ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
Mrs Justice Lang
Strand, London, WC2A 2LL
B e f o r e :
(Sir Andrew McFarlane)
LORD JUSTICE SINGH
LORD JUSTICE COULSON
| The Queen on the application of Save Britain's Heritage
|- and -
|The Secretary of State for Communities and Local Government
|- and -
|Westminster City Council
||Interested Party /2nd Respondent
|- and -
|Great Western Developments Limited
||Interested Party /3rd Respondent
Nathalie Lieven QC & Mark Westmoreland Smith (instructed by Government Legal Department) for the 1st Respondent
Hearing date: Thursday 13th September 2018
Crown Copyright ©
Lord Justice Coulson :
2. The Statutory Framework
"The Secretary of State may give directions requiring applications for planning permission…to be referred to him instead of being dealt with by local planning authorities."
"My Right Honourable friend the Secretary of State gives reasons where applications are called but, up to now, they have not been given when he has decided not to call in an application. In the interests of greater openness he shall, from today, give reasons in both circumstances."
On the same day, the change was announced in both the House of Commons and the House of Lords. In the latter chamber, Lord Falconer said:
"As part of our fundamental review of the planning system, we have decided that as from today we shall give reasons for our decision not to call in planning applications. This decision, which forms part of the raft of measures in our Planning Green Paper published today, is in the interest of transparency, good administration and best practice. The courts have established that there is no legal obligation to provide reasons for not calling in an application…"
3. The Factual Background
"Town and Country Planning Act 1990
Redevelopment of Paddington Sorting and Delivery Office
Application numbers – 16/09050/FUL & 16/08052/LBC
I refer to the above application which has been the subject of third party requests to call in for determination by the Secretary of State for Communities and Local Government.
The Secretary of State has carefully considered this case against call-in policy, as set out in the Written Ministerial Statement by Nick Boles on 26 October 2012. The policy makes it clear that the power to call in a case will only be used very selectively.
The Government is committed to give more power to councils and communities to make their own decisions on planning issues, and believes planning decisions should be made at the local level wherever possible.
In deciding whether to call in this application, the Secretary of State has considered his policy on calling in planning applications. This policy gives examples of the types of issues which may lead him to conclude, in his opinion that the application should be called in. The Secretary of State has decided, having had regard to this policy, not to call in this application. He is content that it should be determined by the local planning authority.
In considering whether to exercise the discretion to call in this application, the Secretary of State has not considered the matter of whether this application is EIA Development for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
The local planning authority responsible for determining this application remains the relevant authority for considering whether these Regulations apply to this proposed development and, if so, for ensuring that the requirements of the Regulations are complied with.
The Article 31 Direction issued pursuant to the Secretary of State's letter of 20 February 2017 is hereby withdrawn."
4. The Duty To Give Reasons
i) In R v Secretary of State for the Environment (ex parte Newprop)  JPL 386, Forbes J said that there was no duty on the Secretary of State to give reasons for a refusal to exercise his discretion to call in an application. The judge's remark in that case that a s.77 decision could only be challenged if it was "wildly perverse" should not, however, be regarded as imposing some higher test than what might be called the ordinary yardstick of irrationality.
ii) In Asda Stores Limited v The Secretary of State for Scotland  SLT 1286 (Outer House), Lord Nimmo-Smith stated that there was no duty to give reasons for any call in decision. By the time of the appeal at  PLCR 233, this proposition was accepted by all parties.
iii) In R v Secretary of State for the Environment, Transport and the Regions ex parte Carter  PLCR 125, the deputy judge said: "there was no obligation to give reasons for a decision not to call in an application". It seems likely that Lord Falconer must have had Asda and Carter in mind when he commented that the courts had confirmed that there was no duty to give reasons (see paragraph 7 above).
iv) In R (Persimmon Homes Limited) v Secretary of State for Communities and Local Government  EWHC 1985 (Admin);  JPL 323 the Minister had given a reasoned decision not to call-in a mixed-use development. The case proceeded on the basis that, because reasons had been given, they could be examined to see if they disclosed any error of law. Sullivan J noted at  that there was no requirement to give such reasons.
v) In Saunders v Secretary of State for Communities and Local Government  EWHC 3756, Edwards-Stuart J accepted at  counsel's formulation of the relevant legal principles. These included the statement that "there is no duty to give reasons for a decision not to call-in an application under s.77" and that "the decision under s.77 is not a decision to grant permission, but it is the exercise of a procedural discretion which deals with the responsibility for the determination of the application".
vi) In Westminster City Council v Secretary of State for Communities and Local Government  EWHC 708 (Admin) Collins J noted that it was common ground that the discretion conferred by s.77 "is very wide and there is no duty to give reasons for any decision". The somewhat confused backdrop to the decision in this case is relevant when considering the 'legitimate expectation' argument, at Section 5 below.
vii) In R (Shirley) v Secretary of State for Communities and Local Government  EWHC 2306 (Admin);  JPL 298 at , Dove J noted a number of the cases to which I have already referred and concluded that the respondent's discretion under s.77 was very broad "and pre-eminently a matter of planning judgment" for the SoS.
"In my view, the common law should only identify a duty to give reasons where there is a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of an individual case."
(a) Public authorities are under no general common law duty to give reasons for their decisions ;
(b) Fairness may in some circumstances require reasons to be given, even where there is no express statutory duty , ;
(c) In the planning context, an LPA is generally under no common law duty to give reasons for the grant of planning permission , although special circumstances may require it , ;
(d) The common law principle of open justice or transparency also applies to whether reasons are required to be given for a planning decision ;
(e) In deciding whether reasons should be given, the court should "respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons" but recognise that "the present system of rules has developed piecemeal and without any apparent pretence of overall coherence" .
(f) "It is appropriate for the common law to fill the gaps [and require reasons to be given] but to limit that intervention to circumstances where the legal policy reasons are particularly strong" .
4.2 This Particular Case
"The Secretary of State will, in general, only consider the use of his call-in powers if planning issues of more than local importance are involved. Such cases may include, for example, those which in his opinion:
May conflict with national policies on important matters;
May have significant long-term impact on economic growth and meeting housing needs across a wider area than a single local authority;
Could have significant effects beyond their immediate locality;
Give rise to substantial cross-boundary or national controversy;
Raise significant architectural and urban design issues;
Or may involve the interests of national security or a foreign government.
However, each case will continue to be considered on its individual merits."
5. Legitimate Expectation
5.1 The Law
"The justification for it is primarily, that when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representation from interested parties and as a general rule that is correct.
In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, it is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on 28 October, that each case would be considered on its merits…"
"35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay  AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department  UKHL 36,  1 AC 604, para 26 Lord Steyn said:
"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.
36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department  EWHC 2273 at para 52 that "it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute." At para 72 of the judgment of the Court of Appeal in the present case, this statement was distinguished on the basis that it was made "in the quite different context of the Secretary of State's decision to withhold from the individuals concerned an internal policy relating to a statutory scheme designed for their benefit". This is not a satisfactory ground of distinction. The terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits. As Mr Fordham puts it: why should it be impermissible to keep secret a policy of compensating those who have been unlawfully detained, but permissible to keep secret a policy which prescribes the criteria for their detention in the first place?"
5.2 The Circumstances of This Case
Lord Justice Singh :
The President of the Family Division :