In a series of recent decisions the courts have considered the extent of the decision-makers duty to give adequate reasons and the circumstances in which the duty may arise.

May 18, 2016

By Peter Dixon

The nature and extent of a decision-maker’s duty to give reasons is dependent upon the statutory context in which decision in question is taken.

In the case of ‘ordinary’ planning decisions, between 2003 and 2013 there was a duty on local planning authorities to give at least summary reasons for the grant of planning permission. Now in accordance with Article 35(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 there is only a requirement to give reasons where planning permission is refused.

In Oakley v (1) South Cambridgeshire District Council (2) Satchell [2016] EWHC 570 (Admin) it was argued on behalf of an objector to a proposed football stadium development that in the absence of any statutory requirement to give reasons for the grant of planning permission, a duty at common law could nevertheless arise where, as in this case, permission had been granted in the face of a planning officer’s recommendation for refusal based primarily upon the Green Belt status of the application site.

Whilst the Court dismissed the claimant’s application for judicial review, it nevertheless held that the statutory provisions did not preclude the possibility that a common law duty to give reasons would arise in appropriate cases.

In the case of Screening Decisions under the Environmental Impact Assessment (‘EIA’) Regulations there is similarly no statutory requirement to give reasons for a negative screening decision (i.e. a decision that EIA is not required). However following the decision of the European Court of Justice in R(Mellor) v Secretary of State for the Environment [2010] Env LR 18 there is a duty on the decision maker to give reasons where requested to do so (the so-called ‘Mellor duty’). The reasons in such cases must include sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision (R(Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157).

In R(Jedwell) v (1) Denbighshire County Council (2) Jones [2016] EWHC 458 (Admin) the Court gave guidance on whether and in what circumstances reasons provided after the event would satisfy the ‘Mellor duty’ finding that reasons must be given within a reasonable time of the decision and must be the reasons in the authority’s mind at the time of the decision, not a post facto rationalisation. Where an authority is in breach of its duty to give reasons but is nevertheless able to convince the Court that there were proper reasons in the authority’s mind at the time of the decision, the Court is likely to be slow to quash the planning permission concerned since it is unlikely that any interested person will have been deprived of the right or opportunity to participate in that part of the planning process or that anyone would have been materially prejudiced by the failure to give reasons earlier. The authority might nonetheless be penalised in costs for its failure. Where no reasons can be demonstrated, the decision should be quashed unless it can be shown that it would inevitably have been the same had the breach of duty not occurred.

In Horada and Others v Secretary of State for Communities and Local Government [2016] EWCA Civ 169 there was no doubt that the Secretary of State was under a duty to give reasons for his decision to confirm a compulsory purchase order connected with the redevelopment of Shepherds Bush Market in London. The Secretary of State did so despite the advice of his Inspector that the order ought not to be confirmed.

The Court of Appeal considered the authorities including Save Britain’s Heritage v No 1 Poultry Ltd and South Bucks District Council v Porter (No2) noting that the “degree of particularity” in any case depended upon the nature of the issues to be decided and that the decision letter must be taken to be addressed to an informed readership. Even allowing for that, however, the Court found that the decision letter in part amounted to mere “bald assertion” and that the reader of the decision notice would have had to have been “not only well informed but also psychic” to have extracted the reasoning from the letter that counsel for the Secretary of State submitted was to be found there.

The decision was quashed in order to permit the Secretary of State to give his reasons in a “readily understandable way.”