Planning appeal — Withdrawal of appeal — Whether secretary of state having power to reinstate appeal — Secretary of state taking view such power to be implied — Claim allowed
The claimant was opposed to a golf-course development for which outline planning permission had been granted. The developer submitted to the borough council, details of reserved matters for approval just prior to the expiry of the time period permitted under the terms of the permission. The planning authority failed to determine that application, and the developer lodged an appeal against the non-determination. Meanwhile, the developer continued to negotiate with the council, which later indicated that the reserved matters that had been submitted were acceptable. In response to an enquiry by the developer, the Planning Inspectorate advised that if the developer withdrew its appeal, its application would revert to the council. The developer accordingly withdrew the appeal.
The Planning Inspectorate later revised its position and accepted that an application did not revert to a local planning authority on the withdrawal of an appeal. By that point, the time for seeking reserved matters approval had expired, and it was therefore too late for the developer to make a fresh application. Accordingly, the outline permission would lapse if it were not possible to reinstate the appeal.
The defendant took the view that he had the power to reinstate a withdrawn appeal, and that he should do so in circumstances where it had been withdrawn in reliance upon misinformation from the inspectorate.
The claimant challenged that decision by way of judicial review. It was common ground that there was no express statutory power to reinstate. The defendant argued that the power should be implied as a parallel with the implied power of an appellant to withdraw an appeal in order to facilitate proper case management. The claimant contended that there was no justification for implying a power by reference to private law principles.
Held: The claim was allowed.
There was no power to reinstate an appeal once it had been withdrawn by an appellant. There was no lacuna in the statutory scheme for conducting planning appeals so as to justify a resort to private law principles: Pioneer Aggregates Ltd (UK) v Secretary of State for the Environment [1984] 2 EGLR 183; (1984) 272 EG 425 applied. There was no parallel between the power of an appellant to withdraw an appeal and the postulated power to reinstate. It was inherent in the right to bring an appeal that the appellant could also withdraw that appeal if it wished; the statutory scheme made express provision only so far as was necessary to regulate the consequences, for instance by means of costs orders under section 322A of the Town and Country Planning Act 1990. Had a power to reinstate been intended, the consequences of that, including the effect upon the time limits in section 93 of the 1990 Act, would have been expressly provided for. The withdrawal of an appeal attracted all the legal consequences attached to the end of an appeal. If there were a power to reinstate, it would revive rights that had been ended by statute, contrary to the time limit provisions of section 93(4), and would create an anomaly within the statute. It would be akin to providing for a second appeal or a further extension of time, outside the provisions of section 79 of the 1990 Act and article 23 of the Town and Country Planning (General Development Procedure) Order 1995 respectively. Accordingly, not only was a power to reinstate not inherent in the statutory scheme, but was refuted by the way in which it would conflict with the statutory provisions and with the aim of bringing certainty to the planning process.
It was not necessary to imply a power to reinstate to avoid injustice. If the withdrawal had been vitiated by a “mistake”, there would have been no effective withdrawal in the first place. This would indicate that a power to reinstate was not required.
There was no injustice in the present case. It had been a matter of choice for the developer as to whether to withdraw its appeal; it had not sought its own legal advice on that proposed course of action, and it was not the task of the Planning Inspectorate to advise it either on that subject or on the powers of the local planning authority.
Richard Humphreys (instructed by TLT Solicitors, of Bristol) appeared for the claimant; Paul Brown (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
