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 SAVE maintained that, as a matter of principle, a published policy cannot be withdrawn or overturned by an unpublished practice.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.