Dover District Council granted planning permission for a large housing and leisure scheme in the Kent Downs Area of Outstanding Natural Beauty, restoring the applied-for 521 homes after its officers had advised a reduction to 365. The Supreme Court held that the Council had to publish the main reasons for that decision, and that comments in the committee minutes did not explain how the central issues had been resolved. The failure went to the heart of the permission rather than being a formal defect that could be repaired later.
The scheme and the committee’s decision
China Gateway International proposed 521 homes and a retirement village at Farthingloe in the Kent Downs Area of Outstanding Natural Beauty. A second site at Western Heights would include housing, a hotel and improvements to historic defences. Part of the housing profit was intended to fund those benefits.
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Supporters, including the South East Local Enterprise Partnership, regarded it as a rare opportunity for private investment. CPRE Kent and the AONB Executive objected that more than 500 houses in a prominent part of the valley would cause significant harm to a nationally protected landscape, with no meaningful mitigation.
The officers’ report, circulated on 7 June 2013, recommended permission only in an amended form. It proposed excluding a safeguarded area of about two hectares where the landscape harm was considered most acute, reducing the Farthingloe homes from 521 to 365, and requiring the hotel to be started before one phase of the housing. The Council’s viability advisers, Smiths Gore, said that the reduction would not threaten viability or the intended contributions. The officers regarded the harm to the AONB as significant. National policy allowed major development there only in exceptional circumstances and where it was in the public interest. They thought the modifications produced a finely balanced justification, but only if the benefits were secured and the development came forward as one comprehensive scheme.
The applicant’s consultants said losing 156 homes would make the scheme unviable. The council’s advisers disagreed. The committee approved the proposal with all 521 homes, despite the officers’ recommendation.
Permission was not issued immediately. In December 2014 the committee was updated on the proposed section 106 agreement. Contrary to the officers’ original recommendation, it would not require the hotel to be provided at any stage of the housing. The agreement was completed, and permission was granted, on 1 April 2015. The decision notice imposed 183 conditions and recorded that the environmental statement had been considered, but it gave no reasons for the grant.
Where the duty to give reasons came from
CPRE Kent challenged the grant. Its judicial review initially failed, but the Court of Appeal quashed the permission for inadequate reasons. Both Dover District Council and China Gateway International appealed.
Lord Carnwath, with whom Lady Hale, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed, explained that the planning Acts do not themselves impose a general duty to explain a grant of permission. Reasons are required for a refusal or for conditions, and a former duty to give summary reasons for a grant was repealed in 2013. That repeal recognised that an officers’ report often supplies the explanation where members accept it. It did not, in his view, displace the wider need for transparency.
This application was subject to a specific duty. For EIA development, the regulations required the authority to make public a statement containing the main reasons and considerations for the decision and, where necessary, the main measures to avoid, reduce and if possible offset its major adverse effects. Lord Carnwath rejected the suggestion that “main” reasons meant a weaker explanation than usual. The standard stated by Lord Brown in South Bucks District Council v Porter (No 2) applied: the reasons must be intelligible and adequate, deal with the principal controversial issues, and not leave a substantial doubt that the decision-maker misunderstood an important matter or failed to reach a rational conclusion. If members accept their officers’ reasoning, the report may suffice. If they differ, they may concentrate on the points of difference, but there must still be no genuine doubt about what was decided and why.
He also considered the common law. There is no duty to explain every grant of permission, but fairness may require reasons so that an affected person can challenge the decision and justice can be seen to be done. He agreed with Oakley that this can arise where a controversial permission departs from important policy and from officers’ advice, making the reasons impossible to infer from the existing papers. The common law could fill the gap left by the 2013 repeal, although only where the case for openness is particularly strong: typically substantial public opposition, a major departure from the development plan or another policy of recognised importance, and a decision against officers’ advice. Those features were present here. The EIA duty made a separate common-law ruling unnecessary, but he said that the same facts would if necessary have justified that duty.
Why the minutes were not an explanation
The council accepted that it had breached the duty to publish reasons. It asked for a declaration or the opportunity to provide reasons later. An officers’ report could have explained a decision accepting its recommendations. Here the committee had taken a materially different course, so publishing that report would not explain its choice.
The Council relied on views attributed to three supporting members: the officers’ restrictions might jeopardise viability, deter developers and weaken the economic benefits, while the advantages outweighed the harm and effective screening could minimise it. Lord Carnwath said that this assumed, uncertainly, that those members spoke for the majority. The required statement is the reasoning of the committee as a whole.
Even on that assumption, fundamental matters were unexplained. The minutes did not show why the members, without further investigation, rejected their own advisers’ view that fewer homes would remain viable. The applicant’s assertion that viability might be jeopardised was not enough. The officers had also treated the hotel, conference centre and other benefits as dependent on a comprehensive scheme secured by conditions or obligations. The members appeared to value those benefits, yet no mechanism required the hotel to be built. Finally, if they accepted the officers’ view of serious harm to the AONB, they needed to explain how screening would minimise it and describe the relevant measures. They did not reconcile that belief with the officers’ view that landscaping would be largely ineffective.
Verdict: The Court unanimously dismissed the challenge by the council and developer and affirmed the order quashing the permission. The inadequacy of the reasons went to the justification for this particular grant. The Court did not determine the planning merits of a future application.
