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In Dover District Council v CPRE Kent [2017] UKSC 79, Lord Carnwath offered some important observations on the duty to give reasons in administrative law. The underlying issue involved an application for planning permission in the Kent Downs, an Area of Outstanding Beauty. Against the advice of its professional advisers, the local authority granted the application, no doubt heavily influenced by the positive economic impact the development would have. It was conceded that the local authority had breached its obligation under the EIA regulations to set out “the main reasons and considerations” for its decision (at para 64), but the question of remedy was unresolved, which led Lord Carnwath to canvass the various European and domestic sources for an obligation to give reasons.

Although he accepted that there is no general duty to give reasons at common law (at para 51), Lord Carnwath took the view, following R v Home Secretary, ex parte Doody [1994] 1 AC 531, that reasons will be required where they are necessary to permit the courts to scrutinise the underlying decision effectively:

Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. Doody itself involved such an application of the common law principle of “fairness” in a statutory context, in which the giving of reasons was seen as essential to allow effective supervision by the courts. Fairness provided the link between the common law duty to give reasons for an administrative decision, and the right of the individual affected to bring proceedings to challenge the legality of that decision (at para 54, emphasis added).

Lord Carnwath’s analysis prompts several questions.

First, if effective supervision by the courts is the rationale for the duty to give reasons, wouldn’t a duty arise in any case where the underlying decision is subject to judicial review (which, nowadays, is more or less all decisions)? The Irish Supreme Court ran into some difficulties when it attempted to justify a reason-giving requirement on this basis (see here and here). Some limitations must be devised, which Lord Carnwath clearly appreciated (see paras 58-60, discussed below).

Second, although Lord Carnwath favoured effective supervision as the general rationale for a common law obligation to give reasons, the obligation could be justified in the present case (as in Oakley v South Cambridgeshire District Council [2017] 2 P & CR 4, [2017] EWCA Civ 71: see Mark Elliott’s post) on the basis that “openness and fairness to objectors required the members’ reasons to be stated” (at para 57, emphasis added). Openness as a rationale for the present case is coherent with effective supervision as a general rationale for a duty to give reasons. Indeed, the “widespread public controversy” and departure from the expert recommendations “made it impossible to infer the reasons from [the members’] report or other material available to the public” (at para 57). But fairness to objectors is a different rationale. It is difficult to relate it to the effective supervision of the decision-making process. It relates more to the need to respond to objectors as rational beings whose engagement in the process deserves respect, or to the need to promote public confidence in the process, ensuring its effective and efficient operation.

Third, these competing rationales are not only of theoretical importance. They have practical implications. One of the criticisms levelled at the decision in Oakley (in a “perceptive” note by my colleague, Dr Joanna Bell: para 58) is that it left unclear the circumstances in which a reason-giving requirement would be imposed on planning decisions as a matter of common law. For Lord Carnwath, it “should not be difficult” to identify such cases:

Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF – para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because…they are likely to have lasting relevance for the application of policy in future cases (at para 59).

These considerations act as qualifications to the potentially limitless scope of the effective supervision rationale for a reason-giving requirement. But the considerations do not all map neatly onto the effective supervision rationale. The references to “major departures” and “policies of recognised importance” do seem to relate to effective supervision. But “substantial public opposition” evokes respect for those individuals who engaged in the decision-making process and “application of policy” suggests that the effective and efficient operation of the decision-making process should be borne in mind. As I have argued in the past, the best way to understand contemporary administrative law is that courts strike a balance between the values of the rule of law, good administration, democracy and separation of powers. Although Lord Carnwath puts greatest emphasis on the separation of powers in elaborating his general rationale for a duty to give reasons, the other values are also influential in determining the scope of the reason-giving requirement.

Fourth, the interaction between the values can also be perceived in Lord Carnwath’s response to the argument that it would be inappropriate to impose a duty to give reasons as a matter of common law, because doing so would be inconsistent with regulatory developments:

The existence of a common law duty to disclose the reasons for a decision, supplementing the statutory rules, is not inconsistent with the abrogation in 2013 of the specific duty imposed by the former rules to give reasons for the grant of permission. As the explanatory memorandum made clear, that was not intended to detract from the general principle of transparency (which was affirmed), but was a practical acknowledgement of the different ways in which that objective could normally be attained without adding unnecessarily to the administrative burden. In circumstances where the objective is not achieved by other means, there should be no objection to the common law filling the gap (at para 56).

Quite! Considered policy choices made by elected officials weigh in the balance, but are not determinative. Separation of powers, rule of law and good administration concerns can provide justification for a reason-giving requirement even in situations where the relevant statutory and regulatory provisions make no such imposition on administrative decision-makers.

Here, there was no doubt that the reasons were inadequate. As Lord Carnwath concluded after his illuminating discussion of the standard required of planning reasons (at paras 35-42), the question will be “whether the information so provided by the authority leaves room for ‘genuine doubt … as to what (it) has decided and why’” (at para 42, citing Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263).

Given that the reasons for the underlying decision were shrouded in doubt, the question became how to remedy the inadequacy. Here, the appropriate remedy was to quash the permission, because reasons had not been given to explain points of fundamental importance. As such, “the defect in reasons goes to the heart of the justification for the permission, and undermines its validity” (at para 68).

This article was originally posted here.