R Save Britain's Heritage v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Singh |
| Judgment Date | 04 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2137 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/3462 |
| Date | 04 October 2018 |
and
and
[2018] EWCA Civ 2137
PRESIDENT OF THE FAMILY DIVISION
( Sir Andrew McFarlane)
Lord Justice Singh
and
Lord Justice Coulson
Case No: C1/2017/3462
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
Mrs Justice Lang
CO/20123/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood QC (instructed by Harrison Grant Solicitors) for the Appellant
Nathalie Lieven QC & Mark Westmoreland Smith (instructed by Government Legal Department) for the 1st Respondent
Hearing date: Thursday 13th September 2018
Introduction
There are now only two parties to this appeal: the appellant (whom I shall call ‘SAVE’), and the first respondent (whom I shall call ‘the SoS’). The appeal concerns the SoS' decision, dated 15 March 2017, not to “call in” certain planning applications dealing with the proposed re-development at 31 London Street, London W2, known as the ‘Paddington Cube’ (“the development”). It is SAVE's case that the SoS was required in law to give reasons for that decision, and failed to do so.
SAVE's case is put in two ways. The first relies on what is said to have been a legitimate expectation that reasons would be provided, based on a promise made by the relevant Minister in Parliament in 2001. Although the SoS accepts that it was the practice for many years to give reasons for not calling in an application (pursuant to s.77 of the Town and Country Planning Act 1990), the SoS argues that this practice came to an end in 2014 and that SAVE knew or ought to have known about that change. SAVE maintains that, as a matter of principle, a published policy cannot be withdrawn or overturned by an unpublished practice.
The second ground of appeal is based on SAVE's case that the SoS had a general duty at common law to give reasons for any decision under s.77 and/or that there was such a duty on the particular facts of this case. This argument is contrary to a number of first instance decisions and is advanced principally by reference to the recent decision of the Supreme Court in Dover District Council v CPRE Kent [2017] UKSC 79. Since the second ground of appeal asserts a general obligation on the part of the SoS, whilst the first ground relies on specific factors giving rise to the alleged legitimate expectation, I have found it convenient to address the second ground first.
It is important to note at the outset that, on 14 August 2017, Westminster CC granted the developer planning permission and listed building consent for the development. Thus, as Lewison LJ noted when giving limited permission to appeal, the challenge relating to the s.77 decision has become academic. It would be an abuse of process to use an appeal against the SoS' decision not to call in the application to mount a collateral attack on the subsequent grant of planning permission. However, Lewison LJ went on to note that the question of whether the SoS could adopt a policy or practice which did not conform with the published policy was important, as was SAVE's argument about the wider duty and the effect of the decision in CPRE. Accordingly, he granted permission to appeal, but limited that appeal to SAVE's claim for a declaration “that the SoS was required to give reasons for any decision whether or not to call in applications for planning permission and/or listed building consent for his own determination under s.77”.
The Statutory Framework
Section 77(1) of the Town and Country Planning Act 1990 permits the respondent to ‘call in’ for his own determination, planning applications which are before local planning authorities (“LPAs”). The power is in these terms:
“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.”
In December 2001, the then Secretary of State for Transport, Local Government and the Regions issued a Green Paper which, at paragraph 6.18, promised that “in the interest of greater transparency, we will now, as from today, give reasons for not calling in individual cases and to put copies of these letters on the Department's website”.
On 12 December 2001, the then Planning Minister, Lord Falconer, said:
“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…”
In March 2010, a review conducted by the SoS stated expressly that decision letters under s.77 would set out “reasons for either call in or non-intervention”, thereby confirming the policy announced 9 years earlier. On 26 October 2012, although the policy criteria for calling in applications were amended in a Written Ministerial Statement (“the WMS”), there was no change to or modification of the policy of giving reasons for either call in or non-intervention. The altered criteria are set out at paragraph 32 below. The WMS stated that the policy was to be “very selective about calling in planning applications”, and the SoS would only consider the use of his calling in powers “if planning issues of more than local importance are involved”.
It is the SoS' case that, at some unknown date early in 2014, a decision was taken not to give reasons for a decision declining to call in an application and that, since then, such decision letters have been issued without giving reasons. The confused circumstances in which this change came about, and the extent to which it could fairly be said to be a change of policy at all, are dealt with in greater detail in Section 5 below.
The Factual Background
The development involves a 24-storey glass tower, designed by Renzo Piano to replace the former Royal Mail sorting office, designed by Henry Tanner, immediately adjacent to Paddington Station. It will also occupy the site of the current station access ramp, which is currently the main pedestrian access to the station. The development will provide for the welcome refurbishment of the Bakerloo Line station at Paddington, but concerns have been expressed about the lack of any other similar buildings in the area and the close juxtaposition of the tower with the iconic terminus buildings 1.
However, whatever the rights and wrongs of the campaign against the development, it has to be acknowledged that the development is now likely to go ahead. The sequence of relevant events is set out below.
On 6 December 2016, Westminster CC granted conditional planning permission and listed building consent for the development. A week later, on 13 December 2016, SAVE (amongst others) asked the SoS to call in the development for his own determination, on the grounds that the application met the stated criteria for a call in. The letter set out detailed reasons why it was said that the criteria were met. On 20 February 2017, the SoS made a direction prohibiting Westminster CC from granting final permission on the applications without specific authorisation.
In a letter dated 15 March 2017, the SoS notified Westminster CC that he would not be calling in the applications, and he lifted the prohibition on granting planning permission. The letter was in the following terms:
“ 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...
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