Planning application – Local authority — Requirements – Developer applying for planning permission – Statute requiring valid application to contain such particulars as local planning authority think necessary – Developer failing to provide particulars specified by claimant council – Dispute arising as to validity of application – Whether defendant secretary of state entitled to determine requirements for valid application — Application granted
In 2008, a developer applied for planning permission to replace a derelict two-storey building with a nine-storey building. Under section 62(3) of the Town and Country Planning Act 1990, as amended and enforced from 10 August 2006, the local planning authority (LPA) were entitled to require an application for planning permission to include “such particulars as they think necessary”. Article 20(3)(d) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended with effect from 1 April 2008) required a valid application to contain the particulars or evidence required by the LPA under section 62(3). By para 3A, the LPA had to give advance notice on their website of the matters that might be necessary and that they might apply to a particular application.
In the instant case, pursuant to section 62(3), the claimant council required a satisfactory site plan (a national requirement) and six further items from the “local list”, which comprised a daylight/sunlight survey, a bat survey, a contaminated land survey, a wind assessment, an archaeological desktop survey and information concerning views and a photo montage. The developer failed to provide that information and the claimants therefore considered the application to be invalid and did not consider it.
The developer appealed to the defendant secretary of state, under section 78 of the 1990 Act, on the basis that the claimants had failed to respond to the application within eight weeks. By a letter dated June 2009, the defendant asserted that it could determine what was necessary for the planning application to be valid. The claimants argued that it was not for the defendant to second-guess a LPA on matters that, by statute, were for them to determine. They applied to quash that decision.
The issues for the court were whether: (i) in considering an appeal under section 78, the defendant had been entitled to substitute his own view of what was necessary for the validity of a planning application for that which the claimants had reached; and (ii) the defendant had to determine the validity first in a separate determination or was entitled to decide the validity at the same hearing as when he considered the other matters.
Held: The application was granted.
Section 78 had to be read with section 62.3 and article 20 so that a planning application was to be regarded as valid only if it contained requirements that the LPA had thought to be necessary or had specified, provided that this was consistent with a development order made under section 62(1). The LPA might insist or regard as necessary for the purposes of validity only those matters which had been included in the local list on the website under article 20(3A). Validity had to be understood in the light of the cases, which were to the effect that an invalid application could not be considered as the foundation for any jurisdiction of the secretary of state in an appeal and he had to decline jurisdiction, just as if a LPA treated an application as invalid, they were entitled not to determine it: R v Secretary of State for the Environment, Transport and the regions,ex parte Bath and North East Somerset District Council [1999] 2 PLR 120 considered.
An application was valid within the definition in article 20 if it contained the particulars or evidence required by a LPA under section 62(3) and it was invalid if it did not. Under section 62(3), the LPA were the arbiter of what was necessary. The secretary of state might therefore ask if the applicant had acted sufficiently so as to comply with the requirements of the LPA but the requirement itself was not in issue, merely whether it had been satisfied by what the applicant had done. There could be no an appeal to the secretary of state against the LPA’s decision to impose the requirements. Any such appeal was properly to be brought by judicial review by a party in a position such as that of the developer in the instant case and not by the reference of the planning application to the secretary of state under the section 78 appeal procedure.
The secretary of state had to decide how to resolve the issue of validity and it was not for the LPA to dictate how he should do that. He would need to resolve the question of validity as a precondition for allowing any wider appeal, but he had to judge what was the most effective procedure by which he should do so and his taking a pragmatic approach was not unlawful.
Ian Ponter (instructed by the legal department of Newcastle upon Tyne City council) appeared for the claimant; Sarah-Jane Davies and Alan Evans (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
