England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2016

Mr Justice Jay:


 


Introduction

1. In these judicial review proceedings Ms Karen Oakley ("the Applicant") challenges the decision of the South Cambridgeshire District Council ("the Defendant") to grant planning permission to Mr Len Satchell ("the Interested Party") for the construction of a 3,000 seat football ground for Cambridge City Football Club.
2. The sole ground on which this application is brought is that the Defendant ought in the circumstances of this case to have given reasons for its decision to grant planning permission.

Essential Factual Background

3. On 4^th November 2013 the Interested Party applied for planning permission for the "erection of football ground for Cambridge City Football Club and creation of new community recreational space and land to the north of Deal Grove, Babraham Road, Sawston, Cambridgeshire", being land within the Green Belt.
4. On 4^th June 2014 an officer's report was produced by the Defendant, recommending that planning permission be refused. This thoroughly traversed all the issues in a systematic fashion, all in the context of the development plan and national policy. In particular, the planning officer considered the Interested Party's case on "very special circumstances", including (a) the need for the development, (b) the availability of suitable alternative sites, (c) community benefits, (d) site benefits, (e) economic benefits, (f) public support for the proposal, and (g) sustainable access.
5. The planning officer's reasons for recommending the refusal of the application were, in essence, that this would constitute inappropriate development within the Green Belt, would result in additional harm to the rural character of the area, and that there were insufficient very special circumstances which clearly outweighed the strong Green Belt and additional considerations. Part and parcel of the reasoning for her negative recommendation was that the proposal would be contrary to the development plan.
6. The Defendant's planning committee convened to consider the application on 4^th June 2014, being the same day as the report. According to the available evidence, including the manuscript notes of the proceedings, the report was presented to the committee by the Defendant's development control manager, and he also updated them in relation to the proper scope of a planning obligation to secure community space provision. Individuals then spoke against and for the proposal, and nine out of the twelve committee members contributed to the discussion. The debate covered matters such as the community benefits of the proposal and access issues.
7. To my mind, the manuscript notes provide little or no insight into the planning committee's reasoning process. All that the extant material can do is to provide an insight into what individual members may have been thinking at a particular time anterior to the decision itself.
8. The Planning Committee then resolved to give officers delegated powers to approve the application, subject to (a) reconsideration of ecology and access issues, (b) further consideration of environmental impact, (c) safeguarding conditions and, if appropriate, completion of a section 106 agreement, and (d) the application being referred to the Secretary of State for Communities and Local Government as a departure from the development plan and not being called in for determination by him.
9. The minutes do not record any reasons for the decision, and it is common ground that none were given orally at the meeting.
10. The matters delegated to officers were the subject of a meeting between the relevant parties, the outcome of which was summarised in a delegation report dated 16^th April 2015. This recorded the agreement to various conditions, improvements and clarifications of the scheme. The report did not of course revisit the questions already decided by the committee.
11. On 17^th April 2015 the decision to grant planning permission was promulgated. It contained typically formulaic language, and at the very end of the decision the following appears:

"A delegation report or committee report, setting out the basis of this decision, is available on the Council website."

12. The committee report, being the report of the planning officer, had been made available on the Defendant's website. An issue arises as to whether this set out the basis of the decision, and whether some further, more informative report had been promised.

Legal Framework

13. Pursuant to section 70(2) of the Town and Country Planning Act 1990, the Defendant was required to have regard to, amongst other matters, the provisions of the development plan. Further, pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, the Defendant was obliged to determine the application in accordance with the development plan unless material considerations indicated otherwise.
14. Insofar as the planning committee did furnish any reasons, it stated that the proposal was contrary to the development plan. It followed that the proposal should have been refused unless material considerations indicated otherwise. The relevant material considerations are those located in national policy, the NPPF.
15. Paragraphs 87–89 of the NPPF provided that inappropriate development should not be approved in relation to land in the Green Belt except in "very special circumstances". To my mind, the planning committee really had to address two sets of issues. The first was whether the proposal fell into the second bullet point of paragraph 89 of the NPPF, being an exception for "appropriate facilities for outdoor sport". The second was whether, if the exception did not apply, the "very special circumstances" exception operated. The existence of such circumstances is a matter of planning judgment to be exercised by the local planning authority, but in order that approval might occur they would have clearly to outweigh the harm caused to the openness and purpose of the Green Belt, and any other factors militating against the development.
16. Between 2003 and 2013, there was a duty on local planning authorities to give summary reasons for the grant of planning permission. However, article 35(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 ("DMPO"), which applies to this case, provides that reasons are only required if permission is refused. If granted subject to conditions, then reasons are required in relation to each such condition.

The Applicant's Case

17. Mr Zack Simons for the Claimant advanced two main arguments. His first was that a duty to give short reasons arose in the particular circumstances of this case. His second was that his client enjoyed a legitimate expectation on the basis of a promise given in the Defendant's published decision (see paragraph 11 above).
18. In his skeleton argument, Mr Simons for the Claimant accepts that there is no general common law duty to give reasons, although contends that this is the recognised trend of direction of the authorities. He submits that a duty arises in the particular circumstances of the present case, and is not precluded or excluded by the amendment to the Development Management Procedure Order. This, without more, is a neutral factor, because the common law must decide on an independent basis what the demands of fairness require.
19. The particular circumstances on which reliance is placed are: (i) the planning officer gave comprehensive, authoritative reasons substantiating her view that there were no very special circumstances, (ii) any reasoned basis for the planning committee's inferred contrary view cannot be discerned, deduced or otherwise inferred from the available evidence, (iii) the existence of any reasoned basis is all the more inscrutable because the planning committee accepted that granting permission would constitute a departure from the development plan, and (iv) the position "is more stark still due to the scheme's prior consideration and rejection through the local plan process".
20. Mr Simons further submits that there is no good and obvious reason for the Defendant's members reaching the contrary decision they did – vis-à-vis the reasoned report of the planning officer. Neither his client nor the Court is in a position to assess whether the permission was granted in accordance with the Defendant's statutory duties as set out under paragraph 13 above.
21. During the course of his oral argument, Mr Simons' submissions became more clearly tethered to a reasons duty arising on the particular facts of this case out of their factual and legal complexity. Without resiling from any of the submissions I have summarised under paragraph 18 above, Mr Simons stressed that the particular duty was triggered because "this is a complicated area" and a "series of steps of mixed fact and judgment were relevant to the decision-making process". At one stage, he accepted that he could not submit that the planning committee's decision was prima facie aberrant, although (in one sense, rightly) pointed out that the Defendant's absence of reasons denied his client that very opportunity.
22. Mr Simons' second-string submission was that his client's legitimate expectations had been frustrated. Given that neither the planning officer's report nor the delegation report provided the basis for the impugned decision, and that the basis had not merely been promised but was said to have been made available, it was incumbent on the Defendant to provide something in addition to these reports.

Discussion

23. I will address the helpful submissions of Mr Jack Parker for the Defendant, to the extent necessary, during this section of my judgment.
24. I must state at the outset that I was impressed by Mr Simons' oral argument, but I regret to say that I cannot accept his submissions.
25. My point of departure is to record the extremely well-known dictum of Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625, at 702-3:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

26. The statutory framework in which local planning authorities operate clearly must be addressed. In my view, I must do so in two different ways: first, in the context of a statutory scheme which no longer obliges planning committees to give reasons for their decisions when granting permission; secondly, in the broader context of the nature and character of planning decision-making generally.
27. In the former context, Mr Parker submitted that the common law cannot ignore the fact that the executive, through secondary legislation, has recently removed the statutory duty to give reasons in this genus of case. Far from being a neutral consideration, in line with Mr Simons' argument, Mr Parker's point was that it was a factor which militated strongly against the implication of the postulated duty.
28. I cannot accept Mr Parker's submissions on this point. The recent abrogation of the requirement to give reasons certainly enables inferences to be drawn about how the secondary legislators thought the policy judgment should be made in relation to a statutory duty, but it cannot in my judgment touch the separate workings of the common law in this domain. I would agree with Mr Parker that it would be odd indeed if the common law were to fill the recently created lacuna by imposing a general duty to give reasons, but that is not Mr Simons' case. In my view, the better inference, to the extent that one needs to be drawn at all, is that the secondary legislators have left it to the judges to decide when, if at all, a duty to give reasons might be engendered.
29. If the amendment to the DMPO had expressly excluded a duty to give reasons, the common law would, I agree, be powerless; but the present case it seems to me is a classic example of a case where the common law should intervene if fairness requires it, notwithstanding the absence of a reasons requirement in the relevant statutory scheme. I was referred to a number of authorities vouching that proposition, and I need not expressly refer to them. The locus classicus on this point remains ex parte Doody [1994] AC 531, at 562C-D.
30. However, I cannot accept Mr Simons' submission that the general trend of the authorities favours the implication of a general duty to give reasons. Whether or not this is in fact so, the argument is neutralised by the recent abrogation of the express statutory requirement.
31. I do accept Mr Parker's submission that the broader statutory context is relevant, namely of judgmental decisions made by democratically elected councillors well capable of grappling with the issues in dispute. Indeed, I might go further: their capabilities cannot be questioned, and this is a matter of democratic accountability.
32. Mr Parker's headline submission, which I accept, was that the statutory scheme presupposes that members might disagree with recommendations made by planning officers, and are entitled to do so. In support of that submission Mr Parker recruited dicta from two main sources. First, and dealing with the matter at a high level of principle, in R v HEFC, ex parte Institute of Dental Surgery [1994] 1 WLR 242, Sedley J for the Divisional Court said this (at 256H):

"The giving of reasons may in any one case be requisite. The giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process. On the other side of the argument, it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge." [supplied emphasis highlights the relevant matters]

33. I accept that the considerations weighing on what Sedley J called "the other side of the argument" are apposite to the present context. I draw this inference not from the fact that the DMPO has recently been amended, but from my understanding of the nature and character of the decision-making process relating to planning decisions.
34. Secondly, and in a direct planning context, Mr Parker reminded me of Holgate J's recent helpful collection of salient, general principles in R(oao Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin), paragraphs 90-95. In particular (but without listing the authorities which support these propositions):

(i) Council members may be expected to have substantial local and background knowledge.

(ii) The purpose of an officer's report is to draw members' attention to the proper approach required by law and material considerations. Such reports may contain recommendations, but the ultimate decision-makers are democratically elected councillors, accountable to the local community which elected them.

(iii) It is the task of members, not officers or the courts, to weigh the competing public and private interests involved in the exercise of their planning judgment. These are policy judgments made by expert tribunals within their areas of special competence.

35. Mr Simons relied on a number of citations from the judgment of Sedley J in Institute of Dental Surgery, which in my respectful view contains, despite its relative age, still the best and most authoritative statement of the principles germane to the implication of a duty to give reasons. Rather than cite copiously from that decision, let me attempt the following summary:

(i) There are cases where the nature of the process itself, or the subject matter, calls in fairness for reasons to be given. Ex parte Doody was such a case.

(ii) There are cases where "something peculiar to the decision", some form of apparent aberration, triggers a reasons duty. Ex parte Cunningham was such a case, because the Court could evaluate for itself the discrepancy between the compensation awarded to Mr Cunningham by the board, and the compensation he would have received in an Industrial Tribunal.

(iii) Category (ii) above does not include decisions which are challengeable by reference only to the reasons for them. If there are no reasons, ex hypothesi there can be no challenge; but the absence of reasons cannot logically be the basis for requiring them. Pure academic judgments fall within this class of decisions.

(iv) The classes of case where reasons are or may be required are not closed.

36. I should add that Sedley J's formulation of "something peculiar to the decision" was his interpretation of the judgments of the majority in the Court of Appeal (McCowan and Leggatt LJJ) in ex parte Cunningham. McCowan LJ accepted Counsel's choice of words – "it cries out for some explanation from the board" - which is arguably more general. However, my reading of the majority view is that an explanation was called for because, without it, the decision was inexplicable.
37. Equipped with this authority, Mr Simons persisted in a submission that this was an aberration or "something peculiar to the decision" case. He relied on the number of obstacles to the grant of permission which existed in the NPPF, and the well-reasoned report of the planning officer, addressing as it did all the relevant issues. Attractively though this submission was advanced, I cannot accept it. No one contends that it was not open to the planning committee to come to a different conclusion on the ultimate issues, in the exercise of its planning judgment. The purpose of the officer's report was to set out all the relevant parameters for decision-making, in other words to furnish some sort of route map through the development plan and the NPPF. The agenda having thus been established, it must be clear to the Claimant, as it is to me, that members did not accept the recommendation of the planning officer. It is not clear whether approval was granted because the exception in the second bullet point of paragraph 89 of the NPPF was thought to apply, or whether it did not and the case therefore hinged on the presence of very special circumstances. In the end, however, this does not matter, since this is no proper basis for holding that members did not apply their planning judgment to the correct set of issues. Disagreement with a recommendation, particularly in circumstances where that recommendation is advisory only, is not evidence of aberration.
38. Just as a Jury in a criminal trial will be deemed to have followed the Judge's directions, although the absence of reasons for a verdict do not enable that conclusion to be reached other than inferentially, the same applies it seems to me to the decision of the planning committee. In short, the latter must have engaged with the issues as distilled in the officer's report.
39. In oral argument Mr Simons placed particular emphasis on a submission that, because this was a complicated case involving the taking of a number of steps, a duty to give reasons arose applying the relevant spectrum. On my understanding of this submission, the relevant spectrum encompasses straightforward and/or single issue cases at one pole, and complex or multi-issue cases at the other pole. In my judgment, there is no such spectrum. Complexity is not the point. The answer to Mr Simons' submission is that a decision, correctly, taken, may involve several exercises of planning judgment or it may involve one; but in all these scenarios the nature and character of both the decision and the decision-making process is the same.
40. In this regard, I have not overlooked the decision of the Court of Appeal in R v Aylesbury Vale DC, ex parte Chaplin [1997] 76 P&CR 207. At page 212 of the law report, Pill LJ said this:

"Like Keene J., I am prepared to accept the possibility that there could be a situation in which an obligation to give reasons for a grant of permission arises but I am far from satisfied that the present decision can be impugned for lack of reasons. Though the answer may not have been easy, the question posed for the consideration of members of the sub-committee was clear. There was a single issue. Their planning advisors were consistent in making a judgment in favour of the grant of planning permission. Upon the first application for permission, a majority of members rejected the advice of their planning advisers. Before they considered the second application, the members had the benefit of a site visit and further advice from their planning advisers. Better informed as they were, members were entitled to make a different judgment upon the issue, as one of them undoubtedly did and others probably did."

41. I accept that this passage offers some weak support for the proposition that there may be cases – perhaps multiple issue cases – where a duty to give reasons may arise. Chaplin was decided before the advent of a statutory duty to give reasons, but in view of my previous analysis I do not believe that this alters the approach I should be taking to it. The correct, and parsimonious, approach to Chaplin is that it is not authority for the proposition that complexity is the touchstone. In my view, there may be situations where planning committee decisions do appear aberrant, and in that specific context the complexity of the case may be a relevant factor. Thus, I am not to be understood as holding that a duty to give reasons could never arise; I am simply keeping the judicial powder dry.
42. Accordingly, I must reject Mr Simons' spirited submissions on his first, and main ground.
43. In my judgment, there is no merit in his legitimate expectation point. Anyone reading the formulaic wording of paragraph 9 of the final report (see paragraph 11 above), knowing what was already on the website, would understand the "committee report" to be a reference to the planning officer's report dated 4^th June 2014. The hypothetical reasonable reader would not understand from this that the Defendant, now 9 months after the decision, was intending to promulgate some further report which would set out the basis for the decision with more particularity, and this is not what paragraph 9 said. The paragraph refers to what was already available, not to what would or might be.
44. This application for judicial review must be dismissed.