R Save Britain's Heritage v Secretary of State for Communities and Local Government Westminster City Council and Another (Interested Parties)
Jurisdiction | England & Wales |
Judge | Mrs Justice Lang |
Judgment Date | 29 November 2017 |
Neutral Citation | [2017] EWHC 3059 (Admin) |
Court | Queen's Bench Division (Administrative Court) |
Docket Number | Case No: CO/2023/2017 |
Date | 29 November 2017 |
[2017] EWHC 3059 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2023/2017
Richard Harwood QC (instructed by Harrison Grant) for the Claimant
Nathalie Lieven QC and Mark Westmoreland Smith (instructed by the Government Legal Department) for the Defendant
Saira Kabir Sheikh QC and Alex Greaves (instructed by Tri-Borough Shared Legal Services) for the First Interested Party
Christopher Lockhart-Mummery QC and Robert Walton (instructed by Dentons UKMEA LLP) for the Second Interested Party
Hearing date: 1 November 2017
The Claimant applied for judicial review of the decision of the Defendant, dated 15 March 2017, not to call in for his own determination under section 77 of the Town and Country Planning Act 1990 ("TCPA 1990") applications for planning permission and listed building consent for a major demolition and re-development project at 31 London Street, London W2, known as the Paddington Cube development ("the development").
The applications for planning permission and listed building consent were made by the Second Interested Party ("the developer") to the First Interested Party ("Westminster CC"), which was the local planning authority.
The development was controversial and widely opposed by a number of organisations and individuals, including the Claimant, a well-respected conservation group.
Permission to apply for judicial review was granted by Sir Ross Cranston, sitting as a High Court Judge, after refusal of permission by Mr Justice Dove on the papers.
Facts
On 6 December 2016, Westminster CC Planning Applications Committee resolved to grant conditional planning permission and listed building consent for the development. The Mayor of London decided not to take over the applications.
In a letter dated 13 December 2016, the Claimant asked the Defendant to call in the development for his own determination, following a public inquiry, on the ground that the applications met the criteria for a call-in. In a detailed letter, the Claimant referred to the harm to heritage assets and buildings of merit within a Conservation Area, contrary to national and local planning policies, and opposed by Historic England; the significant effects of the development beyond its immediate locality; significant architectural and urban design issues; the controversial nature of the development which had attracted widespread opposition; and concerns about the handling of the applications by Westminster CC.
The Victorian Society and the Imperial College Healthcare NHS Trust also requested the Defendant to call in the applications.
On 20 February 2017 the Defendant made a direction prohibiting Westminster CC from granting permission on the applications without specific authorisation from him, pursuant to Article 31 of the Town and Country Planning (Development Management Procedure)(England) Order 2015.
In a letter dated 15 March 2017, the Defendant notified Westminster CC that he would not be calling in the applications, and he lifted the direction prohibiting Westminster CC from granting permission on the applications, pursuant to Article 45 of the Town and Country Planning (Development Management Procedure)(England) Order 2015. The letter read as follows:
" 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."
This letter was copied to the Claimant under cover of a letter dated 15 March 2017 which stated:
"The Government remains committed to giving more power to councils and communities to make their own decisions on planning issues, and believe that planning decisions should be made at the local level wherever possible. The call-in policy makes it clear that the power to call in a case will only be used very selectively.
The Secretary of State has deciding, having had regard to this policy, not to call in this application. He is satisfied that the application should be determined at a local level.
I appreciate that this is not the preferred outcome for you and I understand that there will be great disappointment as a result. It is, however, now for the Council to determine this application and a copy of our letter to the Council is attached for your information."
On 20 April 2017, in response to an application under the Environmental Information Regulations 2004, the Defendant provided the Claimant with a redacted version of the briefing note which had been provided by civil servants to the Minister, Marcus Jones MP, to assist him in the decision-making process. The briefing note summarised the details of the site and the proposal and the main issues, including the concerns of the objectors. It stated that the local MP had not made representations. The redactions blanked out paragraphs 3, 25 and 28, which were those which contained the civil service advice and recommendation to the Minister. The reason given for not disclosing this advice was that "Ministers should be able to consider the advice from officials and discuss it frankly and with candour, without the inhibition that would be caused if disclosure was made at this time."
Following pre-action protocol correspondence, the Claimant's claim for judicial review was issued on 26 April 2017. The sole ground of challenge related to the failure to give reasons.
On 14 August 2017, Westminster CC granted the developer planning permission and listed building consent for the development. In correspondence with the Claimant's solicitors, Westminster CC expressed its view that the claim against the Defendant did not prevent it from proceeding to grant planning permission and listed building consent. The Claimant did not issue any proceedings against Westminster CC to challenge its decision, nor to seek an injunction preventing it from proceeding.
Imperial College Healthcare NHS Trust has filed a claim for judicial review against Westminster CC, challenging the grant of planning permission and listed building consents, on the ground that the development will increase journey time for ambulances travelling to St Mary's Hospital.
Statutory framework
By section 77(1) of the TCPA 1990 the Secretary of State is empowered to 'call in' for his own determination planning applications which are before local planning authorities:
"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."
A similar power exists for listed building consent applications in section 12(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Under article 31 of the Town and Country Planning (Development Management Procedure)(England) Order 2015, the Minister is able to suspend a local planning authority's power to determine a planning application, usually to enable a decision to be made. A similar power exists under sections 14 and 15 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The policy criteria for calling in applications were set out in a ministerial statement to Parliament by Mr Richard Caborn MP, the then Planning Minister, on 16 June 1999. On 26 October 2012, the policy criteria were amended in a Written Ministerial Statement by Nick Boles MP which stated:
" Planning Applications
The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles): The Localism Act has put the power to plan back in the hands of communities, but with this power comes responsibility: a responsibility to meet their needs for development and growth, and to deal quickly and effectively with proposals that will deliver homes, jobs and facilities.
The Secretary of State for Communities and Local...
To continue reading
Request your trial-
R Save Britain's Heritage v The Secretary of State for Communities and Local Government
...hearing of the judicial review application took place on 1 November 2017. The judgment of Lang J was handed down on 29 November at [2017] EWHC 3059 (Admin). She accepted at [32] that the statements made in 2001 (paragraphs 6–7 above) “could well have given rise to a legitimate expectation ......
-
Planning Permission
...art 11(2)(e) (3). 15 DMPO, art 11(2)(f). 16 R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2017] EWHC 3059 (Admin), where it was held that the Secretary of State is under no duty to give reasons for a decision not to call in a planning application und......
-
Table of Cases
...1159 (Admin), [2013] All ER (D) 160 (May) 149 R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2017] EWHC 3059 (Admin), [2018] ACD 14 126 R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), [2013] En......