Claimants objecting to planning application for permission to quarry site – Secretary of State exercising power to call in application for his decision – Change in circumstances – Secretary of State withdrawing direction to call in – Claimants seeking to quash Secretary of State’s decision – Whether Secretary of State having discretionary power to withdraw direction – Section 77 of Town and Country Planning Act 1990 – Claims dismissed
In 1997 Burlington Slate Ltd applied to the second defendant, the Lake District National Park Authority (the NPA), for permission to quarry slate from Bursting Stone Quarry. As part of its amended application, Burlington offered the voluntary revocation of planning permissions to quarry the site issued in 1959 and 1980 (the earlier permissions). The claimants were the trustees of the Friends of the Lake District charity. They objected to the application and also questioned the extent and validity of the earlier permissions.
By letter dated 7 May 1999, the Secretary of State exercised his power under section 77 of the Town and Country Planning Act (his call-in power) to direct that the application should be referred to him for decision, as he was of the view that it raised issues of wider than local importance. However, in August 1999 the Secretary of State agreed to hold the matter in abeyance to allow further discussions to take place between the NPA and Burlington regarding the earlier permissions. The NPA decided to accept Burlington’s submissions as to the status and extent of the earlier permissions and wrote to the Secretary of State to inform him of that development. In September 2000 the Secretary of State formed the view that, in light of the changed circumstances, the application was now one that should be determined by the authority. He withdrew his direction to call in the application.
The claimants sought to quash that decision in two separate proceedings: (i) a claim under section 288 of the Act (upon the basis that the decision was one that fell within the meaning of section 284(3)(a) of the Town and Country Planning Act 1990); and (ii) an application for judicial review. It was not necessary in the instant case to determine which procedure was the proper one.
The grounds in both sets of proceedings were the same. The claimants submitted that the Secretary of State had no power to withdraw the direction he had made under section 77, and, in doing so, he had acted ultra vires. It was common ground that there was no express power to withdraw the direction. The claimants referred to the express provision in Article 27 of the General Permitted Development Order 1995 to cancel a direction under Article 14. It was submitted that the absence of any similar provision to cancel a section 77 direction showed that an implied power to do so was not intended. It was also claimed that the call-in power involved a set procedure and to imply a power to withdraw would introduce an element of uncertainty. Finally, the claimants submitted that if the Secretary of State did have such a power, he had exercised it unlawfully.
Held: The applications were dismissed.
It was implicit in section 77 that the Secretary of State could withdraw or revoke a call-in direction. To hold otherwise would mean that once he had called in a planning application, he would be duty bound to decide it himself, even though, due to changed circumstances, it would be contrary to his own policy to do so. It would also mean that if requested to do so by the applicant or local planning authority, he would have to hold a public inquiry when, in his view, it was unnecessary to do so. If the Secretary of State was unable to withdraw a call-in direction once it had been made, it would act as a disincentive to him to exercise the power in the first place. The power to call in was a procedural step that determined who the decision maker would be, not what the decision would be. It therefore conferred a procedural rather than a substantive right. The very nature of the power was such that it should not be regarded as irreversible. Furthermore, the fact that Article 27 provided an express power to revoke an Article 14 direction did not lead to the conclusion that such a power could not be implied in section 77. The Secretary of State had the power to withdraw his direction, and, on the facts of the case, acted lawfully in the exercise of his discretion to do so.
Stephen Sauvain QC (instructed by Burnetts, of Carlisle) appeared for the claimants; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented; Neil King QC (instructed by Nabarro Nathanson) appeared for the third defendant, Burlington Slate Ltd.
Sarah Addenbrooke, barrister
