The Gazette 1992

GAZETTE

JULY/AUGUST 1992

In the later case of R. -v- Immigration Appeal Tribunal ex parte Khan (1983), which concerned a requirement to give reasons imposed by a statutory instrument, the Court of Appeal, per Lord Lane CJ, holding that the proffered reasons were inadequate, stated: "where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which ... in normal circumstances will result in the decision of the tribunal being quashed... A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind... Secondly, the appellant is entitled to know the basis of facts upon which the conclusion has been reached". 48 It appears from Khan therefore, that an obligation to state reasons may, of itself, import an obligation to state relevant findings of fact as well in order to substantiate the reasons given. It may also be noted that the latter part of the statement of principle in Khan is similar to the (albeit less detailed) statement contained in the judgment of Murphy J. in O'Donoghue -v- An Bord Pleanála (1991), cited above. " I t appears from Khan therefore, that an obligation to state reasons may, of itself, import an obligation to state relevant findings of fact as well in order to substantiate the reasons given." The most recent English case is the decision of the House of Lords in Save Britain's Heritage -v- No. I Poultry Limited (1991). The issue was the decision of the Secretary for the Environment, following the recommendation of his Inspector, to allow an appeal against the refusal of planning permission for an extremely controversial development involving the demolition of a large

various conditions, in compliance with a distinct obligation separately imposed, could save the decision from invalidity. The only reason actually proffered for the Board's decision in O'Keefe was (to adopt

to reduce the burden of the obligation but also allowing an aggrieved applicant to seek greater detail whether orally or by letter. It may be that, in the future, such a request will be a necessary pre- condition to seeking relief from the courts. However, in the context of the O'Keefe decision itself, where the controversial nature of the application was evident to all and the Board was well aware of the planning complexities involved and the degree of public concern raised, such considerations seem to have little or no relevance and did not excuse the Board's absolute failure to properly explain its basic decision to grant planning permission when notifying the parties of that decision. As stated above, the applicable obligation to give reasons is unconditional and, while a certain degree of flexibility may be both justified and desirable, it would seem In the United Kingdom, a considerable jurisprudence has developed since 1958 (and the passing of the first Tribunal of Inquiries Act) on the level of detail required in a statutory statement of reasons. The first major consideration of the obligation involved is found in Re Poyser and Mills Arbitration (1964) where a statement of reasons delivered pursuant to section 12 of the 1958 Act was challenged as inadequate. Megaw J., having considered the purposes for which the statutory provision was introduced, went on: "Parliment provided that reasons shall be given, and in my view that must be read as meaning that proper adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised." 47 excessively flexible, as well as possibly unlawful, to excuse completely compliance with section 26 (8) unless and until a request for reasons is made. The position in the UK

the words of Murphy J. in O'Donoghue -v- An Bord

Pleanála

(1991)) "a non-informative if technically correct formula." 46 One might legitimately have expected the decision to grant permission for such

a large scale and controversial development as that at issue in

O'Keefe to refer to the provisions of the relevant development plan and to the planning characteristics of the area. Equally, the failure of the Board to state why it did not accept the more apocalyptic assessment of its own experts was, at its mildest, regrettable. It is hardly satisfactory for the substantive reasons for the Board's decision to emerge (if at all) only by way of necessary inference and speculative assumption when, after all, the Board was obliged by section 26 (8) to specify them. Conditions are essentially technical matters, the fine print of planning permissions, and insofar as they are purposive, it is submitted that their purpose should be made clear in the main statement of reasons for granting permission. On the other hand, although the learned Chief Justice does not explicitly rely on it as the basis for his decision on that aspect of the action, the failure by the respondents to seek further elaboration of the Board's reasoning obviously was significant, as the Chief Justice himself makes clear. The Chief Justice's view suggests that, even where an obligation to give reasons is placed on a decision-making tribunal by statute which is not expressed to be conditional upon request, the breadth and depth of the reasons required may be determined or at least influenced by the behaviour and attitude of the undoubtedly a sensible approach, allowing a tribunal to give brief reasons for its decisions where the matter before it is relatively clear-cut (or so appears to it), thereby helping subject of the decision. In the opinion of this writter, this is

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