Notwithstanding the considerable amount of the Parliamentary time currently being spent on Brexit, the Secretary of State for Housing, Communities and Local Government has still found space to issue a Written Ministerial Statement (WMS) on 26 March 2019 in which he announced that he will no longer give reasons for calling-in or declining to call-in planning applications. A copy of the statement can be found here.
Regardless of upon which side of the planning fence you sit, this is unlikely to be welcome news. But, perhaps the Minister had something else in mind …
Theirs not to reason why,
Theirs but to do and dieAlfred, Lord Tennyson – The Charge of the Light Brigade
The power to call-in planning applications under s77 Town and Country Planning Act 1990 gives the Secretary of State a wide discretion in his decision-making. In 2001, the then Government announced that it would give reasons for decisions to call-in or not to call-in planning applications “in the interests of transparency, good administration and best practice”. This practice was confirmed in March 2010 and no change was made when the policy criteria for calling-in was amended by WMS in October 2012.
The latest WMS is the, perhaps not entirely unexpected, fall-out from the case of Save Britain’s Heritage v Secretary of Statement for Communities and Local Government and others  EWCA Civ 2137 in which Save successfully argued that under existing policy ministers were obliged to give reasons when they decline to call in planning applications. The Secretary of State’s position was that, at some unknown date early in 2014, a decision had been taken not to give reasons for decisions declining to call in an application and that, since then, such decision letters have been issued without giving reasons. Even leaving aside that this change in policy was not communicated to the wider public, it transpired that no-nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010) – it had been forgotten.
Transparency, good administration and best practice be damned.
The Court of Appeal will hear Save Britain’s Heritage’s challenge over the refusal of then Secretary of State for Communities and Local Government, Sajid Javid, to give reasons for not calling in the Paddington Cube scheme, on 19 July 2018.
The campaign group said: “Our legal action is focused on the government’s failure to follow published policy announced in Parliament that reasons would be given for decisions not to call in major planning decisions for public inquiry. We believe this case goes to the heart of open and accountable decision making and needs robust scrutiny.”
In granting Save Britain’s Heritage leave to bring proceedings to the Court of Appeal in March, Lord Justice Lewison is reported to have said: “The question whether the Secretary of State may adopt a policy which does not conform with his published policy is an important one, and this ground of appeal has a real prospect of success.”
However, the Court of Appeal refused to grant the group permission to continue with its challenge to Westminster City Council’s decision to grant planning permission for the Paddington Cube, which is now marketed as Paddington Square.
In an important judgment that reviews the obligation to give reasons in planning cases, the Supreme Court has dismissed the appeal in Dover DC v CPRE Kent  UKSC 79 and affirmed the decision of the Court of Appeal quashing permission for major development in the Kent Downs AONB.
Lord Carnwath (with whom Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agreed) held that:
- The standard of reasons summarised by Lord Brown in South Buckinghamshire DC v Porter (No.2)  1 WLR 1953 applies generally, and is relevant for environmental impact assessment (EIA) development
- If a party can establish a material defect in reasoning, the appropriate remedy will generally be to quash the planning permission
- For EIA development in particular “the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation”, so it is insufficient to provide a statement of reasons after the grant of planning permission; in that regard the Supreme Court declined to follow the reasoning in R (Richardson) v North Yorkshire County Council  1 WLR 1920
- At common law, fairness may require the provision of reasons for the grant of planning permission, despite the lack of an express statutory duty
- A separate statement of reasons will therefore likely be required for the grant of planning permission against officers’ recommendation for controversial development in conflict with local and national policies; Oakley v South Cambridgeshire DC  EWCA Civ 71 was correctly decided
Lord Carnwath noted that members of Dover District Council’s planning committee had “an unenviable task” (para.61) and that “[i]t is difficult to see how the members could have expected to reach a properly considered decision on the material then before them” (para.63). This was particularly true of “the contentious issue of viability”. He considered that with hindsight, nothing would have been lost if members had deferred their decision in order properly to address the issues in hand.
The case is of considerable significance for LPAs, Developers and Objectors alike on the nature, scope and standard of reasons required for planning decisions. For EIA development and especially controversial projects the position is clearer. However, exactly when a separate statement of reasons will be required in other cases and the content of such a statement is not answered.