England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 March 2014

Mr Justice Collins :

1. The claimants in this case seek to quash the decision of the defendant given on 20 March 2013 not to call in for determination by him an application for planning permission made by the first interested party (EHouse) which the second interested party (LBL) resolved to grant on 6 November 2012. There was also an application for conservation area consent which LBL also resolved to grant but that is not in issue in this claim. The development in question involves the demolition of all buildings on the site of Elizabeth House at 39 York Road which lies between York Road and Waterloo Station and so far as material the construction of two new buildings, one to the north being of part 29 and part 14 storeys and the other to the south being of 11 storeys. The tallest part of the north building is to be 125.9 metres and it is to contain a mix of residential and office use. The south building is to be mainly office use.
2. There can be no doubt the development of the site is highly desirable. It will provide a much needed boost to employment at Waterloo and improved access to the station which will ameliorate the present congestion. This is said to be particularly important since the station is intended to be developed to deliver significant capacity improvements, including bringing some or all of the former international terminal platforms into domestic use. However, the buildings proposed will have an impact on the Waterloo and Roupell Street Conservation Area and in particular the Grade 1 listed Festival Hall. But more importantly in the context of this claim it will impact on the Westminster World Heritage Site (WWHS) which includes Westminster Abbey, the Palace of Westminster and St Margaret's Church. The relevant policy, London Plan Policy 7.10, states:-

"Development should not cause adverse impacts on World Heritage Sites or their setting (including any buffer zone). In particular, it should not compromise a viewer's ability to appreciate its Outstanding Universal Value (OUV), integrity, authenticity or significance."

3. Both claimants objected to the proposed development. The second claimant (HBMC), perhaps more generally known as English Heritage, stated that it would cause a substantial and unacceptable degree of harm to the OUV, setting and views from the WWHS. This was essentially because the bulk of the north building in particular would be visible from Parliament Square in the gap between Big Ben and Portcullis House. Thus it would appear visually attached to the north face of Big Ben when viewed from Parliament Square and would reduce an awareness of the dominance and architectural form of the Big Ben (now Queen Elizabeth) Tower. This tower is an internationally recognised symbol of London and a major component of the WWHS. It also drew attention to UNESCO's interest in the issue and it assessed that were the application to be approved UNESCO would be likely to revisit consideration whether the WWHS should be placed on the endangered list.
4. HBMC in addition expressed serious concern at the impact of the proposed development on the setting and views of the Festival Hall. In addition, it would be visible from the Blue Bridge in St James's Park and would have an unacceptable impact on the FCO, a Grade 1 listed building. There were also concerns about the impact on County Hall and the National Theatre, all listed buildings. It recognised the benefits which would accrue from the development, but in its view the amount of floorspace could not be accommodated on the site without causing substantial and unacceptable harm to London's historic environment.
5. The first claimant (WCC) objected on the ground that by reason of its height and bulk the development would harm the setting and OUV of the WWHS. In addition, it would adversely affect a number of important views from the City of Westminster, namely those from Waterloo and Westminster Bridges and Victoria Embankment and as far away as Green Park. It also would harm the settings of the Westminster Conservation Area including Whitehall, Savoy and the Strand. It also joined with HBMC in expressing concerns about the unacceptable impact on the listed buildings and conservation areas in Lambeth.
6. The advantages of the scheme set out to the Planning Committee of LBL on 6 November 2012 included the provision of 8,600 jobs and homes, office accommodation to compete with Central London for inward investment, enhancement of the role of Waterloo as a transport interchange and provision of long term permeability and accessibility between Lower Marsh and the South Bank and facilitation of other opportunities from other schemes in the area that were expected to follow. It also would have what were labelled public realm improvements. Essentially the area at present is in need of repair and regeneration and it was said that the development would achieve that.
7. Objections because of the adverse impact of the development were received from the Royal Parks and from the Twentieth Century Society. The Mayor of London was supportive as was the Commission for Architecture and the Built Environment (CABE) and Transport for London. Thus, as was submitted by the defendant and the interested parties, there were positive advantages which the development would produce. LBL's very detailed officers' report to the planning committee said that the proposed buildings engaged what was described as a marmite response: it would not be to everyone's taste and would be regarded as monolithic. Alternatively, it could be appreciated as what is described as a simplified form with a refined glazing treatment. However, the design itself would not have influenced the call-in decision save only for the impact that the mass and height had on the WWHS in particular but also the listed buildings and conservation areas affected by it.
8. In 2008 LBL decided to grant planning permission for a redevelopment which produced a similar floor space to that with which this claim is concerned but in three buildings all exceeding 20 storeys and one of three segments the tallest of which was 33 storeys or some 140 metres. This application was opposed on, inter alia, similar grounds relating to the impact on the WWHS and was called in by the defendant. Following a public inquiry, permission was refused. The inspector in her report dated 15 July 2009 recorded that the government had explained to UNESCO that protection of views to and from the WWHS focussed on the protection of key views and on the ability to understand and appreciate the OUV of the WWHS. It is to be noted that that development had been supported by both CABE and the Mayor of London. The inspector concluded in paragraph 124.11 that the proposed development "would occupy that all-important gap to varying degrees or not at all depending on view points". The gap to which she is referring is that between Big Ben and Portcullis House. She continued:-

"where visible in the gap, the new buildings would be seen with a clarity not replicated in the visual images presented. The towers would materially detract from the size and importance of Big Ben not by mere fact of visibility in the skyline but by virtue of their bulk and disturbing aspects of design."

In addition, she concluded that the development of Elizabeth House coupled with that of the Shell Tower would form an almost continuous backdrop of development and would adversely affect the Festival Hall and the Grade II* listed National Theatre. The development would also have an unacceptable impact on the conservation areas.

9. The inspector's conclusions were accepted by the defendant and so he decided on 8 October 2009 that permission should be refused. It is to be noted that the adverse impact on the WWHS was put in these terms, reflecting the inspector's conclusions:-

"… the towers would materially detract from the size and importance of Big Ben not by mere fact of visibility in the skyline, but by virtue of their bulk and disturbing features of design."

The point is made in this case by the defendant and the interested parties that the bulk is less and the design has been improved.

10. There has been an application for development of the Shell Centre which was called in by the defendant. It obviously has an impact on the conservation areas and the listed buildings but also there is a possible adverse impact on the WWHS. There has been an inquiry but no decision has yet been made.
11. On 15 November 2012 Councillor Davis wrote to the defendant on behalf of WCC asking the defendant to call in the application. He said that in his view the proposal raised major issues for the protection of the OUV of the WWHS and that, if the development was approved, there was a real risk that the WWHS would be placed on the endangered list. This would be very damaging to the nation's reputation and have substantial implications for tourism and so the economy. Since HBMC had objected, there was in any event an obligation on LBL to refer the proposal to the defendant so that he could consider whether he should call it in.
12. Section 77 of the Town & Country Planning Act 1990 deals with calls in. S.77(1) provides:-

"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."

This will usually lead to an inquiry before an inspector.

The most recent statement on the policy to be adopted in relation to call-in decisions was given by Nick Boles, the PUS, on 26 October 2012. He referred to the Localism Act which had 'put the power to plan back in the hands of the communities.' The policy was, he said, 'to continue to be very selective about calling in planning applications'. Parliament had entrusted local planning authorities with the responsibility for day-to-day planning control in their area and they should in general be left to carry out their duties responsibly with the minimum of interference. He continued:-

"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;

(1) May conflict with national policies on important matters.

(2) May have significant long term impact on economic growth and meeting housing needs across a wider area than a single local authority.

(3) Could have significant effects beyond their immediate locality.

(4) Give rise to substantial cross-boundary or national controversy.

(5) Raise significant architectural and urban design issues, or

(6) May involve the interests of national security or of foreign Governments."

However, each case will continue to be considered on its individual merits."

13. In July 2009 the then Secretary of State issued a Circular 07/2009 giving guidance on the protection of World Heritage Sites. Paragraph 8 stated:-

"The outstanding universal value of WHS indicates its importance as a key material consideration to be taken into account by the relevant authorities in determining planning and related applications and by the Secretary of State in determining cases on appeal or following call-in. it is therefore essential that policy frameworks at all levels recognise the need to protect the outstanding universal value of WHSs. The main objective should be the protection of each WHS through conservation and preservation of its outstanding universal value."

The importance of protecting the setting of a WHS is emphasised and in Paragraph 18 it is stated:

"It may be appropriate to protect the setting of a WHS in other ways, for example, by the protection of specific views and viewpoints …"

Paragraph 19 deals with call-in procedures. It reads:-

"The white paper introduced a new proposal to increase the protection of World Heritage Sites and ensure that the outstanding universal value for which the Site is inscribed is properly reflected in development proposals. Under the terms of the Town and Country Planning (Consultation)(England) Direction 2009, planning authorities are required to consult the Secretary of State for Communities and Local Government before approving any planning application made on or after 20 April 2009 to which English Heritage maintains an objection and which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site or its setting, including any buffer zone. The Secretary of State then has the discretion to call-in the application for his own determination if he considers it appropriate to do so."

14. In considering a call-in decision made by the Secretary of State, it is common ground that the discretion conferred by s.77 of the 1990 Act is very wide and there is no duty to give reasons for any decision. In R(Persimmon Homes Ltd) v SSCLG [2007] EWHC 1985 (Admin) (a case which has not apparently been but should have been reported), Sullivan J considered the correct approach to a challenge to a refusal to call-in. The discretion of the Secretary of State under s.77 is very wide indeed. It must therefore be a matter for the defendant's judgment to decide whether in any given case, having regard to any policy in which he had identified the approach he will take to any call-in consideration, there should be a call-in. That judgment can only be impugned if shown to be irrational on the Wednesbury test. This includes a failure to have regard to or a disregard of any material matter or the decision being one which could not reasonably have been made. If it can be shown that he has failed to have regard to his policy or has in any particular case misunderstood it, an error of law will have been established. But if he has not erred in that way, an attack on the ground of perversity will be highly unlikely to succeed having regard to the width of the defendant's discretion. Indeed, in Persimmon at paragraph 69 Sullivan J went so far as to state that a challenge on the ground of perversity faced a well nigh impossible task.
15. The defendant is not required to give reasons but, if he chooses to do so, those reasons can be examined to see if they disclose any error of law. Equally, if it is shown that the decision not to call in was based on considerations which should not have been taken into account, the decision may be unlawful. This arose in Lakin Ltd v Secretary of State for Scotland [1988] S.L.T. 780. The letter sent by the Secretary of State did not disclose any error of law, but an affidavit was submitted in accordance with the Scottish procedure by an official indicating how the Secretary of State reached his decision. This disclosed that he had considered the merits of the application. The Lord Justice-Clerk (Lord Ross) observed at 790:-

"What the Secretary of State was required to decide was whether to call in the application … and not how the applications should be determined. On reading the affidavit, it is plain what was being done was determining merits of the … applications".

It went on to reiterate that the Secretary of State should not at that stage have considered the merits but only whether he should call in the applications so that the merits could then be determined.

16. Mr Harris submitted that the approach of the court as set out in the authorities, particularly Persimmon, was in accordance with the clear Parliamentary intention shown in the structure of the 1990 Act as amended. It would only be in a rare case that the responsibility to decide an application for planning permission should be taken away from a local planning authority. Furthermore, the policy statement of 26 October 2012 made clear that even if an application met one or more of the examples set out there or disclosed other factors which gave it a more than local impact the defendant would not necessarily exercise his power to call in. He would have to decide exercising his judgment whether in all the circumstances he would call in the application.
17. The defendant's decision not to call in was given to LBL by a letter dated 20 March 2013 signed by an official on behalf of the defendant. A letter of the same date was sent by Mr Boles to Councillor Davis enclosing a copy of the letter to LBL. These letters were and remain fundamental in the attack on the decision made by the claimants. Unfortunately, each letter is badly drafted and on their face apparently show that errors have been made in applying the policy of October 2012. The defendant was asked to disclose the advice which had been given to him by his officials. Initially, there was produced a heavily redacted document which gave very little information. However, no doubt following very sensible advice, the full advice has been disclosed. Without it, this claim would have been likely to have succeeded having regard to the errors in the letters sent informing the claimants of the decision. But it is necessary to see what information the defendant had in fact received before making his decision.
18. The letter to LBL so far as material read:-

"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.

The Secretary of State has carefully considered the impact of the proposal, and the key policy issues which this case raises. In his opinion, the proposals do not; involve a conflict with national policies on important matters; have significant long term impact on economic growth and meeting housing needs across a wider area than a single local authority; have significant effects beyond their immediate locality; give rise to substantial cross boundary or national controversy; raise significant architectural and urban design issues; or involve the interests of national security or of foreign Governments. Nor does he consider that there is any other sufficient reason to call the application in for his own consideration. He has therefore decided the application should be determined at local level, and has not called it in."

The second and third sentences of the second paragraph are clearly wrong. There can be no doubt that the examples I have numbered (2), (3) and (4) in the policy cited in Paragraph 12 above are engaged. In addition, although UNESCO is not a foreign government, its interests undoubtedly should fall within the policy. Furthermore, the letter asserts that the proposals do not fall within any of the examples. The question for the defendant is not whether they do but whether they may fall within the examples or otherwise justify consideration whether there should be a call-in. Regrettably, the letter is extremely poor and Ms Lieven has accepted that it cannot be taken at face value. It is so obviously wrong particularly, as will become apparent, when read with the advice given that it cannot and does not reflect the defendant's thinking.

19. The letter to Councillor Davis is not quite so bad but it does contain the same erroneous statement. So far as material, it reads, having made the point that the approach is that planning decisions should whenever possible be made at the local level and that the call-in power will only be used very selectively:-

"With this in mind, I have carefully considered the Elizabeth House proposal against the published guidelines, and am satisfied that, whilst controversial, the application does not raise issues of the wider strategic or policy virtue envisaged by the call-in policy. I have therefore decided that the application should be determined at the local level."

20. This falls into the same error as that contained in the letter to LBL. The application clearly does raise issues referred to by Mr Boles but that does not mean that there must be a call-in. The reality is that the decision reached was that despite raising the issues and falling within some of the examples in the policy in the exercise of his discretion, the defendant (acting it seems through Mr Boles) decided not to call in the application.
21. Mr Cameron drew attention to the response by the Secretary of State in 2008 to the application to call in the previous Elizabeth House application. The Secretary of State then said that she ought to call in despite the need to be very selective because 'the proposal may conflict with national and regional policies on important matters'. That he submitted was the correct approach in that the Secretary of State recognised that it was right to call in if there might be a conflict.
22. Mr Cameron in addition suggested that the call in of the previous application should have in effect dictated that the decision on the present application should be the same. In making her recommendation to refuse permission in 2009, the inspector had concluded that the towers would "materially detract from the size and importance of Big Ben not by mere fact of visibility in the skyline but by virtue of their bulk and disturbing aspects of design". She also made the point that the "Elizabeth House development and the Shell Tower together would form an almost continuous backdrop of development in this setting. The towers would meld together with no apparent distinction between them. The complex facades and twisting slopes of the two main towers would not sit well with the uncluttered lines of the listed building". The listed building referred to is the Festival Hall.
23. The Secretary of State in his decision refusing permission said this:-

"The Secretary of State agrees with the Inspector that, in assessing the impact of the proposed development on the WHS, what is important is whether the development, when seen from various viewpoints in Parliament Square and the Sanctuary would either on its own or in combination with other buildings, preserve the outstanding significance and appreciation of these universally valued and historic buildings … He also agrees with the Inspector's description of the gap between Big Ben Tower and Portcullis House as all-important in this context. Although the proposed development would occupy that gap to varying degrees or not at all, depending on viewpoints. The Secretary of State agrees with the Inspector … that, where visible in the gap, the towers would materially detract from the size and importance of Big Ben not by mere fact of visibility in the skyline, but by virtue of their bulk and disturbing aspects of design … He further agrees that, although the ability to appreciate the values of the Palace of Westminster as a group would not diminish, the awareness of the dominance and architectural form of the Big Ben tower would be lessened, and that this is sufficient to conclude that the setting and value of the WHS would be adversely affected by the proposal. The Secretary of State also agrees that the same conclusions would apply in respect of harm to the Westminster Abbey and Parliament Square Conservation Area and to the settings of the listed buildings within it."

24. The defendant called in the application for redevelopment of the Shell Centre. That decision was made on 3 September 2013. One of the main issues to which he expressly referred to was:-

"The extent to which the proposed development is consistent with Environment policies in planning for the achieving and enhancing the historic environment including the impact on the Westminster WHS (NPPF Section 12)."

Paragraph 132 of the NPPF is of particular importance. So far as material, it reads:-

"When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be … substantial harm to … designated assets is of the highest significance, notably … Grade 1 listed buildings and … World Heritage Sites, should be wholly exceptional."

25. There has been an inquiry into the Shell proposal but a decision has not yet been made. The present application has taken account of the objections to the previous application and it has, it is said, improved the design and reduced the height and number of the towers. I have seen a photo-montage, but, save that it would be visible in the gap between Big Ben and Portcullis House, it is not for me to form any view on the extent of any harm to the WWHS which results. It is clear that LBL has given detailed consideration to that issue and it cannot be suggested that the members of the committee did not have the fullest information then available. In particular, they were aware that there was, in the view of HBMC likelihood that UNESCO would place the WWHS on the list of endangered sites. While the previous call in coupled with the call in of the Shell development give powerful support to the need to call in the present application, they cannot be determinative of the way in which the defendant's discretion should have been exercised.
26. Since the impact on the WWHS is of central importance, I should refer to the observations of UNESCO. In its draft statement of Outstanding Universal Value in relation to the WWHS as at 2011, UNESCO stated:-

"The distinctive skyline is still prominent despite the presence of a few tall buildings … However, the visual integrity of the Property is vulnerable to development projects for tall buildings. Work is underway to examine whether a buffer zone is required to ensure that the style of the Property and its overall prominence is sustained, and key views in and out of the Property need to be protected."

In the report of the World Heritage Committee held in June 2011, concern was expressed that the wider setting and views of the WWHO had not been given formal specific protection.

27. In December 2011 UNESCO sent members who were responsible for monitoring WHSs to examine the WWHS and the Tower of London. They met with those whom they describe as key stakeholders at the most senior level who all, as they record, 'underlined the importance of understanding the dynamic relationship between the properties and their context.' Included among those who were met by the UNESCO members were representatives from LBL and Westminster, the Mayor of London and representatives from HBMC. This was said:-

"Given the dynamic urban context of the Tower of London and Westminster Palace, Westminster Abbey and Saint Margaret's Church, the mission reiterated the World Heritage Committee's advice to tightly regulate the construction of tall buildings in the vicinity of the property to maintain their visual integrity and to protect their Outstanding Universal Value."

28. The report recognised that the redevelopment of Elizabeth House was already a contentious project. The area had been earmarked in the London Plan for higher density development. It stated that that the boroughs of Lambeth and Westminster were communicating to work toward a compromise solution which would satisfy the development needs of Lambeth, while respecting the WHS. It continued:-

"The redevelopment project of Elizabeth House will be a litmus test as regards the robustness of the national planning system vis-à-vis the protection and conservation of London's World Heritage Sites."

29. At its meeting held in Phnom Penh in June 2013, the World Heritage Committee of UNESCO considered the appropriate response to the current application of which it had been notified. It noted the concerns raised by HBMC and the decision of the defendant not to call in the application. It expressed its concern at developments proposed at inter alia Elizabeth House and the potential adverse impact on the setting and views of the WWHS and urged the State Party to ensure that the proposals were not approved in their current form and that they be revised in line with the concerns raised by English Heritage. It concluded as follows:-

"They are of the view that there do not seem to be defined settings or overall agreed constraints in place to ensure that new tall buildings do not impact on important views and other attributes of the property. They also point out that, due to the advanced stage in the planning process, any recommendations on the projects are more difficult to be taken into account by the responsible authorities.

The World Heritage Centre and the Advisory Bodies recommend that the World Heritage Committee request the State Party to halt the development projects Elizabeth House [ …] and to revise the projects in line with the concerns raised by English Heritage. They would also advise the Committee to request the State Party to consider reinforcing its legal provisions and planning framework to allow the national authorities to ensure their responsibilities for the implementation of the World Heritage Convention at the national level.

The World Heritage Centre and the Advisory Bodies would also recommend that the World Heritage Committee request the State Party, as a matter of urgency, to define the immediate and wider setting of the property in relation to its OUV and embed these in the policies of all the relevant planning authorities, as well as to define specific measures and ensure that adequate mechanisms are in place to protect the property and minimize its vulnerability to potential threats to its OUV.

They would further advise the Committee to consider placing the property on the List of World Heritage in Danger in 2014, should the foreseen development projects be approved as currently planned. "

It follows that there is clearly a real risk, perhaps even a probability, that the decision of the defendant, which gives the green light to LBL to grant permission, will, if LBL does grant permission, result in the WWHS being placed on the list of those sites in danger.

30. The advice to the defendant fairly summarised the support for the development and the concerns of UNESCO to which I have referred. It stated, in my view inevitably, that the application raised significant issues in respect of policy. While it had the advantages for LBL in regeneration of a prime site and improvements of access to Waterloo Station, it was said:-

"On the other hand, this application raises significant issues in relation to national policy on the Historic Environment as set out in paragraph 132 of the NPPF which states that substantial harm to, or loss of designated assets of the highest significance including WWHS, would be wholly exceptional."

It continued:-

"English Heritage states that should the development proceed, it could have repercussions for WWHS status, placing it on the World Heritage Danger List, leading to reputational risks for the Government."

It identified the risk of call-in being delay in delivering economic growth and the risk of not calling in being the placing of the WWHS on the danger list. It advised the defendant that it was a finely balanced case, but that "the significant concerns regarding NPPF policies relating to the international aspects of Heritage Sites and conserving and enhancing the historic environment heritage" meant that the case conflicted with national policies on important matters to such an extent as to warrant the defendant's intervention. The author concluded:-

"Therefore, after much consideration, I recommend that the application is called in."

31. The claimant's grounds are primarily concerned with the letter of 20 March 2013. First, it is submitted that the defendant has failed to understand and to apply his own policy. The test is not whether a development does come within one of the examples set out in the policy but whether it might and so simply to set out in the letter that none of the relevant considerations apply is a clear error. It is apparent that planning issues of more than local importance are involved and so, as Sullivan J stated in Persimmon, that is what the defendant should have had in mind in making his decision. As I have already indicated, the letter is manifestly wrong in stating that none of the various examples set out in the policy apply.
32. Secondly, it is submitted that there has been a failure to have regard to policy on protection of WHSs. It is argued that the need to protect WHHS is so important that the defendant ought to have referred to it and in any event the letter as written shows that he could not have taken it into account as he should have done.
33. Thirdly, it is said that, while there is no duty to give reasons, the letter does give reasons which are manifestly defective. If reasons are given notwithstanding that there is no duty to give them, they are to be judged in the same way as would any reasons where a duty to give them existed. Since the reasons given are defective, they cannot suffice in the absence of proper reasons.
34. Finally, it is submitted that the decision was irrational. Mr Cameron recognises that the burden on the claimants to establish this is exceedingly onerous. It must be shown that it fell outside the bounds of any decision open to a reasonable decision maker. Recognising that and Sullivan J's observations in Persimmon that it would be almost impossible to establish irrationality in the exercise of the wide discretion afforded by s.77, Mr Cameron nonetheless submits that this decision is so poor that it does meet the test. He relies in particular on the conflict with national policies as the advice from his official made clear, the real risk that UNESCO would put the WWHS on the danger list, the failure to act in a manner consistent with the previous decision to call-in and the lack of any explanation for the decision made.
35. The first three grounds depend upon how the letter of 20 March 2013 should be regarded. Ms Lieven supported by Mr Harris and Mr Simons submitted that the letter was doing no more than informing the recipient LBL that the defendant had decided not to call in the application. She accepted as was inevitable that it was poorly drafted and that in effect that part of it should be ignored. It was not purporting to give reasons. She relies on the advice given to the defendant and in effect submits that since neither the defendant nor Mr Boles could conceivably have believed that it did not engage some of the matters which required consideration to be given to calling in the application it could not have set out the defendant's thinking nor could it properly have done so.
36. Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.
37. In reaching his decision, the defendant in a case such as this where without a call-in the result would almost certainly be the grant of permission has to consider whether, notwithstanding the conclusion reached by LBL, there might because of the claimed adverse impact of the development need to be an independent consideration by the planning inspectorate whether permission should be recommended. In reaching his decision, the defendant was bound to have regard to whether in reaching its decision LBL had properly considered all relevant matters. The merits of the decision making process would thus be material as would the effect of the approval of the development. To that extent it could be said that merits were material depending on how merits in this context are to be construed.
38. I have had seriously to consider whether the decision was irrational as the claimants submit. I do not think that lack of consistency with the previous call-in or that of the Shell development can properly be relied on. The present proposal is a modification to try to take account of the previous prevailing objections and the impact on the WWHS is not so apparent. There is a view which could reasonably be taken that despite UNESCO's and the claimants' concerns the impact is not such as would damage the WWHS or other listed buildings and conservation areas. The defendant is in exercising his judgment entitled to regard the real risk, even the probability, of UNESCO placing the WWHS on the danger list as acceptable. It may be a surprising view to take but I am not persuaded that it quite reaches the level of irrationality.
39. It follows that I must dismiss this claim.
40. I would only add this. It is open to the claimants to ask LBL to reconsider the application.. Whatever may be the defendant's views, LBL as the decision maker is bound to consider any material which it did not consider in reaching its decision and which could change its view. If, of course, it were to refuse permission, EHouse could appeal and an inquiry before an inspector would take place.