Mayor & Citizens of the City of Westminster & Anor v Secretary of State for Communities and Local Government

The Secretary of State’s power under section 77 of the Town and Country Planning Act 1990 is very wide. A call-in policy identifying examples of cases that may warrant intervention does not require call-in whenever an example is engaged. The Secretary of State must exercise his judgment according to the policy and consider whether the application raises planning issues of more than local importance. A failure to understand or apply the policy may be unlawful, but irrationality is difficult to establish. There is no general duty to give reasons for refusing call-in. Where reasons are voluntarily given, they may be examined for legal error, but an inaccurate notification letter will not necessarily invalidate the decision if it was not intended to state reasons and the decision-maker’s advice shows that the policy was properly understood.

The claimants sought judicial review of the Secretary of State’s decision not to call in an application for planning permission for the redevelopment of Elizabeth House near Waterloo Station. Lambeth had resolved to grant permission. The proposed development raised issues concerning the Westminster World Heritage Site, listed buildings, conservation areas, national planning policy and the risk of adverse UNESCO action.

The claimants argued that the Secretary of State had misunderstood his call-in policy, failed to have regard to the protection of World Heritage Sites, relied on defective reasons and acted irrationally. The central issue was whether the refusal to call in was unlawful despite the application engaging several examples in the published policy.

1. The claim was dismissed. Section 77 of the Town and Country Planning Act 1990 confers a very wide discretion. The decision could be challenged only on ordinary public law grounds, including failure to have regard to a material matter, disregard of applicable policy, misunderstanding of policy or a decision outside the range open to a reasonable decision-maker: R(Persimmon Homes Ltd) v SSCLG [2007] EWHC 1985 (Admin) (paras 14, 31 and 34).

2. The policy’s examples identify circumstances in which the Secretary of State may consider call-in. They do not require call-in whenever one or more examples are engaged. The letters notifying the decision were plainly wrong in stating that the relevant examples did not apply, but the disclosed advice showed that the Secretary of State understood that the application raised significant national policy and World Heritage issues and nevertheless exercised his discretion against call-in (paras 17–20 and 30–36).

3. There is no general duty to give reasons for a refusal to call in. The notification letters were not intended to give reasons and could not be treated as the reasons for the decision. The first three grounds therefore failed. The court could not impose a duty to give reasons in the light of the existing authorities (paras 33–36).

4. The principle illustrated by Lakin Ltd v Secretary of State for Scotland [1988] S.L.T. 780 is that the question at the call-in stage is whether the application should be called in, not whether planning permission should ultimately be granted. However, in a case where local approval would almost certainly lead to permission, the Secretary of State may consider whether the local authority properly addressed relevant matters and whether independent consideration may be required. The merits are therefore material in that limited sense (paras 15 and 37).

5. The previous call-in decision concerning Elizabeth House, and the call-in of the Shell Centre proposal, provided powerful support for intervention but were not determinative. Given the modified proposal and the scope of the discretion, it was rational for the Secretary of State to regard even the real risk, or probability, of the World Heritage Site being placed on the danger list as acceptable. The decision did not reach the high threshold of irrationality (paras 25 and 38).