In R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 2137 the Court of Appeal allowed an appeal, in part, against the High Court’s decision that there was no general duty at common law to give reasons for a procedural decision by the Secretary of State and, that any legitimate expectation said to have arisen as a result of statements made by the Secretary of State did not subsist following a change of practice in 2014 whereby reasons were no longer given.

Key Points:

  • The Court of Appeal, in an analysis of the Supreme Court decision in Dover District Council v CPRE Kent [2017] UKSC 79 (‘CPRE’), ruled that no general duty to give reasons exists at common law, affirming the High Court’s decision on this ground.
  • There were no policy considerations that justified imposing a duty to give reasons for a procedural decision which was not directly determinative of the parties’ rights and obligations.
  • There was, however, a legitimate expectation for reasons to be given: a change of practice could not negate an earlier promise that gave rise to a procedural legitimate expectation.
Background

The Secretary of State has the power under s.77 of the Town and Country Planning Act 1990 to take over the determination of certain planning decisions for himself, known as “calling in”. In 2001 the then Planning Minister announced to both Houses of Parliament that in the interests of “transparency, good administration and best practice” the Minister would in future give reasons where a decision has been taken not to call in an application under s.77. In 2010 a review conducted by the Secretary of State similarly stated that decision letters under s.77 would “set out reasons for either call in or non-intervention”.

At first instance, whilst Lang J accepted that statements made in 2001 “could well have given rise to a legitimate expectation that reasons would be given for non-intervention”, she rejected the application on the grounds that the practice changed, with the established practice becoming one whereby “reasons would not be given”. The statements and practice relied on by the appellant were said to have been superseded by 2016/2017 “and so could no longer found an expectation that reasons would be given.” She decided that there was no legal requirement to announce the change publicly, even though it would have been “good practice to do so”.

Court of Appeal Decision

On the existence of a general duty at common law to give reasons

Coulson LJ expressed unease with the way in which s.77 has come to be used as a “de facto appeal process” of local planning decisions; the intent behind s.77 was to provide a simple binary choice between the Secretary of State and the Local Planning Authority as to who would be the ultimate decision maker. It was not a substantive decision determinative of the planning application itself. He concluded that “as a matter of common sense, there can be no general duty…to give reasons for that procedural decision.” Equally, no such requirement has been established by case law; indeed “all of the authorities are to the opposite effect.” A decision under s.77 is the “exercise of a procedural discretion” and reasons are not required.

Coulson LJ commented that the Supreme Court decision in CPRE, relied on by the applicant, provided no assistance. The principles he derived from Lord Carnwath’s judgment in CPRE were summarised as follows:

  • There is no general common law duty on public authorities to give reasons for their decisions;
  • Fairness may in some circumstances require reasons to be given, even where there is no express statutory duty;
  • 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;
  • The common law principle of open justice or transparency also applies to whether reasons are required to be given for planning permission;
  • 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”;
  • “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.”

Coulson LJ considered that there were no good legal policy reasons to extend the duty to procedural decisions which are not directly determinative of the parties’ rights and obligations. On that basis, he concluded, there was no general requirement to give reasons.

Singh LJ commented, however, that he would not be so categorical in deciding that there should never be a duty to give reasons for the exercise of a procedural discretion, instead this was a question that should be decided depending on the particular context of each case.

On the existence of a legitimate expectation that reasons would be given

Re-affirming the distinction between those legitimate expectation cases that turn on an “express promise” and those that turn on “a practice, even where there has been no promise or assurance that a particular procedure will be followed”, Coulson LJ reasoned that the current case was a “straightforward promise case”.

He concluded that the events in 2001 constituted an express promise that reasons would be given for decisions not to call in an application under s.77, a promise that had been reiterated in 2010. On his analysis, these promises “plainly” gave rise to a legitimate expectation that reasons would be given for non-intervention. Departing from the first instance decision, he concluded that the promise had not been withdrawn: there had been no public announcement to that effect.

Setting out his reasons for considering as erroneous the first instance conclusion that the change in established practice could defeat the legitimate expectation, he stated:

  • The first instance judge’s reasoning appeared to confuse the distinction between legitimate expectation cases based on a promise and those based on an established practice; this was clearly a case of the former.
  • It would be a “recipe for administrative chaos” if a legitimate expectation could be generated by a ministerial promise, only then to be lost as a result of an “unadvertised change of practice”.
  • On the Secretary of State’s own case, the promise to give reasons was never consciously withdrawn; it had instead been forgotten altogether. Coulson LJ went on: “[i]t is difficult to see how a person can be said to have changed a policy of which they were unaware at the relevant time.”
  • Given that the policy had been publicly promised, as a matter of good administration and transparent governance, any change to the policy had to be announced publicly. This did not happen because the policy had been forgotten.

Furthermore, Coulson LJ rejected the suggestion that the applicant needs to show specific detrimental reliance in promise cases, noting that this was not a hard and fast rule and that “a public law claim based on an unequivocal promise is not to be treated as if it were some species of estoppel.”

Comment

The Court of Appeal was unequivocal in rejecting the appellant’s submissions relating to a wider duty at common law for the provision of reasons for a procedural decision of this nature. In a thorough survey of the authorities, it found no support for such a contention; a similar conclusion was reached in relation to the submissions made grounded in the Supreme Court’s decision in CPRE. In doing so, the Court of Appeal has placed a restraint on any future claims that would seek to make similar arguments: whilst the common law might be available to “fill the gaps” in assessing obligations to provide reasons, it seems clear from this judgment that the Court of Appeal will not entertain arguments calling for the recognition of a wider duty where Parliament did not intend for such reasons to be provided.

The clear distinction drawn between the two grounds for legitimate expectation is welcome in re-affirming the extent to which they are to be assessed separately; to have followed the reasoning at first instance would have been to muddy the waters surrounding the doctrine of legitimate expectation, allowing a ministerial promise to be subsequently ignored.

KEY CONTACTS

Andrew Lidbetter
Partner
+44 20 7466 2066
Email

Nusrat Zar
Partner
+44 20 7466 2465
Email

Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Email