Establishing Legitimate Expectation for Reasons in Planning Call-In Decisions: Save Britain's Heritage v Secretary of State [2018] EWCA Civ 2137

Introduction

The case of Save Britain's Heritage (SAVE) versus the Secretary of State for Communities and Local Government (SoS) revolves around the SoS's decision not to "call in" certain planning applications under Section 77 of the Town and Country Planning Act 1990. SAVE contended that the SoS was legally obliged to provide reasons for this decision based on a legitimate expectation arising from a promise made in 2001. This comprehensive commentary delves into the nuances of the Judgment delivered by the England and Wales Court of Appeal in 2018, examining the interplay between statutory provisions, common law principles, and established precedents.

Summary of the Judgment

The Court of Appeal addressed two primary grounds of appeal presented by SAVE:

• Legitimate Expectation: SAVE argued that an express promise made in 2001, reaffirmed in subsequent years, created a legitimate expectation that reasons would be provided for decisions not to call in planning applications.
• General Duty at Common Law: SAVE contended that, irrespective of any specific promises, there exists a common law duty requiring the SoS to give reasons for decisions under s.77.

The Court primarily focused on the legitimate expectation argument, ultimately ruling in favor of SAVE. It held that the SoS had indeed breached the promise made in 2001 by failing to provide reasons for not calling in the planning application. Conversely, the Court dismissed the second ground, affirming that no general common law duty exists for the SoS to furnish reasons in such procedural decisions.

Analysis

Precedents Cited

The Judgment extensively referenced key cases to elucidate the legal landscape surrounding the duty to provide reasons:

• AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629: Established that express promises by public authorities can give rise to legitimate expectations enforceable in court.
• R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245: Reinforced that individuals are entitled to rely on stated policies unless reasonably changed.
• R (Oakley) v South Cambridgeshire DC [2017] EWCA Civ 71: Emphasized judicial caution in imposing duties not explicitly stated by Parliament.
• R (Persimmon Homes Limited) v Secretary of State [2007] EWHC 1985 (Admin): Highlighted that while reasons can be provided, they are not a legal requirement under s.77.
• Dover District Council v CPRE Kent [2017] UKSC 79: Discussed conditions under which reasonable decisions necessitate the provision of reasons.

Legal Reasoning

The Court's legal reasoning centered on distinguishing between procedural and substantive decisions. It affirmed that decisions under s.77 are procedural, determining whether the SoS or the local planning authority (LPA) handles the application. As such, there is no inherent requirement under s.77 or common law to provide reasons for declining to call in an application.

However, the Judgment recognized that SAVE's case was anchored in an express promise made in 2001, which was reiterated but not formally rescinded in subsequent years. The Court held that such a promise gave rise to a legitimate expectation, which the SoS failed to honor by not providing reasons. The lack of public withdrawal or modification of the 2001 promise further solidified SAVE's position.

Impact

This Judgment has significant implications for administrative law, particularly in the context of planning decisions:

• Legitimate Expectation Enforcement: Reinforces that public authorities must honor explicit promises unless a clear and public alteration is made.
• Transparency in Administrative Decisions: Encourages greater transparency and accountability by obliging authorities to adhere to established practices or publicly announce changes.
• Policy Stability: Highlights the necessity for consistent application of policies to maintain public trust and avoid administrative confusion.
• Judicial Oversight: Affirms the role of courts in upholding legitimate expectations, thus serving as a check on administrative discretion.

Complex Concepts Simplified

Legitimate Expectation

A legitimate expectation arises when a public authority makes a clear promise or follows a consistent practice that individuals rely upon. If the authority later changes this without proper notice, it may breach this expectation, allowing affected parties to seek redress.

Section 77 of the Town and Country Planning Act 1990

Section 77 grants the Secretary of State the power to take over ("call in") planning applications from local authorities for their own determination. This is typically exercised for applications of significant importance or impact.

Common Law Duty to Provide Reasons

This refers to the unwritten obligation under common law for public authorities to provide justifications for their decisions, especially when such decisions affect individuals' rights or interests.

Conclusion