Last week, the Secretary of State for Housing, Communities and Local Government (“SoS”), James Brokenshire MP, published a written statement in which he announced that he would no longer give reasons for calling-in or declining to call-in planning applications. This comes just short of six months after the Court of Appeal ruling in SAVE Britain’s Heritage that the SoS’s failure to give reasons in the Paddington Cube planning application was unlawful. In the absence of a common law duty to give reasons (see below), the SoS may now make decisions on whether to call-in or decline to call-in planning applications without the requirement to give reasons. We explore below what this means for applicants and other interested parties.

Power to call-in applications

The SoS has a statutory power to direct that applications for planning permission be referred to him instead of being dealt with by local planning authorities. This is a very wide power.

Despite this, in practice, only around 1 in every 23,000 planning applications is called-in each year. This is because, as set out in the Government’s policy statement in October 2012, the SoS should be very selective about calling-in planning applications and should only consider doing so where the application involves issues of more than local importance.

That call-in policy gives examples of cases where the call-in powers might be used, which include (amongst others) where the development might conflict with national policies on important matters or could give rise to substantial cross-boundary or national controversy. The policy is, however, clear that each case will be considered on its individual merits.

The effect of a call-in

If an application is called-in, a public inquiry will be held before a Planning Inspector. The Inspector will then issue a recommendation to the SoS, who will make the final decision on the application.

The call-in process usually results in higher costs for the applicant and a delay to the determination of the application. For this reason, applicants often seek to resist the calling-in of their applications, particularly where the local planning authority is supportive of the development and willing to grant consent at the local level.

In some cases, the calling-in of the application can in itself impact upon the viability of the scheme, a current example being where the delay will push the decision date beyond the coming into force of the Mayoral Community Infrastructure Levy 2 on 1 April 2019 (see our previous blog post of 5 March 2019).

The requirement to give reasons

In December 2001, the Government announced that it would, from that date, give reasons for decisions not to call in planning applications. That statement was confirmed in March 2010. However, there followed a number of instances in which the SoS’s reasons for his decision not to call-in an application were criticised. In one case involving a proposed application for development in Westminster, the reasons were found by the High Court to be plainly wrong on their face. This prompted an about turn by the Government in 2014, when the Government decided that it would actually be more prudent not to give reasons.

However, this change of practice was not widely publicised and in 2018 the Court of Appeal in Save Britain’s Heritage v the Secretary of State for Housing, Communities and Local Government held that the SoS’s failure to give reasons for his decision in March 2017 not to call-in the Paddington Cube planning application was unlawful. Lord Justice Coulson held that there was a legitimate expectation that reasons would be provided based on the Government’s 2001 unequivocal promise, which had not been publicly withdrawn.

Following the judgment, SAVE Britain’s Heritage applauded the Court of Appeal’s decision and announced that it was a major victory for openness and transparency. However, just short of six months later, the Government officially withdrew the 2001 statement. In the absence of a common law duty to give reasons (see below), the SoS may now make decisions on whether to call-in or decline to call-in planning applications without the requirement to give reasons.

What are the implications of this written statement?

From the perspective of the rule of law, it is difficult to reconcile a power that is subject to a published policy stating when the decision maker will exercise that power, with the absence of a duty by the decision maker to publish his reasons for doing so. What purpose does the SoS’s call-in policy serve if he cannot be held accountable for decisions made ostensibly in accordance with that policy? The courts have held that a decision to call-in an application can only be challenged where it is “wildly perverse”, which is a very high bar. What is to stop the SoS ignoring his own policy all together if he does not have to give reasons for his decisions and cannot be challenged in the courts?

In the absence of reasons, applicants and interested parties are left in the dark as to why the SoS made his decision. Pursuant to the “makes no difference” principle, the court must refuse relief in judicial review proceedings if it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, unless the granting of relief is appropriate for reasons of exceptional public interest (for further information on this, see the HSF Administrative and Public Law team’s e-bulletin of 30 January 2019). Without reasons to explain why the decision was made, it will be hard to determine whether the SoS would have made the same decision to call-in or not call-in the application but for the legal flaw in the decision-making process alleged by the claimant.

In the SAVE Britain’s Heritage case, Lord Justice Coulson was clear that the challenge succeeded on the basis of legitimate expectation only and not as a result of a common law duty to give reasons. He held that there are “no good legal policy reasons (let alone strong ones) which require reasons to be given for a decision which is procedural only, and which is not directly determinative of the relevant parties’ rights and obligations“. He believed that it would be unnecessary and burdensome if the SoS had to give reasons every time he decided a straightforward question of who should deal with the planning application (the local authority or the SoS).

However, that fails to give due regard to those applicants whose schemes are significantly impacted by the calling-in of an application. Whilst it is only a procedural decision, it is one which may in itself determine whether or not a scheme can be brought forward and thus have much more far-reaching implications than simply whose name is put on the decision notice.

Author: Charlotte Dyer, Of Counsel, Planning, Real Estate, London

For further information please contact:

Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275