The stage is set for the Euro-drama of our time. We know that giving effect to the UK's vote for Brexit could require as many as four sets of distinct but closely linked negotiations, or...01 August 2016
Explain yourself! The Court of Appeal considers the duty to give reasons
This case concerned the regeneration project for Shepherd's Bush Market, as part of which Hammersmith and Fulham London Borough Council made a Compulsory Purchase Order (the "CPO") to which there were over 200 objections. A planning inspector held a public inquiry and recommended that the CPO ought not to be confirmed on the basis that the guarantees and safeguards provided for in the CPO were inadequate. Under the Compulsory Purchase (Inquiries Procedure) Rules 2007, the Secretary of State was required to give notice of his decision, and the reasons for that decision, in writing. He rejected the planning inspector's recommendation and decided to uphold the CPO giving brief written reasons to the effect that he considered that there were sufficient safeguards in place and that the proposal would contribute to the economic, social and environmental well-being of the area. The decision he gave was challenged on the basis that the "relevant requirement" of the duty to give reasons had not been complied with.
The duty to give reasons
The judgment helpfully restates the content of the duty to give reasons drawing out the following points in particular:
• Reasons "must be intelligible and adequate" and "must enable the reader to understand why the matter was decided as it was, and what conclusions were reached on the "principle important controversial issues". The Court stressed "how important it is that reasons for decisions should be explained in terms the citizen affected can understand."
• Reasons must not "give rise to substantial doubt as to whether the decision-maker erred in law".
• Reasons "can be briefly stated" and "need refer only to the main issues in the dispute, not to every material consideration".
• "Disappointed developers" should be able to "assess their prospects of obtaining some alternative development permission", or their "unsuccessful opponents" should be able to "understand how the policy or approach underlying the grant of permission may impact upon future such applications".
• Decision letters should be read in a "straightforward manner", and should recognise that the parties they are addressed to are aware of the issues and arguments involved.
• A reasons challenge "will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".
The Court reiterated that one of the motives for requiring a decision maker to give reasons is so that those affected by the decision are able to decide whether the decision is "susceptible to legal challenge". The Court concluded that "the degree of particularity required will depend entirely on the nature of the issues falling for decision", citing authorities that suggest that "fuller reasons" may be required where the decision maker disagrees with a reasoned recommendation. However, the Court recognised that, where a Secretary of State follows a recommendation, it will be easy to infer that they have also adopted the reasoning of that recommendation.
Ultimately, the Court held that although it was clear the Secretary of State had disagreed with the planning inspector, it was not clear why he had disagreed, and this meant he had not complied with the requirement to give reasons:
In short, although it is clear that the Secretary of State disagreed with the inspector's view that the guarantees and safeguards were inadequate he does not explain why he came to that conclusion….
The two critical sentences in the decision letter are, in my judgment, little more than "bald assertions". The Secretary of State may have had perfectly good reasons for concluding that the guarantees and safeguards were adequate. The problem is that we do not know what they were. In those circumstances I consider that the traders have been substantially prejudiced by a failure to comply with a relevant requirement.
It is clear that the duty to give reasons has an inherent flexibility, and that the level of detail and explanation required will differ depending on the facts of any particular case. This flexibility is, no doubt, both a blessing and a curse. However, as the judgment in this case shows, decision-makers ought to err on the side of giving fuller reasons, particularly when explaining a decision not to follow a reasoned recommendation.
The new May Government has now been fully established and has begun getting to work. Judging by last week's notable developments, foreign affairs is top of the agenda.Brexit diplomacy:... 25 July 2016