Section 78 of the Town and Country Planning Act 1990 (“the Act”) provides for a right of appeal to the secretary of state principally where a local planning authority refuses to grant planning permission, grants planning permission subject to conditions or fails to determine a planning application within the prescribed period. Responsibility for determining such appeals is conferred by section 79 of the Act on the secretary of state.
However, paragraph 1 of schedule 6 to the Act empowers the secretary of state to make regulations prescribing classes of appeals that are to be determined by a person appointed by the secretary of state in his stead. By virtue of the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 a majority of section 78 appeals are determined by inspectors on behalf of the secretary of state. (These are often referred to as “transferred cases”.)
Finally, paragraph 3 of schedule 6 to the Act enables the secretary of state to direct that an appeal that would otherwise fall to be determined by an appointed person shall instead by determined by him. (Such an appeal is often referred to as a “recovered appeal”.) Where a direction is made, the role of the inspector is restricted to conducting an inquiry, and submitting a report and his recommendations to the secretary of state.
In Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin) the secretary of state – contrary to the recommendations made by his inspector following an inquiry – refused, on a recovered appeal, to grant planning permission for a wind farm. The developer applied to quash his decision. Its approach obliged the court to address the question whether, in the case of a recovered appeal, the secretary of state was under a duty to accord a degree deference to the inspector’s recommendations.
For the following reasons, the court dismissed all arguments that such a duty exists. (1) By statute, the secretary of state is the primary decision maker. (2) He is not reviewing, or conducting an appeal against, an inspector’s decision. (3) The inspector’s report is the starting point for the secretary of state’s deliberations. (4) In addition to the information that it contains, he will have sight of the written evidence, pictures and plans submitted by witnesses and parties. (5) Unlike a judge hearing an application to quash a planning decision, he is entitled to substitute his own planning judgment for that of the inspector.
John Martin is a planning law consultant
