Inspectorate refusing to entertain deemed planning application because of failure to pay fee – Applicant claiming exception applicable where fee paid in respect of an earlier planning application – Inspectorate disapplying exception because of certain deficiencies in earlier application – High Court upholding inspectorate – Applicant’s appeal dismissed
In April 1993 the appellant (G) submitted, together with the requisite fee, a planning application in respect of executed work (the development), which had been the subject of enforcement notices issued in 1991 and 1992. These had been kept by the council on an “enforcement file” that contained plans of the work in question. Believing that the council were sufficiently informed, G furnished no further plans with his application, nor did he describe the proposed development where so required by the application form. In June 1995 further enforcement notices were issued. G appealed on various grounds but relied primarily on ground (a) of section 174(2) of the Town and Country Planning Act 1990, namely that the development was one for which permission ought to be granted, thus making a deemed application for permission: see section 177(5). In a letter dated January 9 1996 the inspectorate declared that the deemed application had lapsed because G had failed to pay to the Secretary of State the requisite fee within a time-limit imposed under section 177(5A) of the Act and regulation 10(1) of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended). In reply, G, pointing to his 1993 application and the fee paid therewith (which had not been returned), claimed the benefit of regulation 10(5) of the 1989 Regulations which, as regards an application made under section 177(5), dispensed with such a fee where the appellant had already made and paid for a planning application relating to the development in issue. By letter dated May 14 1996 the inspectorate reiterated its refusal to act, maintaining that, because G had failed to furnish plans with his 1993 application, that application, being an invalid application, could not be relied on for the purpose of regulation 10(5). At the subsequent inquiry (where G’s other grounds were considered and rejected) the inspector similarly refused to consider ground (a). That refusal was upheld by the High Court, and G appealed to the Court of Appeal.
Held The appeal was dismissed.
1. The appeal could not succeed simply on the basis of a broad scheme not to require an applicant to pay fees twice over. The relevant regulations had been comprehensively drawn, and it was accordingly necessary to determine whether G had made a relevant application in 1993.
2. That the council were in breach of duty in retaining the fee, while failing to inform G that his application was invalid, could not, as G had contended, be relevant to and determinative of the action taken by the Secretary of State. Given that no appeal as such lay to the Secretary of State against a planning authority’s declaration that an application was invalid, that issue could only arise for his consideration when deciding whether or not he had the jurisdiction to entertain an appeal where the making of an earlier application was a prerequisite. Where such an issue arose in the context of section 177(5A) of the 1990 Act, it would be inimical to good administration to require the Secretary of State to go beyond the material before him and research the whole background of relations between the applicant and the local planning authority. A conclusion that no prior application was made disabled the Secretary of State from entertaining the appeal unless or until his decision, or that of the planning authority, was quashed by way of judicial review.
Christopher Katkowski (instructed by Leigh Day & Co) appeared for the appellants; Alice Robinson (instructed by the Treasury Solicitor) appeared for the respondent.
Alan Cooklin, barrister
