Avoiding Dover-type reasons JRs

Planning committees that resolve to approve planning applications against officers’ recommendations need to be careful not to fall foul of a JR if their reasoning is inadequate. The risks are particularly high in EIA cases and where there are other sensitive elements. Although Laws LJ described it as an “unusual case”, R (CPRE Kent) v Dover District Council & China Gateway International Limited  (Court of Appeal, 14 September 2016) should be a watchword for caution. 
The Court of Appeal quashed an LPA’s decision, taken contrary to officers’ advice, to approve a scheme for major development in the Kent Downs AONB. It was said to be uncontentious between the parties that “the scale of the proposed development is unprecedented in an AONB”. Officers had recommended that the scheme would only be acceptable with changes to its layout, which the applicant claimed would make the scheme unviable. The officers’ report analysed the issues in detail and set out out the policy tests in paragraphs 115 and 116 of the NPPF:
“115. Great weight should be given to conserving landscape and scenic beauty in… Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…

116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Consideration of such applications should include an assessment of:

The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;

Any detrimental effect on the environment, the landscape and recreational opportunities and the extent to which that could be moderated.”

The members’ reasoning for disagreeing with their officers’ recommendation was briefly summarised in the committee minutes, referring to the benefits flowing from the development, the belief that harm could be minimised with effective screening and concluding that the advantages outweighed the harmful impact on the AONB. 

The Court of Appeal summarised the relevant law on the standard of reasoning required of a decision maker, setting out the classic passage from South Bucks v Porter (No 2) (2004):

36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The court referred to the recent judgment by Lang J in R (Hawksworth Securities plc) v Peterborough City Council  (Lang J, 26 July 2016) where she had taken a light-touch approach to scrutiny of LPA decisions partly on the perhaps weak basis that it would be “unduly onerous to impose a duty to give detailed reasons…given the volume of applications to be processed”. The court didn’t suggest that her reasoning was “wrong in principle” but that “Lang J’s approach needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State”. 

The court drew attention to features of the Dover case which pointed away from her approach:
– the nature of the development proposed as against the AONB policy tests

– the fact that the committee was departing from the officers’ recommendation, meaning that it should, “if but briefly”, engage with the officers’ reasoning

– the fact that here there was a statutory duty to give reasons by virtue of Regulation 24(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011  .
On the facts it was held that the reasoning was not adequate to show whether the Committee had accepted the officers’ assessment of the harm that would be caused, whether the Committee had gone wrong in carrying out a balancing exercise of harm versus benefits (which would not be sufficient to meet the policy tests) or how any screening would make a substantial difference. End of permission. 
A few concluding comments: 
1. An applicant in the happy position of having persuaded a committee to approve an application in the face of an officers’ recommendation to refuse should make sure that the committee’s reasoning is sufficient to address the main elements of the officers’ recommendations. Often this will not necessarily be the case. For example, at its most basic, varying approaches are taken by authorities as to the brevity of their minutes. If in doubt, err on the side of a full record of what was said. It is odd that many authorities still do not record debates digitally or make them available for subsequent scrutiny as a matter of course.

2. No reference was made in the judgment to the statutory duty on decision makers in section 85 of the Countryside and Rights of Way Act 2000, in exercising or performing any functions in relation to, or so as to affect, land in an AONB, to “have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty”. It is a very broad test and I assume the court and the parties took the position that it was automatically met if the NPPF policy tests in paragraphs 115 and 116 were met. 
3. Regulation 24(1) of the EIA Regulations 2011 is one of many elephant traps in the planning system: 

“Where an EIA application is determined by a local planning authority, the authority shall—

(a)in writing, inform the Secretary of State of the decision;

(b)inform the public of the decision, by local advertisement, or by such other means as are reasonable in the circumstances; and

(c)make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing—

(i)the content of the decision and any conditions attached to it;

(ii)the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;

(iii)a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and

(iv)information regarding the right to challenge the validity of the decision and the procedures for doing so.

These requirements are easy to overlook. 

4. Laws LJ concluded his judgment by remarking that the “scale of the proposed development is unprecedented in an AONB”. If I can be permitted a partizan remark, he would do well to see the implications of HS2 for the Chilterns AONB, in relation to which I would argue that the Commons Select Committee’s 22 February 2016 conclusions  were inadequate…
Simon Ricketts, 16.9.16

Personal views, et cetera

HS2: The Very Select Committee

The Parliamentary Hybrid Bill procedure will be used for Crossrail 2 and for the second phase of HS2 so it’s right that we look at the process is faring as the Bill for phase 1 of HS2 carries on through its House of Lords Select Committee stage. 
When compared to planning inquiries under the Town and Country Planning Act 1990 or Transport and Works Act 1992 and to the examination of NSIPs under the Planning Act 2008 it is a very strange beast, particularly in the breadth of discretion given to the Select Committees in each House that hear “petitions” (“objections” in real world language) in relation to aspects of the Bill (although not its principle) and the narrow rules as to locus standi (standing). 
The members of the Lords Select Committee were appointed on 5 May and the hearing started on 19 May. The Committee is chaired by Lord Walker of Gestingthorpe, who was a member of the Supreme Court until 2013. 
The Committee has made some far reaching decisions both in relation to locus standi and as to the breadth or otherwise of its role in hearing petitions that seek Additional Provisions, ie amendments to the Bill that may require for example additional powers to acquire land. 
Locus standi

Petitioners must demonstrate that they are directly and specially affected by provisions of the Bill. It is open to the promoter, in this case HS2 Ltd, to challenge a petitioner’s locus standi, in which case the Select Committee reaches its determination as to whether the objector should be heard. 

There is no right of appeal from the decision of the Committee on locus standi. 

Before the Commons Select Committee, HS2 Ltd only challenged 24 out of 1,918 petitions in relation to the deposited Bill (there were challenges later on in relation to petitions in relation to Additional Provisions). On Crossrail, there were no challenges at all. 

In the Commons Select Committee’s final report dated 22 February 2016 the Committee made some recommendations in relation to rights of audience:

“394. With the benefit of nearly two years’ experience, we believe that there should be a stricter approach to locus standi. Past convention has been that hybrid bill committees should make their own determinations on locus. (This is different from the practice in relation to private bills, where a separate committee, the Court of Referees, makes such decisions.) The current method could be retained, or replaced by a different mechanism. We believe that it is a priority that strong guidelines on acceptable locus should be set out before the establishment of the Committee and before petitioning starts.”

No doubt buoyed up by that statement, when the Bill entered the Lords, HS2 Ltd made no fewer than 414 locus standi challenges in relation to the 820 petitions lodged.

Standing orders 114 to 118 which govern locus standi are extremely general, have not been reviewed in the light of modern principles of public participation in decision making and are subject to interpretation by reference to decisions reached by previous Committees, albeit with each Committee having a wide discretion and a variety of political and personal backgrounds and influences.  

Locus standi hearings started on 7 June  with opening submissions by James Strachan QC for HS2 Ltd, drawing heavily on previous rulings, and urging a robust approach by the Committee. I had the misfortune to follow on immediately after James, for Conserve the Chilterns and Countryside. 

The first tranche of locus standi decisions was made on 13 June 2016  None of various campaign and amenity groups was successful in asserting locus standi save for HS2 Action Alliance and a group concerned by the proposals at Euston. 

The locus standi hearings carried on for a number of weeks, with similar rulings on 21 June and 28 June . Some interesting comments from 28 June:

“It is clear to us that there are many petitioners who find it difficult to accept the limited scope which parliamentary practice allows to the expression, ‘their property or interests are directly and specially affected by a hybrid Bill’. Other petitioners understand its limited scope but find it unacceptable and have said so in forthright terms. The point was made eloquently by Mrs Emma Davies of Coombe Avenue, Wendover, one of the youngest petitioners from whom we have heard. She said that the HS2 railway is a new world and that it calls for a new approach to parliamentary practice on Hybrid Bills. We agree with that view.

3. The present system began to evolve in a piecemeal way in the Victorian age when there were many more Private Bills, but far fewer petitioners, no motor vehicles and very much less regard for environmental and ecological concerns. A start has been made towards a new approach. Following the unprecedented period of two years for which this Bill occupied the House of Commons Select Committee, the Chairman of Committees of the two Houses has established a review of Hybrid Bill procedure. We hope that it will be radical and extend not only to the form in which the principles of locus standi are expressed but also to the substantive content of those principles.

4. This Select Committee may be the last to operate under the present system but this Committee has no power to change that system. That is a matter for Parliament as a whole after the review has been completed and its recommendations considered. We must, in the meantime, apply the existing rules. “
Again the hearings continued, with more rulings on 5 July which this time excluded various local councillors as well as a London Assembly member. 

“6. We heard three petitions, 279, 552 and 584, from small groups of councillors elected to represent different wards, the Camden Town with Primrose Hill ward, the Regent’s Park ward, and the Kilburn ward, respectively, within the London Borough of Camden. Camden is itself an unchallenged petitioner, but has, as noted in our first ruling, a degree of inhibition because of its different statutory functions and responsibilities. The councillors who addressed us on 28 June spoke eloquently about the social and economic deprivation of parts of their wards, and the linguistic and cultural difficulties that many of their residents encounter in trying to respond effectively to the Bill. 

7. We have no doubt that these councillors are conscientiously working as hard as they can in the interests of their residents, but there is an important point of principle that arises here. Their status as councillors is as elected members of a local government corporation, which, whether or not it has a cabinet system, can act only by properly passed resolutions and properly delegated authority. Individual councillors or groups of councillors acting without the authority of the council cannot claim the special preference accorded to local authorities. Mr Mould referred us to several petitions which raised the same concerns, including one, Connor and others, 391, which is focused on the Alexandra Road vent shaft. We uphold the challenge to these petitions. This does not of course prevent these dedicated councillors from continuing to assist their residents by advising them, by cooperating with other petitioners, and perhaps by giving evidence in support of other petitions. For similar reasons we also uphold the challenge to the petition of Mr Andrew Dismore, assembly member for Barnet and Camden.”

And still the locus standi hearings continued with eight MPs ruled as not having locus standi on 18 July 2016 .

“6. Mrs Gillan is the member for Chesham and Amersham, and the others (from north to south along the route) are Craig Tracey MP (North Warwickshire), the Rt Hon Caroline Spelman MP (Meriden), Jeremy Wright MP (Kenilworth and Southam), Andrea Leadsom MP (South Northamptonshire), the Rt Hon John Bercow MP (Buckingham), David Lidington MP (Aylesbury) and Nick Hurd MP (Ruislip, Northwood and Pinner).

 7. We conclude that neither parliamentary practice, nor standing orders, confers locus standi as of right on a Member of Parliament petitioning on behalf of his or her constituents, and we do not feel able to stretch the language of SO 118 so as to confer a discretionary locus standi

 …Our conclusion will be considered by the review of procedure on hybrid bills now being undertaken by officials of both houses at the joint request of the two Chairmen of Committees. It is most desirable that the position should be clarified so that there will in future be no doubt as to the position…

Mrs Gillan has been outstandingly energetic and committed for many years in her advice and assistance to opponents of the HS2 bill and its effect on residents in or near the Chilterns AONB. As a further mark of our respect we are prepared to hear her again, not as a petitioner, but to give us her reflections on the bill and generally on hybrid bill procedure, towards the end of our sittings.”

Is there anyone who isn’t concerned by this narrow approach – which had not been flagged at all by HS2 Limited or by Parliament before the deadline for petitioning? Imagine the outcry if an equivalent approach were taken by a planning inspector….

Additional Provisions

The position in relation to Additional Provisions has been similarly difficult. The House of Lords’ standing orders do not directly address the question of Additional Provisions in Hybrid, as opposed to Private, Bills. The Government has taken the position that the Committee has no remit to consider the question of whether there should be any Additional Provision without a specific instruction from the House. This is clearly a significant issue for those petiomers, who seek, for example additional tunnelling to provide additional environmental protection for their areas, two examples being the London Borough of Hillingdon in west London and various Buckinghamshire authorities and groups in the Chilterns AONB.
Legal submissions were made on the issue on 30 June . George Laurence QC appeared for London Borough of Hillingdon; Martin Kingston QC appeared for Buckinghamshire County Council, Chiltern District Council and Aylesbury Vale District Council. Tim Mould QC appeared for HS2 Ltd.

The Committee made its ruling on 7 July , rejecting the petitioners’ arguments. 

“16. We return to the realities of the situation. The changes sought by Hillingdon and the Chiltern councils could hardly be more momentous, in terms of their implications for cost, redesign work and delay. There are no economies of scale in long bored tunnels. On the contrary, the unit cost per kilometre of tunnel increases with the length, because of the need for extra vent shafts and intervention gaps, and above all because of the ever increasing cost of moving excavated spoil over longer and longer distances. In view of recent warnings from the National Audit Office and the financial fallout at the recent referendum, it seems in the highest degree unlikely that the House of Lords will see fit to give an instruction contrary to the settled practice for additional provision for either of these new tunnels. The degree of improbability would be reduced in the case of Colne Valley if the working group were to recommend a course which the promoter was willing to accept, although there would still be many difficulties. Additional provision for either tunnel would produce a blizzard of new petitions, as AP4 did before the House of Commons.”

Whilst of course it will be said that the petitioners did have the ability to raise their arguments before the Commons Committee, there is no Parliamentary principle that rules out arguments being made in one House which have already been made in the other House – that after all is one of the checks and balances of our Parliamentary system. It will also said by the petitioners that the Select Committee process, with its time constraints and without a forum used to assessing forensic arguments and technical evidence, is not built for determining disputes on issues such as costs assumptions and the economic value to be attributed to landscape.

And again a decision which on any conventional basis is unchallengeable under domestic legislation. 

The Committee returned to the issue on a statement on procedure on 20 July 2016  before rising until 6 September:
“In the light of our ruling on additional provisions given on Thursday 7 July, we wish to make it absolutely clear that, in the absence of an instruction from the House, we will not hear argument for measures which would require an additional provision, that is, measures which would amount to significant changes to the scheme. In preparing their cases, petitioners should be extremely mindful of our limited powers. They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.

3. The Committee also wishes to re-emphasise the merits of succinct and cogent presentations from petitioners and the desirability of petitioners grouping together to present a single case. Groups of petitioners from the same area are encouraged to appoint a lead petitioner to outline their case, with other petitioners from the group adding local detail where appropriate, instead of repeating the case. It is our clear view that there is no relationship between repetition and persuasiveness. “

This is a Committee with its destination in sight. 

A review of Hybrid Bill procedures is underway. It is important that we get the balance right between speed and justice.
Simon Ricketts 30.7.16
Personal views, et cetera