Save Britain's Heritage, R (on the application of) v Secretary of State for Communities and Local Government & Ors

A clear and unequivocal public promise about the procedure which a public authority will follow may create a legitimate expectation. The promised policy remains effective until the authority consciously and reasonably modifies or withdraws it. Good administration and transparent government ordinarily require a change to be announced publicly. An unadvertised change of practice, made in ignorance of the promise, cannot withdraw it.

There is no general common law duty to give reasons for a refusal to call in a planning application under section 77 of the Town and Country Planning Act 1990. Such a decision determines the identity of the decision-maker rather than the substantive planning merits. The absence of an express statutory duty and the lack of strong legal policy reasons weigh against imposing a duty.

The Secretary of State declined to call in applications concerning the proposed redevelopment at 31 London Street, Paddington, but gave no case-specific reasons. The appellant sought judicial review, relying on an unequivocal ministerial promise made in 2001, and reiterated in 2010, that reasons would be given for non-intervention decisions under section 77 of the Town and Country Planning Act 1990. It alternatively alleged a general or case-specific common law duty to give reasons.

Lang J dismissed the claim in Save Britain's Heritage, R (on the application of) v Secretary of State for Communities and Local Government [2017] EWHC 3059 (Admin). She held that the earlier promise and practice had been superseded by a later practice of giving no reasons. Permission to appeal was limited to the claim for a declaration concerning the obligation to give reasons. The central issues were whether the common law required reasons and whether the unwithdrawn ministerial promise created an enforceable legitimate expectation.

1. Appeal allowed and declaration granted. The Secretary of State was required to give reasons because the unequivocal ministerial promise made in 2001 created a legitimate expectation. The requirement arose from that promise, not from a general common law duty applicable to decisions under section 77 of the Town and Country Planning Act 1990 (Coulson LJ at [39]–[51]; Singh LJ and Sir Andrew McFarlane agreeing at [52]–[53]).

2. A refusal to call in an application under section 77 ordinarily requires no reasons. The statutory power makes a procedural choice between determination by the local planning authority and determination by the Secretary of State. It does not itself decide the planning merits or determine substantive rights. Parliament imposed no express duty to give reasons, and there were no sufficiently strong legal policy considerations requiring the common law to fill that gap. The importance, controversy or national significance of the development, and the Minister's personal involvement, did not alter that conclusion ([19]–[34]). Singh LJ agreed in this context but reserved the wider question whether reasons might ever be required for another form of procedural discretion ([52]).

3. A clear and unequivocal promise by a public authority that it will follow a specified procedure is enforceable in the interests of good administration. It remains effective unless implementation conflicts with statutory duties or the authority reasonably decides to modify or withdraw it. The 2001 promise to give reasons had been reiterated in 2010 and had never been publicly withdrawn ([35]–[41]).

4. The later use of revised template letters did not extinguish the expectation. The change was neither advertised nor consciously adopted with knowledge of the promise. A legitimate expectation created by an express ministerial promise cannot be displaced by a private and barely discernible alteration of administrative practice. Good administration and transparent governance required any withdrawal to be made public ([42]–[49]).

5. Specific detrimental reliance was unnecessary. A public promise made generally can found a legitimate expectation without satisfying the requirements of an estoppel ([50]). The declaration was therefore granted on the legitimate-expectation ground, while the common-law-duty ground was dismissed ([51]–[53]).

1. Court of Appeal (Civil Division): The appeal was allowed. The court granted a declaration based on legitimate expectation, while rejecting the alleged general or case-specific common law duty to give reasons: [2018] EWCA Civ 2137 .
2. High Court, Planning Court: Lang J dismissed the judicial review claim, holding that the earlier promise and practice had been superseded and that no common law duty to give reasons arose: [2017] EWHC 3059 (Admin) .