256 / 462
GAZETTE
JULY/AUGUST 1992
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
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
subject of the decision. In the
opinion of this writter, this is
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
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
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
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
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
232