Legitimate expectation on minister to prove adequate reasons in heritage controversy

In seeking judicial review of a decision by the secretary of state not to call in a planning application involving development adjacent to Paddington station in west London, Save Britain's Heritage ('Save') persuaded the Court of Appeal that inadequate reasons had been provided.

The proposed development involved the construction of a 24-storey glass tower to replace the former Royal Mail sorting office and would incorporate refurbishment of the Bakerloo underground line. Westminster City Council resolved to grant planning permission and listed building consents in December 2016 and this triggered Save to write to the secretary of state requesting that the application be called in. In March 2017 the secretary of state confirmed that he would not call in the application, stating that he was content it should be decided by the local planning authority. Mrs Justice Land subsequently rejected Save’s challenge to the decision after concluding that later changes to the practice guidance on whether to provide reasons had effectively superseded the promise in the 2001 green paper.

Save asserted that the secretary of state was under a duty to give reasons for his decision, relying on the green paper issued by the Secretary of State for Transport, Local Government and the Regions in 2001, which promised that such reasons would be provided in call-in cases. This change had been confirmed in the House of Commons and House of Lords in 2010, Save claimed, and the duty was not modified in 2012 when a written ministerial statement was issued on call-ins under Section 77 of the Town and Country Planning Act 1990. Accordingly, Save had a legitimate expectation that reasons for the secretary of state’s decision would be provided, it was argued.

Lord Justice Coulson held that section 77 of the Act did not impose a general duty on the secretary of state to provide reasons when deciding whether to call in an application. However, the green paper issued in 2001 had not been revoked or amended by subsequent changes to the guidance relating to call-ins and there had been no public announcement that the promise to give reasons had been withdrawn. The 2001 green paper amounted to a ‘promise’ by the secretary of state to provide reasons for a decision and this generated a legitimate expectation that they would be provided. In the instant case, this promise appeared to have been forgotten altogether and consequently the claimant’s case on this ground had been made out.

Save Britain’s Heritage v Secretary of State for Housing, Communities and Local Government & Westminster City Council & Great Western Developments Ltd

Date: 4 October 2018

Ref: [2018] EWCA Civ 2137

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