December 3rd, 2015 by James Goudie KC

The procedural question, whether the reasons given for a decision, when reasons are required, are adequate, and the substantive question, whether the reasoning in support of the decision is adequate, to make for demonstration of a reasonable decision, continue to arise with considerable frequency, including in two cases decided on 2 December 2015, one in our Court of Appeal and the other in the EU General Court.

The Court of Appeal case is Jedwell v Denbighshire County Council [2015] EWCA Civ 1232, concerned with Environmental Impact Assessments (“EIAs”) and Screening Opinions (“SOs”) The Council’s planning officer had issued a negative SO, stating that no EIA was required.  A resident argued that an EIA should have been obtained and that the SO was inadequately reasoned, making the grant of planning permission in February 2013, for wind turbines, unlawful.

In May 2013 the resident wrote to the Council asking for contemporaneous reasons for the SO.  The Council sent him the covering letter that had accompanied the SO and indicated that it had nothing further to add. 

There were three main issues: (1) whether the SO itself was adequately reasoned; (2) whether the Council’s response to the May letter discharged its duty to give reasons; and (3) if not, whether the planning officer’s witness statement saved the Council.  The Court of Appeal decided all three issues against the Council.  In order to discharge its duty, the Council had to supply reasons before the issue of proceedings against it.

The Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which remained in force in Wales, obliged the local authority to give reasons only where the SO concluded that an EIA was required. They did not require reasons to be given for a negative screening opinion.  However, EU law did, either in the decision itself or in a subsequent communication following a request from an interested party.  The reasons had to demonstrate that the author had understood and considered the issues, and that proper consideration had been given to the possible environmental effects of the development.  They also had to be sufficient to enable the interested party to understand why the decision had been made and to decide whether to challenge it.  The instant SO stated its conclusion but contained no reasoning at all.  It did not indicate why the planning officer thought that no EIA was needed, and it did not demonstrate that she had applied her mind to the relevant questions.  The Council had not provided any proper reasons in response to the May letter.  When the claim form was issued, it was in breach of its duty to give adequate reasons.  The planning officer’s witness statement could not cure that deficiency.  One of the purposes of requiring the local authority to give reasons for a negative SO was to enable the interested party to decide whether to challenge it in legal proceedings.  Reasons had to be given within a reasonable time of the request.  However, if a reasonable time had elapsed but proceedings had not been commenced, the local authority might still cure any deficiency by supplying further reasons before the commencement of proceedings.  However, in the instant case, the contents of the planning officer’s witness statement had not been disclosed before the resident issued his claim form and could not rescue the local authority from its breach of duty.

The General Court case is Case T-553/13, European Dynamics v European Joint Undertaking for ITER and the Development of Fusion Energy, in which the claimant’s challenge to the defendant’s tendering procedures with respect to IT services failed.  The principle of non-discrimination had not been infringed, and the obligation to give reasons had not been breached.  The reasoning of the award decision was adequate.  It allowed the claimant to understand why other tenders were selected as being superior to their tender.

The Court said that, according to well-established case-law, the obligation to state reasons in respect of public contracts is fulfilled when the contracting authority informs unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. In addition, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations  However, it is apparent from the case-law that a contracting authority cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender. Furthermore, the contracting authority is not bound to supply the unsuccessful tenderer with full copies of the evaluation report and the successful tender.

Comments are closed.