At first instance in R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government [2014] PLSCS 208, the High Court held that there is implied into the Town and Country Planning Act 1990 (“the Act”) a “modest power of withdrawal” in relation to an inspector’s decision letter on a planning appeal to enable simple and obvious administrative errors to be corrected within a relatively short time scale.
(The perceived error in this case was that the Planning Inspectorate had issued the decision letter after the point of time at which the Secretary of State, by direction, had belatedly recovered the planning appeal for his own determination. The Planning Inspectorate immediately purported to withdraw the decision letter.)
The judge stated that it would be contrary to good administration and fairness, in the public interest, to allow such an administrative error to have permanent and irrevocable effect. In the present case, it would be unfair for the developer to benefit from the error, and for other parties to the planning appeal – including the local planning authority and any objectors – to be prejudiced in such a way.
The Court of Appeal has now overturned that decision in two respects. It held that there had been no effective direction by the Secretary of State, for the purposes of paragraph 3 of Schedule 6 to the Act, at the point of time at which the inspector’s decision letter had been issued, and that following its issue the Secretary of State had no power to recover the appeal. (By then it had been “determined by an appointed person”.) It also held that the Secretary of State – acting by the Planning Inspectorate – had no power to withdraw the inspector’s decision letter. The appeal judges gave the following reasons in respect of the second limb of their decision.
1. The decision letter was not just a determination of the planning appeal; it also constituted the grant of planning permission. 2. Thereafter, it could be revoked only under the statutory procedure laid down by sections 97 to 100 of the Act, and on payment of compensation. 3. A power to withdraw a validly granted planning permission, on the basis of an administrative error by someone other than the decision-maker, could not be said to be implicit in the Act. 4. An implied power of such uncertain extent had no place in such a highly prescriptive statutory code.
John Martin
