Reason as logic, or reason as motive ?

1. Reason as logic, or reason as motive? Some thoughts on An BordPleanála and the giving of reasons Law and the Environment 2018: Towards Environmental Responsibility, Accountability and Liability University of Cork, 27 April 2018 GREGORY JONES QC BL, The Bar of Ireland, The Law Library FIQ, LA (RTPI), FRGS, A(CIArb)

2. The first rule? ‘Consider what you think justice requires, and decide accordingly. But never give your reasons; for your judgement will probably be right, but your reasons will certainly be wrong.’ William Murray, 1st Lord Mansfield.

3. Reasons for Reasons? What’s the purpose? Is it always the same? Logic – rigour of decision making – rationality? Fairness? Trust - Acceptance? Ability to challenge? Because the EU says we should? “Responsibility, Accountability and Liability”?

4. The Standard of Reasons Establishing the purpose for requiring reasons for particular circumstances is fundamental in setting the metwand by which the adequacy or standard of reasoning is to be judged. Otherwise, how can the standard be adjudged proportionate rather then imposing an undue burden on public authorities by excessive legalism- the giving reasons for reasons?

5. Planning & Development Act 2000 34 (10) (a):- "A decision given under this section (i.e. by the Planning Authority) or under s. 37 (i.e. by the board) and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions…" (b) "Where a decision by a planning authority under this section or by the board under s. 37 to grant or refuse permission is different, in relation to the grant or refusal of permission from the recommendation in - … (ii) a report of a person assigned to report on an appeal on behalf of the board, a statement under para. (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission."

6. ENVIRONMENTAL IMPACT ASSESSMENT “172(1J) When the planning authority or the Board, as the case may be, has decided whether to grant or to refuse consent for the proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following information available to the applicant for consent and the public: (a) the content of the decision and any conditions attached thereto; (b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A; (c) having examined any submission or observation validly made, (i) the main reasons and considerations on which the decision is based, and (ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by a member of the public; (d) where relevant, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects …”

7. Appropriate Assessment Section 177U(6) “(a) Where, in relation to a proposed development, a competent authority makes a determination that an appropriate assessment is required, the competent authority shall give notice of the determination, including reasons for the determination of the competent authority, to the following - (i) the applicant, (ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or (iii) if appropriate, any party to an appeal or referral. (b) Where a competent authority has determined that an appropriate assessment is required in respect of a proposed development it may direct in the notice issued under paragraph (a) that a Natura impact statement is required. (c) Paragraph (a) shall not apply in a case where the application for consent for the proposed development was accompanied by a Natura impact statement.”

8. Three Recent Cases Connolly v An BordPleanála[2017] IEHC 322 Supreme Court reference [2017] IESCDET 57 North Kerry Wind Turbine Awareness Group v An BordPleanála[2017] IEHC 250 (2017) Supreme Court reference [2017] IESCDET 102 Holohan& Orsv An BordPleanála[2017] IEHC 268

9. What did we say?Organisational Review of An BordPleanála ‘4.71…the Review Group considers that the current absence of in house legal advice and lack of specialist support in the craft of drafting of decisions, orders and directions continues to represent a major weakness of the decision–making process. The Review Group considers the appointment of in-house counsel to be a vital requirement.’ footnotes omitted.

10. ‘4.62 Regardless of what is required as a matter of law, the discipline of providing intelligible reasons benefits the decision-making process itself as well as providing greater transparency, thereby increasing public confidence in the decision itself. It is important that the Board makes clear in its directions by reference to paragraph numbers, those parts of the inspector’s report with which it agrees and those parts with which it disagrees.’

11. ‘The Review Group does not see any good reason why the provision of a detailed and transparent direction should not be provided for all determinations by the Board and it most certainly should be the case for all Strategic Development Infrastructure cases and all cases which have had oral hearings. The Review Group notes that this is the standard practice in England and Wales when a Minister gives a decision based on an inspector’s report. The Review Group acknowledges that the Board’s provision of reasoning has improved in recent years and welcomes this improvement.’ footnotes omitted.

12. And Across the Water… Dover District Council v CPRE Kent [2017] UKSC 79 i. Firstly, it was confirmed that the ‘broad summary’ of the relevant authorities for the standard of reasons given by Lord Brown in South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953 (paragraph 36) is applicable to decisions made by a local planning authority as well as decisions taken by the Secretary of State on a planning appeal.

13. ‘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.

14. 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.”

15. ii. Secondly, it was held that the duty to give reasons in an EIA context is no different from the duty to give reasons under another statutory scheme. The requirement to give the “main reasons” (Regulation 24(1)(c)(ii) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 SI 2011/1824) did not serve to “materially limit” the ordinary duty to give reasons and as such Porter is equally applicable in EIA cases as it is elsewhere.

16. iii, Thirdly, it was held that the distinction between a planning inspector conducting an Inquiry and a local planning authority reaching a decision was not a significant one and gave rise to no reasons why the duty to give reasons should be lesser for an authority than for an inspector.

17. This paper and accompanying oral presentation including any Q&A session is intended for general discussion only. It is not intended to provide or act as a substitute for legal advice. The materials are not to be relied upon by any party. No representation or warranty is given as to the accuracy or correctness of same. No liability whatsoever (whether in contract, negligence, negligent misstatement or otherwise at all) is accepted arising out of reliance on these materials. Gregory is very happy to give advice upon formal instructions.