Stansted Airport

This blog post covers yesterday’s High Court ruling in Ross & Sanders (obo Stop Stansted Expansion) v Secretary of State for Transport (Dove J, 7 February 2020), where the issue before the court was whether an application for planning permission for development at Stansted Airport, made to the local planning authority, Uttlesford District Council, by the airport under the Town and Country Planning Act 1990, should instead have been pursued as a Nationally Significant Infrastructure Project (NSIP), to be determined by the Secretary of State for Transport. I also set out the timeline as to the council’s decision-making in relation to the planning application. I have limited what I say to a factual account, given that my firm is acting for the airport (alongside Tom Hill QC and Philippa Jackson from 39 Essex chambers).

The airport is subject to a cap of 35 million passengers per annum (mppa) and a cap of 274,000 air traffic movements (ATMs) per annum. On 22 February 2018 the airport submitted an application for planning permission which involved “building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands. These new developments are planned to take place in four separate locations within the existing footprint of Stansted Airport. It is uncontentious that these developments would increase the use of Stansted Airport’s single runway and its potential to handle aircraft movements. The planning application also includes a request for the planning cap of 35 million passengers per annum (“mppa”) to be increased to 43 mppa.” It was not proposed to increase the ATMs cap.

The relevant part of section 23 of the Planning Act 2008 provides that airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”.

Section 23(6) provides that “”alterationin relation to an airport, includes the construction, extension or alteration of:


(a) a runway at the airport,

(b) a building at the airport, or

(c) a radar or radio mast, antenna or other apparatus at the airport.”

The Secretary of State for Transport determined on 28 June 2018 that the 10 mppa threshold would not be exceeded and that he would not exercise his discretionary power under section 35 of the Act to treat the proposals as nationally significant and therefore subject to the 2008 Act decision-taking process and a decision at a national level. The latter determination was taken against the background of the Secretary of State’s publication on 5 June 2018 of the government’s “”Airports National Policy Statement: new runway capacity and infrastructure at airports in south-east of England” (NPS) together with the policy “Beyond the horizon: The future of UK aviation-Making best use of existing runways” (“MBU”).The MBU policy paper stated that the government would be using its Aviation Strategy to progress its wider policy towards tackling aviation carbon. “”[T]o ensure that our policy is compatible with the UK’s climate change commitments we have used the DfT aviation model to look at the impact of allowing all airports to make best use of their existing runway capacity.” The paper stated:

Airports that wish to increase either the passenger or air traffic movement caps to allow them to make best use of their existing runways will need to submit applications to the relevant planning authority. We expect that applications to increase existing planning caps by fewer than 10 million passengers per annum (mppa) can be taken forward through local planning authorities under the Town and Country Planning Act 1990. As part of any planning application airports will need to demonstrate how they will mitigate against local environmental issues, taking account of relevant national policies, including any new environmental policies emerging from the Aviation Strategy. This policy statement does not prejudice the decision of those authorities who will be required to give proper consideration to such applications. It instead leaves it up to local, rather than national government, to consider each case on its merits.”

Stop Stansted Expansion challenged the Secretary of State’s 28 June 2018 determination on two grounds: that the airport’s proposals would in fact lead to the 10 mppa cap being exceeded and that the Secretary of State should have used his discretionary power to treat the proposals as an NSIP, the claimant relying, amongst other things on a “suggestion that the application was in truth part of a wider project for expansion of passenger throughput in excess of the NSIP definition, and the ramifications of increased carbon emissions as a result of increased air travel which ought to have led to the conclusion that the development should be treated as an NSIP.”

On the first ground, the court accepted that the proposed works amounted to an “alteration” of an airport (the argument was as to whether the definition was for the purposes of these proposals limited to alterations to a runway but Dove J accepted a wider definition, given the word “includes” in sub-section (6)). However, the court found that the Secretary of State was correct to conclude that the 10 mppa threshold would not be breached:

I am satisfied that the submissions of the Defendant in this respect are undoubtedly correct. The language of the statute in relation to whether the alteration will “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” requires the Defendant to form a judgment in relation to that question. In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground, the court noted that from the statutory language of section 35 of the 2008 Act “the Defendant is granted a broad discretion as to whether or not to treat an application for development which does not otherwise meet the definitions for an NSIP as a project which requires development consent on the basis of national significance. Bearing in mind the prescriptive nature of the definitions for various types of NSIP contained in the 2008 Act, the discretion under section 35 is a broad one. Given the nature of the Defendant’s decision, as one which was exercised using a relatively broad discretion, the task of the Claimants to show that the judgment which the Defendant reached was unlawful is daunting.

The court concluded that similarly ground 2 was not made out. One of the claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise (see paragraphs 95 and 96 above). Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy (see paragraphs 38 to 40 above) which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”

The Defendant has provided in the evidence a clear and coherent explanation of the purpose of the modelling (namely for long-term forecasting at a national level) and the basis on which it was constructed so as to inform and justify the policy in MBU relating to whether planning proposals at airports could be adequately mitigated and dealt with at the local level. Once this background to the technical work is understood, then it becomes clear that the criticisms of the Claimants, based upon short-term analysis or examination of individual years is without substance.”

Accordingly, the airport had been correct to pursue the proposals by way of an application for planning permission to the local planning authority, and the Secretary of State had not acted unlawfully in declining to intervene by way of directing that the proposals should proceed as an NSIP.

So was the local planning authority, Uttlesford District Council, now free to determine the application? Well this would have been the case if it had not resolved, against officers’ recommendations, to refuse planning permission on 24 January 2020, the decision notice then having been issued on 29 January 2020.

It has been a twisting route, summarised in the report prepared for Extraordinary Planning Committee meetings that were held on on 17 and 24 January 2020 (the passages in quotation marks below), with additional factual insertions by me:

The claimant made requests on 19 April and 14 June 2018 to the Secretary of State for Housing, Communities and Local Government for the application to be called in. He responded that the Secretary of State for Transport should first determine whether the application should be treated as an NSIP.

The Secretary of State determined on 28 June 2018 that the application was not to be treated as an NSIP. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (those proceedings eventually being dismissed on 7 February 2020 as described above).

On 14 November 2018, the Planning Committee resolved to grant the application, subject to conditions and subject to completion of an agreement imposing legally binding planning obligations (“section 106 agreement”). The Report and Supplementary Reports identified the planning obligations required. The precise form that the section 106 agreement should take, in accordance with the amended recommendation, was resolved to be delegated to officers. Subsequently, a proposed S106 Agreement was drawn up between the Council, Essex County Council (as relevant highway authority) and Stansted Airport Ltd.”

On 20 March 2019 the Secretary of State for Housing, Communities and Local Government decided not to call in the application. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (Legal bid lodged after Government rejects ‘call in’ of Stansted Airport planning application, Saffron Walden Reporter, 28 March 2019). Those proceedings were subsequently withdrawn.

The purdah period commenced ahead of local government elections on 2 May 2019.

5. An Extraordinary Meeting of the Council was called for 25 April 2019 to consider the following motion:

“To instruct the Chief Executive and fellow officers not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the related Section 106 Legal Agreement between UDC and Stansted Airport Limited and the Planning Conditions have been scrutinised, reviewed and approved by the Council’s Planning Committee after the local elections.

The motion was defeated by 14 votes to 18 votes.

6. A further Extraordinary Meeting was called to consider the following motion:

To instruct the Chief Executive and fellow officers not to issue the Planning Decision Notice for planning application UTT/18/0460/FUL until members have had an opportunity to review and obtain independent legal corroboration that the legal advice provided to officers, including the QC opinion referred to by the Leader of the Council on 9th April 2019, confirms that the proposed Section 106 Agreement with Stansted Airport Limited fully complies with the Resolution approved by the Planning Committee on 14 November 2018 such that officers are lawfully empowered to conclude and seal the Agreement without further reference to the Planning Committee.

The meeting was originally scheduled for 3 June but was deferred until 28 June to allow further time for consideration of legal advice.

7. An informal meeting was held on 30 April with members who had requisitioned the Extraordinary Meeting. It was agreed:

⁃ that officers would not complete the section 106 agreement and issue the

planning consent for the time being;

⁃ That the legal advice previously obtained from Christiaan Zwart, barrister,

would be circulated to all members;

⁃ That a briefing session would be held for all members, with Christiaan Zwart in attendance to answer questions about his advice;

⁃ That, if need be, further advice would be sought at Q.C. level and a further briefing for all councillors would be held. This advice would focus on whether the planning obligation requirements made by the Planning Committee have been incorporated fully and effectively into the s106 agreement, and on the origin and consequences of any “gaps” if any between the Planning Committee Resolution and the resulting S106 Agreement.”

At the local government elections on 2 May 2019, the council came under the control of Residents 4 Uttlesford by a substantial majority.

8. A briefing meeting for all councillors was called for 14 May. Advice obtained from the Council’s barrister, Christiaan Zwart, was circulated prior to the meeting. He spoke to his advice on 14 May and answered questions.

9. Further advice was then obtained from Stephen Hockman Q.C. working jointly with Christiaan Zwart. Their joint advice was sent to members prior to a second briefing meeting held on 21 May. They answered questions raised by members at that briefing. Issues raised at the briefing meeting by members, and by Stop Stansted Expansion separately, led to additional further advice from Stephen Hockman, Q.C. and Christiaan Zwart. This also was shared with all members of the Council. In all cases information was shared on a legally privileged and confidential basis.

10. At the Extraordinary Meeting of Full Council on 28 June officers were instructed not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the Planning Committee had considered:

(i) the adequacy of the proposed Section 106 Agreement between UDC and Stansted Airport Ltd, having regard to the Heads of Terms contained in the resolution approved by the Council’s Planning Committee on 14th November 2018;

(ii) any new material considerations and/or changes in circumstances since 14 November 2018 to which weight may now be given in striking the planning balance or which would reasonably justify attaching a different weight to relevant factors previously considered.

11. Since that meeting further expert legal advice has been obtained from Philip Coppel QC at the request of Members, and officers have been supporting members of the Planning Committee in preparing to consider the two matters set out above through a series of workshop sessions, in part owing to the significant change in membership of the committee. These sessions have taken members through the content of the draft obligations and issues that might be raised as potential new material considerations and regarded as a material change in circumstances since 14 November. They have provided opportunities for councillors and officers to ensure the obligations and issues are fully understood.

12. This report seeks to set out the issues comprehensively, to enable the Committee to comply with the Council resolution and authorise the release of the appropriate decision notice on the planning application.”

Officers recommended the following:

The Assistant Director – Planning be authorised to issue the decision notice approving the planning application subject to the planning conditions as resolved by the Planning Committee on 14 November 2018 on signing of the amended S106 Agreement appended to this report.”

The Committee sat on 17 and 24 January 2020. Members rejected the officers’ recommendation (ten members voting to reject it, with two abstentions).

The reasons for refusal set out on the decision notice are as follows:

1 The applicant has failed to demonstrate that the additional flights would not result in an increased detrimental effect from aircraft noise, contrary to Uttlesford Local Plan Policy ENV11 and the NPPF.

2 The application has failed to demonstrate that the additional flights would not result in a detrimental effect on air quality, specifically but not exclusively PM2.5 and ultrafine particulates contrary to Uttlesford Local Plan Policy ENV13 and paragraph 181 of the NPPF.

3 The additional emissions from increased international flights are incompatible with the Committee on Climate Change’s recommendation that emissions from all UK departing flights should be at or below 2005 levels in 2050. This is against the backdrop of the amendment to the Climate Change Act 2008 (2050 Target Amendment) to reduce the net UK carbon account for the year 2050 to net zero from the 1990 baseline. This is therefore contrary to the general accepted perceptions and understandings of the importance of climate change and the time within which it must be addressed. Therefore, it would be inappropriate to approve the application at a time whereby the Government has been unable to resolve its policy on international aviation climate emissions.

4 The application fails to provide the necessary infrastructure to support the application, or the necessary mitigation to address the detrimental impact of the proposal contrary to Uttlesford Local Plan Policies GEN6, GEN1, GEN7, ENV7, ENV11 and ENV13.

If you are interested in the debate that led to these conclusions, you are out of luck: No webcast or sound recording of the 24 January session is apparently available. There is an apology on the council’s website:

Unfortunately the broadcasting of today’s meeting failed. Officers worked throughout the day, in liaison with the supplier, to identify and rectify the problem without success.

It has now been established that the back-up local recording of the meeting also failed, meaning an audio recording of the meeting will not be available on the council’s website.

We sincerely apologise to those who had wanted to ‘listen in’ or ‘listen again’ to the meeting.”

From lack of sound to lack of soundness…

The inspectors examining Uttlesford’s local plan concluded in their 10 January 2020 post stage 1 hearings letter as follows:

Unfortunately, despite the additional evidence that has been submitted during the examination and all that we have now read and heard in the examination, including the suggested main modifications to the plan (ED41) put forward by the Council, we have significant concerns in relation to the soundness of the plan. In particular, we are not persuaded that there is sufficient evidence to demonstrate that the Garden Communities, and thus the overall spatial strategy, have been justified. We therefore cannot conclude that these fundamental aspects of the plan are sound.”

But that, friends, is for another blog post.

Simon Ricketts, 8 February 2020

Personal views, et cetera

Planning Or Politics? Significant London Planning Decisions 2019

Here is the skeleton of a presentation I am giving at the RTPI London Annual Summit 2019 on 20 November 2019. You’ll have to come along for the flesh, as it were.

I just wanted to do a basic trawl of what has been happening over the past year in terms of:

• Mayoral directions to refuse

 

• Mayoral directions that he is to be the local planning authority

 

• Secretary of State call-in decisions

 

• Secretary of State decisions on recovered appeals

 

Mayoral directions to refuse

 

Former Tesco car park, Conington Road/LB Lewisham

Affordable housing provision, viability review mechanism

Direction 9 March 2019

 

The Tulip/City of London

Urban design, historic environment (including Tower of London world heritage site), strategic views, pedestrian movement, cycle parking

Direction 15 July 2019

 

Harrow School/LB Harrow

Direction 29 November 2018 – no very special circumstances for development in MOL

Secretary of State allowed on appeal 31 October 2019, with costs award against Mayor

 

Mayoral directions that he is to be the LPA

 

Former Biscuit Factory, Bermondsey/LB Southwark – 1,342 build to rent units and other uses

Direction 7 May 2019 – housing and affordable housing

Public consultation on scheme amendments including to increase housing to 1,548 build to rent units and affordable housing from 27.5% to 35%

No representation hearing yet arranged

 

Osiers Road/LB Wandsworth – commercial with 168 resi units

Direction 10 June 2019 – housing and affordable housing

Raised AH offer from 39% habitable rooms to 100%

Representation hearing and planning permission 18 October 2019

 

100 West Cromwell Road/RB Kensington & Chelsea – 145 affordable housing units, 282 market residential units and other uses

Direction 1 July 2019 – housing and affordable housing

Revisions to scheme including increased quantum of affordable housing (427 total of which 186 affordable), reduced parking and improved community leisure offer. Increased height and other design changes

Representation hearing anticipated February 2020

 

Homebase site, Manor Road/LB Richmond-upon-Thames – 385 residential units and other uses

Direction 29 July 2019 – housing and affordable housing

No representation hearing yet arranged

 

Kidbrooke Station Square/LB Greenwich – new bus station interchange, commercial, 619 residential units – applicant Notting Hill Genesis & TfL

Direction 5 August 2019 – housing and affordable housing

Representation hearing was to be 31 October 2019

 

Kensington Forum Hotel/RB Kensington & Chelsea – hotel, service apartments, 46 affordable housing units (100%)

Direction 5 November 2018

RBKC JR, direction quashed by consent order 16 April 2019

2nd Direction 23 April 2019 – visitor economy, housing and affordable housing

Public consultation on scheme amendments including increase in residential units from 46 to 62

Representation hearing and planning permission 21 June 2019

2nd JR by RBKC, going to full hearing 21 November 2019

 

Secretary of State call-in decisions

 

No London call-in decisions in 2019 but:

 

Purley Baptist Church/LB Croydon – 106 residential units and other uses

Refused by Secretary of State by 3 December 2018 decision letter , following 12 April 2017 call-in

Quashed by consent of parties March 2019, back with Secretary of State for redetermination

 

Vauxhall Cross Interchange/LB Lambeth – hotel and 677 residential units

Called in by the Secretary of State, May 2019

Inquiry commences 17 December 2019

 

Holocaust Memorial, Victoria Tower Gardens/Westminster CC

Called in by Secretary of State, November 2019, at request of applicant following WCC non-determination

 

Secretary of State decisions on recovered appeals

 

Slade Green SRFI/LB Bexley & Dartford BC

Dismissed 7 May 2019, following inspector’s recommendations

 

1 Cambridge Heath Road/LB Tower Hamlets – replacement foodstore, 471 resi units and other uses

Dismissed 10 June 2019 against inspector’s recommendations

• Fails to meet NPPF’s aims of creating an inclusive place

• Harm from loss of daylight and sunlight

 

The Curve, Great West Road/LB Hounslow – up to 325 residential units and other uses

Dismissed 19 July 2019 against inspector’s recommendations

• Harm to setting of designated heritage assets

Decision subject to legal challenge, permission to proceed to a full hearing, no hearing date yet

 

Harrow School (see earlier)

 

Simon Ricketts, 15 November 2019

Personal views, et cetera

Pic courtesy of https://commons.m.wikimedia.org/wiki/User:Colin/London .

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera

National Lottery: 2 Problematic Recovered Appeal Decisions

The exercise of the Secretary of State’s power to call in applications and recover appeals for his own determination is inherently politically charged.

This blog post focuses on two recent recovered appeals. The other reverse lottery, of call in, is for another day.

The Secretary of State’s policy as to recovering appeals is handily summarised in section 6 of the House of Commons briefing paper Calling-in applications (England).

Wavendon, Woburn Sands

If anyone thinks that the Secretary of State’s intervention in this case did anything other than, at the request of a fellow MP, frustrate or delay the delivery of homes in accordance with national policy, and in so doing place unjustified financial pressure on an SME housebuilder, then do let me know.

This relates to a relatively small proposal for the development of 203 homes at Woburn Sands, Buckinghamshire. The application was made to Milton Keynes Council in July 2016 and refused in December 2016, against officers’ recommendations.

The developer, Storey Homes, appeals. An inquiry takes place over six days in July 2017, with an extremely experienced inspector, David Cullingford.

The proposal is locally controversial, with various objectors appearing at the inquiry, including three councillors. I can only assume that objectors are spooked by the way the inquiry goes because in August 2017 the councillors then ask the then planning minister to recover the appeal for the Secretary of State’s own determination. The request is refused. But they don’t stop there.

As reported at the time in MK Citizen (2 November 2017) local Conservative MP Iain Stewart then writes a billet doux to the then Secretary of State:

The letter […] starts with ‘Dear Sajid’, and thanks him for his “kind” email on Mr Stewart’s election to the government’s transport committee.

It states: “I implore you to intervene in any way you can to at least delay the announcement of the Inspector’s decision.”

It ends: “Yours ever, Iain

Anyway the charm works, and the appeal is recovered on 31 October 2017.

There is then an elongated period of post-inquiry correspondence. The most significant issue was whether Milton Keynes Council could show five years’ housing supply or whether the NPPF tilted balance applied. All the evidence points to the position being as shown by the appellant at the inquiry – less than five years’ supply.

It turns out that the objectors were right to be worried by the way the inquiry had gone. When the Secretary of State published his decision letter on 5 December 2018, they could see that the inspector in his 2 February 2018 report had indeed recommended that the appeal be allowed, finding that there was less than five years’ housing supply and that taking all considerations into account he considered “that the planning balance in this case is firmly in favour of the scheme. The benefits of this sustainable housing proposal would significantly and demonstrably outweigh the adverse impacts elicited.”

But hey never mind, babychams all round, Mr Stewart’s intervention had done the job for the objectors because the Secretary of State’s decision was to reject the inspector’s recommendation and dismiss the appeal. On the basis of some not fully explained calculations, the Secretary of State determined that there was indeed five years’ supply: “Taking all these factors into consideration, he considers that on the basis of the evidence put forward at this inquiry, estimated deliverable supply is roughly in the region of 10,000– 10,500. The Secretary of State therefore considers that the housing land supply is approximately 5.9–6.2 years. He notes that on this basis, even if the emerging plan figure of 1,766 were used (1,854 with a 5% buffer added), as the agent proposes, there would still be an estimated deliverable housing land supply of over 5 years.”

This conclusion of course meant that the tilted balance in what is now para 11(d) of the 2019 NPPF did not apply, “the policies which are most important” for determining the appeal were not automatically to be treated as out of date and he could therefore find that the proposal “conflicts with development plan policies relating to development outside settlement boundaries and density. He further considers that it is in conflict with the development plan as a whole.

The Secretary of State considers that the housing benefits of the scheme carry significant weight and the economic benefits carry moderate weight in favour of the proposal.

The Secretary of State considers that the low density of the appeal proposal carries significant weight against the proposal, while the location in unallocated open countryside outside the development boundary of Woburn Sands carries moderate weight, and the impact on the character of the area carries limited weight. He further considers that the minimal harm to the listed building carries little weight and that the public benefits of the scheme outbalance this ‘less than substantial’ harm. The heritage test under paragraph 196 of the Framework is therefore favourable to the proposal.

The Secretary of State considers that there are no material considerations which indicate the proposal should be determined other than in accordance with the development plan. He therefore concludes that the appeal should be dismissed, and planning permission should be refused.”

Many would have given up this apparent lottery at that point, but all credit to Storey and to their legal team, Peter Goatley and James Corbet Burcher (No 5 chambers) together with Stephen Webb (Clyde and Co). The decision was duly challenged in the High Court and has now been quashed by Dove J in Wavendon Properties Limited v Secretary of State (Dove J, 14 June 2019)

The judge found the Secretary of State’s reasoning to be inadequate in relation to the critical question as to whether there was five years’ supply of housing land:

“All of these factors lead me to the conclusion that the reasons provided by the First Defendant in relation to the figure were not adequate in the particular and perhaps unusual circumstances of this case. By simply asserting the figures as his conclusion, the First Defendant has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion. Simply asserting the figures does not enable any understanding of what the First Defendant made of the Inspector’s conclusions which he accepted in paragraph 17 of the decision letter, and how they were taken into account in arriving at the final figures in his range.

“I accept the Claimant’s submission that the need for the range to be in some way explained is not requiring reasons for reasons, it is simply requiring reasons for a conclusion which was pivotal in relation to the application of the tilted balance in this case, and which derived from figures which had not been canvassed as an answer to the question of what the Second Defendant’s housing land supply was anywhere in any of the material before the First Defendant prior to the decision letter.”

In passing, there are two other interesting aspects to the judgment:

1. An analysis of what is meant in paragraph 11(d) of the NPPF, when, separate from questions of five years’ supply, you are considering whether “the policies which are most important for determining the application are out-of-date“. Unsurprisingly, Dove J concluded that this is “neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.

2. The judge’s agreement with the Secretary of State that a section 106 planning obligation by the housebuilder to use its reasonable endeavours to build out the development within five years of the council approving the last reserved matters application was not a material consideration to be taken into account. One to return to, once perhaps we see the Government’s promised green paper on measures to improve delivery and other matters.

Of course the housebuilder is not yet out of the woods. Back the appeal will go to the Secretary of State of the day for redetermination as against whatever the housing supply position, and national policy position, happens to be at that time, whenever it will be. The problem doesn’t just lie in the arbitrary nature of the recovery process (it is particularly wrong that appeals can be recovered even after the inquiry has concluded) but with the glacial pace of appeals (until the anticipated brave new world of Rosewell) which means that no-one ever knows what the policy or housing supply/delivery position is going to be when any decision is finally taken, let alone which minister will be sitting at the relevant desk.

I note that an application by the housebuilder for specific disclosure against the Secretary of State did not need to be determined by the judge in the light of his ruling. No doubt this was for civil servants’ internal recommendations to ministers before those decisions were taken in relation to the appeal, including potentially its recovery in the first place. Now wouldn’t that make interesting reading?

Sainsbury’s, Cambridge Heath Road

Last week we saw another decision by the Secretary of State to dismiss an appeal against the recommendations of his inspector. This was the decision letter dated 10 June 2019 in relation to an appeal by Sainsbury’s following the non-determination by the London Borough of Tower Hamlets of its application for planning permission for “a replacement Sainsbury’s store, an ‘explore learning’ facility, flexible retail/office/community floorspace, 471 residential units arranged in 8 blocks, an energy centre and plant at basement level, 240 ‘retail’ car parking spaces and 40 disabled car parking spaces for use by the proposed residential units, two additional disabled units proposed at Merceron Street, creation of an east-west public realm route from Cambridge Heath Road to Brady Street and public realm provision and enhancements, associated highway works to Brady Street, Merceron Street, Darling Row and Collingwood Street and Cambridge Heath Road“.

Again, an experienced inspector, David Nicholson, had recommended approval in a nuanced report, following a lengthy inquiry. There was one issue where clearly he was not convinced by the proposals, namely the location of the affordable housing within the scheme:

In describing the main entrance to the AH as poor doors, it drew attention not only to the simple design but also to the position of these at the north end of the scheme. Unlike the private units, this would put them at the greatest walking distances from public transport, shops and services. The podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas as well as extend the walking distances (although access to these could be addressed through condition 43). Although more than one witness was questioned on this, no persuasive explanation was given as to why the units were separated in this way.”

The inspector pragmatically recommended that if the Secretary of State were to share these concerns “then he should seek an alternative arrangement through a further s106 Agreement“.

To a very small extent this concern was addressed by the revised s106 Agreement which would include a few shared ownership units on the other side of the proposed barrier. Nevertheless, the location of vast majority of the AH, including all the rented housing, would be both at the far end of the site and altogether rather than integrated, and this counts heavily against the benefits of the AH“.

The Secretary of State in his decision letter appears to agree with almost all of the inspector’s conclusions but the “poor doors” concern appears to be the tipping point:

The Secretary of State has further considered the fact that the social rented housing is positioned at the north end of the scheme, at the greatest walking distance from public transport, shops and services, and that the podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas. He notes the Inspector’s comment that no persuasive explanation was given as to why the units were separated in this way (IR11.33). He agrees with the Inspector that to a very small extent this would be addressed by the inclusion of a few shared ownership units on the other side of the proposed barrier, and has taken into account that condition 43 requires the measures for providing access to be approved. Nonetheless the location of the vast majority of the affordable housing, including all the rented housing, would be both at the far end of the site, and all together rather than integrated (IR11.34).

In assessing the implications of this, the Secretary of State has taken into account that the Framework aims not just to deliver raw housing numbers, but to achieve healthy, inclusive and safe places (paragraph 91). He considers that the separation of the affordable housing, amenity and place space areas is not in keeping with the aims of paragraph 91(a) to achieve inclusive places that promote social interaction, including opportunities for meetings between people who would not otherwise come into contact with each other. The Secretary of State considers that this carries substantial weight against the proposal.

The Secretary of State has considered the Inspector’s comment at IR11.33 that if the Secretary of State shares his concerns, then he should seek an alternative arrangement through a further s.106 agreement. However, the Secretary of State notes that previous concerns about this matter which were addressed by a revised s.106 agreement only resulted in the inclusion of a few shared ownership units on the other side of the proposed barrier (IR11.34). He therefore considers that a seeking more fundamental changes via further revisions to the s.106 agreement is unlikely to be successful. He has also taken into account that other matters also weigh against a grant of permission. Overall he does not consider that a ‘minded to allow’ letter would be an appropriate approach in this case.”

He dismisses the appeal.

Whatever the rights and wrongs of the proposal itself, was it right not to give the appellant a short opportunity to complete a further section 106 agreement so as to address this concern? On the one hand it could have led to an appropriate form of development that would deliver much needed housing. Or it could all have proved too much for the appellant to swallow, or too complicated without scheme changes, in which case at least the opportunity would have been given.

Presumably the scheme will now be reworked, at significant expense and delaying any start on site.

I thought we were in a housing crisis – more, better, faster? And yes of course the developer could have got the scheme “better” to begin with but no doubt with a hit to viability and therefore potentially the amount of affordable housing to be provided – that’s the balance.

But is there really no room for procedural solutions such as this? Or, in the case, of Woburn Sands, de-recovery?

Simon Ricketts, 15 June 2019

Personal views, et cetera

The Secretary Of State & London

The Secretary of State wrote last year to the Mayor of London: “I am not convinced your assessment of need reflects the full extent of housing need in London to tackle affordability problems. I have listened carefully to yours, and others, representations, and I am clear that the public interest lies with ensuring you deliver the homes London needs, including in the short term, as quickly as possible.”

Do we see this same message being delivered in his recent interventions?

None of this is news to regular readers of Planning magazine but I give you:

Purley Baptist Church site, Croydon

A scheme by Thornsett Group and Purley Baptist Church for the “demolition of existing buildings on two sites; erection of a 3 to 17 storey development on the ‘Island Site’ (Purley Baptist Church, 1 Russell Hill Road, 1-4 Russell Hill Parade, 2-12 Brighton Road, Purley Hall), comprising 114 residential units, community and church space and a retail unit; and a 3 to 8 storey development on the ‘South Site’ (1-9 Banstead Road) comprising 106 residential units, and associated landscaping and works.”

Supported by the London Borough of Croydon and by the Mayor. But opposed by, amongst others, Conservative MP Chris Philp (Croydon South). The application was called in on 12 April 2017 and, despite inspector David Nicholson recommending approval, refused by the Secretary of State in his decision letter dated 3 December 2018, essentially on design and heritage grounds:

26. Given his serious concerns about the design of the scheme as set out above at paragraphs 13 to 15, for the reasons given above the Secretary of State does not consider that the application is in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

27. In favour, the scheme will provide 220 new homes which he considers should be given significant weight. The Secretary of State also affords significant weight to the benefits to Purley District Centre arising as a result of the regeneration of the site. The provision of a new church and greatly enhanced community facilities are also benefits, to which the Secretary of State gives moderate weight. He considers the level of affordable housing and the potential effects on air quality to be neutral in the planning balance.

28. Against the scheme, however, the Secretary of State gives substantial weight to the poor design of the South Side proposals, and to the height and proportions of the tower set out in paragraphs 13 to 15 above, which he considers not to be in accordance with relevant policies in the development plan.

29. The Secretary of State has also considered whether the identified ‘less than substantial’ harm to the significance of Purley Library and surrounding Conservation Areas is outweighed by the public benefits of the proposal. In accordance with the s.66 LBCA duty, he attributes considerable weight to the harm the significance of Purley Library. However, he considers that the benefits of the scheme, as set out in Paragraph 22 of this letter, are insufficient to outbalance the identified ‘less than substantial’ harm to the significance of Purley Library and surrounding conservation areas. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”

It always feels slightly odd when the Secretary of State, on a desk-based examination of a set of papers, and following a public inquiry, considers it appropriate to overrule the judgment of local planning authority, Mayor and inspector in relation to these sorts of issues

I understand that the decision has been challenged in the High Court by the applicants.

Sir William Sutton Estate, Royal Borough of Kensington and Chelsea

By contrast, a scheme opposed both by RBKC (which refused permission) and by the Mayor for “demolition of the existing [Sir William Sutton] estate (Blocks A-K, N and O) and ancillary office; delivery of 343 new residential homes comprising of 334 apartments and 9 mews within buildings of 4-6 storeys; provision of Class D1 community floorspace with associated café; new Class A1-A5 and B1 floorspace; creation of new adopted public highway between Cale Street and Marlborough Street; new vehicular access from Ixworth Place; creation of new basement for car parking, cycle parking and storage; new energy centre fuelled by CHP, and works to adjacent pavement“.

The developer, Clarion Housing Group (formerly Affinity Sutton Homes Limited), appealed. Curiously, the appeal was only recovered by the Secretary of State for his own determination on 1 May 2018, just over a week before the start of the inquiry. By his decision letter dated 18 December 2018 the Secretary of State accepted his inspector’s recommendation and dismissed the appeal.

The main issue was in relation to the level of affordable housing proposed. After the appeal was submitted, the appellant had attempted to improve the position with changes to the scheme:

The key changes relate to the quantum of social rented housing and the number of mews houses. The Revised Scheme proposes 2,825 m2 more social rented floorspace, an increase from 237 to 270 social rented homes. The 9 private mews houses would be removed and replaced with social rented flats. Elements of the building design would be changed. The Revised Scheme results in an increase in the overall number of homes from 343 to 366.

The non-residential floorspace in the Appeal Scheme and the Revised Scheme would be the same in respect of Classes A1-A3 and B1 workspace, but there would be a decrease in the community floorspace in the Revised Scheme.”

However, applying ‘Wheatcroft‘ principles (“the main, but not the only, criterion on which… judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation”) the Secretary of State, agreeing with the recommendation of his inspector, refused to consider the revised scheme due to concerns as to the adequacy of the consultation that had been carried out. (One legitimate criticism was of “skewed” questioning of the public in a Feedback Form which asked “Do you support the proposals to amend the scheme to provide 33 additional homes for social rent?“, although I have seen similarly skewed questioning in MHCLG consultation documents…).

The Secretary of State did not accept the appellant’s position as to whether there was existing affordable housing on the site:

vacation of a property by a Registered Provider as a preliminary step towards estate renewal cannot reasonably be a basis for disregarding that floorspace for the purposes of affordable housing policy. He further agrees, for the reasons given at IR206-218, that the AS fails to comply with the ‘no net loss’ element of development plan policy.”

He considered that for the same reason the benchmark land value for the purposes of viability appraisal should be “based on the current situation, that is based on social housing development, as the Council contends.”

He concluded that the appeal scheme failed “to satisfy the policy aims of no net loss of social housing and maximum reasonable provision, largely for reasons related to the way in which the exiting [sic] vacant units of social housing are treated.”

Newcombe House, Notting Hill

Still in RBKC and back to the saga of Newcombe House. As summarised in my 18 June 2017 blog post, an appeal in relation to the proposed development of the site had been rejected by inspector David Nicholson (as of the Purley Baptist Church site case above). The refusal had partly been on similar grounds to the dismissal of the Sir William Sutton Estate appeal.

A new scheme was brought forward by the developer, Notting Hill KCS Limited, for “demolition of existing buildings and redevelopment to provide office, 46 residential units, retail uses, and a flexible surgery/office use, across six buildings (ranging from ground plus two storeys to ground plus 17 storeys), with two-storey basement together with landscaping to provide a new public square, ancillary parking and associated works.”

RBKC resolved to refuse the new application on 31 January 2018, on townscape, heritage and affordable housing grounds. On 26 March 2018 the Mayor of London intervened and took over the application. The applicant varied the scheme to increase the humber of homes and amount of affordable housing and the Mayor resolved to approve it on 18 September 2018 subject to completion of a section 106 agreement.

However, following representations by RBKC, the local residents group and Emma Dent Coad MP, the Secretary of State has issued a holding direction so that he can consider whether to call in the application for his own determination.

Kensington Forum Hotel

Another RBKC saga. An application by Queensgate Bow Propco Limited for the redevelopment of the Kensington Forum Hotel for “comprehensive redevelopment and erection of a part 30, part 22 and part 7 storey building comprising hotel bedrooms and serviced apartments (Class C1) with ancillary bar, restaurants, conferencing and dining areas, leisure facilities and back of house areas; residential accommodation (Class C3); with associated basement, energy centre, plant, car parking, cycle parking, refuse stores, servicing areas; associated highway works and creation of new publicly accessible open space with associated hard and soft landscaping“. The scheme included 46 homes.

On 27 September 2018 RBKC resolved to refuse planning permission – as with Newcombe House on townscape, heritage and affordable housing grounds. As with Newcombe House, the Mayor of London intervened and took over the application, on 5 November 2018.

This time however RBKC has issued proceedings for judicial review, seeking to quash the Mayor’s decision to take over the application. From the 7 December 2018 pre-action letter it appears that the grounds are (1) alleged errors of fact as to the number of homes which RBKC has recently delivered and (2) a failure to take into account RBKC’s programme for building new homes (including homes for social rent).

In the meantime it is reported that the Secretary of State has, again as with Newcombe House, issued a holding direction so that he can consider whether to call in the application for his own determination.

Getting messy isn’t it?

Simon Ricketts, 26 January 2018

Personal views, et cetera

The Purley scheme, image from inspector’s report

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