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DCLG defeats challenge over failure to give reasons for not calling in scheme

A heritage group has lost a judicial review over an unannounced change in government policy on how it responds to requests to call in planning applications.

Save Britain’s Heritage (SBH) had taken Communities Secretary Sajid Javid to the High Court over the failure of the Department for Communities and Local Government to call in Sellar Property’s £775m Cube redevelopment, which will include the building of a 19-storey office block near Paddington station.

Westminster City Council granted planning permission in August and the DCLG declined to intervene, though did not explain why.

SBH argued that in 2001 a policy change had stated that reasons should be given for decisions on call-ins. This though was secretly rescinded by the Department in 2014.

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Mrs Justice Lang said in Save Britain's Heritage, R (on the application of) v Westminster City Council & Anor [2017] EWHC 3059 that by the time SBH’s application was made to the Secretary of State in December 2016 “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”.

The Planning Court judge rejected the argument that the original policy must remain in force because it had not been formally revoked because “it is a fundamental principle of public law that public bodies cannot lawfully fetter the future exercise of their discretion under statutory powers, by adopting policies which cannot be changed”. 

The judge added that the weight of legal authority was “decisively against” implying that reasons had to be given as part of the common law requirement of fairness.

A separate judicial review is pending over a claim by Imperial College Healthcare NHS Trust that the Cube development would impede access by ambulances to the nearby St Mary’s Hospital.

SBH director Henrietta Billings said the judgment “sends out a very negative message about open and accountable decision making at the very highest levels of government.

“We continue to believe that ministerial decisions must stand up to robust scrutiny. We are now considering our legal options.”

Mark Smulian

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