In England, the statutory requirement to provide reasons in the event of grant of planning permission was repealed in 2013, however, there are still certain situations where a statutory or common law duty to provide reasons remains.
One of the statutory requirements which remains in England is to provide reasons in the case of development which falls within the scope of the Environmental Impact Assessment (EIA) Regulations. A similar requirement is found in the Scottish EIA Regulations. A key issue considered in this appeal was therefore the impact of a failure to comply with the requirement to give reasons for granting planning permission for an EIA development and what remedy is available.
It was argued on behalf of the County Council that a declaration of the breach of the EIA regulations would be a sufficient remedy. This was rejected by the Court as it was neither a sufficient or appropriate remedy. It had been 3 years since the permission was issued and no attempt had been made to formulate the reasons to make good the admitted breach. The members of the planning committee had also departed from the advice of their officers and there was no record of why they felt able to reject the view of their advisers. The Court held that the committee's failure to address certain fundamental points raised substantial doubt as to whether they had properly understood the key issues or reached a rational conclusion on them on relevant grounds. The Court further held that this was a case where the defects in reasons went to the heart of the justification for the permission and undermined its validity. The only appropriate remedy was therefore to quash the planning permission.
In this case, the Court also considered that the planning committee had spent insufficient time investigating matters to allow them to depart from the advice of their officers. The Court held that a decision maker must not only ask himself the right question, but must take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.
In terms of any common law duty beyond the duties imposed by statute, the Court held that fairness allows the common law duty to fill the gaps in the present system of rules. The types of occasions when a common law duty may be appropriate include where the development would have a significant and lasting impact on the community; where the development involved a substantial departure from green belt and development plan policies or other policies of recognised importance; and where the committee had disagreed with its officers' recommendations. However, as mentioned above, in Scotland there is already a statutory requirement to provide reasons which applies to all decisions on planning applications.
