Why a court ruling will force ministers to explain decisions

A Court of Appeal ruling over the controversial Paddington Cube scheme in central London should boost transparency around government call-in decisions, say observers.

Paddington Cube: decision needed more transparency
Paddington Cube: decision needed more transparency

In November last year, a High Court judge upheld the decision by the then communities secretary Sajid Javid not to call in plans for the office-led redevelopment of a former Royal Mail site next to Paddington station in central London. The Paddington Cube scheme is a 19-storey, 54-metre-tall office tower next to the grade I listed station and within the Bayswater conservation area. Campaign group Save Britain’s Heritage (SAVE), which brought the High Court challenge, claimed the glass tower would permanently harm heritage assets in the conservation area.

The High Court judge ruled that Javid was not obliged to give his reasons for allowing Westminster City Council to take the final planning decision on the scheme. However, the Court of Appeal last week reversed that judgment, saying Javid should have disclosed his reasons for refusing to call in the application.

While permission for the Paddington Cube still stands, SAVE’s director Henrietta Billings said the latest judgment has crucial implications for transparency and ministerial accountability. The government’s 2001 planning green paper promised that the secretary of state should give reasons for not calling in schemes, a pledge that has since been reiterated on several occasions, said Billings. However, for unexplained reasons, she said the practice stopped in early 2014. In recent years fewer large schemes have been called in by the secretary of state, claimed Billings, which would mean they are then subject to a public inquiry. "We should have legitimately known why," she said.

Lord Justice Coulson, who heard the case with Lord Justice Singh, said in his judgment that he was convinced the green paper’s promise should have remained in place. "I do not consider that the relevant promise has ever been withdrawn," he said in his judgment. He ruled that "since a promise had been made to operate a particular procedure then, as a matter of good administration and transparent governance, any change to that policy also had to be announced publicly." He said that "it is a recipe for administrative chaos if a legitimate expectation can be generated by an unequivocal ministerial promise, only for it then to be lost as a result of an unadvertised change of practice." He pointed out that "nobody in the department recalled or had in mind the policy promise made in 2001 when the practice of giving reasons for call-in decisions was changed in 2014".

An Ministry of Housing, Communities and Local Government spokesman said the government "is currently considering the ruling". Commentators said ministers would now have to revert to the 2001 policy. But Billings said the government could take the case to the Supreme Court. Another option is that it will consult on amending the 2001 policy, said Victoria McKeegan, planning associate at law firm Norton Rose Fulbright, with the aim of retaining its current approach of not disclosing its reasoning. "As the commitment to give reasons was within a policy statement, it could only be changed through a similar statement," she said.

The ruling supports the need for openness and transparency in decision-making at all levels of government, according to Paul Seddon, president of the Planning Officers Society. Just as local authorities are required to produce a detailed written record of decisions and the reasons for them, central government needs to be similarly transparent, he said. Kathryn Hampton, senior knowledge lawyer at law firm Hogan Lovells, said the ruling underlines the importance of both the government and local authorities following through with any commitments they make in policy statements. "If they create an expectation, this needs to be met," she said. "Central and local government should be careful with the commitments they make to avoid any kind of challenge."

Michael Bach, planning committee chair at the London Forum of Amenity and Civic Societies, agreed that explaining decision-making more openly should decrease legal risks. "Ministers should not be concerned that by giving reasons for a decision, they are opening themselves up to a legal challenge," said Bach. He pointed out that up to 2014, when the practice stopped, the system had worked effectively. "There were no legal challenges against call-in decisions in that time." Reasons, if they are sensible, can help any aggrieved party understand how the decision was reached, said planning lawyer Nigel Hewitson, a consultant at Gowling WLG. "They can then assess whether it would be worth challenging," he said, adding that a lack of reasoning can breed suspicion.

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