Following a challenge by SAVE, the Court of Appeal ruled on 4 October 2018 that ministers must abide by a published government policy and give reasons for call-in decisions on planning applications, which includes planning applications that were not called in – like the highly controversial Paddington Cube.
image SAVE website
The Court of Appeal [has] ruled… that ministers must abide by a published government policy and give reasons for call-in decisions on planning applications. This includes planning applications that were not called in – like the highly controversial Paddington Cube.
SAVE successfully argued that under existing policy, announced in the House of Commons in 2001 and restated in 2010, ministers are obliged to give reasons when they decline to call in planning applications. This policy was overlooked by civil servants and ministers since 2014 without apparent explanation. It means that the Secretary of State for Housing, Communities and Local Government must now follow his own published advice and give reasons for his decisions. The case was heard in the Court of Appeal at the Royal Courts of Justice on 13th September in front of Lord Justice Singh, Lord Justice Coulson and Lord Justice MacFarlane. SAVE was represented by Richard Harwood QC of 39 Essex Chambers and Susan Ring from Harrison Grant solicitors.
In the judgement written by Lord Justice Coulson, he said: “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. It is not a question of fettering the future exercise of discretion, but simply making public the decision that something which had been promised and provided in the past would not be provided in the future. In my view, good administration and transparent government required nothing less. Of course, this did not happen here because no-one in the Department knew that they were changing a promised policy (because they had forgotten about it).”
Coulson LJ added: “An unequivocal promise was made, and that unequivocal promise should have been publicly withdrawn when (or if) a conscious decision was taken no longer to give reasons for not calling in applications …. For these reasons, I consider that SAVE’s legitimate expectation case has been made out.”
Henrietta Billings, director of SAVE Britain’s Heritage, said: “This is a fantastic result that opens up the decision making process for highly contested major schemes across the country. It literally changes the landscape of decision making – and is a major victory for openness and transparency.”
Marcus Binney, executive president of SAVE Britain’s Heritage, said: “In recent years it has become increasingly hard to secure public inquiries into even the most controversial schemes which have attracted major opposition both locally and nationally, and which are often approved by Councils in complete disregard of their own planning policies – as in this case. The ringing judgment, calling Ministers and civil Servants to account, and criticising a major Whitehall blunder, which will resonate through the planning system.”
Lord Justice Coulson also pointed out in the judgement that nobody in government appeared to know about their own policy: “From the Secretary of State’s point of view, therefore, so far, so bad: but it gets worse. Ms Lieven QC[*] was counsel for the Secretary of State in the Westminster case. When Mrs Justice Lang[**] asked her how it was that the change in practice had occurred, it was apparent from her answers (given on instructions) that, at the time of the Westminster case in 2014[***], nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010). Thus, Mr Harwood QC was right to submit that the change in practice relied on by the Secretary of State was brought about in ignorance of the 2001 policy promise. So, even on the Secretary of State’s; case, the promise to give reasons was never consciously withdrawn, whether for good reason or not; it had instead been forgotten altogether.”
* Ms Nathalie Lieven QC was also the Counsel for the Secretary of State in the Paddington Cube case.
** Mrs Justice Lang was the judge in the High Court over the initial Paddington Cube judicial review which was refused.
*** The Westminster case refers to a planning application to Lambeth Council for Elizabeth House at Waterloo with potential effects on the Westminster World Heritage Site and objected to by English Heritage (now Historic England), Westminster Council and UNESCO.
Our case rested on the argument that in 2001, Lord Falconer, the attorney general stated in the House of Commons that: “…the Secretary of State gives reasons where applications are called in 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…As part of our fundamental review of the planning system, we have decided that as from today we will give reasons for our decision not to call in planning applications. This decision … is in the interests of transparency, good administration and best practice.”
This position is was re-stated in 2010, and referenced as policy in a 2017 House of Commons briefing paper to MPs on call-in applications (p 10).
This case came about as a result of our major objections to the Paddington Cube – a highly controversial office development in west London. Under the proposals by Sellar Property, a handsome Edwardian Royal Mail building next to Brunel’s grade I listed Paddington Station is set to be demolished and replaced with a 19 storey office block.
The area is characterised by buildings of 4-6 storeys in height, and the Royal Mail sorting office is deemed a ‘building of merit’ within the Bayswater Conservation Area.
The proposals were controversial for the following reasons:
– Westminster City Council granted planning permission despite the impact of the tower on the Conservation Area – a status designed to protect areas from such major demolition and overscaled redevelopment.
– Cllr Robert Davies as chair of the planning committee gave well publicised media comments in support of the scheme prior to submission to the planning committee
– It attracted widespread condemnation from residents groups, Imperial College Healthcare NHS Trust which runs nearby St Mary’s Hospital and the Victorian Society. Each of these groups, including SAVE, requested the Secretary of State call-in the proposals for independent scrutiny. This was refused, and no reasons given.
SAVE initially linked the legal action over reasons to the Paddington Cube planning permission – with a view to ultimately overturning the planning permission. However, this element of our case was disallowed by the Court of Appeal when we were given permission to appeal. Therefore the Court of Appeal decision is separate from the planning permission for the Paddington Cube – which still stands.
Read the article in Building.co.uk