Save Britain's Heritage, R (on the application of) v Westminster City Council & Anor

A decision whether to call in a planning application under section 77 of the Town and Country Planning Act 1990 is a procedural decision involving a very broad discretion. There is no general statutory or common-law duty to give reasons for refusing call-in. The reasoning in R (Oakley) v South Cambridgeshire District Council does not require reasons because a call-in decision does not determine substantive planning rights. A procedural legitimate expectation may arise from a clear representation or established practice, but it cannot survive a lawful change of policy or practice. Public authorities may change such practices and are not required to preserve them indefinitely or formally announce their withdrawal.

Save Britain's Heritage sought judicial review of the Secretary of State's decision not to call in planning permission and listed building consent applications for the Paddington Cube development. The Secretary of State had considered the applications against the call-in policy but gave no case-specific reasons. The claimant argued that earlier ministerial statements and departmental practice created a legitimate expectation that reasons would be given. It also argued that fairness required reasons in the circumstances of the case. By the hearing, Westminster City Council had granted planning permission and listed building consent. The issues were whether the earlier practice remained legally effective and whether a common-law duty to give reasons arose.

1. Claim dismissed. The Secretary of State was entitled to refuse call-in without giving reasons.
2. A procedural legitimate expectation may arise from a clear and unequivocal representation or an established practice. The practice introduced in 2001 could have generated such an expectation while it remained in operation. However, by 2016–2017 the established departmental practice was not to give specific reasons. The earlier statements and practice had therefore been superseded.
3. Public bodies cannot fetter the future exercise of statutory discretion by treating a policy or practice as immutable. Applying R (Bhatt Murphy) v Independent Assessor, the Secretary of State could lawfully change the practice. There was no legal requirement to announce the change formally or to state that the earlier statements would no longer be followed.
4. The claimant's complaint that civil servants, rather than the Minister personally, had made the decision was rejected under the Carltona principle. Responsibility for administrative decisions may be devolved to suitably senior officials acting on behalf of the Minister: R v Secretary of State for the Home Department, ex p Oladehinde and Carltona Ltd v Works Commissioners.
5. The authorities decisively established that there was no general duty to give reasons for refusing call-in under section 77. A call-in decision is procedural: it determines who will decide the planning application and does not grant or refuse substantive planning rights. The reasoning in R (Oakley) v South Cambridgeshire District Council, concerning a local planning authority's substantive grant of permission, was distinguishable.
6. The controversy, heritage issues, public interest, breadth of the policy and ministerial involvement were not exceptional among call-in applications. They did not justify implying a duty of fairness to give reasons. The claim was dismissed on all grounds.