Entitled to Reasons? : Judicial Review

Judicial review (JR) is the procedure by which you can seek to challenge the decision, action or failure to act of a public body exercising a public law function. JR proceedings usually take place in the Administrative Court, which is part of the Queen’s Bench Division of the High Court. However, they can also take place in the Upper Tribunal. There are various restrictions to bringing a claim for JR, including;

i. the locus standi (the term for the ability of a party to demonstrate to the court sufficient connection to the case) of the prospective claimant,
ii. the nature of the act or omission complained of,
iii. the grounds on which you intend to bring your claim,
iv. the need to have exhausted other alternative remedies and/or means of resolving the dispute, etc.
v. time limits applicable to JR claims,

Acts or omissions will be unlawful and open to review if they fall under one of the available public law grounds of judicial review. The key grounds are:

• Illegality—this means simply that the public body must understand and give effect to the law governing the action in question. It must not only act in accordance with the strict letter of the law, but must also respect the policy and purpose of the legislation.
• Unfairness—the requirements of procedural fairness, sometimes known as ‘natural justice’, depend on all the circumstances. Some rules may be set out in legislation, guidance or policy. Otherwise, they will be implied by the common law. The key elements of procedural fairness in most cases are the right to be heard and the absence of bias. The common law duty to give reasons should intervene only if fairness requires it.
• Irrationality—this ground is sometimes known as ‘Wednesbury unreasonableness’. It requires a claimant to show that the decision was so unreasonable that no reasonable person could have reached it. The court will be especially hesitant about interfering in areas involving specialist expertise or general policy. The failure to take into account material considerations is sometimes treated as an aspect of Wednesbury unreasonableness.
• Proportionality—in claims involving human rights or EU law it may be necessary for the Administrative Court to decide whether an act or decision was proportionate to a legitimate aim.

There is no general obligation on a public authority to give reasons for decisions, such an obligation is often imposed by legislation or governmental guidance, however, an obligation may be imposed by the common law. Factors which may support the imposition of such an obligation include:

i. whether the decision is of a judicial or quasi-judicial nature,
ii. whether it has important consequences for individuals,
iii. whether there is a right of appeal against the decision, and
iv. whether the decision appears unusual on its face or departs from some standard expectation.

Where reasons are required, they need not address every point and may be succinct. However, they should be sufficient to allow those affected to understand the basis for the decision. 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.

In the recent case of Karen Louise Oakley (Claimant) v South Cambridgeshire District Council (Defendant) & Len Satchell (Interested Party) [2016] EWHC 570 (Admin), the High Court held that the local authority had no duty to provide reasons for granting planning permission contrary to a planning officer’s recommendation. By contrast, in James Joseph Horada (on behalf of the Shepherd’s Bush Market Tenants’ Association) v Secretary of State for Communities and Local Government [2016] EWCA Civ 169, the Court of Appeal held that the Secretary of State had a duty to give reasons for confirming a compulsory purchase order (CPO) contrary to an inspector’s recommendation.

On the face of it, these cases appear to contradict each other. However, read in conjunction, they provide helpful guidance as to when a judicial review challenge based on a lack of reasons may be possible.

Karen Louise Oakley (Claimant) v South Cambridgeshire District Council (Defendant) & Len Satchell (Interested Party)

This case concerned a planning permission application to build a football ground within the Green Belt. A planning officer had produced a report advising South Cambridgeshire District Council (the “Council”) to refuse the application. The Council reviewed the planning officer’s report and the proposed development plan, and concluded that planning permission should be granted. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (the “DMPO”), removed the local authorities’ duty to give reasons for granting planning permission. The applicant challenged the decision on the basis that the Council should have given reasons for its decision to grant planning permission, regardless of the lifting of the requirement.

The High Court noted that under the DMPO, the Council did not have a statutory duty to give reasons for granting planning permission. Further more it concluded that delegating decision-making powers to democratically elected Councillors is a matter of democratic accountability, and that council members would have substantial local and background knowledge. The court stated that an officer’s report may contain recommendations, but the ultimate decision-makers are democratically elected Councillors, and it is the task of those members, not officers or the courts, to weigh the competing public and private interests involved in the exercise of their planning judgment.

The recent change under the DMPO of the express statutory requirement to give reasons was not determinative of the common law position where fairness may still require reasons to be given. In fact, the Court concluded that the legislators had left it to judges to decide when this duty would exist. As such, the Court concluded that common law fairness did not require the Council to give reasons for disagreeing with the planning officer’s recommendation.

James Joseph Horada (on behalf of the Shepherd’s Bush Market Tenants’ Association) v Secretary of State for Communities and Local Government

As part of the Shepherd’s Bush Market regeneration project, a compulsory purchase order was approved by the Secretary of State, with conditions which purported to safeguard the existing tenants’ interests during and after the project. Following over 200 objections to the compulsory purchase order, a public inquiry was held and a planning inspector made a detailed recommendation not to confirm the compulsory purchase order. However, the Secretary of State disagreed with the inspector and confirmed the compulsory purchase order. The applicant alleged that the Secretary of State had failed to give adequate reasons.
It was conceded that the relevant procedural rules required the Secretary of State to give reasons for the decision. One of the purposes of giving reasons was to “enable the affected party to decide whether the decision is susceptible to legal challenge”. The Court confirmed the established position that the reasons for a decision must be intelligible and adequate so that the reader is able to understand why the matter was decided as it was, and what conclusions were reached on the “principal important controversial issues”, so that is does not give rise to doubt as to whether the decision-maker erred in law.

The Court held that the Secretary of State did not correctly identify the “principal important controversial issues” raised in the inspector’s report, and did not give adequate reasons for disagreeing with the inspector. The Court noted that where the decision-maker did not agree with the recommendation put to him, the reasons may need to be fuller. In addition, a higher standard of reasoning is generally expected from the Secretary of State than from a local authority.

In conclusion, taking the cases together, it is clear that the key issue is whether there is an established duty to give reasons set out either in statute or express procedural rules. Where such a duty exists, the Court will give careful consideration to the reasons given to a robust standard. However, the parameters of the common law duty to give reasons where there is no statutory duty remains a grey area. The comments in Oakley as to the situations where a common law duty to give reasons may arise, suggest that the duty will only arise in fairly limited circumstances.

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