Appellant council determining planning and listed building consent applications as invalid – Applicant appealing to Secretary of State – Council seeking order prohibiting Secretary of State holding public local inquiry – Court refusing order – Council appealing – Whether Secretary of State had jurisdiction to hear appeals – Appeal dismissed
By applications made in November 1997, Ski Enterprises (UK) Ltd (the company) applied to Bath and North East Somerset District Council (the council) for planning permission and listed building consent for premises in Bath. The proposal was for a development, with both residential and commercial elements, which involved internal and external alterations to a listed building and a material change of use. The council, as local planning authority, informed the company that “the submitted documents were not adequate to enable it to consider the proposal and that the applications could not be accepted or processed further until additional information is provided”. The company declined, on the basis that, until it knew whether a change of use was acceptable in principle, the detail could not be provided.
By a letter of December 1997 the council described the applications as invalid. On 5 February 1998 the company appealed to the Secretary of State under section 78 of the Town and Country Planning Act 1990 and section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990, on the ground that the council had failed to determine the applications within the appropriate period. The Planning Inspectorate proceeded to arrange a local inquiry. In April 1998 the council submitted to the Secretary of State that the applications “are not yet complete, are not valid, have not been registered, and are therefore not yet subject to an eight week determination period”. In January 1999 the court refused the council’s application for an order prohibiting the Secretary of State from holding a public local inquiry into the appeals. The council appealed, contending that the determination of the question of validity of the applications was a matter for the local planning authority, not the Secretary of State, and the right to appeal to the Secretary of State arose only when a “valid” application had been made. The issue was whether the Secretary of State had jurisdiction to consider an appeal from the applicant, where a local planning authority had declined to accept an application for planning permission as valid.
Held: The appeal was dismissed.
The right of appeal did arise, even where the local planning authority had determined that the application was invalid. Upon a purposive construction of the statutes, and a consideration of the scheme as a whole, the applicant was entitled to the Secretary of State’s opinion on the question of validity. It was not stated in terms in the statutory provisions that the local planning authority were the sole arbiter on validity. The case turned upon the meaning of the word “application” in section 78 and section 20 of the 1990 Acts. It included an application which the local planning authority considered to be invalid under the Regulations. The applications remained applications, for the purpose of triggering the appeal provisions, notwithstanding the view of the local planning authority that they were invalid: Geall v Secretary of State for the Environment, Transport and the Regions [1998] EGCS 183; [1998] PLSCS 323 considered.
Meyric Lewis (instructed by Sharpe Pritchard, London agents for the solicitor to Bath and North East Somerset District Council) appeared for the appellants; Alice Robinson (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
