Town and Country Planning Act 1971–Secretary of State’s refusal to postpone date of public inquiry–Whether this action was a ‘decision by the Secretary of State on an appeal under section 36’ of the Act within the meaning of section 242(3)(b)–If so, an application under section 245 to question the validity of the decision was competent–Held that the Secretary of State’s refusal to postpone inquiry was not a ‘decision’ disposing of an appeal to him, which was the kind of decision contemplated by these provisions, but was merely a decision allowing the appeal to proceed–As such it could not be challenged under section 245, but could, if there were any grounds, be subject to the supervisory jurisdiction of the Divisional Court by way of judicial review–In any case the action of the Secretary of State was not a breach of the rules of natural justice–His refusal to postpone did not deprive the inspector at the inquiry of his discretionary power to adjourn it–Decision of Phillips J, rejecting the application under section 245 on the grounds of want of jurisdiction, upheld by Court of Appeal
This was an
appeal by Co-operative Retail Services Ltd from a decision of Phillips J
rejecting an application under section 245 of the Town and Country Planning Act
1971 which questioned the validity of the refusal of the Secretary of State to
postpone a public inquiry. The inquiry related to a planning appeal by William
Morrison (Supermarkets) Ltd, the third respondents to the present appeal to the
Court of Appeal, who had been refused permission to carry out demolition work
and erect a supermarket. The first respondent to the present appeal was the
Secretary of State and the second respondents were the planning authority, City
of Wakefield Metropolitan District Council.
Patrick Ground
(instructed by Bower, Cotton & Bower, agents for Bury & Walkers of
Leeds) appeared on behalf of the appellants; David Latham (instructed by the Treasury
Solicitor) represented the first respondent; and Duncan B W Ouseley (instructed
by Last Suddards & Co, of Bradford) represented the third respondents. The
second respondents were not represented and took no part in the proceedings.
Giving
judgment, STEPHENSON LJ said: This is an important appeal and I regret that in
view of the lateness of the hour and the urgency of the matter I must deal with
it shortly and, therefore, run the risk of doing a considerable injustice to
the careful submissions made by both counsel, particularly those made by Mr
Ground on behalf of the appellants.
What we have
before us are orders of Phillips J made at the end of last week, in effect
refusing to interfere with a decision of the Secretary of State for the
Environment, refusing to grant an adjournment of a public inquiry fixed for
tomorrow, at the suit of the appellants, the Co-operative Retail Services Ltd,
and the City of Wakefield Metropolitan District Council, the planning authority
for the area. The public inquiry is concerned with an appeal by the third
respondents, William Morrison (Supermarkets) Ltd, against a decision refusing
them planning permission to carry out some demolition work and erect a large
supermarket, which is obviously going to have a considerable effect, if it is
permitted, on the nearby premises of the Co-operative Retail Services Ltd and
it could have a considerable effect, one would have thought, on the planning of
the whole area.
In the
correspondence which we have seen, namely in the months of August and September
of this year, the Co-operative, as I will call them, have been repeatedly
attempting to get the Secretary of State to adjourn the hearing and holding of
this public inquiry on the ground that they cannot be ready in time. I would
not like to be thought insensitive to the difficulties of getting specialist
counsel and specialist experts to support opposition to an appeal which, of
course, may be unsuccessful even if unopposed, because the Co-operative and the
planning authority are not appellants; they are resisting this appeal of
Morrison, as I will call them.
The Secretary
of State has, in letters which I shall not read, taken, if I may say so, a hard
line, not always choosing his words particularly well and being perhaps rash
enough to indicate an unbending policy which might be thought not to take
adequate account of the objections that were being put: but I bear in mind the
authority which Mr Latham has cited to us, the Ostreicher case, reported
in [1978] 1 WLR 810, and what in particular the Master of the Rolls has said at
p 816:
. . . there
is a distinction between an administrative inquiry and judicial proceedings
before a court. An administrative inquiry has to be arranged long beforehand.
There are many objectors to
all the arrangements aside on the application of one objector out of many. The
proper way to deal with it, if called upon to do so, is to continue with the
inquiry and hear all the representatives present: and then, if one objector is
unavoidably absent, to hear his objections on a later day when he can be there.
There is ample power in the rules for the inspector to allow adjournments as
and when reasonably required.
That, of
course, was said in reference to a very different case to this, but
nevertheless it states matters which have to be borne in mind in considering
the second ground on which we are asked to allow this appeal.
Phillips J
dismissed the motions before him on the ground that he had no jurisdiction to
hear them. He was sitting as a single judge of the High Court to hear an appeal
under section 245 of the Town and Country Planning Act 1971, and by order 94,
rule 1(1) a single judge is the person to hear a matter of that kind.
What was said
by Mr Ground to the learned judge, and has been said to us, is that what is
being questioned is a decision of the Secretary of State on an appeal under
section 36 of this Act, as provided by section 242(3)(b). Section 36 of the Act
deals with appeals against planning decisions. It sets out a number of matters
and by subsection (6) states: ‘The decision of the Secretary of State on any
appeal under this section shall be final.’
That, like all the other subsections of the Act, has to be read with section
242, which provides by subsection (1):
Except as
provided by the following provisions of this Part of this Act the validity of .
. . (e) any such action on the part of the Secretary of State as is mentioned
in subsection (3) of this section, shall not be questioned in any legal
proceedings whatsoever.
By section
242(3) the action referred to in subsection (1)(e) includes:
(b) any decision of the Secretary of State on an
appeal under section 36 of this Act.
The opening
words of section 242(1) let in the provisions of section 245 for questioning
the validity of, inter alia, such a decision on an appeal: Section
245(3).
The learned
judge was referred to sections 36, 242 and 245, and the first question he had
to decide was, ‘Are these decisions decisions of the Secretary of State on an
appeal under section 36?’ ‘It is a short
but not necessarily easy question,’ he said, in a note of his judgment which
has been agreed but has not been submitted to the learned judge for approval
because it had not been typed, ‘namely whether in section 242(3)(b) they
constitute a decision of the Secretary of State on an appeal. In my judgment
they do not.’
He was
referred to Chalgray Ltd v Secretary of State for the Environment,
which is a decision of Slynn J, reported in (1977) 33 P&CR 10, and the case
of Button v Jenkins, which was applied in that case, reported in
[1975] 3 All ER, 585: but he took the view that what was in contemplation when
Parliament referred to a decision on an appeal, both in section 36(6) and in
section 242(3)(b), was a decision which disposes of an appeal, not a decision
in the course of an appeal but one dealing with its final outcome. Then
Phillips J considered that this decision, and this cannot be doubted, was not a
decision disposing of the appeal: it was a decision letting the appeal go on
but refusing to alter the date on which it was to be started; and so he came to
the conclusion that it was not for him under the section which empowered him to
deal with the matter to grant the relief sought, but it was possible to apply
for judicial review to a Divisional Court.
It is now
conceded that he was right about that possibility and if this were a decision
on an appeal under section 36 there would also be that possibility because by
section 242 subsection (4) it is provided that:
Nothing in
this section shall affect the exercise of any jurisdiction of any court in
respect of any refusal or failure on the part of the Secretary of State to take
any such action as is mentioned in subsection (3) of this section.
It seems to me
that if the Secretary of State refuses to do his statutory duty, or fails to do
his statutory duty by making a decision which he ought to make, he is then
subject to the supervisory jurisdiction, the judicial reviewing jurisdiction,
of the Divisional Court.
For my part,
after hearing the interesting arguments addressed to us, I am in complete
agreement with the view of Phillips J on this point. It may be in a sense a
procedural wrangle. It is a matter, as the judge said, of some importance, but
it seems to me that looking at section 242 and section 245, this decision of the
Secretary of State is not a decision on an appeal under section 36 of the Act.
I think some support for the view which the learned judge took is to be derived
from section 246 of the Act, which starts off in subsection (1) with these
words: ‘Where the Secretary of State gives a decision in proceedings on an
appeal. . . .’ The case of Button
v Jenkins on which Mr Ground relied, both here and before Phillips J,
was a decision on that section and on those words, and it may well be that the
decision in this case was a decision in proceedings on an appeal, but it was
not in my view a decision on appeal.
If there is
anything in Slynn J’s decision which indicates a different view from that taken
by Phillips J, or can be taken to define the words used in a different way to
that in which they are defined by Phillips J, I would not be disposed to follow
it. I see no reason to suppose the decision by Slynn J was wrong and have every
reason to suppose that Phillips J was right in saying that he was not departing
from that decision in reaching the decision which he did on the main point. I
would, however, like to add, that if I were wrong on this point, and Phillips J
was wrong on this point, we have listened to full argument on the question
whether the Secretary of State’s decision does result in a breach of the rules
of natural justice or, in other words, does deny justice to the appellants or
to the planning authority, the district council. In my view, it does not. It
is, of course, true, that the inspector will know that the Secretary of State
has repeatedly refused to adjourn the date of this inquiry, and he will not be
able to put that out of his mind. Nevertheless, he has, as indicated in the
passage quoted from the Master of the Rolls’ decision in the Ostreicher
case, a complete discretion of his own under the rules to adjourn if he thinks
it is necessary in the interests of justice to any objector or any party to do
so. We were referred to the terms of the Town and Country Planning (Inquiries
Procedure) Rules 1974, rule 10(8), which gives him a wide and unfettered
discretion from time to time to adjourn. One knows that adjournments are
ordered by inspectors handling public inquiries in order to enable further
objections to be taken or pursued.
I am not
indicating in any way whether the inspector should yield to arguments addressed
to us in the course of this appeal, if and when he is asked to do what the
Secretary of State refuses; but it is very apparent that the Secretary of State
by refusing to delay the start of this inquiry has in no way decided that the
inquiry is to be continued and to proceed to a determination by the inspector
without adjournments if an adjournment is asked for.
The notice
given was adequate. There are, no doubt, great administrative pressures in
these cases and I have carefully considered the possible injustice to the
parties who complain that they have not been given more time. If I thought that
they would have no opportunity of pressing those objections but would be bound
to do the best they can without any possibility of a further adjournment being
granted, I might feel able to take the view that natural justice was being
breached by the hard line taken by the Secretary of State. But I am not
satisfied on the material we have that it would not be possible for all the
parties to put adequately before the inspector, at any rate before the end of
the inquiry, the objections which they wish to put before him, and I am by no
means satisfied that if they were to try to persuade the inspector to grant an
adjournment, their attempts would
successful in obtaining an adjournment, but that is a matter for the inspector
and he has that duty to consider any applications that may be made to him, and
to decide them independently of what the Secretary of State has already
decided. There is a difference between a decision to postpone the start of a
widely advertised inquiry which may cause great inconvenience, and a decision de
die in diem to adjourn in order to enable particular points or material to
be put before the inspector as the inquiry goes on. For those reasons I would
dismiss the appeal.
Agreeing,
BRANDON LJ said: I agree that the appeal should be dismissed on the two grounds
stated by my Lord. The first ground is that the decision of the Secretary of
State to refuse a postponement of the inquiry was not a decision on an appeal
under section 36 of the Town and Country Planning Act 1971 within the meaning
of section 242(3)(b) of that Act. There was accordingly no jurisdiction in the
judge to deal with the application. The second ground, which is alternative, is
that, if that is wrong, then the decision to refuse postponement of the inquiry
has not been shown on the evidence before us to have been contrary to justice.
Therefore the court has no power to interfere with that decision.
I should like
to make some observations about the case of Chalgray Limited v Secretary
of State for the Environment (1977) 33 P&CR 10, which was relied on by
counsel for the appellants. In the headnote of that case, the second part of
the decision is stated in this way: ‘. . . That the words in section 242(3)(b)
‘any decision of the Secretary of State on an appeal under section 36 of the
Act’ were not necessarily limited to the decision or orders or final result
specified in section 36(3); and that the Secretary of State’s declining to
consider the appeal was a decision on an appeal under section 36.’ Even if that decision made by Slynn J is
correct, it does not assist the appellants on the facts of this case because
there has not been any refusal to consider the appeal. I am bound to say,
however, that I have doubts about the correctness of that decision on the law
by Slynn J. It seems to me very arguable that the expression ‘any decision of
the Secretary of State on an appeal under section 36,’ as used in section
242(3)(b), is limited to decisions or orders or final results arrived at under
section 36(3). I further think that, where there is a refusal to consider an
appeal, the case might well come within section 242(4) of the Act. It is not,
however, necessary to decide that question in this case. I only wish to express
my doubts about this because the case has been relied on and I would not like
it thought that I regard it as necessarily correct.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.