Dover District Council v CPRE Kent [2017] UKSC 79

Dover District Council granted planning permission for a major development in an Area of Outstanding Natural Beauty, against officers' advice. The Supreme Court held the Council had breached its duty to give reasons under EIA regulations and at common law, quashing the permission.

Facts

China Gateway International Limited (CGI) applied to Dover District Council in May 2012 for planning permission for a major mixed-use development at Farthingloe and Western Heights, west of Dover. Farthingloe lies within the Kent Downs Area of Outstanding Natural Beauty (AONB), and Western Heights is a scheduled monument. The principal elements included 521 residential units and a retirement village at Farthingloe, 31 units, a hotel and conference centre at Western Heights, and conversion of the Drop Redoubt into a visitor centre, with a £5m contribution to heritage assets secured by a section 106 agreement. The development qualified as EIA development.

The officers’ report ran to some 135 pages and recommended approval, but in modified form: reducing housing numbers at Farthingloe from 521 to 365 to mitigate landscape harm to the AONB, excluding a ‘safeguarded area’, and imposing conditions linking provision of the hotel to phasing of residential development. The officers concluded the harm to the AONB was significant but that the modifications would shift the planning balance in favour of granting permission as a ‘finely balanced exceptional justification’. The Council’s economic advisers, Smiths Gore, advised the reduction would not jeopardise viability; the applicant’s advisers, BNP Paribas, strongly disagreed.

At the planning committee meeting on 13 June 2013, members voted, contrary to the officers’ recommendation, to approve the application with 521 houses as originally proposed. Permission was eventually granted on 1 April 2015, accompanied by a 50+ page notification listing 183 conditions, but containing no formal statement of reasons under the EIA regulations. CPRE Kent brought judicial review proceedings.

Issues

The Supreme Court identified the central issues as: (i) what legal duty, if any, does a local planning authority have to give reasons for granting planning permission, particularly where it departs from officers’ advice; (ii) whether the source of such duty lies in statute (domestic or EU), or in the common law; and (iii) what the legal consequences of a breach of that duty are, in particular whether breach of the EIA reasons duty should lead to quashing of the permission or merely a declaration.

Arguments

The Council and CGI

Mr Cameron QC, for the Council, accepted breach of the EIA reasons duty but argued a declaration was sufficient, with reasons to be supplied retrospectively, relying on R (Richardson) v North Yorkshire County Council. He submitted that any common law duty to give reasons should be confined to exceptional cases and contended that Oakley v South Cambridgeshire District Council should be treated with care given the abrogation of the statutory duty in 2013. He argued the reasons of the supporting members were clearly reflected in the minutes. Mr Reed QC, for CGI, argued the EIA duty to give ‘main reasons’ was analogous to the former ‘summary reasons’ duty and imposed a less onerous standard.

CPRE Kent

CPRE Kent contended that the reasons given were inadequate, particularly given the seriousness of the harm to the AONB, the departure from officers’ recommendations and national policy, and the requirement for clear reasons under the EIA regulations. The appropriate remedy was to quash the permission.

Judgment

Lord Carnwath, with whom all other Justices agreed, dismissed the appeal and upheld the Court of Appeal’s order quashing the permission.

Standard of reasons

The standard articulated by Lord Brown in South Buckinghamshire District Council v Porter (No 2) applies equally to local planning authority decisions as to those of the Secretary of State or inspectors. The reference in EIA regulation 24(1)(c)(ii) to ‘main reasons’ does not materially limit the ordinary duty. Where members accept the officers’ recommendation, the report itself will typically supply the reasoning; where they depart from it, the committee’s reasons must explain the points of difference.

Remedy for breach of EIA duty

Lord Carnwath declined to follow the reasoning in Richardson that breach of the EIA reasons duty could be cured by a mandatory order requiring reasons to be provided ex post facto. The provision of reasons is intrinsic to the EIA procedure, essential for effective public participation, and the distinction drawn between notification of the decision and its reasons was ‘artificial and unconvincing’. The court retains a discretion, following Walton and Champion, to refuse relief where there has been no substantial prejudice, but that test was not met here.

Common law duty

While there is no general common law duty on local planning authorities to give reasons for granting planning permission (R v Aylesbury Vale District Council, Ex p Chaplin), such a duty arises in particular circumstances, as held in Oakley. Lord Carnwath endorsed Oakley, holding that fairness and the principle of open justice or transparency may require reasons where permission is granted in the face of substantial public opposition, against officers’ advice, and involving major departures from development plan policies or ‘specific policies’ such as those identified in the NPPF. The 2013 abrogation of the statutory duty did not preclude this; the common law could fill the gap where the legal policy reasons are particularly strong.

Application to this case

The committee’s reasons, as recorded in the minutes, were inadequate. There was no indication of why members rejected Smiths Gore’s view that viability was not threatened; no explanation of the omission of any mechanism to secure the hotel and conference centre as part of a single comprehensive scheme; and no explanation of how members could conclude that landscape harm could be ‘minimised’ by ‘effective screening’, when officers had advised screening would be ‘largely ineffective’. These defects went to the heart of the justification for permission and raised a ‘substantial doubt’ as to whether members had properly understood the key issues or reached a rational conclusion. The only appropriate remedy was to quash the permission.

Implications

This decision clarifies and consolidates the law on the duty of local planning authorities to give reasons for granting planning permission. It confirms that, even after the 2013 abrogation of the statutory duty to provide summary reasons for grants of permission, a duty may still arise from two sources: (i) the EIA regulations, where the development is EIA development; and (ii) the common law, in particular circumstances.

The common law duty is not general. It is triggered where, typically, permission is granted in the face of substantial public opposition and against officers’ advice, for projects involving major departures from the development plan or other policies of recognised importance. The standard of reasons required is the same as that in Porter (No 2): reasons must be intelligible, adequate, and address the principal controversial issues.

The decision also clarifies that breach of the EIA reasons duty is not automatically curable by a mandatory order; quashing remains available and may be the appropriate remedy where the defect goes to the heart of the justification for permission. The court retains discretion under Walton and Champion to refuse relief where there is no substantial prejudice.

The case is significant for local planning authorities, developers, objectors and practitioners. Members departing from officer recommendations on controversial applications must articulate their reasons clearly, particularly where protected designations such as AONBs are involved. The judgment reinforces the principle of transparency and underpins effective public participation, consistent with the Aarhus Convention and the EIA Directive. Lord Carnwath acknowledged that the precise scope of the common law duty remains somewhat uncertain but indicated it should not be difficult in practice for councils to identify cases calling for a formulated statement of reasons.

Verdict: The Supreme Court dismissed the appeal and affirmed the Court of Appeal’s order quashing the planning permission, holding that the Council had breached its statutory duty under the EIA regulations to give reasons and that the defects in reasoning went to the heart of the justification for the permission.

Source: Dover District Council v CPRE Kent [2017] UKSC 79