Bates Wells successfully supports claimants challenging unviable rural development

The High Court has this week in R (Watton and Cameron) v Cornwall Council [2023] EWHC 2436 (Admin) set out guidance on the standard of reasons to be given by public authorities in circumstances where no duty to give reasons exists but reasons have been given voluntarily. Harry Campbell of Bates Wells represented the successful claimants, Gemma Watton and Jonathan Cameron. Richard Ground KC and John Fitzsimons and Richard Kimblin KC were instructed for the Claimants. This case study outlines the standards of reasons required when granting planning permission.

This case concerned a challenge to Cornwall Council’s decision to grant planning permission for the construction of a crematorium in a rural area of North Cornwall. There was a high level of public engagement during the consultation on the application, including the submission of detailed expert evidence.

The decision was quashed on a number of bases. A key point arising from the judgment was the adequacy of the Council’s reasons.

What standard of reasons is required?

There is no statutory duty to give reasons for the grant of planning permission. However, where reasons are given voluntarily, the same standard of reasons is required as if there was a duty (R (Spedding) v Wiltshire Council [2022] EWHC 347 (Admin)).

Here Cornwall Council voluntarily gave reasons by adopting those set out in the Officer’s Report. That report rehearsed the applicant’s case in some detail but did not set out the fact that expert reports and detailed objections had been submitted in opposition nor did it set out those views for Council members to consider. The key question was whether that was adequate.

In Dover District Council v CPRE Kent [2017] UKSC 79, the Supreme Court held that where a local planning authority grants planning permission against the recommendation of its officers, the Porter standard (see further below) can apply to the reasons given for so departing. However, there was little authority on the standard of reasons required where the local planning authority accepts the recommendation of officers.

The Court therefore considered whether the standard of reasons set out in South Buckinghamshire District Council v Porter (No.2) [2004] UKHL 33, [2004] 1WLR applied to decisions taken by planning authorities who followed their officers’ advice. Porter reasons are those which are:

1) Adequate and intelligible

2) Enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues

Sir Duncan Ouseley held in Watton that the essential basis for determining the standard of reasons required for a decision was the requirements of fairness and the need to understand the basis of the decision. Essentially, all parties need to know how the key issues were resolved in light of the material before the decision maker. What is required will vary based on the circumstances before it – the level of detail required being context specific (R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88). Fairness may require the Porter standard to apply to an officer’s report which is followed by the local planning authority, but it will not always do so.

The circumstances that mean the Porter standard applies will vary from case to case. However, in Watton, those circumstances included:

• The controversial and unusual nature of the development
• The support of expert reports on each side
• Substantial debate over whether the proposal complied with the development plan
• The general acceptance by the Council of the applicant’s expert material

The first three of these factors are likely to be key to determining whether or not a higher standard of reasons is required.

Does the Porter standard mean that reasons have to be given for rejecting objections?

Sir Duncan Ouseley held that the key question for objectors is: why did the Officer, and the Council reject my or my experts’ points on the principal controversial issues? The answer to that question may or may not be apparent from the fact that a contrary position has been accepted and will often depend on the nature of the debate and conclusions and the nature of the opposing case put forward. However, it is likely that the reasons given will need to expressly, albeit briefly, discern and address the principal points made by the objectors on the principal controversial issues and explain why they were rejected. Absent that reasoning, the objector will not know whether their points have been understood or whether the public authority’s decision is lawful. This does not mean every point has to be rehearsed however, just that reasons have to be given for why the report concluded as it did in light of the evidence.

Additionally, the judge held that objectors are entitled to expect that their principal points will be presented for consideration alongside the experts of the applicant so that the legal adequacy of the advice about objections can be tested.

What does this mean in practice?

The Porter standard has been adopted broadly in public law and the duties of fairness and needing to understand the decision are applicable in most contexts. The judgment is, therefore, likely to be of wider application outside the planning sphere, particularly where decisions are taken following a consultation or contested procedure. Public authorities will need to take care with the drafting of their decisions and be mindful of the context in which they take their decisions, even when following the advice of officers. They should ask themselves:

• Is the subject of the decision controversial or unusual? The more controversial or unusual, the more detailed the reasons should be.
• Have detailed reasoned objections including expert evidence been received? The more detailed and well reasoned the objections (particularly where expert evidence is provided on both sides of a debate), the more detailed the reasons should be.
• What are the main issues in controversy which need to be decided?
• Are the key points made by objectors in relation to the principal controversial issues set out and addressed in the reasons?
• Can objectors understand why their points have been rejected from the reasons?

Those objecting to decisions should try to ensure that their objections are as detailed and well reasoned as possible supported by objective evidence and, where possible, expert evidence. Doing this is likely to elevate the standard of reasons required.