The High Court has dismissed a challenge by Save Britain’s Heritage which argued that the Secretary of State was under a duty to give reasons for his decision not to call in a large redevelopment adjacent to Paddington Station known as the Paddington Cube.
Following the decision not to call in the application, Westminster City Council granted planning permission for the development. Save contended that the outcome of a successful challenge in respect of a duty to give reasons would have the consequence of rendering the planning permission granted by Westminster City Council unlawful and liable to be quashed. Westminster City Council maintained that the permissions could not be challenged through a collateral challenge to the Secretary of State’s refusal to give reasons not to call-in the decision and any such challenge had to be made to the permissions themselves which had not been the position. Furthermore as the permission had been issued, any duty to give reasons for not calling in the scheme was academic in respect of the Paddington Cube development in any event.
The Claimant alleged that a duty to give reasons was founded upon two bases.
First, the Claimant argued that it had a legitimate expectation that reasons would be given as a result of change of practice announced in a 2001 Green Paper and subsequent ministerial statement to Parliament. Alternatively, the Claimant submitted that there was a common law duty to give reasons.
The High Court dismissed the challenge. It held that the earlier practice of giving reasons had been superseded by a change of practice in 2014, so that the earlier statements relied upon by the Claimant could no longer found an expectation that reasons would be given.
In respect of the common law duty, the High Court noted that a call-in decision is in essence a procedural decision by the Secretary of State on whether to intervene in the planning process and does not result in the grant of any substantive rights. Furthermore, this was not a case in which the Claimant needed to see the reasons to decide whether to challenge the decision since there was no right of appeal and the Claimant had not challenged the decision by way of judicial review on any ground other than the lack of reasons.
The truth of the matter was that the Claimant had hoped to use the reasons challenge as an indirect means of invalidating the planning permission and listed building consents granted by Westminster City Council. Lang J held that could not be a legitimate reason for implying a common law duty to give reasons. In refusing permission to appeal, Lang J noted that as the permissions granted by Westminster City Council had been issued any claim in that context was academic in any event.