Planning appeal – Procedure – Recovery by secretary of state – Planning inspector issuing decision granting outline planning permission for housing development on appeal – Respondent secretary of state previously deciding to recover appeal for own determination – Respondent purporting to withdraw inspector’s decision as having been issued in error – Para 3 of Schedule 6 to Town and Country Planning Act 1990 – Whether direction for recovery issued prior to inspector’s decision so as to deprive inspector of jurisdiction – Whether implied power to withdraw planning permission under 1990 Act – Appeal allowed
The appellant developer appealed to the first respondent secretary of state against a refusal of planning permission by the local planning authority for a proposed development of up to 180 residential dwellings on land near Malmesbury, Wiltshire. A planning inspector was appointed to determine the appeal and a public inquiry was held during January and February 2013. The inspector decided to allow the appeal and grant planning permission and he prepared a decision letter to that effect.
Meanwhile, in early March 2013, the first defendant was notified of the publication of the Malmesbury draft neighbourhood plan, which proposed that housing needs be addressed other than through development on the appellant’s proposed site. In light of that matter, the secretary of state decided to recover the appeal for his own determination, pursuant to section 79 of and para 3 of Schedule 6 to the Town and Country Planning Act 1990. An email was sent to the second respondent planning inspectorate on 18 March, recovered.
Later the same day, the planning inspectorate, through an error, issued the inspector’s decision letter granting outline permission for the development. On the following day, 19 March, it sent a letter to the parties informing them that the secretary of state was recovering the appeal and that the inspector’s decision had been issued without authority and was withdrawn. A formal letter was then issued confirming the decision to recover and setting out the reasons.18
The appellant applied for judicial review of the decisions to recover the appeal and to withdraw the inspector’s decision. Dismissing the claim, the judge held that the secretary of state’s direction to recover the appeal had taken effect at the latest when the planning inspectorate was notified of it on 18 March, that the inspector’s decision letter issued later was of no effect and that the 1990 Act contained an implied power to withdraw decisions to enable simple and obvious administrative errors to be corrected within a relatively short time scale: [2013] EWHC 3166 (Admin); [2013] PLSCS 245. The appellant appealed.
Held: The appeal was allowed.
(1) The inspector who determined the appeal was an “appointed person” within the meaning of Schedule 6 to the 1990 Act and therefore had the same powers as the secretary of state. Although the secretary of state could recover the appeal for himself under para 3 of Schedule 6, he had no power to do so once the appeal had been determined by the appointed person. In the instant case, the appeal had already been decided by the inspector by the time a direction to recover, for the purposes of para 3, had been issued. The inspector’s decision was therefore valid and fell to be treated as that of the secretary of state.
The email sent on 18 March was not itself a direction complying with the requirements of para 3. Para 3(2) prescribed that the direction was to state the reasons for which it was given and was to be served on the appointed person, the appellant, the local planning authority and other persons who had made representations. The requirement to set out reasons went to the content of the notice; the reasons had to be set out in the direction itself, which might then prompt parties to make further representations or ask for a hearing if it raised points not previously raised. There had been nothing setting out reasons for the recovery, and therefore nothing that could be a direction under para 3, until after the inspector had issued his decision. Moreover, while the service requirements were procedural in nature, and a failure to serve the direction on a party would not necessarily be fatal to its validity, there could be no direction until it had been served at least on the person appointed to determine the appeal. It was essential that the direction should tell the appointed person that he no longer had jurisdiction and he would continue to have jurisdiction until he was so told. Nothing had been served on 18 March on any of the persons listed in para 3(2), including the inspector. Although an “instruction” to prepare and issue letters had been sent to the planning inspectorate, nothing had been served on the inspector since at that point there was nothing to serve.
The subsequent recovery letter in standard form, stating that the secretary of state wished to determine the appeal himself and giving reasons, was the “direction” for the purposes of para 3. That letter did not refer to the making of some earlier direction, but stated in terms that the secretary of state “hereby directs” that the appeal be recovered. The terms of that letter made it clear that the earlier email, was not, and did not purport to be, itself a direction but was simply a request to prepare and issue such a direction. It followed that the direction had been issued after the inspector’s decision and was therefore of no effect.
(2) In the absence of a para 3 direction, the inspector had the power to determine the appeal on 18 March. There was no implied power to withdraw his decision, once issued, on the basis of some administrative error in the decision-making process. The inspector’s decision was not just a determination of the appeal, it was also a grant of outline planning permission. Once planning permission was granted, it could be revoked only under the statutory procedure laid down by sections 97 to 100 of the 1990 Act, which set out detailed provisions as to how and when a permission could be revoked and made provision for the payment of compensation. Withdrawing the inspector’s decision would not merely change the identity of the decision-maker, it would affect substantive, and potentially valuable, rights conferred by the planning permission, which were by their very nature irrevocable save under the procedure of sections 97 to 100. A power to withdraw a validly granted planning permission, on the basis of an administrative error by someone other than the decision-maker, could not be said to be implicit in the 1990 Act. An implied power of such uncertain extent had no place in such a highly prescriptive statutory code. It followed that the secretary of state had no power to withdraw the inspector’s decision of 18 March: R (on the application of Trustees of the Friends of the Lake District) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 281; [2002] 1 P&CR 23; [2001] PLSCS 88 considered.
John Litton QC and David Blundell (instructed by the legal department of Gleeson Developments Ltd) appeared for the appellant; Jonathan Swift QC and Charles Banner (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
