Reasons, reasons and material considerations

Given the increasing prevalence of neighbourhood plans, it is not surprising that we are now getting a number of cases which deal with:

• How much weight can be attached to them at various stages in their preparation; and
• The level of detail planning inspectors need to go into when providing reasons for the weight attached to them.

Villages Action Group v The Secretary of State for Communities and Local Government

[2015] EWHC 2729 is a recent example of such a case. 

In this case, the court confirmed that:

1. A draft Neighbourhood Plan was capable of being a material consideration
2. In the early stages of the adoption process, it is likely to only attract minimal weight; and
3. An inspector is only required to deal with the main issues in the appeal before them

As such, the fact that a material consideration is not mentioned in the decision is not sufficient to establish that it was not taken into account.

The case also highlighted that there is no general automatic duty on public bodies to give reasons for decisions. In each case, a duty needs to either be imposed by statute or arise through a need for procedural fairness or the establishment of a legitimate  expectation. 

The reasons issue was also highlighted in October by LJ Lindblom in  Martin v The Secretary of State for Communities and Local Government [2015] EWHC  3435 (Admin). 

In his judgment in this case LJ Lindblom accepted that there is no statutory duty on planning inspectors to give reasons for their decisions in written representations appeals in England. The regulations governing the written representations procedure failed to impose one.

The general duty to give reasons under section 10 of the Tribunals and Inquiries Act 1992 only applies where the right to be heard at an Inquiry exists and, as stated above, there is no general duty to give reasons at common law. It was accepted, however, that a duty to give reasons could derive from the principles of procedural fairness or legitimate expectation. In this case, the question of whether to quash a decision because of the failure would be left to the discretion of the judge.

The lack of a statutory duty to give reasons for a decision in an (English) written representations appeal is yet another reason why you may opt for your appeal to be heard at an informal hearing or an inquiry. Statistics show that, although written representation appeals are cost effective, they have the lowest percentage chances of success of the three procedural routes available. A reminder, if one was needed, to choose your appeal procedure carefully (assuming that the Planning Inspectorate do not decide for you). 

The Planning Court dismissed the claim finding for the defendants on both grounds. In doing so, it considered whether the draft plan was a material consideration ...but decided that the council was entitled to take the view that it was not a material change in circumstances of which the inspector ought to be made aware.

The draft plan was still at an early stage of the adoption process and ... only attracted “minimal weight”. In addition, ... the claimants had failed to draw any link between the draft plan and the site in question, or provide a copy to the inspector as a document that she ought to take into account at the planning inquiry, it was not open to them to seek to quash a decision on the basis that the inspector failed to have regard to the plan.
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