Ministers must give reasons for calling-in and also for NOT calling-in planning applications

Big change from recent practice and a victory for SAVE.

“Ministers must follow published government policy and give reasons for call-in decisions on planning applications – including in those cases where the decision is not to call in, the Court of Appeal has ruled.

The case of Save Britain’s Heritage, R (on the application of) v Secretary of State for Communities and Local Government & Ors [2018] EWCA Civ 2137 concerned the Secretary of State’s decision, dated 15 March 2017, not to “call in” certain planning applications dealing with the controversial ‘Paddington Cube’ development.

SAVE argued that the Secretary of State was required in law to give reasons for that decision, and failed to do so. It put the case in two ways:

There was a legitimate expectation that reasons would be provided, based on a promise made in 2001 by the then Attorney General Lord Falconer. Although the Secretary of State accepted 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 Secretary of State argued that this practice came to an end in 2014 and that SAVE knew or ought to have known about that change. SAVE maintained that, as a matter of principle, a published policy cannot be withdrawn or overturned by an unpublished practice.

The Secretary of State 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 was contrary to a number of first instance decisions and was advanced principally by reference to the decision of the Supreme Court in Dover District Council v CPRE Kent [2017] UKSC 79.

When granting SAVE permission to appeal, Lord Justice Lewison 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 planning permission granted by Westminster City Council on 14 August 2017 still stands.

The Court of Appeal ruled in SAVE’s favour. Lord Justice Coulson considered that the particular facts of this case did not require the common law to impose a duty to give reasons when none would otherwise exist.

In relation to the legitimate expectation issue, Mrs Justice Lang had concluded in the High Court that by 2016/2017, there was no longer an established practice that reasons would be given for a decision not to call-in an application. “On the contrary, the established practice was that reasons would not be given.”

Lord Justice Coulson decided that this conclusion was erroneous for three reasons:

The judge’s may appeared to confuse the promise cases with the practice cases. “I accept that, if a legitimate expectation was created as a result of a particular practice then, if that practice was changed, the legitimate expectation might well disappear with it. But that is not this case. This case is based on the unequivocal promise made by the relevant Minister in Parliament which has never been publicly changed.”

It was “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.” Even at its highest, the Secretary of State’s case stopped short of the suggestion that the alleged change of practice was advertised as such when it occurred in 2014. Ms Lieven QC [counsel for the minister] properly accepted that it was not a change that could be said to have been ‘published’ at all.”

It was “worth noting how and why the SoS says that this change of practice occurred. It appears that, in the Westminster case, the Minister had given reasons for not calling in the decision which were plainly wrong on their face. As a result of this error, somebody (and it is quite unclear who) within the Department for Communities and Local Government decided that it would be more prudent for reasons not to be given under s.77. In consequence, changes were made to the template letter sent out (to the relevant LPAs, or to the objectors who had requested call in) when a decision was made not to call in an application under s.77. Mr Harwood QC [counsel for SAVE] was therefore right to say that this was not an open or transparent way to withdraw a public ministerial promise made in Parliament.”

The Court of Appeal judge said he was unpersuaded that the alleged change to the template letter was of any real significance.

Lord Justice Coulson continued: “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 a 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).”
Lord Justice Coulson added: “I do not accept the proposition that a policy which has been promised can then be withdrawn simply by a change in the template of letters sent privately to individual LPAs and objectors, particularly where, as here, the alleged change is itself very difficult to discern.”

He said: “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.”

SAVE said the ruling meant that the Secretary of State for Housing, Communities and Local Government must now follow his own published advice and give reasons for his decisions.

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.”

Source: Local Government Lawyer

Statistics, damned statistics and Department of Education statistics …

“The education department’s three latest cases of statistics misuse

In his letter to Damian Hinds, the education secretary, Sir David Norgrove, the UK Statistics Authority chairman, cites three recent examples of the education department putting out false or misleading figures.

Here is the first.

Last week, the minister of state for school standards [Nick Gibb] wrote that, in an international survey of reading abilities of nine-year-olds, England “leapfrogged up the rankings last year, after decades of falling standards, going from 19th out of 50 countries to 8th.”This is not correct. Figures published last year show the increase was from 10th place in 2011 to 8th place in 2016.

Here is the second.

My attention has also been drawn to a recent tweet and blog issued by the department regarding education funding. As the authority’s director general for regulation has noted in a letter to the department today, figures were presented in such a way as to misrepresent changes in school funding. In the tweet, school spending figures were exaggerated by using a truncated axis, and by not adjusting for per pupil spend. In the blog about government funding of schools (which I note your department has now updated), an international comparison of spend which included a wide range of education expenditure unrelated to publicly funded schools was used, rather than a comparison of school spending alone. The result was to give a more favourable picture. Yet the context would clearly lead readers to expect that the figures referred to spending on schools.

And here is the third.

The shadow secretary of state for education [Angela Rayner] has written to express concerns about your use of a figure that appears to show a substantial increase in the number of children in high performing schools, as judged by OFSTED. While accurate as far as it goes, this figure does not give a full picture. It should be set in the context of increasing pupil numbers, changes to the inspection framework and some inspections that are now long in the past, as an earlier letter to the department from the Office of Statistics Regulation pointed out.

In his letter Norgrove says these cases follow four other instances in the last year when the authority wrote to the department with concerns about its presentation of data. “I regret that the department does not yet appear to have resolved issues with its use of statistics,” Norgrove says.”

“Audit watchdog vows to restore public trust in sector”

Owl says: too late for us. EDDC’s then (and now) external auditor was given a consultancy contract to investigate the ramifications of the Graham Brown scandal:

Maybe the Financial Reporting Council would be interested in this seeming conflict of interest?

“The UK’s audit watchdog has announced a reform programme to restore the public’s “falling trust in business and the effectiveness of audit” after its work showed that high-quality auditing was not being “delivered consistently”.

The Financial Reporting Council will implement a series of measures including increased monitoring and assessment of risks, and scrutiny of the future needs of investors and audit quality.

It will also address auditor independence, including banning accounting firms from providing consultancy work to companies they already audit.

The watchdog plans to work closely with the Competition and Markets Authority (CMA) on this issue.”

Failing our vulnerable children – we sink even lower

“The NHS and councils need to collaborate to develop a system to support children with mental health problems, the Local Government Association has said.

Its call came in the wake of a Education Policy Institute report, published yesterday, which revealed a 26% increase in the number of children referred to mental health services.

At the same time, a quarter of councils have phased out support they offer to children including schools-based services, family counselling and support for those exposed to domestic abuse.

One in four children referred for mental health support were rejected, the report said.

David Laws, chair of the EPI, said it was “very worrying” that services and support were being cut back just as demand was rising.

“A large number of children referred to mental health services are already rejected for treatment, and the follow up for these children looks unsatisfactory,” he said.

“It is also disturbing that many mental health providers seem unwilling or unable to provide even basic data on their services – the government should take steps to compel all providers to report regularly on their standards and performance, and this data should be collected and reported nationally.”

Responding to the findings, the LGA highlighted the £3bn funding gap that will face children’s services by 2025.

“As a result, many councils are being forced to cut early intervention work, including youth services, which helps children avoid reaching crisis point, perform better at school and avoid mental health issues in later life,” said Anntoinette Bramble, chair of the LGA’s children and young people board.

“This has been compounded by government cuts to councils’ public health funding, which also helps young people to get the best start in life.”

She said there was a need for an “urgent root and branch review” of children’s mental health services and local government and the health should together develop a system that “says yes” to children, rather than rejecting them.”