Planning application — Whether request for planning permission to be treated as a valid application for planning permission — Determination of appropriate person to decide such question
The appellant
appealed an enforcement notice, which alleged that building work had been
carried out without planning permission, relying, inter alia, on the
ground in section 174(2)(a) of the Town and Country Planning Act 1990. The
inspector refused to consider ground (a) on the basis that a statutory
prerequisite had not been fulfilled, namely the payment of a fee as required by
regulation 10(5) of the Town and Country Planning (Fees for Applications and
Deemed Applications) Regulations 1989. The inspector ordered the appellant to
pay the costs of his abortive appeal. In appealing those decisions, the
appellant contended that he made a request for planning permission in April
1993 in respect of which he had paid a fee. No plans were enclosed with that
request and the local planning authority did not return the fee or inform him
that the application was invalid. Notwithstanding his failure to enclose plans,
he contended that the statutory prerequisite of the payment of the fee relied
on by the inspector had been fulfilled. His appeals to the court below were
dismissed. On appeal, the issue was whether, before the enforcement notice was
issued, the appellant had made an application to the local planning authority
for planning permission for development to which the enforcement notice
related.
The Secretary of
State was right himself to take the decision whether or not what was done in
1993 amounted to making an application. The scheme of the Act is that the
Secretary of State should make up his own mind as to whether an application has
lapsed by reason of the operation of section 177(5A) of the 1990 Act. The
Secretary of State was entitled to require the fee to be paid as a condition of
entertaining the ground (a) appeal. It was accepted that the local planning
authority was under a duty imposed by Article 10 of the general development
order to inform the applicant of the fact, if it be a fact, that his
application was invalid and in that eventuality to return the fee to him. The
failure by the local planning authority to return the fee was not relevant and
determinative of the action of the Secretary of State for the Environment in
refusing to entertain an appeal on ground (a): see p10H.
referred to in the judgments
Appeal against a
decision of Judge Rich QC
This was an appeal by
Marc Geall, from a decision of Judge Rich QC, sitting as a judge of the High
Court, who had dismissed appeals by the appellant against decisions of the
Secretary of State, by his inspector, dismissing his appeal against an
enforcement notice issued by the local planning authority.
Katkowski (instructed by Leigh Day & Co) appeared for the appellant, Marc
Geall
(instructed by the Treasury Solicitor) represented the respondent, the
Secretary of State for the Environment, Transport and the Regions.
judgments were delivered.
SCHIEMANN LJ: In what circumstances is a request for planning permission not to
be treated as an application for planning permission, and who is the person who
is to decide whether a request constitutes an application? Those are the
questions at the centre of this appeal. They are of general significance but we
have been referred to no authority on the point.
The appellant
constructed a blockwork building and also a blockwork wall and brick piers on
top of an existing brick wall. The local planning authority served an
enforcement notice, alleging that he had done this in breach of planning
control because he had not received planning permission. He appealed to the
Secretary of State for the Environment pursuant to section 174 of the Town and
Country Planning Act 1990. (All references hereafter to sections in an Act are
references to those sections in that Act.) The possible grounds of appeal are
set out in section 174(2). The appellant relied on those specified in paras
(a), (c) and (d). The appeal in so far as it was based on grounds (c) and (d)
was dismissed and we are not concerned with that aspect of the matter. However,
the inspector appointed to consider the appeal refused to consider ground (a).
This was in accord with a legal ruling made earlier by the Planning
Inspectorate. The complaint of the appellant is that this legal ruling was
wrong (appeal C); that the consequential refusal by the inspector to consider
ground (a) was wrong (appeal A); and that the consequential inspector’s order
that the appellant pay the costs of his abortive appeal was also wrong (appeal
B). Although there are three appeals, between them they only raise one point,
but it is a point of some importance and is not the subject of existing
authority. The appellant lost before Judge Rich QC, sitting as a High Court
judge. He now appeals to this court.
The Planning
Inspectorate’s legal ruling was based on the assertion that a statutory
prerequisite for the consideration of that ground of appeal had not been
fulfilled. The statutory prerequisite is the payment by the appellant of a fee.
The appellant admits that he has not paid the fee but claims that its payment
is not a prerequisite in the circumstances of his case.
The statutory prerequisite
is contained in section 177(5A):
Where —
(a) the statement
under subsection (4) of section 174 specifies the ground mentioned in
subsection (2)(a) of that section;
(b) any fee is
payable under regulations… in respect of the application deemed to be made by
virtue of the appeal; and
(c) the Secretary of
State gives notice in writing to the appellant specifying the period within
which the fee must be paid,
then, if that fee is
not paid within that period, the appeal, so far as brought on that ground, and
the application shall lapse at the end of that period.
The statement
referred to in subpara (a) is the statement that any appellant against an
enforcement notice must submit to the Secretary of State, specifying his
grounds of appeal.
The ground of appeal
is that specified in section 174(2)(a):
that, in respect of
any breach of planning control which may be constituted by the matters stated
in the notice, planning permission ought to be granted…
In the present case,
the section 174(4)(a) statement did specify the ground mentioned in subsection
(2)(a) of that section. Moreover, the Secretary of State gave notice specifying
the period within which the fee must be paid. No fee was paid in that period.
So the primary question that fell to be resolved was whether, in the
circumstances of the appellant’s case, a fee was payable under the regulations.
The regulations
referred to in section 177(5A) are the Town and Country Planning (Fees for
Applications and Deemed Applications) Regulations 1989 (SI 1989/193) to which I
shall hereafter refer as the fees regulations.
Regulation 10(1) lays
down the general rule:
(1) Subject to
paragraphs… (5)…, a fee shall be paid to the Secretary of State in every case
where an application for planning permission is deemed to have been made —
(a) by virtue of
section 177(5)1 of the 1990 Act (in consequence of an appeal under
section 174 of the 1990 Act against an enforcement notice)…
1 ‘Where an appeal
against an enforcement notice is brought under s174, the appellant shall be
deemed to have made an application for planning permission in respect of
matters stated in the enforcement notice as constituting a breach of planning
control.’
It is common ground
that the present was such a case and therefore, in principle, a fee was
payable. However, the appellant relied on the opening words of regulation
10(1), which makes the general rule subject to certain exceptions. The relevant
one is contained in para (5) to which I now turn.
Regulation 10(5):
In the case of an
application deemed to have been made by virtue of section 177(5) of the 1990
Act, this regulation shall not apply where the person who has appealed against
the relevant enforcement notice had —
(a) before the date
when the notice was issued, made an application to the local planning authority
for planning permission for the development to which the relevant enforcement
notice relates (and had paid to the authority the fee payable in respect of
that application); or
(b)…
and at the date when
the relevant enforcement notice was issued that application… had not been determined.
Before turning to the
legal framework and the submissions, it is useful to set out the factual
position as to what was done.
The only application
on which the appellant relies is one allegedly made on 20 April 1993. The
appellant filled in and delivered to the local planning authority a form
provided by them, which is headed ‘Application for planning permission ‘. This
is a non-statutory form devised by the local planning authority. Box 2 requires
an applicant to state the ‘full address of land or building to which
Application relates’, and has, at the bottom, ‘NB: The site and its curtilage
must be shown edged red on the site plan and on the block plan’. In Box 3 the
applicant is asked whether any of the works have already been carried out. He
replied ‘Yes’. He is asked to give a brief description of the proposed
development. He put ‘block walls (see Enforcement File)’. He asked for full
planning permission. The printed application form concludes:
I/We apply for
planning permission… to carry out the development described in this application
and shown on the attached plans
5 Copies of the Site
Plan
5 Copies of the
Block Plan
5 Copies of the
Detailed Plans
No plans were
enclosed.
The enforcement file
there referred to contained a series of enforcement notices that had been
served on the appellant in 1991, 1992 and 1993, in relation to the development
that he had carried out — details can be gleaned from paras 17 and 18 of the
inspector’s decision letters. All those enforcement notices were withdrawn by
the council for one reason or another. The appellant agreed to submit a
planning application in respect of the work that he had carried out. The
application form from which I have quoted purported to be that application. He
enclosed the fee which the authority banked and which it has not returned to
him.
The problems in this
case arise out of the failure of the applicant to enclose the plans. Relations
between him and the local planning authority were strained. I suppose he
thought that plans were unnecessary since the local planning authority knew
exactly in respect of what development he was seeking planning permission —
namely that which had been erected without planning permission and had thus
aroused the disapproval of the local planning authority sufficiently to cause
them to serve the earlier enforcement notices in respect of it. The local
planning authority repeatedly asked him for plans — five site plans, five block
plans and five
the application
remains incomplete in that no plans have been submitted. In the event that the
application is completed it will, of course, be considered on its merits.
He produced nothing.
The local planning authority did not process his request for planning
permission.
The Planning
Inspectorate shared the local planning authority’s view. In its letter dated 14
May 1996 it said:
the application…
submitted to the Council was incomplete in that it did not fulfil the
requirements of regulation 3 of the Town and Country Planning (Applications)
Regulations 1988 [SI 1988/1812]
Legislative
provisions in relation to applications for planning permission
As one might expect
there are many legislative provisions dealing with planning applications in
various different circumstances. We have been referred, in particular, to those
dealing with the duties of the local planning authority in relation to
processing requests for planning permission and to those dealing with rights of
appeal to the Secretary of State. I look at these in turn.
Section 621
provides that —
Any application to a
local planning authority for planning permission —
(a) shall be made in
such manner as may be prescribed by regulations under this Act; and
(b) shall include
such particulars and be verified by such evidence as may be required by the
regulations or by directions given by the local planning authority under them.
1 Re-enacting
section 25 of the Town and Country Planning Act 1971
The relevant
Regulations are the Town and Country Planning (Applications) Regulations 1988
(SI 1988/1812) to which I shall hereafter refer as the Applications
Regulations.
Regulation 3 provides
—
(1)… an application
for planning permission shall —
(a) be made on a
form provided…
(b) include the
particulars specified in the form and be accompanied by a plan which identifies
the land to which it relates and any other plans and drawings and information
necessary to describe the development which is the subject of the application;
and
(c)… be accompanied
by 3 copies of the form and the plans and drawings submitted with it.
(2) In the case of
an application for outline planning permission, details need not be given of
any proposed reserved matters
Regulation 4 —
The local planning
authority who are to determine an application may direct
(a) supply any
further information and… plans and drawings necessary to enable them to
determine the application…
The procedure for
handling applications was at the relevant time set out in the Town and Country
Planning General Development Order 19881 (SI 1988/1813) to which I
shall hereafter refer as the GDO.
1 See now the Town
and Country Planning (General Development Procedure) Order 1995 (SI 1995/419)
Article 10 provided —
(2) When the local
planning authority with whom an application has to be lodged receive —
(a) in the case of
an application made under paragraph (1) of regulation 3 of the 1988
Regulations, the form of application required by that paragraph…
(b)…
(c)…
and the fee (if any)
required to be paid in respect of the application, the authority shall as soon
as is reasonably practicable send to the applicant an acknowledgement of the
application in the terms (or substantially in the terms) set out in Part I of
Schedule 3 hereto.
(3)…
(4) Where, after
sending an acknowledgement as required by paragraph (2) of this article, the
local planning authority consider that the application is invalid by reason of
a failure to comply with the requirements of regulation 3 of the 1988
Regulations… they shall as soon as reasonably practicable notify the applicant
that his application is invalid.
Article 23 provided —
(1) Where a valid
application under… regulation 3 of the 1988 Regulations has been received by a
local planning authority, they shall within… [a period of 8 weeks beginning
with the date when the application was received by the local planning
authority] give the applicant notice of their decision…
Schedule 3 to the
1988 GDO was in this form:
Letter to be sent
by a local planning authority when it receives an application for planning
permission…
Thank you for your
application dated… which I received on…
I am still examining
your application form and the accompanying plans and documents to see whether
they comply with the law
If I find that your
application is invalid because it does not comply with the statutory
requirements then I shall write to you again as soon as I can…
If by (insert date
at the end of period of eight weeks beginning with the date when the
application was received)…
· you have not been
told that your application is invalid…
then you can appeal
to the Secretary of State for the Environment/Wales under section 36… of the
Town and Country Planning Act 1971 [now section 78]
I turn now to the
legislative provisions as to appeals in relation to
(1) Where a LPA —
(a) refuse an
application for planning permission or grant it subject to conditions;
(b) refuse an
application for any consent, agreement or approval of that authority required
by a condition imposed on a grant of planning permission or grant it subject to
conditions; or
(c) refuse an
application for any approval of that authority required under a development
order or grant it subject to conditions,
the applicant may by
notice appeal to the Secretary of State.
(2) A person who has
made such an application may also appeal to the Secretary of State if the local
planning authority have done none of the following: —
(a) given
notice to the applicant of their decision on the application;
(aa)…
(b)…
within such period
as may be prescribed by the development order…
The following
provisions of the GDO have also featured in the argument.
Article 7 —
(2) Where the
authority who are to determine an application for outline planning permission
are of the opinion that… the application ought not to be considered separately
from all or any of the reserved matters, they shall… notify the applicant that
they are unable to determine it unless further details are submitted,
specifying the further details they require.
Article 23 —
(1) Where a valid
application under… regulation 3 of the [Applications] Regulations has been
received by a local planning authority, they shall within the period specified
in paragraph (2) give the applicant notice of their decision…
(2) The period
specified in this paragraph is —
(a) a period of
eight weeks beginning with the date when the application was received by a
local planning authority (b)… (c)…
(3) For the purposes
of this article, the date when the application was received shall be taken to
be the date when each of the following events has occurred —
(a) the application
form… has been lodged with the authority…
(b) any certificate
or documents required by the Act has been lodged with that authority; and
(c) any fee required
to be paid… has been paid…
Article 26 —
(1) An applicant who
wishes to appeal to the Secretary of State under section 36 [now section 78] …
shall give notice of appeal to the Secretary of State by —
(a) serving on him,
within the time limit specified in paragraph (2) a form
(3) as are relevant to the appeal; and
(b)…
(2) The time limit
mentioned in paragraph (1) is 6 months from —
(a) the date of the
notice of the decision… giving rise to the appeal;
(b)…; or
(c) in a case in which
the authority have served a notice on the applicant in accordance with article
7(2) that they require further information, and he has not provided the
information, the date of service of that notice,…
(3) The documents
mentioned in paragraph (1) are —
(a) the application
made to the local planning authority which has occasioned the appeal;
(b) all plans,
drawings and documents sent to the authority in connection with the application
(c)…
(d)…
(e)…
(f) any other plans,
documents or drawings relating to the application which were not sent to the
authority;…
The judge’s
decision
Judge Rich decided
that the case turned on whether regulation 10(1) of the fees regulations was
disapplied by regulation 10(5). He held that:
the incompleteness
of the application upon which the applicant relied made it impossible to say
that it was an application for the development to which the relevant
enforcement notice related.
Relevance of the
payment of a fee in 1993 and failure of the local planning authority to return
it
Mr Christopher
Katkowski, who appeared for the appellant, submitted that the broad scheme of
the fees regulations was not to require a person seeking planning permission to
pay fees twice in respect of an application to regularise development. He
pointed out that the appellant had paid his fee in 1993 and the local planning
authority had not returned it. So, he asked, why should the appellant pay
again?
Miss Alice Robinson,
who appeared for the Secretary of State, pointed out that, while undoubtedly
there were circumstances in the fees regulations in which an applicant who had
paid once did not need to pay again, there were other circumstances in which he
did. She submitted that an approach based on generalities was of no help in the
resolution of the instant problem. I agree. What was required was a careful
consideration of the relevant regulation. In the context of the present case,
it was necessary to decide whether or not in 1993 the appellant had made an
application to which the enforcement notice related.
Mr Katkowski
submitted that the local planning authority were under a duty imposed by
Article 10 of the GDO to inform the applicant of the fact, if it be a fact,
that his application was invalid and in that eventuality to return the fee to
him. I agree. He submitted that the local planning authority did not inform the
applicant that they considered his application
being invalid and being ‘incomplete’, which was the word used on behalf of the
local planning authority, is too fine to permit the point to succeed. He
submitted that the local planning authority did not return the fee to the
appellant. I agree.
Mr Katkowski
submitted that the failure by the local planning authority to return the fee
was relevant and determinative of the action of the Secretary of State in
refusing to entertain an appeal on ground (a). I disagree.
The decision as to
whether or not what the applicant did amounted to making an application is one
that can arise in various different contexts and at different stages in the
planning process. Different authorities may have to address the same question.
Two contexts to which our attention was drawn in argument were appeals in cases
where an applicant for planning permission had not had an enforcement notice
served on him and cases in which he had.
A. Cases other
than enforcement notice cases
1. The local planning
authority have to decide whether or not to process the application. At that
point the Secretary of State is not involved. If the local planning authority
grant planning permission, then, subject to judicial review, that is an end to
the matter.
2. If the local
planning authority refuse what purports to be an application for planning
permission and the applicant wishes to appeal, he will need to rely on section
78(1). In such circumstances, it will be common ground between the applicant
and the local planning authority that what purports to be an application is
indeed an application. A question might arise as to whether the Secretary of
State has jurisdiction to entertain the appeal if he takes the view that the
purported application is not an application. The question is unlikely to arise often
in practice, but, in my judgment, if the Secretary of State takes that view,
then he has no jurisdiction to entertain the appeal — until such time, if any,
as his decision that the purported application is no application, is quashed by
way of judicial review.
3. If the local
planning authority decide not to process the application but declare the
application invalid, the applicant can challenge that decision by judicial
review. The Act has not provided for an appeal against the decision to declare
the application invalid. If the applicant tries to appeal under section 78(2),
in order to bring himself within the section, he will have to assert that he is
a person who has made an application for planning permission. If he does so
assert, a question will arise as to whether the Secretary of State has
jurisdiction to determine whether the applicant is a person who has made an
application for planning permission. Again, the question is unlikely to arise
often in practice but, in my judgment, if the Secretary of State takes the view
that no application for planning permission has been made, then he has no
jurisdiction to entertain the appeal — until such time, if any, as his decision
that the purported application is no application, is quashed by way of judicial
application for planning permission has been made, then, in my judgment, the
Secretary of State is under a duty to entertain the appeal.
4. The fact that a
local planning authority have failed, after declaring the application invalid,
to return the fee is wholly irrelevant to the question whether the Secretary of
State has jurisdiction to entertain an appeal. That unlawful act by the local
planning authority cannot give the Secretary of State a jurisdiction that the
Act does not give him.
5. If, instead of
declaring the application invalid, the local planning authority merely declare
it ‘incomplete’ or indeed do nothing at all about it, then, in my judgment, the
Secretary of State must, if he considers that there was no application, decline
jurisdiction to entertain the appeal. If, on the other hand, he considers that
there was an application, then he must accept jurisdiction. Mr Katkowski drew
our attention to Article 26(2)(c) of the GDO, which contemplates a situation in
which the Secretary of State had jurisdiction to determine an appeal
notwithstanding that the local planning authority had taken the view that more
information needed to be supplied to them before they could determine an
application. He submitted that it followed that in other cases where the local
planning authority took the view that the application was incomplete, the
Secretary of State had no jurisdiction himself to consider whether there had
been an application that had not been determined. For my part, I accept his
premise but not his conclusion.
6. A question could
arise as to what is to happen to the fee paid to a local planning authority in
circumstances where they regard the application as valid and the Secretary of
State regards it as invalid. It may be that, in the last analysis, it would be
for the court to decide whether or not an application had been made.
B Enforcement
notice cases
1. Usually in such
cases there is no need to consider whether or not an application for planning
permission has been made. The local planning authority of course has
jurisdiction to serve an enforcement notice without there having been such an
application, and the Secretary of State has jurisdiction to entertain an appeal
against the notice.
2. However, in
circumstances such as the present, the question can arise whether the Secretary
of State has jurisdiction to entertain an appeal brought under section
174(2)(a).
Mr Katkowski
submitted that, since the local planning authority had not returned the fee, it
must thereafter be taken as established that they considered the application
valid and that the Secretary of State had no jurisdiction to challenge the
validity of the application. That submission I do not accept. In a case where
ground (a) is invoked on an enforcement notice appeal, the Secretary of State
is under a duty, at any event if the point comes to his attention, to consider
whether or not a fee is payable under the fees regulations. In principle it is:
see regulation 10(1). The Secretary of State must consider whether the case is
one to which the exception in regulation 10(5) applies. Whether or not that
exception
authority take of the matter, nor on whether the local planning authority have
or have not returned the fee.
I therefore consider
that the Secretary of State was right himself to take the decision as to
whether or not what was done by the appellant in 1993 amounted to making an application.
Correctness of
the Secretary of State’s decision
It is useful to
record a number of submissions that Mr Katkowski did not make. Without having
heard argument on the matter, I consider he was right not to make any of them.
1. He did not found any
argument on the distinction made in the wording of regulation 3 of the
application regulations, which, literally read, provides that the application
should be ‘accompanied by’ a plan, which in turn might suggest a plan was not a
part of the application.
2. He did not advance
a submission that the GDO in Article 10 proceeds on the basis that an invalid
application is merely one of two subsets of applications — valid and invalid —
and that the present was an invalid application and should thus be regarded as
an application for the purposes of Article 10(5) of the fees regulations.
3. He did not suggest
that whether or not something was or was not an application was a matter of
hard-edged fact for the court rather than the decision-maker to determine — see
Fordham Judicial Review Handbook, 2nd ed p188ff.
4. He did not submit
that because the application form referred to the enforcement file, a plan in
that file was incorporated clearly by reference.
Mr Katkowski, I
think, accepted that in order to comply with the applications regulations it
was necessary for a plan to accompany, or at least follow when requested, the
application form, and that the local planning authority would have been
entitled to find that the application was invalid as not complying with the
statutory requirements.
I was initially
attracted to the following view. The statutory requirements are there in order
to enable the local planning authority to reach a decision on the request — to
use a neutral term — of the applicant. In the present case the local planning
authority knew exactly what the applicant wanted to have sanctioned by the
grant of planning permission — the development to which the enforcement notice
related. Why should the appellant be penalised years later for failing to provide
a plan that would only show what the authority knew perfectly well?
However, on
reflection, it seems to me that such considerations cannot be determinative of
the question that was before the Secretary of State, namely has the application
lapsed by reason of the operation of section 177(5A)? The scheme of the Act is
that the Secretary of State should make up his own mind as to whether this is
the case. It would be inimical to good administration to require him to
research the whole background of relations between applicants and the local
planning authority. He should be able to form a view on the material which,
pursuant to the GDO, is placed before him.
Moreover, on
reflection, I rather doubt whether it is wholly fair to use an emotive term
such as ‘penalised’ in relation to the applicant. The fact is that he failed to
qualify for an exemption from fees because he refused to do what he had been
asked to do by the local planning authority. If he thought that the local
planning authority were going beyond their strict rights, and thought it
appropriate to challenge them, he could have done so years ago. While it is
true that he has not received his fee back from the local planning authority, I
understand that he has not asked for it back. These considerations, however,
have played no part in the reasoning that has led to my conclusion that this
appeal ought to be dismissed.
I would dismiss this
appeal.
SIMON BROWN LJ: I agree. This is not, on true analysis, a case in which the
applicant is being asked to pay a fee twice. The critical question arising
under regulation 10(5) of the fees regulations was whether, before the
enforcement notice was issued, the applicant had made an application to the
local planning authority for planning permission and that application had not
been determined. It seems to me necessarily implicit in the regulation that the
application must be a valid one: it would not otherwise fall for determination.
That question was, in my judgment, one for determination by the Secretary of
State. I cannot accept, for example, Mr
necessary corollary of his central argument, that, had the local planning
authority wrongly rejected the planning application as invalid and returned the
fee, that, subject only to judicial review, would have been decisive of the
Secretary of State’s power to apply the regulation 10(5) exception in the
applicant’s favour.
That said, I would
certainly expect the Secretary of State to pay considerable heed to the local
planning authority’s attitude towards the validity or otherwise of the planning
application, and not least to the question of whether they had returned the
applicant’s fee. This, I would observe, when applications are rejected as
invalid, is required by regulation 3(5) of the fees regulations:
Any fee paid
pursuant to this regulation [regulation 3 requires an applicant for planning
permission to pay a fee to the local planning authority — a fee, I would note
in passing, only one half that payable for a deemed application under
regulation 10] shall be refunded if the application is rejected as invalidly
made.
Here, of course, the
local planning authority failed in their obligation under Article 10(2) of the
GDO to acknowledge the applicant’s planning application in the scheduled terms
(ie at least substantially in the terms set out in Part I of Schedule 3 to the
GDO); failed ‘as soon as I can’ and certainly within eight weeks, to write to
the applicant, telling him that his application was invalid (as the scheduled
terms promise); and failed in accordance with regulation 3(5) of the fees
regulations to refund him his fee, which they had, of course, banked on its
arrival.
It is, however, plain
as a pikestaff that the local planning authority were none the less asserting
that the applicant’s planning application was,
regrettable though they were, could not force the Secretary of State to accept,
contrary to the clear facts, that a valid application had been made so as to
bring the applicant’s case within the regulation 10(5) exception.
In my judgment, it
follows that the Secretary of State was not merely entitled, but right, to
require the larger fee to be paid as a condition of entertaining the ground (a)
appeal (and deemed application). It equally follows that the local planning
authority could have no possible answer to a claim for the applicant’s original
fee to be refunded.
OTTON LJ: I have had the opportunity of reading the judgments of Schiemann
and Simon Brown LJJ. I agree with both and that the appeal should be dismissed.
Appeal dismissed.
