WHEN a local authority refuses planning permission for a proposed development there is a statutory duty requiring the authority to provide the disappointed applicant with a decision notice explaining “clearly and precisely their full reasons” (Town and Country Planning (Development Management Procedure) (England) Order 2015, Art. 35(1)(b)). In instances where a local authority grants planning permission, however, the statutory position has been more unstable. A statutory duty to publish an additional statement of “summary reasons” for grants of planning permission was introduced for the first time in 2003 (Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003, Art. 5(1)(b)). It was, however, removed again in 2013 (Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013, Art. 7).

In Dover DC v Campaign to Protect Rural England (Kent) [2017] UKSC 79, [2015] A.C. 455 (CPRE Kent), the Supreme Court found that, despite the statutory change, there continue to be circumstances in which a local authority, in granting planning permission, is required to publish a statement of reasons explaining in detail its position on key issues. In CPRE Kent itself, Dover DC was held to be in violation of this requirement, and the Supreme Court quashed the grant of planning permission.

The facts of the case can be briefly stated. A company, China Gateway International Ltd. (CGI), applied to Dover DC for planning permission for a major new residential development. The proposed development would span across two sites, one of which was located within the Kent Downs, a protected Area of Outstanding Natural Beauty (AONB). Dover DC's planning officer, in a published 135-page report, recommended that permission for the proposal as it stood be refused. His main reason for doing so was his view that CGI's proposal was inconsistent with the prevailing central government planning policy stipulation that “planning permission should be refused for major developments in [AONBs] except in exceptional circumstances and where it can be demonstrated that they are in the public interest” (Department for Communities and Local Government, National Planning Policy Framework (March 2012), para. 116) (NPPF). Dover DC's planning committee, however, departed from the recommendation of the officer and elected to grant permission. The published minutes from the committee meeting disclosed very little about the committee's reasoning process.

The judgment of the unanimous Supreme Court was given by Lord Carnwath who dealt with the question of whether Dover DC's reasons were legally adequate in two parts. The first part of His Lordship's judgment focused on the Environmental Impact Assessment (EIA) Directive and the implementing domestic regulations (Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999). Explained briefly, these regulations create an obligation to make available for public inspection a statement containing “the main reasons and considerations on which the decision is based” (reg. 21) in any instance where permission is granted for an “EIA development” (defined in reg. 2). Dover DC conceded that it had acted in contravention of this obligation. The Council, however, relied on the previous authority of R. (Richardson) v North Yorkshire CC [2003] EWCA Civ 1860, [2004] 1 W.L.R. 1920, to argue that the remedial consequences of this failure were not that a quashing order should be issued, but rather that the court should issue a declaration. Lord Carnwath rejected this argument: the thinness of Dover DC's reasons gave rise to a “substantial doubt as to whether they had properly understood the key issues” (at [68]) which the EIA regulations required it to have regard to, and therefore the only appropriate remedy was a quashing order.

In the second part of his judgment, Lord Carnwath proceeded to consider the position as a matter of purely domestic law, absent the EIA regulations. Here too, His Lordship concluded that Dover DC's reasons were inadequate, and did so on the basis of two considerations in particular. First, like Laws L.J. in handing down the judgment of the Court of Appeal (R. (Campaign to Protect Rural England) v Dover DC [2016] EWCA Civ 936, [2017] J.P.L. 180), His Lordship placed much emphasis on the central government's planning policy commitment to protecting AONBs. Indeed, the typical case, Lord Carnwath suggested, in which a local authority would be required to publish an additional “formulated statement of reasons” so as to explain a grant of planning permission, would be one of those in which permission was granted for “major departures from the development plan, or from other policies of recognised importance” (at [59]).

Secondly, one consideration was also apparently bolstered by another: the common law principle of open justice. To invoke that principle was an interesting move on the Supreme Court's part. The principle of open justice originated in the specific context of judicial decision-making. The idea signified by the principle was that, as a general starting point, courts ought to make publicly available the information on which they make their decisions unless there are good reasons not to. A few years prior to CPRE Kent, the Supreme Court took the important step in Kennedy v Charity Commission [2014] UKSC 20, [2015] A.C. 455, of liberating the principle of open justice from its original court-based setting. In Kennedy the Court held that the principle was not restricted to judicial decision-making but had an equal role in relation to administrative decision-makers exercising statutory powers to undertake inquiries. In CPRE Kent Lord Carnwath went a step further. According to the logic of Kennedy, where in the planning context the Secretary of State exercises her statutory powers to undertake an inquiry she will be subject to the principle of open justice. His Lordship could see no good reason for distinguishing between the process by which the Secretary of State exercises such powers and the “less formal, but equally public, decision-making process of a local planning authority” (at [55]). The principle of open justice must be applicable to both.

There are two different ways of thinking about the role that the principle of open justice played in the Supreme Court's decision in CPRE Kent. According to the first, weaker, understanding, the primary basis for the conclusion that Dover DC's reasons were legally inadequate was the central government's policy on AONBs. The NPPF designated an area of land as being of special public interest, and this designation, coupled with the general requirement that local authorities abide by central government policy unless there is a good reason not to, necessitated a higher standard of reason-giving. The invocation of the principle of open justice, on this understanding, carried no additional legal weight of its own. It was rather simply a way to explain that, when legislation or policy designates a decision to be of special public interest, a higher standard of reason-giving will be required. According to the second, stronger, understanding, the principle of open justice had weight of its own and added a second independent legal basis for the conclusion that Dover DC's reasons were inadequate. If the second understanding is correct, tricky and currently underexplored questions arise about the outer boundaries and normative rationale of the principle.

The two different ways of thinking about the role that open justice played in CPRE Kent feed into a question which will no doubt be on the mind of many administrative law scholars, especially in light of Elias L.J.’s judgment last year in R. (Oakley) v South Cambridgeshire DC [2017] EWCA Civ 71, [2017] 1 W.L.R. 3765: does CPRE Kent bring us closer to embracing the idea of a general common law duty to give reasons? (See M. Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?” [2011] P.L. 56.) On the one hand, Lord Carnwath continued to adhere, at least verbally, to the judicial mantra that “public authorities are under no general common law duty to give reasons for their decision” (at [51]). On the other hand, might the Supreme Court's invocation of the vague principle of open justice add further fuel to the fire of the argument that the exceptions have become so wide that they must ultimately swallow the rule?

There are at least two reasons to be cautious about reading CPRE Kent as introducing another wide exception capable of displacing the idea of there not being a general common law duty to give reasons. First, as explained above, it is far from clear that the principle of open justice exerted any additional weight of its own. Indeed, on one reading, open justice was invoked merely to reinforce the argument that the NPPF here prioritised preservation of AONBs as being of such public importance that a higher standard of reason-giving was appropriate. Furthermore, something similar might be said of Kennedy itself: that the Supreme Court required the disclosure of the documentation in order that the public-oriented legislative aims listed in the Charities Act 1993 (s. 1) could be fulfilled. Open justice could be understood as merely another frame through which the Court expressed its conclusion. Secondly, even if open justice is read as exerting an independent force of its own, it is far from clear where the outer boundaries of the principle lie and thus how wide an exception has been created. Indeed, despite the Kennedy decision, open justice has received relatively little attention in the academic literature. We should surely engage in closer analysis, and require a clearer articulation, of open justice than we have done to date before we hail its crystallisation into a general principle of administrative law capable of overthrowing the idea that there is no general duty to give reasons.