In R (on the application of the Mayor and Citizens of the City of Westminster) v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin) the court dismissed the claimants’ application for judicial review of a decision by the secretary of state not to call in for his own determination, under section 77 of the Town and Country Planning Act 1990, an application for planning permission to construct a 29-storey tower on the South Bank of the River Thames. The case serves as a reminder of a number of settled principles.
(1) The secretary of state’s discretion to exercise – or refuse to exercise – the power of call-in is a wide one, but it is not entirely unfettered. (2) It must, however, be exercised lawfully. (3) Accordingly, if it can be shown that he has misunderstood his own policy, an error of law will have been established. (4) Subject thereto, his decision may only be challenged on the usual Wednesbury grounds. (5) An attack on the ground of perversity will be highly unlikely to succeed, having regard to the width of the discretion. (6) Furthermore, the court should be slow to quash such a decision since it is not a decision to grant or refuse planning permission. (7) The secretary of state is not legally bound to give reasons. (8) However, if he chooses to do so, those reasons can be examined to see whether they disclose an error of law.
The decision of the Court of Session in Lakin v Secretary of State for Scotland [1988] S.L.T. 780 highlights a particular trap that the secretary of state should seek to avoid. There, in deciding whether to call in a planning application, he clearly embarked on a consideration of the merits of the application together with those of a separate planning application relating to a rival site. The court held that the fact that the secretary of state had approached the question of calling in the application in the wrong manner amounted to procedural impropriety or unfairness. What he ought to have been considering was whether the application should be called in by him so that he could then proceed to determine its merits.
The secretary of state’s policy on calling in planning applications is currently set out in a ministerial statement issued on 26 October 2012 by Nick Boles MP.
John Martin is a planning law consultant
