A Promise Is A Promise

I set out the principles of legitimate expectation in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends and referred to 29 November 2017 Lang J’s judgment at first instance in Save. The Court of Appeal has now partly overturned that judgment, in R (Save Britain’s Heritage) v Secretary of State (Court of Appeal, 4 October 2018). The case resulted from the Secretary of State’s decision not to call in the application for planning permission for the proposed Paddington Cube development, although given that planning permission and listed building consent was subsequently granted by Westminster City Council for that development, which was beyond challenge, these proceedings continued to the Court of Appeal on a basis which was only academic as far as that development was concerned.

Lang J had reached a curious conclusion. She accepted that a legitimate expectation had arisen, as a result of statements in 2001 (first in a green paper and then in ministerial statements), repeated in a 2010 ministerial statement, that the Secretary of State would give reasons when deciding not to exercise his power to call in planning decisions. But she found that “in 29 February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons” and therefore the earlier statements and practice relied upon by the claimant “could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Lang J accordingly dismissed the claim, in effect concluding that a promise could be publicly given by Government and privately retracted.

The Court of Appeal took a different view. The judgment of Coulson LJ is pretty scornful as to the Government’s position and the circumstances of the alleged 2014 change in policy:

It is the SoS’ case that, at some unknown date early in 2014, a decision was taken not to give reasons for a decision declining to call in an application and that, since then, such decision letters have been issued without giving reasons. The confused circumstances in which this change came about, and the extent to which it could fairly be said to be a change of policy at all, are dealt with in greater detail in Section 5 below.”

“…it is 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.”

“…it is 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 was therefore right to say that this was not an open or transparent way to withdraw a public ministerial promise made in Parliament.”

“…a close textural analysis of the samples included in the court bundle only serves to confirm that the alleged change of practice relied on by the SoS was negligible.

From the SoS’ point of view, therefore, so far, so bad: but it gets worse. Ms Lieven QC was counsel for the SoS in the Westminster case. When Lang J asked her how it was that the change in practice had occurred, it was apparent from her answers (given on instructions) that, at the time of the Westminster case in 2014, nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010). Thus, Mr Harwood QC was right to submit that the change in practice relied on by the SoS was brought about in ignorance of the 2001 policy promise. So, even on the SoS’ case, the promise to give reasons was never consciously withdrawn, whether for good reason or not; it had instead been forgotten altogether. In consequence, neither of the typical answers to a legitimate expectation claim identified in paragraph 39 above (a conflict with other statutory duties or a reasonable decision not, after all, to honour the promise) can arise on the facts of this case. It is difficult to see how a person can be said to have changed a policy of which they were unaware at the relevant time.”

Accordingly, it seems to me that the legitimate expectation rightly identified by Lang J did not come to an end as a result of the confusion and muddle generated by the Westminster case and/or the apparent decision to make, at best, minor changes to the template letter. 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 under s.77. For these reasons, I consider that SAVE’s legitimate expectation case has been made out.”

A separate ground of appeal, that Lang J was wrong not to find that there was a general duty to give reasons, quite aside from any legitimate expectation, failed.

The 2014 Westminster case referred to in Save did indeed cause “confusion and muddle“. That case related to a challenge by English Heritage to the decision of the then Secretary of State not to call in an application for planning permission made to Lambeth Borough Council for the redevelopment of Elizabeth House, next to Waterloo Station. In that case Westminster City Council was an objector, having objected to the application and having sought call-in without success.

Whilst it was accepted that there was no general duty to give reasons, the argument made was that the Secretary of State had volunteered reasons and therefore they had to be adequate.

The Secretary of State’s letters to Westminster City Council and Lambeth Borough Councils, informing them that the application would not be called in, were said by Collins J to be “badly drafted” and on their face showing errors in the application of the Secretary of State’s call in policy.

The judgment contains this classic sentence in relation to the letter sent to Lambeth:

It is so obviously wrong particularly, as will become apparent, when read with the advice given that it cannot and does not reflect the defendant’s thinking.”

Collins J accepted the submissions of Nathalie Lieven QC, on behalf of the Secretary of State, that the letter was so bad that it could not have been intended to contain any reasoning!

Ms Lieven supported by Mr Harris and Mr Simons submitted that the letter was doing no more than informing the recipient LBL that the defendant had decided not to call in the application. She accepted as was inevitable that it was poorly drafted and that in effect that part of it should be ignored. It was not purporting to give reasons. She relies on the advice given to the defendant and in effect submits that since neither the defendant nor Mr Boles could conceivably have believed that it did not engage some of the matters which required consideration to be given to calling in the application it could not have set out the defendant’s thinking nor could it properly have done so.

Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.”

A brave but successful defence. No wonder that in the context of those letters being under the microscope, civil servants presumably decided that it would be safer to stay well away from giving reasons – although the Secretary of State was fortunate that the claimant did not argue breach of legitimate expectation, because surely, on the basis now of Save, that case was wrongly decided

So what is the practical effect of the Court of Appeal’s ruling in Save? It is a useful statement of the law in relation to legitimate expectation where that expectation arises by way of a promise and of immediate effect in relation to future decisions which the Secretary of State may make as to whether or not to call in planning applications for his own determination but of course the Secretary of State can change his policy on giving reasons at any time, as long as he does it formally and openly. Will he?

Simon Ricketts, 5 October 2018

Personal views, et cetera

Pic courtesy of Mixology

Author: simonicity

Partner at boutique planning firm, Town Legal LLP, but this blog represents my personal views only.

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