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
"Just because." The High Court rejects a common law duty to give reasons
South Cambridgeshire County Council (the "Council") granted planning permission for a new football stadium for Cambridge City to be built on green belt land, despite the local planning officer recommending that permission be refused. The Council did not give reasons for its deviation from the recommendation, or for its final decision to grant permission. A local resident objected to the decision, claiming that the stadium would significantly harm the openness of the green belt land, contrary to the Council’s development plan. She then brought a judicial review, arguing that the Council was under a duty to give reasons for its decision but had failed to do so.
The duty to give reasons
The Court considered the found that the Council was permitted to disagree with the planning officer's recommendations and that it was not required to give reasons for doing so. The Court held that: "disagreement with a recommendation, particularly in circumstances where that recommendation was advisory only, was not evidence of aberration". In the circumstances, the Council could grant planning permission despite the fact that the proposal was contrary to the national development plan, if there were very special circumstances, or because the national policy did not apply. It did not matter that it was not clear on which basis they had decided to do so because they were not under an obligation to give reasons under statute or common law.
There had previously been a statutory duty to give reasons, but the recently made Town and Country Planning (Development Management Procedure) (England) Order 2015 now provided that reasons were only required if permission had been refused. The Court in this case acknowledged that: "[i]t would be odd indeed if the common law were to fill the recently created lacuna by imposing a general duty to give reasons." However, the Court concluded that "the secondary legislators have left it to the judges to decide when, if at all, a duty to give reasons might be engendered." In this case, the Court found that the absence of reasons had not resulted in procedural unfairness because the planning officer's report had set out the "parameters" for the decision to be made and the Council had engaged with all the issues in the report. Having considered the report and the relevant issues, the Council then reached a different conclusion from that of the planning officer, as it was permitted to do.
Even though there was, until 2013, a statutory duty to give reasons, the Court was not willing to plug any "gap" by imposing a general common law duty to give reasons. The Court did, however, concede that a duty to give reasons could arise and that it was "simply keeping the judicial powder dry". This is consistent with previous case law, which allows a general common law duty to give reasons to be imposed where the imposition of such a duty is intrinsically linked to fairness (see for example, the case of R v Secretary of State for the Home Department, Ex parte Doody  1 AC 531).
This case also stands in interesting contrast to the recent Shepherd's Bush Market case (see our previous blog on this case) which involved a decision by the Secretary of State to approve a compulsory purchase order contrary to a planning officer's recommendation. In that case, the Court held that the cursory reasons offered by the Secretary of State for his decision were inadequate and required fuller reasons to be given. The two cases highlight the apparent "luck of the draw" in the planning context for claimants depending on whether the decision about which they are concerned falls within the scope of a statutory duty to give reasons. Where such duty exists, claimants can expect to be given full, comprehensible reasons; where it does not, there is no guarantee that a common law duty will be imposed. This may leave unlucky claimants feeling that they are on the receiving end of a planning decision that is inexplicable.
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