What are the Secretary of State’s planning call-in powers?

The Secretary of State for Housing, Communities and Local Government’s powers to call-in planning applications have been prominent in the North West in recent months. He has called-in a series of proposals for large distribution facilities along motorway corridors and also the currently controversial proposal for a deep coal mine in Cumbria. A brief review of the powers is therefore timely.

Section 77 of the Town and Country Planning Act 1990 provides that the Secretary of State may give directions requiring planning applications to be referred to him instead of being dealt with by local planning authorities.

The power is extremely wide and prescribes no criteria to be used when making decisions. However, the power has always been used sparingly and is mainly used where the Secretary of State is concerned that the planning authority intends to grant permission in circumstances where he thinks that closer scrutiny is required.

Call-in takes the application out of the hands of the planning authority. Instead, the application is considered by a Planning Inspector who provides a recommendation to the Secretary of State in a report.

There are published criteria which are used when call-in is being considered. The current criteria are found in a Written Ministerial Statement dated 26 October 2012. The basic principle is to be very selective in the use of the call-in power. The Planning Inspectorate has dealt with around 13 called-in applications per year in the five years from 2015/16, but numbers fluctuate. In 2015/16 it dealt with 22 cases, but in 2019/20, there were 6.

The WMS sets out examples of when the power may be used, related to applications which:

• May conflict with national policies on important matters
• May have significant long term impacts on economic growth or meeting housing needs across an area wider than a single authority
• Could have significant effects beyond their immediate locality
• Give rise to substantial cross-boundary or national controversy
• Raise significant architectural and urban design issues
• May involve the interests of national security or foreign governments

Each case is considered on its own merits.

A further WMS in 2015 added oil and gas applications to the classes of case where call-in powers may be used.

It would perhaps not be unduly cynical to say that occasionally politics can creep into call-in decisions.

The Secretary of State is not under a duty to give reasons in response to a call-in application and has indicated in a Written Ministerial Statement on 26^th March 2019 that he will not give reasons for calling-in or declining to call-in. However, he recently gave detailed reasons for calling-in the proposed deep coal mine in Cumbria, given that he had previously declined to call it in.

Anyone can ask for the Secretary of State to call-in an application. To make sure the Secretary of State is alerted to applications which he may wish to call-in, the Town and Country Planning (Consultation) ) (England) Direction 2009 requires specified types applications in the Green Belt, outside town centres, affecting World Heritage Sites or playing fields or within certain flood risk areas to be referred to him if the authority proposes to grant the application. The Secretary of State can also prevent the planning authority from determining the application whilst he considers whether to use the call-in powers.

Because of the breadth of the call-in power, the Courts have been very reluctant to interfere with call-in decisions and it will be very difficult for a call-in decision to be successfully challenged.

The call-in power, though rarely used, remains an important reserve power for the Secretary of State to ensure that the planning system deals with significant applications in an appropriate way.