R Gleeson Developments Ltd v Secretary of State for Communities and Local Government and Another Wiltshire Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 21 October 2013 |
| Neutral Citation | [2013] EWHC 3166 (Admin) |
| Docket Number | Case No: CO/5096/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 October 2013 |
[2013] EWHC 3166 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice Centre
Redcliff Street
Bristol, BS1 6GR
Mr Justice Cranston
Case No: CO/5096/2013
and
John Litton QC and David Blundell (instructed by Head of Legal Services, Glesson Developments Ltd) for the Claimant
Jonathan Swift QC and Charles Banner (instructed by Treasury Solicitors) for the Defendants
Introduction
In this judicial review a planning inspector's decision letter on a planning appeal granting planning permission for a development was issued in error. The claimant's case is that nonetheless the inspector's decision letter is to be treated as the determination of the appeal. The Secretary of State for Communities and Local Government ("the Secretary of State") contends that his direction to recover jurisdiction to decide the appeal himself, which was made before the planning inspector's decision letter was issued, was effective so that the planning inspector's decision letter was to no effect. Alternatively, in the circumstances of this case, the Secretary of State contends that given the error he had an implied statutory power to withdraw the planning inspector's decision letter, which he exercised successfully. The claimant's response to these contentions is that it was unlawful for the Secretary of State to decide to recover the appeal to himself without first consulting the claimant and that, in any event, the recovery direction was irrational. Moreover, the only basis on which the planning permission generated by the planning inspector could have been withdrawn was for it to have been revoked and the claimant paid market value compensation. The claimant also advances a claim under the Human Rights Act 1998 to the effect that the planning inspector's decision letter meant that the claimant had a legitimate expectation that planning permission would be granted, and that such a legitimate expectation is property protected by Article 1 of Protocol 1 to the European Convention on Human Rights ("ECHR"). Again that means it is entitled to compensation.
Background
In December 2011 the claimant submitted an application to Wiltshire County Council ("the Council") for outline planning permission for a development of up to 180 residential dwellings on land south of Filands, Malmesbury, Wiltshire. The Council refused the application in March of the following year and the claimant submitted an appeal to the Secretary of State pursuant to section 78 of the Town and Country Planning Act 1990 ("the 1990 Act"). The Secretary of State appointed Mr Colin Thompson as the planning inspector to determine the appeal. That was after the Planning Inspectorate had considered whether to recover jurisdiction for the Secretary of State to determine the appeal for himself under paragraph 3(1) of schedule 6 of the 1990 Act. Notwithstanding that the application was for more than 150 houses, which is one of the bases in the policy on which the Secretary of State may recover jurisdiction, it was decided not to do that because there were no issues which a planning inspector could not determine.
Mr Thompson held a public inquiry which sat over 8 days between 22 January and 15 February 201It included an accompanied site inspection on 28 January 201On 5 March 2013 Councillor Killane, the Wiltshire county councillor for Malmesbury, and the chair of the Malmesbury Neighbourhood Steering Group, notified the Department of Communities and Local Government that the steering group had published the Malmesbury draft neighbourhood plan and suggested a ministerial visit to a public consultation about it later in the month. That neighbourhood plan was drawn up pursuant to the Localism Act 2011 under which, once adopted, it will become part of the development plan. The idea behind neighbourhood plans is to give people an influence on new and modified buildings and facilities in their area. The Malmesbury draft neighbourhood plan proposed that housing needs be addressed other than through development on the site the claimant proposed. The planning inspector gave the parties to the inquiry 7 days in which to comment on the draft neighbourhood plan, which they did.
On Wednesday morning, 13 March 2013, the Minister for Planning (Mr Nick Boles MP) met departmental officials at one of his weekly meetings to discuss planning casework. He told his officials that he wanted advice about recovering the claimant's appeal which might impact on the draft neighbourhood plan. As a result Mr Richard Watson, head of planning casework in the department, telephoned Mr Paul Bennett, of the planning inspectorate's casework team, for relevant information. In an email later that day Mr Bennett sent some background information on the case and also explained that he had arranged for the inspectorate's despatch team not to issue the planning inspectorate's decision, were it to be received, without Mr Bennett's authorisation. The following day, 14 March, the departmental casework team sent a briefing to Mr Boles MP regarding the claimant's appeal.
On Monday 18 March 2013, by e-mail sent at 12.54pm, Mr Boles MP's assistant private secretary informed Mr Watson that Mr Boles MP had decided to recover the appeal. By e-mail sent at 1:03pm Mr Watson informed Mr Bennett at the planning inspectorate, and directed him to prepare letters to the parties to the appeal explaining that the appeal had been recovered by the Secretary of State. Mr Bennett was on leave that day and the message was not read until he returned the following day.
By e-mail sent at 3:34pm on 18 March 2013 an officer in the planning inspector's despatch team issued Mr Thompson's decision letter. The decision letter was issued in error. It later transpired that the officer had misunderstood the note on the system warning against the publication of any decision and thought that it related only to earlier drafts of the decision. The claimant received the decision letter at 3:52pm that day. It allowed the appeal and granted outline planning permission for the development, subject to the conditions set out in an annex.
In the course of the decision letter Mr Thompson addressed the issue of prematurity, i.e. whether planning permission ought to be refused because the neighbourhood plan was being produced, and that to grant permission could prejudice it by predetermining decisions about developments which it would address. Mr Thompson stated that any refusal of planning permission on the ground of prematurity had to be set against other policy imperatives, such as the need for local planning authorities to boost the supply of new housing, something the Secretary of State had been emphasising. Mr Thompson stated that it was entirely feasible for there to be other sustainable housing in Malmesbury, which would include both the appeal site and the green field site preferred in the draft neighbourhood plan. Mr Thompson added that in his opinion his decision would not unduly impact on the production of the neighbourhood plan and on the localism agenda. The tension between the localism agenda and the government's objective for that new housing be built was not unusual in planning, where different objectives were often in conflict; a balancing exercise was required. As the neighbourhood plan moved towards adoption, said Mr Thompson, more weight would be given to it. Mr Thompson concluded:
"I have considered whether allowing the development proposed now would have such a negative community effect, through prematurity, as to prejudice the ability of any future adopted [draft Wiltshire Core Strategy], or [draft Malmesbury Neighbourhood plan], to influence the siting, location or phasing, of new development either within the wider district as a whole or as regards this market town in particular. But I have concluded that there are no such significant negative effects sufficient to outweigh the presumption in favour of sustainable development."
The planning inspectorate realised what had happened with the mistaken dispatch of Mr Thompson's decision letter the following morning, 19 March 2013. It sent the claimant a letter by email, stating that Mr Thompson's decision letter was issued in error and should not have been sent, given that Mr Boles MP had decided to recover the appeal. Therefore the inspector's decision had been issued "without authority and is hereby withdrawn". That email was received by the claimant at 7:00pm that day.
At about the same time departmental officials and a special adviser were discussing the line to take publicly, given the turn of events. Not unusually there were various drafts of the press release. Ultimately Mr Boles MP approved a short statement that he had already decided to recover the appeal but the planning inspector's decision letter was unfortunately issued by mistake.
On 20 March 2013, there were discussions between officials, including Mr Watson and members of the planning inspectorate, as to the exact reasons to be given to justify Mr Boles MP's decision to recover the appeal. Later that day the planning inspectorate issued a letter confirming that the Secretary of State was to determine the appeal himself under section 79 and paragraph 3 of schedule 6 of the 1990 Act. The reasons given were that:
"the appeal involves proposals for residential development of over 150 units or on sites...
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Gleeson Developments Ltd v Secretary of State for Communities and Government and Others
...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 judgmen......
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Ioannou v Secretary of State for Communities and Local Government
...in a planning context by Cranston J in R (Gleeson Developments Ltd) v Secretary of state for Communities and Local Government [2013] EWHC 3166 (Admin). The Secretary of State recovered jurisdiction over a planning appeal, giving his reason for doing so, as he was required to do by statute. ......