• Issue 47

  • May 2019

The Source

Legal challenges may not be mitigated against by Brokenshire’s revisal of call-in strategy

Housing secretary James Brokenshire announced at the end of March that the government is withdrawing a pledge it made in 2001 to give reasons for calling in planning applications or for not doing so. Brokenshire argues that calling in applications is a procedural matter and not about the cases themselves; removing reasons at the call-in stage keeps procedure and judgment separate.

This has been met with criticism from stakeholders in the conservation and local government community. SAVE Britain’s Heritage find the move to be a “major backwards step for open government”. The group brought a legitimate expectation case against the government for not giving reasons why the 2017 approval of the Paddington Cube (a 54m office tower proposal adjacent to the Grade I-listed Paddington Station and within the Bayswater) had not been called in. The Court of Appeal found in October 2018 that the government failed to follow its own rules, with a conscious decision to go against this. With the withdrawal of the commitment by Brokenshire, the government seek to no longer contradict themselves and, according to law firm Hogan Lovells, speed up the call-in process by avoiding legal challenges in the future.

Planning lawyers at Gowling WLG suggest, however, that the danger of a legal challenge may not be avoided by the government’s decision. Whilst ti will be more difficult for developers objectors to judge whether a decision to call in a scheme or not is reasonable, it could enable a judicial review if any party believes that the government has acted unreasonably. Furthermore, objectors such as SAVE Britain’s Heritage have stated that they will use Freedom of Information Act requests to “make MHCLG reveal the basis for its decisions”.

Local government and planning bodies question the impact that this decision will have on the government’s reputation in the planning process. The RTPI suggests that Brokenshire’s move seems to blame councils for their inability to decide cases that require call-ins due to their national importance, whilst according to the Planning Officers Society, it reduces transparency that should be at the heart of public practice whether at local or centralised government level.