Green Belt be protected (I think either of these factors alone would be sufficient), which engaged a particular onus of justification on the part of the Council which could only adequately be discharged by the giving of a sufficient indication of its reasons for making the decision it did. … In my view, the fact that the Council’s decision was contrary to the reasoning and recommendation in the officer’s report is not as such a matter which generates an obligation to give reasons; rather, it is something which means that the Council cannot refer to the officer’s report pursuant to the approach in ex p. Fabre to show that it has discharged the duty upon it, which arose for the other reasons to which I have referred.”


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