UK: A Legitimate Expectation To What, Exactly?

The Court of Appeal has considered whether the Secretary of State is required to give reasons for deciding not to 'call in' a planning application. Ralph Kellas considers the court's findings and its implications

In R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government [2018], Save Britain's Heritage (Save) challenged the lawfulness of the Secretary of State's (SoS's) decision under s77 of the Town and Country Planning Act 1990 not to call in an application relating to the 'Paddington Cube' development. Save argued that the SoS should have given reasons for this decision because:

• given policy statements by the SoS, Save had a legitimate expectation that reasons would be given; and
• the SoS had a common law duty to give reasons for decisions not to call in applications.

The Court of Appeal's ruling is helpful in so far as it refines the law on the interaction between the exercise of statutory discretion and the public's legitimate expectation as to how such discretion may be exercised. It provides encouragement for potential legitimate expectations claimants.

The ruling is also disappointing. It confirms that the SoS was required to give reasons and that, correspondingly, Save could legitimately expect reasons. However, it stops short of addressing the standard of reasons required, leaving both the SoS and Save somewhat in the dark.

Section 77 discretion

Section 77(1) of the 1990 Act confers on the SoS the power to:

This discretion is wide: such a direction may be general or specific as to the local planning authorities (LPAs) and the application(s) to which it applies (s77(2)).

The SoS has published policies on how he will exercise this discretion. A written ministerial statement issued in October 2012 (the WMS) provides that the SoS will be 'very selective about calling in planning applications' and will do so 'in general, only... if planning issues of more than local importance are involved'. The WMS sets out a non-exhaustive list of potential 'examples' of such applications, including those which:

While the SoS has no statutory duty to give reasons for not calling in applications, in December 2001 a green paper announced that:

While the SoS has no statutory duty to give reasons for not calling in applications, in December 2001 a green paper announced that:

At around the same time, this policy was announced in Parliament (together, the 2001 statements).

Subsequently, the SoS's Review of the call-in Process (March 2012) affirmed the policy.

In early 2014 the SoS was said to have stopped including reasons in non-intervention letters. Since then, the SoS issued some 1,600 such letters. In practice, however, the language of the non-intervention letters changed little; the content was broadly the same both before and after this 'change' in approach.

The decision

The section 77 decision in question related to an application to Westminster City Council (the LPA) for planning permission and listed building consent for a major redevelopment, known as the Paddington Cube, adjacent to Paddington Station. The proposals included:

• the demolition of a historic Royal Mail Sorting Office, a wall within the curtilage of the listed station and a locally listed building; and
• the construction of a 14-storey glass office building, with restaurants and retail space at the ground floor, and a new public square.

The proposals were controversial. Save objected to the proposals on the basis of their impact on the surrounding heritage assets. The officer report recognised this impact but the committee resolved to grant permission.

Save made a request to the SoS to call in the applications for his own determination. The SoS responded in March 2017 confirming that he would not call in the applications, noting that the SoS had reached this decision 'having regard to [the call-in policy]' (the 2017 decision letter).

While Save's initial aim was to prevent the development from proceeding, it brought judicial review proceedings impugning the SoS's decision not to call in the application. Save argued that:

• because of the 2001 statements (which had not been withdrawn) Save had a legitimate expectation that reasons would be given (the legitimate expectation ground); and
• there was a common law duty to give reasons applying generally to decisions under s77 or, alternatively, to this particular section 77 decision (the reasons ground).

The High Court dismissed both grounds (R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government [2017]). In particular, the court held that there could have been a legitimate expectation arising from the practice of giving reasons established by the policy announcements in 2001. However, the court held, by the time of the 2017 decision letter this practice had been superseded by an established practice of not giving reasons 'and so could not found an expectation that reasons would be given' (para 33).

Save sought permission to appeal on the same grounds. By this time, however, the LPA had granted the consents, rendering the claim academic. Nevertheless, Lewison LJ deemed it an important question whether the SoS is required to give reasons for his decision whether or not to call in planning applications. He therefore granted permission to appeal but limited relief to a declaratory judgment on this question. He refused to allow Save to use the challenge to the call-in decision as a vehicle to challenge the underlying planning permission.

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Originally published in Property Law Journal (December 2018/January 2019)

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