Planning applications — Listed building consent application — Validity of applications — Whether planning authority sole arbiter for determining such validity — Whether Secretary of State entitled to hear appeal where local planning authority deny validity of applications
In 1997 the appellant
council received two applications relating to the conversion of a building: one
for planning permission and one for listed building consent. The council
considered that the application forms did not provide sufficient detail
properly to assess the proposals. In connection with the developer’s appeal
against non-determination of the applications, the council submitted to the
inspectorate that they considered themselves to be the sole arbiter as to
whether sufficient details had been submitted in those applications, and that,
accordingly, the appeals to the Secretary of State were invalid. The
inspectorate concluded that the council had been provided with sufficient
details in the applications, which should have been registered by the council,
in the circumstances; the appeals were valid. The council challenged that
decision, and, following lengthy correspondence between the council and the
inspectorate, a planning inquiry was fixed for July 1998. In June 1998 the
council applied to the High Court for prohibition and a declaration in relation
to that pending inquiry. Those applications were refused in the court below;
the council appealed.
A right of appeal
under section 78 of the 1990 Act does arise even when the local planning
authority have formed the opinion that the application is invalid. The
applicant for planning permission is entitled to have the opinion of the
Secretary of State on the question of validity. That conclusion is reached upon
a purposive construction of the statutes and a consideration of the scheme as a
whole. The scheme of the Act gives a status to the Secretary of State such that
a construction of statutory provision dealing with appeals, which has the effect
of conferring exclusive jurisdiction on the local planning authority, does not
fit easily with that scheme. The word ‘application’ in section 78 of the
planning Act and section 20 in the listed buildings Act includes an application
that the local planning authority considered to be invalid under the Town and
Country Planning (Applications) Regulations 1988. A determination of invalidity
by the local planning authority does not exclude the right of appeal to the
Secretary of State on a question of validity.
the judgment
Geall v Secretary of State
for the Environment, Transport and the Regions [1999] 2 PLR 1
Appeal against the
decision of Christopher Lockhart-Mummery QC
This was an appeal by
Bath and North East Somerset District Council, against a decision of
Christopher Lockhart-Mummery QC, sitting as a deputy judge of the Queen’s Bench
Division, refusing their application for prohibition and a declaration relating
to the power of the Secretary of State for the Environment, Transport and the
Regions, to determine the validity of planning permission and listed building
consent applications.
(instructed by Sharpe Pritchard, London agents for the solicitor to Bath and
North East Somerset District Council) appeared for the appellant council.
(instructed by the Treasury Solicitor) represented the respondent, the
Secretary of State for the Environment, Transport and the Regions.
judgment was delivered.
PILL LJ: This is an appeal by Bath and North East Somerset District Council
(the appellants) against a judgment of Mr Lockhart-Mummery QC, sitting as a
Deputy High Court Judge, given on 6 January 1999. The judge refused an
application by the appellants for an order prohibiting the Secretary of State
for the Environment, Transport and Regions (the respondent) from holding a
public local inquiry into appeals by Ski Enterprises (UK) Ltd (the company)
under section 78 of the Town and Country Planning Act 1990 (the planning Act)
and under section 20 of the Planning (Listed Buildings and Conservation Areas)
Act 1990 (the listed buildings Act). The issue is whether the respondent has
power to hear appeals sought to be made to him by an applicant under the
planning Act and the listed buildings Act, when the appellants, as local
planning authority, have determined that the applications to them, which
provide the basis for the right of appeal, are invalid. As expressed by the
appellants the general issue is: ‘Where a local planning authority has declined
to accept an application for planning permission as valid, does the Secretary
of State have jurisdiction to consider an appeal from the ‘applicant’?’
By applications made
on 24 November 1997, the company applied for planning permission and listed
building consent for premises forming part of 21-22 Vineyards, Bath. The
proposal was to convert the premises to a ‘live/work unit’, that is, a
development with both residential and commercial elements. The proposal
involved internal and external alterations to a listed building and a material
change of use and both planning permission and listed building consent were
required. Considerable detail, by way of narrative and drawings, was supplied
to the appellants in support of the proposal. The premises subject to the
application are a part of what is known as the Bath Antiques Market.
The appellants are the local planning authority for the City of Bath.
The city is a UNESCO-designated World Heritage Site and contains a 1,915ha
Conservation Area and about 5,000 listed buildings. In his statement which
was before the judge, a principal planning officer stated that ‘as local
planning authority for Bath, the council take their responsibilities extremely
seriously and seek to ensure that the essential historic character of the city
is not diluted through inadequate attention to the details of development
proposals’.
By letter of 26
November 1997, the appellants stated that they regretted ‘that the submitted
documents were not adequate to enable the Council to consider the proposal and
the application(s) cannot be accepted or processed further until additional
information is provided’. In a subsequent letter supporting the request, the
appellants stated that the character of the building ‘resides not only in the
overall appearance and massing of the building but also in the smallest
details’. The company declined to provide the detail requested on the ground
that until it knew whether a change of use to a live/work unit was in principle
acceptable, the detail could not sensibly be provided. The detailed design
would depend on the use permitted.
By letter dated 18
December 1997, the appellants described the applications as invalid. It was
stated that ‘these applications have not been registered and will not be
processed further until the requested details have been received’. On 5
February 1998 the company appealed to the Secretary of State on the ground that
the appellants had failed within the appropriate period to determine the
applications. By letters of 25
respondent, by the Planning Inspectorate, fixed the time and place for a local
inquiry into the appeals. The inspectorate also expressed the view that ‘the
information and plans submitted with the application should have been
sufficient for you to be able to register the applications’ (8 April 1998). It is
common ground that it is not for the court in this case to determine the
adequacy of the documentation on its merits. By letter of 29 April 1998, the
appellants submitted to the respondent that ‘in the case of the applications
submitted by Ski Enterprises (UK) Ltd these are not yet complete, are not
valid, have not been registered, and are therefore not yet subject to an eight
week determination period’.
It was submitted that
the Planning Inspectorate had ‘no jurisdiction in these matters, as no valid
appeals can be lodged’. In a subsequent letter the appellants submitted that
‘an application will not be registered until it is valid. An assorted bundle of
documents does not become a valid application for planning permission or listed
building consent until it includes all the information required by the LPA in
accordance with the relevant legislation and/or regulations’. The appellants’
submission was that they alone had power to decide whether sufficient detail
was included with the applications. They commenced the present proceedings when
the Planning Inspectorate indicated that it was not prepared to cancel the
inquiry. It was in the event adjourned.
Further applications
have since been made by the company with the detail requested and permissions
were granted on 25 March 1999, that is, since the judgment at first instance.
The appellants have however stated that they ‘still wish to pursue a formal
determination as to the extent of the Planning Inspectorate’s jurisdiction with
regard to appeals against
issue is likely to arise upon further applications, it is stated. A separate
point taken by the respondent, that a timely notification of alleged invalidity
was not given by the appellants, was not pursued at the hearing before the
judge.
The provisions under
which the company purported to appeal to the respondent are contained in
section 78 of the planning Act and section 20 of the listed buildings Act.
Section 78 provides:
(1) Where a local
planning authority —
(a) refuse an
application for planning permission or grant it subject to conditions;…
the applicant may by
notice appeal to the Secretary of State.
(2) A person who has
made such an application may also appeal to the Secretary of State if the local
planning authority have [not]… given notice to the applicant of their decision
on the application] within such period as may be prescribed by the development
order…
Section 20 is, for
present purposes, to the same effect. Section 79 of the planning Act and
section 22 of the listed buildings Act confer broad powers upon the Secretary
of State when determining appeals.
Section 62 of the
planning Act provides:
Any application to a
local planning authority for planning permission —
(a) shall be made in
such manner as may be prescribed by regulations under this Act; and
(b) shall include
such particulars and be verified by such evidence as may be required by the
regulations or by directions given by the local planning authority under them.
Article 20(1) of the
Town and Country Planning (General Development Procedure) Order 1995 (SI
1995/419) (the GDPO) provides:
where a valid application under… regulation 3 of the 1988
Regulations… has been received by a local planning authority, they shall within
the period specified in paragraph (2) give the applicant notice of their
decision or determination…
Thus the Article
introduces the concept of the ‘valid application’.
The period specified
in para (2) is ‘a period of eight weeks beginning with the date when the
application was received by the planning authority’. The corresponding
provisions in the listed building legislation are, for present purposes,
identical. Regulation 3(4) of the Planning (Listed Buildings and Conservation
Areas) Regulations 1990 also includes the expression ‘where a valid application
has been received by a local planning authority’.
The provisions
relating to planning applications are split between the GDPO and the Town and
Country Planning (Applications) Regulations (SI 1988/1812) (the 1988
Regulations). Regulation 3 of the 1988 Regulations provides:
(1) … an
application for planning permission shall —
(a) be made on a
form provided by the planning authority;
(b) include the
particulars specified in the form and be accompanied by a plan which identifies
the land to which it relates and any other plans and drawings and information
necessary to describe the development which is the subject of the application;
and
(c) except where the
authority indicate that a lesser number is required, be accompanied by 3 copies
of the form and the plans and drawings submitted with it.
Section 10 of the
listed buildings Act provides:
(2) … an application
[for listed building consent] shall be made in such form as the [local
planning] authority may require and shall contain —
(a) sufficient
particulars to identify the building to which it relates, including a plan; and
(b) such other plans
and drawings as are necessary to describe the works which are the subject of
the application;
(c) such other
particulars as may be required by the authority.
Article 5(4) of the
GDPO provides:
Where, after sending
an acknowledgement as required by paragraph (2) of this article, the local
planning authority consider that the application is invalid by reason of a
failure to comply with the requirements of regulation 3 of the 1988
Regulations… or any other statutory requirement, they shall as soon as reasonably
practicable notify the applicant that his application is invalid.
The standard form of
acknowledgement under Article 5(2) is set out in Part I of Schedule 1 to the
GDPO:
I am still examining
your application form and the accompanying plans and documents to see whether
they comply with the law.
If I find that your
application is invalid because it does not comply with the statutory
requirements then I shall write to you again as soon as I can.
If, by [insert
date at end of period of eight weeks beginning with a date when the application
was received]
you have not been
told that your application is invalid…
then you can appeal
to the Secretary of State for the Environment Wales under section 78… of the
Town and Country Planning Act 1990…
There are similar provisions
in the Listed Buildings Regulations, Regulation 3(3) and Part I of Schedule 1.
Where Article 5(4) uses the word ‘considers’, Regulation 3(3) provides: ‘forms
the opinion’.
The general duty as
respects listed buildings in exercise of planning functions is set out in
section 66(1) of the listed buildings Act:
In considering
whether to grant planning permission for development which affects a listed
building or its setting, the local planning authority or, as the case may be,
the Secretary of State shall have special regard to the desirability of
preserving the building or its setting or any features of special architectural
or historic interest which it possesses.
Similar terminology
appears in section 16 of the Act, which deals with decisions on applications.
Before leaving the
statutory provisions, I refer to regulation 4 of the 1988 Regulations entitled
‘Directions by the local planning authority’. Its opening words are that ‘the
local planning authority who are to determine an application may direct an
applicant in writing to supply any further information…’ It is not suggested
that any such directions were given in the present case. Mr Meyric Lewis, for
the appellants, describes as a moot point, and one that need not be resolved in
the present appeal, whether failure to comply with a regulation 4 direction
renders an application for planning permission invalid. Miss Alice Robinson,
for the respondent, submits, with force, in my view, that an application that
has the status that it is to be ‘determined’ cannot be rendered by subsequent
events invalid from the start.
The appellants submit
that the effect of the statutory provisions is that the determination of the
question of validity of an application for planning permission or listed
building consent is a matter for the local planning authority and not for the
Secretary of State. Regulation 3 of the 1988 Regulations and section 10 of the
Listed Buildings Act impose requirements as to the particulars to be included
with the appropriate application for permission. The right to appeal to the
Secretary of State arises only when a ‘valid’ application has been made, and no
such applications were made in this case. By virtue of Article 5(4) of the GDPO
and regulation 3(3) of the 1990 Regulations, the local planning authority have
the power to determine that the applications are invalid and that power was
exercised in this case. The standard form of acknowledgement provided in the
Order and Regulations makes clear that the right to appeal to the Secretary of
State arises only in the case of applications not declared invalid by the local
planning authority. In the case of the listed buildings application, the
conclusion that the decision as to the validity of the application is one for
the local planning authority is reinforced by the requirement of section
10(2)(c) of the Listed Buildings Act that the application shall contain ‘such
other particulars as may be required by the [local planning] authority’. In the
absence of valid applications for planning permission and listed building
consent, the right to appeal to the Secretary of State does not arise and the
only remedy is by way of judicial review. To hold that notification by the
local authority that an application was invalid did not exclude the right of appeal
to the Secretary of State would be to render the Regulations meaningless and
nugatory.
The appellants
further rely upon the guidance given in PPG 16. It provides that it is
generally preferable for related planning and listed consent applications to be
considered concurrently, and in relation to listed building consent ‘advises
local planning authorities not to accept applications for listed building
consent until they have sufficient information to provide a full understanding
of the impact of a proposal on the character on the building in question’ (para
B3 of Annex B of PPG 15 as clarified in Appendix C to Circular 14/97 [Planning
and the Historic Environment]). That reflects the general duty in section 66 of
the listed buildings Act. As local authority, the appellants were best placed
to assess the adequacy of detail. PPG 15 also emphasises the importance of
early
listed buildings. The functions of the local planning authority should not be
usurped by central government.
In Geall v Secretary
of State for the Environment, Transport and the Regions (11 December 1998)1,
this court considered, as Schiemann LJ put it at the beginning of his judgment,
‘in what circumstances is a request for planning permission not to be treated
as an application for planning permission and who is the person who is to
decide whether a request constitutes an application?’ The court held that the
Secretary of State was entitled to decide whether, in the context of that
section of the planning Act dealing with enforcement notices, the appellant had
made ‘an application to the local planning authority for planning permission
for the development to which the relevant enforcement notice relates’. The court
held that the Secretary of State was entitled to decide that acceptance of a
fee by a local planning authority and their failure to notify an applicant that
his application for planning permission was invalid did not render valid an
otherwise invalid application. The Secretary of State agreed with the local
planning authority that the application submitted to that authority was
incomplete and did not fulfil the requirements of regulation 3 of the 1988
Regulations.
1 [1999] 2 PLR 1
Schiemann LJ stated
at p11B:
I therefore consider
that the Secretary of State was right himself to take the decision as to
whether or not what was done by the appellant in 1993 amounted to making an
application… [then at p11H] The scheme of the Act is that the Secretary of
State should make up his own mind as to whether this is the case. It would be
inimical to good administration to require him to research the whole background
of relations between applicants and the local planning authority. He should be
able to form a view on the material which, pursuant to the GDO, is placed
before him.
I am content for
present purposes to take a narrow view of the ratio in Geall but
the general observations of Schiemann LJ are none the less persuasive. Dealing
also with the general question he had posed at the beginning of his judgment,
Schiemann LJ stated at pp9D-10A:
2. If the local
planning authority refuse what purports to be an application for planning
permission and the applicant wishes to appeal, he will need to rely on section
78(1). In such circumstances, it will be common ground between the applicant
and the local planning authority that what purports to be an application is
indeed an application. A question might arise as to whether the Secretary of
State has jurisdiction to entertain the appeal if he takes the view that the
purported application is not an application. The question is unlikely to arise
often in practice, but, in my judgment, if the Secretary of State takes that
view then he has no jurisdiction to entertain the appeal — until such time, if
any, as his decision that the purported application is no application, is
quashed by way of judicial review.
3. If the local
planning authority decide not to process the application but
judicial review. The Act has not provided for an appeal against the decision to
declare the application invalid. If the applicant tries to appeal under section
78(2), in order to bring himself within the section, he will have to assert
that he is a person who has made an application for planning permission. If he
does so assert, a question will arise as to whether the Secretary of State has
jurisdiction to determine whether the applicant is a person who has made an
application for planning permission. Again, the question is unlikely to arise
often in practice but, in my judgment, if the Secretary of State takes the view
that no application for planning permission has been made, then he has no
jurisdiction to entertain the appeal — until such time, if any, as his decision
that the purported application is no application, is quashed by way of judicial
review. If, on the other hand, the Secretary of State takes the view that an
application for planning permission has been made, then, in my judgment, the
Secretary of State is under a duty to entertain the appeal.
The appellants submit
that those remarks of Schiemann LJ were obiter, as they were. They also
submit that, in the light of fuller argument in this case, they should not be
followed.
The judge in the
present case stated that, even in the absence of Geall, he would have
rejected the appellants’ submissions. The judge stated:
Article 20 of the
GDPO does not prescribe who is to determine the question of validity of a
planning application. Specifically, it does not provide that this question is
exclusively within the jurisdiction of the local planning authority. It does
not provide ‘where in the opinion of the local planning authority a valid application’.
Mr Lewis relies on the form of acknowledgement prescribed by Article 5(2). But
this is an inadequate basis for the submission to prevail. It is clear from
Article 5(4) that the matter of the validity of the application is for the
local planning authority in the first instance. But Part I of Schedule 1 does
not prescribe that if an applicant has been told that his application is
invalid, there is accordingly no right of appeal, in other words as Miss
Robinson put it, one cannot assume the converse of the form. It is accordingly
clear, in my judgment, that the question as to whether ‘a valid application’
for the purposes of Article 20(1) has been made is one that is not exclusively
for determination by the local planning authority but one that the
inspectorate, when seized of the matter, may determine.
The judge also
expressed his agreement with the general statements of Schiemann LJ.
Miss Robinson’s
submission, rightly in my view, concentrates upon section 78 of the planning
Act and section 20 of the listed buildings Act as the starting point for
determination of the issue. Moreover, as she submits, the wording of some of
the legislation supports the view that an application is valid for the purposes
of those sections even when the local planning authority give notice of
invalidity. Regulation 4 of the 1988 Regulations, while not directly in point
on the facts of this case, appears to confer a status on an application at the
time a direction is given. The authority are to ‘determine’ it, that is by
grant or refusal, rather than decide whether it is valid. It is when
considering whether to grant consent that ‘special regard’ must be had under
sections 16 and 66 of the listed
wording assumes the existence of what for the purposes of section 78 and
section 20 may be considered as applications.
The appellants’
submissions are not without force, in my view. Time starts running under
Article 20(1) of the GDPO where a ‘valid application’ has been received. Under
Article 5(4), the local planning authority are entitled to form an opinion that
an application is invalid by reason of a failure to comply with the
requirements of regulation 3 of the 1988 Regulations and to notify the applicant
that the application is invalid. Moreover, it is possible to draw the inference
from the standard form of acknowledgement provided in the Order that the right
of appeal only arises if the applicant has not been told that the applicant is
invalid.
I have, however, come
to the conclusion that a right of appeal does arise even when the local
planning authority have formed the opinion that the application is invalid. The
applicant is entitled to have the opinion of the Secretary of State on the
question of validity. I reach that conclusion upon a purposive construction of
the statutes and a consideration of the scheme as a whole. With the notable and
long-standing exception that there is no statutory right of appeal against a
grant of planning permission by a local planning authority, it provides, in a
variety of situations, an appeal to the Secretary of State. In addition to a
right of appeal against planning decisions and failure to take planning
decisions, the planning Act provides for appeals against enforcement notices,
certificates of lawful use or development, tree preservation order consents,
advertisement consents, appeals against tree replacement requirements and
appeals against information requirements of the planning authority. In
addition, the Secretary of State has the power under section 77 of the planning
Act to call in planning applications. The scheme of the Act gives a status to
the Secretary of State such that a construction of statutory provisions dealing
with appeals, which has the effect of conferring exclusive jurisdiction on the
local planning authority, does not fit easily with that scheme.
As the judge pointed
out, it is not stated in terms in the statutory provisions that the local
planning authority is the sole arbiter upon validity. Regulation 3 of the 1988
Regulations does not purport to make the local planning authority the sole
judge of what plans, drawings and information are necessary to describe the
development. (In this respect, the appellants are on stronger ground on the listed
buildings Act which does include the expression ‘such other particulars as may
be required by the [local planning] authority’.)
The case turns upon
the meaning of the word ‘application’ in section 78 of the planning Act and
section 20 in the listed buildings Act. In my judgment, and in the context of
the statutes, it includes an application that the local planning authority
consider to be invalid under the Regulations. The words ‘which the local
authority consider to be valid’ should not be read into section 78 of the
planning Act and section 20 of the listed buildings Act to govern the word
‘application’. A determination of invalidity by the local planning authority
does not exclude the right of appeal to the Secretary of State on the question
of validity. The
the operation of the appeal provisions in the legislation, notwithstanding the
view of the local planning authority that the applications were invalid.
Though I have reached
the conclusion by a somewhat different route, it follows that I agree with the
views expressed by Schiemann LJ in Geall and with the conclusion of the
judge in the present case. The company was not restricted to a remedy by way of
judicial review.
I cannot conceive
that the purpose or effect of the legislation is to produce a different result
upon a listed building application from that upon a planning application.
Section 10(2) of the listed buildings Act deals with the ‘form’ of the
application for listed building consent. An application may not be in the
required form if there is a failure to give ‘such other particulars as may be
required by the [local planning] authority’. A failure to comply does not, in
my view, prevent the document from being an application within the meaning of
section 20.
I agree with Mr Lewis
that the judge’s reliance, as expressed, on Article 3 of the GDPO was
misplaced. The outline planning permission procedure allows a planning
authority to give a decision in principle and to reserve details for subsequent
approval. If an authority who are to determine an application for outline
permission are ‘of the opinion that, in the circumstances of the case, the
application ought not to be considered separately from all or any of the
reserved matters’, they shall ‘notify the applicant that they are unable to
determine it unless further details are submitted, specifying the further
details they require’ (Article 3(2)). This is not, in my judgment, a procedure
‘parallel’ to that under consideration, as the judge stated, but a separate one
provided to deal with a potential difficulty peculiar to the outline
application procedure. It is not, and could not be, suggested that failure to
submit further details invalidates the outline application. However, a right of
appeal to the Secretary of State undoubtedly arises under this procedure
because a time-limit for appealing to him is specified in Article 23(2)(c) of
the GDPO. To the extent that the analogy provides another illustration of what I
regard as the general scheme of the legislation, it supports the conclusion
reached by the judge and by me.
Nothing in the
judgment should be read as to discourage applicants for planning permission and
listed building consent from providing appropriate detail with their
applications or from co-operating with local planning authorities. Moreover,
there could be requests for permission, which are so deficient in form and
substance that no reasonable local authority or Secretary of State could
reasonably treat them as ‘applications’ within the meaning of the legislation.
I would dismiss this
appeal.
OTTON LJ: I agree.
ROCH LJ: I also agree.
Appeal dismissed.
