Co-operative Retail Services Ltd v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRANDON,LORD JUSTICE STEPHENSON |
| Judgment Date | 22 October 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1022-2 |
| Docket Number | SJ.31A.79 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 1979 |
[1979] EWCA Civ J1022-2
Lord Justice Stephenson
and
Lord Justice Brandon
In the Matter of the Town and Country Planning Act 1971
and
In the Matter of an Appeal By William Morrison Supermarkets Limited Under Section 36 of the Above Act
and
In the Matter of Decisions By The First Respondent Dated 31 August 1979, 7 September 1979 and 4 October 1979
In The Supreme Court of Judicature
Court of Appeal
On Appeal from a Decision of Mr. Justice Phillips
MR. PATRICK GROUND (instructed by Messrs. Bower Cotton & Bower) appeared on behalf of the Appellants.
MR. DAVID LATHAM (instructed by Messrs. Bury and Walker) appeared on behalf of the first Respondent.
MR. DUNCAN B. W. OUSELEY (instructed by Messrs. Last Suddards and Company) appeared on behalf of the third Respondent.
This is an important appeal and I regret that in view of the lateness of the hour and the urgency of the matter I must deal with it shortly and, therefore, run the risk of doing a considerable injustice to the careful submissions made by both counsel, particularly those made by Mr. Ground on behalf of the appellants.
What we have before us are orders of Mr. Justice Phillips made at the end of last week, in effect refusing to interfere with a decision of the Secretary of State for the Environment, refusing to grant an adjournment of a public inquiry fixed for tomorrow, at the suit of the appellants. The Co-Operative Retail Services Limited, and the City of Wakefield Metropolitan District Council, the Planning Authority for the area. The Public Inquiry is concerned with an appeal by the third respondents, William Morrison (Supermarkets) Limited, against a decision refusing them planning permission to carry out some demolition work and erect a large supermarket, which is obviously going to have a considerable effect, if it is permitted, on the nearby premises of the Co-Operative Retail Services Limited and it could have a considerable effect, one would have thought, on the planning of the whole area.
In the correspondence which we have seen, namely in the months of August and September of this year, the Co-Operative, as I will call them, have been repeatedly attempting to get the Secretary of State to adjourn the hearing and holding of this public inquiry on the ground that they cannot be ready in time. I would not like to be thought insensitive to the difficulties of getting specialist counsel and specialist experts to support opposition to an appeal which, of course,may be unsuccessful even if unopposed, because the Co-Operative and the Planning Authority are not appellants; they are resisting this appeal of Morrison, as I will call them.
The Secretary of State has, in letters which I shall not read: taken, if I may say so, a hard line, not always choosing his words particularly well and being perhaps rash enough to indicate an unbending policy which might be thought not to take adequate account of the objections that were being put: but I bear in mind the authority which Mr. Latham has cited to us, the Ostreicher case, reported in 1978 1 WLR, 810, and what in particular the Master of the Rolls has said at page 816 of that report:
"……there is a distinction between an administrative inquiry and judicial proceedings before a court. An administrative inquiry has to be arranged long beforehand. There are many objectors to consider as well as the proponents of the plan. It is a serious matter to put all the arrangements aside on the application of one objector out of many. The proper way to deal with it, if called upon to do so, is to continue with the inquiry and hear all the representatives present: and then, if one objector is unavoidably absent, to hear his objections on a later day when he can be there. There is ample power in the rules for the inspector to allow adjournments as and when reasonably required."
That, of course, was said in reference to a very different case to this, but nevertheless it states matters which have to be borne in mind in considering the second ground on whichwe are asked to allow this appeal.
Mr. Justice Phillips dismissed the motions before him on the ground that he had no jurisdiction to hear them. He was sitting as a single judge of the High Court, to hear an appeal under Section 245 of the Town and Country Planning Act, 1971, and by Order 94 (1), a single judge is the person to hear a matter of that kind.
What was said by Mr. Ground to the learned judge, and has been said to us, is that what is being questioned is a decision of the Secretary of State on an appeal under Section 36 of this Act, as provided by Section 242, subsection (3)(b). Section 36 of the Act deals with appeals against Planning decisions. It sets out a number of matters and by subsection (6) states: "The decision of the Secretary of State on any appeal under this section shall be final." That, like all the other subsections of the Act has to be read with section 242, which provides by subsection (1):
"Except as provided by the following provisions of this Part of this Act the validity of……(e) any such action on the part of the Secretary of State as is mentioned in subsection (3) of this section, shall not be questioned in any legal proceedings whatsoever."
By Section 242 (3) the action referred to in subsection (1)(e) includes:
"(b) any decision of the Secretary of State on an appeal under Section 36 of this Act."
The opening words of Section 242(1) let in the provision of Section 245 for questioning the validity of, inter alia, such a decision on an appeal? Section 245(3).
The learned judge was referred to Sections 36, 242 and 245, and the first question he had to decide was, "Are these decisions decisions of the Secretary of State on an appeal under section 36?" "It is a short but not necessarily easy question", he said, in a note of his judgment which has been agreed but has not been submitted to the learned judge for approval because it had not been typed, "namely whether in section 242(3)(b) they constitute a decision of the Secretary of State on an appeal. In my judgment they do not."
He was...
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