Paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 (“the Act”) enables the secretary of state to direct that an appeal made under section 78 of the Act that would otherwise fall to be determined by an appointed person – by virtue of the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 – shall instead by determined by him. (Such an appeal is often referred to as a “recovered” appeal.) Where such a direction is made, the role of the inspector is restricted to conducting an inquiry, and submitting a report and his recommendations to the secretary of state.
In Allen v Secretary of State for Communities and Local Government [2015] EWHC 2463 (Admin); [2015] PLSCS 256, the claimant applied successfully under section 288 of the Act to quash the decision of the secretary of state, on a recovered appeal, to refuse planning permission. However, by way of an unsuccessful ground of challenge the claimant had contended that the decision of the secretary of state to recover jurisdiction over the claimant’s planning appeal had breached his rights under Article 6 of the ECHR (Right to a Fair Trial).
The court first pointed out that section 288 of the Act sets out a statutory procedure whereby the High Court may consider an application to quash certain orders and actions. The procedure applies to the orders and action set out in section 284(2) and (3) of the Act. Those do not include decisions under paragraph 3 of Schedule 6 to the Act, to direct that an appeal is to be determined by the secretary of state rather than an inspector. An application under section 288 of the Act is not, therefore, an available means of challenging such a direction.
Even more importantly, the court stressed that the decision of the House of Lords in R (on the application of Alconbury Developments Ltd) v Secretary of State for Environment Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76 was fatal to the claimant’s argument. While the House of Lords had agreed that Article 6 was engaged on the determination of administrative matters, the Secretary of State was not prohibited by Article 6 from being both a policy maker and a decision maker. The question was whether there was sufficient judicial control to ensure a determination by an “independent and impartial tribunal” subsequently.
Furthermore, there was no requirement that this should constitute a rehearing by way of an appeal on the merits. None of the decisions of the European Court of Human Rights required that the court should have full jurisdiction to review policy, or the overall merits of a planning decision.
John Martin is a planning law consultant
