Town and country planning – Planning permission – Called-in applications – Duty to give reasons – Claimant applying for judicial review of defendant’s decision not to call in planning application for determination – Whether decision unlawful for failure to give reasons – Whether general common law duty to give reasons – Application dismissed
The claimant was a conservation group which applied for judicial review of the decision of the defendant secretary of state not to call in for his own determination, under section 77 of the Town and Country Planning Act 1990, applications by the second interested party developer for planning permission and listed building consent for a major demolition and re-development project at 31, London Street, London W2, known as the Paddington Tube development.
The proposed development was controversial and widely opposed. The first interested party local authority resolved to grant permission but in 2016 the claimant asked the defendant to call in the development for his own determination, following a public inquiry, on the ground that the applications met the criteria for a call-in. He declined to do so in a decision letter which stated that the government remained committed to giving more power to local authorities and communities to make their own decisions on planning issues, the power to call in a case would only be used very selectively, and he was satisfied that the application should be determined at local level. Accordingly, the first interested party granted permission.
The claimant contended that: (i) the defendant’s decision was unlawful because he had failed to give reasons for not calling in the applications, in breach of its legitimate expectation that reasons would be given arising from a change in practice, announced in a Green Paper and in Parliament in 2001, after which ministers had begun to give reasons for not calling in planning applications; and (ii) alternatively, the court should find that there was a general common law duty to give reasons under section 77(1) of the 1990 Act.
The defendant argued that he was not under a duty to give reasons because the practice of giving reasons for not calling in applications had ceased in 2014, and ministers had thereafter issued decision letters without giving reasons. The earlier statements and practice relied on by the claimant had been superseded by 2017 and could no longer found an expectation that reasons would be given.
Held: The application was dismissed.
(1) A procedural legitimate expectation might arise from a clear and unequivocal representation and/or from an established practice, which an individual or class of persons was entitled to rely on, even where there was no statutory right to the benefit claimed. In 2001, a new practice of giving reasons for non-intervention had been introduced and that practice could well have given rise to a legitimate expectation that reasons would be given for non-intervention, if it had remained in operation. However, in 2014, a departmental decision was made to cease the practice of giving reasons so that, by the date of the claimant’s application to the secretary of state in 2016 and his decision in 2017, there was no longer an established practice that reasons would be given for a decision not to call in an application. On the contrary, the established practice was that reasons would not be given. The earlier statements and practice relied on by the claimant had been superseded and so could no longer found a legitimate expectation that reasons would be given. Because of the claimant’s active role in planning matters, it should have been aware of that change and the stance adopted by the secretary of state in the well-publicised case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin) that the practice of giving reasons was no longer operative. No misleading representation had been made to the claimant at the relevant time, and the claimant had not placed reliance on it: R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 applied. R (on the application of Majed) v Camden London Borough Council [2009] EWCA Civ 1029 followed.
(2) The weight of legal authority was decisively against implying a duty to give reasons as part of the common law requirement of fairness. In R (on the application of Oakley) v South Cambridgeshire District Council [2017] EGLR 22, the Court of Appeal held that a planning committee’s decision to grant planning permission for a major scheme comprising inappropriate development in the green belt, contrary to their officer’s recommendation, had to be explained by reasons. However, that case was distinguishable since a call-in decision was a very different type of decision to a decision by a local planning authority to grant planning permission. A call-in decision was, in essence, a procedural decision by the secretary of state on whether to intervene in the planning process which did not result in the grant of any substantive rights. There was no basis on which the court should depart from the many previous judgments of the court holding that no general duty existed: R v Secretary of State for the Environment, ex parte Newcroft [1983] JPL 386, R v Secretary of State for the Environment, Transport and the Regions, ex parte Carter Commercial Developments [1999] 1 PLR 1, R (on the application of Persimmon Homes Ltd) v Secretary of State for Communities and Local Government [2007] EWHC 1985 (Admin); [2007] PLSCS 153, Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin) and R (on the application of Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin) applied. R (on the application of Oakley) v South Cambridgeshire District Council [2017] EGLR 22 distinguished.
Richard Harwood QC (instructed by Harrison Grant) appeared for claimant; Nathalie Lieven QC and Mark Westmoreland Smith (instructed by the Government Legal Department) appeared for the defendant; Saira Kabir Sheikh QC and Alex Greaves (instructed by Tri-Borough Shared Legal Services) appeared for the first interested party; Christopher Lockhart-Mummery QC and Robert Walton (instructed by Dentons UKMEA LLP) appeared for the second interested party.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government
