Gleeson Developments Ltd v Secretary of State for Communities and Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Ryder,Lord Justice Laws |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1118 |
| Docket Number | C1/2013/3410 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 1118
Lord Justice Laws
Lord Justice Ryder
Lord Justice Sullivan
C1/2013/3410
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QBD ADMIN COURT
(MR JUSTICE CRANSTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Litton QC and Mr Blundell appeared on behalf of the Appellant
Mr Swift QC and Mr Banner appeared on behalf of the Respondent
Introduction
This is an appeal from the order dated 21 October 2013 of Mr Justice Cranston dismissing the appellant's claim for judicial review of: (i) a letter dated 19 March 2013 from the planning inspectorate purporting to "withdraw" a decision dated 18 March 2013 of a planning inspector, allowing the appellant's appeal under Section 78 of the Town and Country Planning Act 1990 ("the Act") and granting conditional outline planning permission for a residential development comprising up to 180 dwellings on lands south of Filands, Malmesbury, in Wiltshire; (ii) a direction dated 20 March 2013 made by the Secretary of State purporting to recover the appellant's appeal for the Secretary of State's own determination under paragraph 3 of schedule 6 to the Act.
Background
The factual background to the appellant's claim for judicial review is set out in some detail in paragraphs 3 to 12 of Mr Justice Cranston's judgment which is reported at [2013] EWHC 3166 (Admin). The legal and policy framework is set out in paragraphs 13 to 19 of the judgment. There is no challenge to these aspects of the judgment and I gratefully adopt them and need not repeat all of the detail which is set out in those paragraphs.
For the purposes of this appeal, I can summarise the legal and factual matrix as follows. The Secretary of State's power to determine appeals under Section 78 of the Act is contained in Section 79 of the Act. Sub-section 79(7) gives effect to Schedule 6 to the Act which makes provision for the determination of certain appeals. In practice the great majority of appeals are determind by an "appointed person", in practice a planning inspector. In the present case a planning inspector was appointed to determine the appellant's appeal under Section 78. Sub-paragraph 2(1) of Schedule 6 provides that an appointed person shall have the same powers and duties in relation to an appeal under Section 78 as the Secretary of State. In particular, sub-paragraph 2(6) provides that:
"Where an appeal has been determined by an appointed person his decision shall be treated as that of the Secretary of State."
However, the Secretary of State has power under paragraph 3 of Schedule 6 to the Act to recover jurisdiction to decide an appeal for himself. The material parts of paragraph 3 of schedule 6 are set out in paragraph 17 of the judgment below, but since they are of critical importance in this appeal I will set them out as follows:
"(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State.
"(2) Such a direction shall state the reasons for which it is given and shall be served on the person, if any, so appointed, the appellant, the local planning authority and any person who has made representations relating to the subject matter of the appeal which the authority are required to take into account under any provision of a development order made by virtue of Section 71(2)(a).
"(3) Where in consequence of such a direction an appeal falls to be determined by the Secretary of State, the provisions of this Act which are relevant to the appeal shall, subject to the following provisions of this paragraph, apply to the appeal as if this Schedule had never applied to it.
"(4) The Secretary of State shall give the appellant, the local planning authority and any person who has made any such representations as mentioned in sub-paragraph (2) an opportunity of appearing before and being heard by a person appointed by the Secretary of State for that purpose if (a) the reasons for the direction raise matters with respect to which any of those persons have not made representations; or (b) in the case of the appellant or the local planning authority, either of them was not asked in pursuance of paragraph 2(2) whether they wished to appear before and be heard by the appointed person, or expressed no wish in answer to that question, or expressed a wish to appear and be heard but was not given an opportunity of doing so."
It is common ground that if an appeal has been determined by an appointed person the Secretary of State has no power to make a direction under paragraph 3. That is reflected in the current guidance on recovery from the Secretary of State which states that:
"Recovery can occur at any stage of the appeal, even after the site visit, a hearing or an inquiry has taken place, but it cannot be after the inspector has issued their decision."
The inspector's decision in determining the present appeal was issued at 3.34 pm on 18 March 2013 and was received by the appellant a few minutes later at 3.52. The critical question in this appeal is therefore whether there was a direction for the purposes of paragraph 3 of Schedule 6 prior to 3.34 pm on 18 March 2013 when the inspector's decision was issued. If there was such a direction, then the inspector had no power (see sub-paragraph 3(3) of Schedule 6) to issue his decision. If there was not such a direction then the inspector's decision is to be treated as that of the Secretary of State, see sub-paragraph 2(6) of schedule 6.
On behalf of the respondent, Mr Swift QC, submitted that an e-mail sent at 1.03 pm on 18 March 2013 by Mr Richard Watson, the Head of Planning Case Work in the Department for Communities and Local Government, to Mr Paul Bennett of the Planning Inspectorate's case work team, was a direction for the purposes of article 3 which preceded the issuing of the inspector's decision. The judge accepted that submission, see paragraphs 25 and 26 of the judgment.
Before considering Mr Swift's submissions in more detail, it is necessary to set out the text of Mr Watson's e-mail on 18 March. At 12.54 the Assistant Private Secretary to the Minister e-mailed Mr Watson saying:
"Richard, Nick [Boles MP, the Parliamentary Under Secretary of State (Planning) for Communities and Local Government] has confirmed that he wants to recover this appeal in Malmesbury."
Mr Watson transmitted this to Mr Bennett with his e-mail at 1.03 pm saying:
"Paul — over to you please to arrange letters, etc. Happy to discuss (maybe tomorrow) and help. Richard."
In his witness statement, Mr Watson explains the reference in his e-mail to arranging letters. He says in paragraph 12:
"I instructed Mr Bennett to arrange the recovery letters. This was in accordance with standard procedure when a decision has been taken to recover an appeal. Such letters are prepared and issued by the Inspectorate on the Secretary of State's behalf."
In Paragraph 15 of his witness statement Mr Watson said:
"During the morning of 19 March it became apparent that the 18 March letter had been issued in error. Once this mistake had been appreciated, a letter was sent out by the Inspectorate later in the day on 19 March 2013 stating that the letter dated 18 March 'was issued in error and should not have been sent out, given that the Minister had decided to recover the appeal'. On 20 March 2013, in accordance with my e-mail to Mr Bennett, the inspectorate sent a further letter to the parties stating that the appeal had been recovered … The text used in the letter is standard, with only the reason for recovery, as set out in the third paragraph of the letter, being subject to change depending why particular appeals are recovered."
The letter dated 19 March from the Planning Inspectorate said:
"The decision issued on 18 March was issued in error and should not have been sent out given that the Minister had decided to recover the appeal. Therefore the decision has been issued without authority and is hereby withdrawn."
It was signed by a Mr Hammond, the Director of Case Work. It is important to note the terms of the standard form "recovery letter" dated 20 March 2013. The letter was addressed to the appellant's planning consultants, under the heading:
"Town and Country Planning Act 1990, appeal by Gleeson strategic Land, Site at Land, South of Filands, Malmesbury."
The letter said this:
"Although under the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, the appeal was to have been decided by an Inspector, the Secretary of State considers that he should determine it himself.
Accordingly, in exercise of his powers under Section 79 and paragraph 3 of schedule 6 of the Town and Country Planning Act 1990, the Secretary of State hereby directs that he shall determine this appeal instead of an Inspector. This means that instead of writing a decision, the inspector will prepare a report and recommendation, which will be forwarded to the Secretary of State.
The reason for this direction is that the appeal involves proposals for residential development of over 150 units on sites of over 5 hectares, which would significantly impact on the government's objective to secure a better balance between housing demand and supply and create high quality, sustainable mixed and inclusive communities.
This direction is being served on the Inspector, the appellant (or their representative) and the...
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