In Newcastle upon Tyne City Council v Secretary of State for Communities and Local Government [2009] EWHC 3469 (Admin); [2010] PLSCS 26, the court was required for the first time to decide issues arising out of section 62 of the Town and Country Planning Act 1990 in its amended form, and article 20 of the Town and Country Planning (General Development Procedure) Order 1995 as also amended.
A local planning authority (LPA) is now empowered by section 62(3) of the Act to require that a planning application includes “such particulars as they think necessary” in addition to the information required by the standard application form and the other items required by the order. However, section 62(4) provides that such a requirement of the LPA must not be inconsistent with a provision of the order, and para (3A) of article 20 obliges the LPA to publish in advance a list of the requirements on its website.
In this case, the LPA had declined to accept a planning application as valid for failure to comply with section 62(3). The application omitted to contain certain requirements that it considered necessary, drawn from a list published on its website. The developer appealed to the secretary of state under section 78 of the Act. (It was common ground between the LPA and the secretary of state that, as a matter of law, an applicant is entitled to make a section 78 appeal where, contrary to the view of the LPA, the applicant considers that its application is valid.)
The main issue for the court was whether the secretary of state was entitled to substitute his own view for that of the LPA as to what was necessary to render the application valid, having regard to section 62(3) of the Act and the reference to “such particulars as they think necessary”. In other words, could the secretary of state decide that a particular requirement that the LPA considered to be necessary was not necessary and declare the application valid.
The judge concluded that section 78 had to be read consistently with section 62(3) of the Act and article 20 of the order. He held that the secretary of state’s power was therefore limited to determining whether the applicant had acted sufficiently so as to comply with the requirements of the LPA. He could not decide whether the requirements were necessary. Any challenge to the LPA’s decision to impose requirements had to be brought by judicial review and there was no power to appeal to the secretary of state on this point.
John Martin is a freelance writer
