The planning team at Howes Percival has a formidable record of working with developers and local planning authorities to defeat judicial reviews of decisions to grant planning permission. See the following article for one of our latest successes.
However, we are increasingly seeing local action groups and parish councils seeking to persuade the Secretary of State to call-in planning applications for his own determination to take the decision making power away from the local planning authority as an alternative or additional measure to judicial review. Through call-in, objectors may request the Secretary of State to assess the merits of the development and request that planning permission is refused. Judicial review on the other hand is not usually an opportunity for the Court to interrogate the merits of a development proposal, but instead scrutinise a local planning authority’s decision making. The use of call-in and judicial review leads to significant cost and delay for new developments. At worst these could lead to a refusal, or a quashing, of planning permission.
As will be seen from the commentary below, call-in powers should not be used in all, but only in exceptional cases. However, as those who have been through the process will know requests to the Secretary of State to call-in planning applications causes unnecessary uncertainty and delay in securing planning permissions for much needed developments.
The current position
The Secretary of State has a general legal power to call-in planning applications for his own determination which is set out in the Town and County Planning Act 1990. He also has the power to give directions requiring the grant of any planning permission to be delayed until he has decided whether or not to call-in an application.
There is no power for the Secretary of State to call-in a planning application where a decision notice has been issued by the local planning authority, although he may call-in at any time up to this point.
However, it is entirely clear that although the Secretary of State’s power to call-in is wide, this should only be used in certain defined circumstances. For example, in 2012, Greg Clark the then Minister of State for DCLG, said that “[t]he Government believe that planning decisions should be taken in, and by, local communities, and so use their call-in powers sparingly. Essentially, the powers are used when matters are of national significance”.
It is clear that there is no legal obligation on the Secretary of State to call-in a planning application and this power should only be used if there are issues of more than local importance involved. Indeed, the following list of examples, known as the “Caborn principles” clarify that the call-in power may be used where a development proposal:
If an application is called-in there will be a public inquiry and a Planning Inspector will make a recommendation to the Secretary of State who then takes the final decision.
Examples of the use of power to call-in
The vast majority of recent call-ins (and the last four at the time of writing) have been as a result of the Secretary of State’s wish to be informed about the consistency of a proposed (often large scale) development with a neighbourhood plan. Prior to this, examples of developments called-in include wind turbine schemes and a large residential development scheme involving a new canal bridge.
In practice, there are only a handful of planning applications called-in each year. On 19 March 2015 the Planning Minister confirmed that only an average of 8 applications were called-in in each of the five years preceding that question.
It is clear that objectors to planning applications view call-in powers as a last ditch way of taking decision making powers away from local planning authorities and giving them the chance of securing a refusal by the Secretary of State. A call-in will also delay the grant of a permission, usually at much less cost than through the pursuit of a judicial review.
However, in reality only a minority of schemes which include issues of national importance (such as whether the Government’s approach to neighbourhood planning is working) should be and are called in. When threatened with a request to call an application in, local planning authorities and developers should make robust representations to the Secretary of State setting out why their schemes do not satisfy the Caborn principles of call-in. This action seeks to serve the dual aims of both avoiding a decision to call-in and assisting the Secretary of State in making a decision as swiftly as possible to avoid delay in granting planning permission.
Please contact a member of the planning team should you wish to discuss further.
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