Newcastle Upon Tyne City Council v Secretary of State for Communities And Local Government [2009] EWHC 3469 (Admin)

Case No CO/9666/2009Neutral Citation Number: [2009] EWHC (Admin) 3469IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTSitting at:Venue Leeds Combined Court1 Oxford RowVenue LeedsWest YorkshireLS1 3BGDate Friday 11 th December 2009
Before
MR JUSTICE LANGSTAFF
Between
Newcastle Upon Tyne City CouncilClaimantSecretary of State for Communities and Local GovernmentDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr I Ponter appeared for Claimant.Miss S Davies and Mr Evans appeared for Defendant.
Judgment
[1]The issue in this application is the way in which the Secretary of State should approach an appeal made under Section 78 of the Town and Country Planning Act 1990 where the local planning authority is of the view there has been no valid planning application. Is he entitled to substitute his own view of what is necessary for the validity of the application for that which the local planning authority has reached, given the statute requires a valid application to contain “such particulars as the local planning authority think necessary”? Secondly, does he have to determine the validity first in a determination separate and distinct from that of other issues which might arise on the application if valid, or may he decide the validity at one and the same hearing as he considers the force of other matters?

The law

[2]The statutory provisions touching upon these issues have recently been modified so that there are no relevant authorities which directly consider the principal sections in question. Section 62 of the Town and Country Planning Act, as amended and enforced from 10 August 2006, provides so far as is material as follows:
“(1) A development order may make provision as to applications for planning permission made to a local planning authority. (2) Provision referred to in subsection (1) includes provision as to— (a) the form and manner in which the application must be made; (b) particulars of such matters as are to be included in the application; (c) documents or other materials as are to accompany the application. (3) The local planning authority may require that an application for planning permission must include— (a) such particulars as they think necessary; (b) such evidence in support of anything in or relating to the application as they think necessary. (4) But a requirement under subsection (3) must not be inconsistent with provision made under subsection (1).”
I add that it is not suggested in this case that any requirement made under subsection (3) is here inconsistent with the provision made under the development order made in consequence of subsection (1). (a) the form and manner in which the application must be made; (b) particulars of such matters as are to be included in the application; (c) documents or other materials as are to accompany the application. (a) such particulars as they think necessary; (b) such evidence in support of anything in or relating to the application as they think necessary.[3]Section 62 therefore can be seen to refer to a development order. The relevant development order is the Town and Country Planning (General Development Procedure) Order 1995. Again, this has been amended. The amendment in force with effect from 1 April 2008 is in its material parts as follows. Article 20 provides for time periods relating to what is called a valid application. It defines what a valid application means in the following words:
“3) In this article “valid application” means an application which consists of— … (d)subject to paragraph (3A), the particulars or evidence required by the authority under section 62(3) of the Act (applications for planning permission); and…”
Paragraph (3A) provides:
“(3A) Paragraph (3)(d) only applies if— (a) before the application is made the local planning authority publish, for the purposes of paragraph (3), a list of requirements on their website; and (b) the particulars or evidence that the authority require to be included in the application fall within that list.” (a) before the application is made the local planning authority publish, for the purposes of paragraph (3), a list of requirements on their website; and (b) the particulars or evidence that the authority require to be included in the application fall within that list.”
[4]It is thus apparent that the GDPO (as it will be known for short) in Article 20 paragraph (3)(d) makes it a requirement of a valid application to contain the particulars or evidence required by the authority under Section 62(3) - that is such matters as the local planning authority thinks necessary. But (3A) shows that the local planning authority must in effect give advance notice to their local electorate and others of those matters which they may think necessary in respect of any particular planning application and by (3A)(b) they may choose from amongst those matters so advertised those which they apply to a particular application before them.[5]The policy which applies to those legislative provisions is set out in Local Government Circular 02 of 2008 (12 March 2008). It is headed “Standard Application Form and Validation”. It is apparent as background that in early 2008 a form of planning application which was to be uniform throughout the entire country was generally adopted, whereas before then there had been different forms in use by different planning authorities. There were matters which were, in effect, prescribed nationally as requisite for all applications if they were to be valid. These are matters which are perhaps obvious - such as (summarising) proper plans sufficient to describe the proposed development to which the planning application relates. But the circular also provides for a list of requirements which are in addition to those prescribed nationally in annex A, which may be locally adopted by a local planning authority in the light of the particular local circumstances which apply in that area. They are contained as I am given to understand in annex B. In effect annex B sets out a menu from which local authorities may draw items dependent upon local considerations.[6]Thus the circular states, see paragraph 16:
“The information required to make a valid planning application will consist of: • information provided on the Standard Application Form; • mandatory national information requirements specified in the GDPO; and • information to accompany the application as specified by the local planning authority”
And at paragraph 19 it is stated:
“The first stage in determining the validity of an application is for the local planning authority to make sure that all the necessary supporting information has been provided correctly. The list in Annex A outlines the mandatory national requirements specified in the GDPO. This list sets out the minimum information that must accompany all applications for planning permission. To support applicants using the Standard Application Form, this list is included on the form for each application type.”
Paragraph 20:
“In addition, the Standard Application Form will specify the need for applicants to provide information specified by the local planning authority and shown on a local list on the local planning authority’s website before submitting their application. It will be up to the local planning authority to specify exactly what information is required for each application type to ensure that the applicant supplies the correct supporting information.”
Paragraph 21:
“Communities and Local Government has issued a recommended national list of local requirements set out in the guidance Validation of Planning Applications – Guidance for local planning authorities 3. This guidance outlines the scope of information that may be required, from which local planning authorities can choose their specific local requirements to be included on their local lists for a range of application types.”
And it continues. Advice is given to the local planning authority, to which Miss Davies drew attention in the course of her submissions, which encourages local planning authorities to be in a position where they can justify the need for the information which they have said it is necessary to supply with any particular application (see in particular paragraphs 30 and 31). • information provided on the Standard Application Form; • mandatory national information requirements specified in the GDPO; and • information to accompany the application as specified by the local planning authority”[7]It is my view that these provisions give effect to local participative democracy and to local control of planning to permit specification of matters of more detailed and specific local relevance for a proposed development than those matters which have a national impact. Plainly the guidance reflects the different roles of national Government, no doubt exercised through the planning inspectorate, and local government, but I would observe that a local authority is always likely to be in the best position to know the need for some details, for instance whether particular land is likely to be contaminated, or whether there might be a need in a particular locality for a photo montage if for instance local residents may wish to know what a proposed development would look like if completed and thus be in a proper position to be consulted about it through the planning process.[8]The one provision of relevance to this application in statute which has not been amended in any relevant way is Section 78 of the Town and Country Planning Act 1990. That provides so far as material:
“1) Where a local planning authority— (a) refuse an application for planning permission or grant it subject to conditions; (b) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on a grant of planning permission or grant it subject to conditions; or (c) refuse an application for any approval of that authority required under a development order 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 neither— (a) given notice to the applicant of their decision on the application; nor (b) given notice to him that the application has been referred to the Secretary of State in accordance with directions given under section 77, within such period as may be prescribed by the development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority.”
It is common ground that in this case the GDPO applicable to the proposed development would require a response within 8 weeks if the application were to be regarded as a valid one by the local planning authority. (a) refuse an application for planning permission or grant it subject to conditions; (b) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on a grant of planning permission or grant it subject to conditions; or (c) refuse an application for any approval of that authority required under a development order or grant it subject to conditions, (a) given notice to the applicant of their decision on the application; nor (b) given notice to him that the application has been referred to the Secretary of State in accordance with directions given under section 77,[9]Before I turn to the areas of dispute and the background facts in this particular application, I should state what is common ground between the parties as to the law. In their submissions Mr Ponter and Miss Davies agree: a) if the local planning authority fails to determine an application such as the one in this case within the specified time it is for the Secretary of State to determine on an appeal and there is an entitlement to appeal; b) the right to appeal does not depend upon whether the application is held invalid by the local planning authority. There is a right for an applicant to appeal to the Secretary of State if the applicant contends that his application is valid, contrary to the view of the local planning authority; c) the first question for the Secretary of State on such an appeal is whether the application is valid -- only after determining that can he deal with the merits; d) if the Secretary of State is faced with an application which obviously does not comply with the national requirements or is manifestly invalid, he may reject it without more ado as being invalid; but e) to the extent that any item selected by the local planning authority from the local list as necessary requires particular facts to be established as a necessary precondition for what is typically a study or assessment to which that item relates, it is open to the Secretary of State to consider whether or not that precondition has actually been established and he may reach his own view as to that. If he were to decide that the necessary precedent fact had not been established, he would be entitled to regard the requirement dependent upon it as having been satisfied in that particular case.[10]In my judgment these agreed positions have this effect: that the Secretary of State may decide on a purported appeal to him to hear or to seek to establish some facts in order to determine whether the precedent facts necessary for the local planning authority to require a particular item from annex B to be covered in the application have indeed been established, or whether the circumstances for the requirement to which the item in the local list relates have been satisfied. Iit cannot be said that the Secretary of State must always be in a position summarily to accept or reject a purported application as valid.[11]The areas of dispute are centrally these: a) the local planning authority contends that the Secretary of State should not proceed to a determination on appeal in which he considers both the questions of validity and the merits of the appeal (if valid) at one and the same time -- the issue of validity should in its submission always be a discrete first question to be determined, and determined separately; b) The Secretary of State contends that not only may he determine validity by reference to whether some fact necessary for the local planning authority to insist on compliance with any particular item from the local list has been established, but also he may himself decide whether a particular requirement thought necessary by the local planning authority was indeed necessary, and if he reaches the view that it was not would be entitled to consider the appeal as valid (notwithstanding that validity is to be determined in accordance with Article 20 and with Section 62(3), both of which on the face of them appear to speak of the local planning authority as being the arbiter of what is necessary).[12]As will be seen I shall deal with those contentions in reverse order, the latter being the more significant of the two for present purposes.

The facts of this case

[13]The facts of this case need be stated briefly. On 29 June 2008, thereby at a time subject to the new statutory regimes, the interested party, who I should add does not seek to be represented before me, made an application for planning consent. This was in effect to demolish a derelict two storey building in central Newcastle near to the Tyne and replace it with a nine storey building. The applicant council thought that what was necessary under Section 62(3) was a) a satisfactory site plan (that of course was a national requirement) and, from the “local list”, six further items: first, a daylight/sunlight study; second, a bat survey; third, a contaminated land survey described as a desktop survey, (that is, as I understand it, without there being a physical survey of the land to establish contamination); fourth, a wind assessment; fifth, an archaeological desktop survey; and sixth, information about views and a photo montage.[14]None of those had been provided. Therefore the local planning authority, the applicant council, did not determine the application which had been made to it. I should add that in matters which were later ventilated in correspondence, the local planning authority took the view that a wind assessment could not be insisted upon since it did not appear in the advertised list of local matters.[15]On 7 November 2008 the interested party submitted an appeal to the planning inspectorate that the council had failed within 8 weeks to respond to his original application. On 20 November 2008 the council wrote to the planning inspectorate stating that they did not consider the application to be valid because it omitted the documents which I have mentioned. The planning inspectorate confirmed in response that “valid applications must meet the mandatory national requirements set out in annex A of circular 02/2008 and any additional information specified by the local planning authority and pre-published on its website”[16]The planning inspectorate’s letter of 26 November stated that the Secretary of State would determine whether or not the information submitted by the applicant met the legislative requirements and indicated that that would inform whether the appeal could proceed further or if further information was required.[17]In a further letter from the planning inspectorate of 14 January 2009 it was said that a valid application must include amongst other things further information judged by the local planning authority as reasonably necessary to consider the application. It went on to say that on the basis of the evidence submitted to the inspectorate it did not consider that the application was “manifestly invalid by absence of the requested information listed by the local planning authority from its local list”[18]This suggested to the council that the planning inspectorate might be taking the view that it could determine for itself whether or not the information was or was not necessary. That fear was compounded and confirmed when on 11 June 2009 in a letter from the planning inspectorate this was said:
“The task of establishing whether the national list requirement has been met is largely factual, whereas the necessity of the discretionary items requested by the council from its local list is much more difficult to judge without first hand knowledge of or sight of the site and …the inspectorate does not consider that it can say with certainty whether the discretionary local list information is or is not required to allow the application to be properly considered.”
Accordingly the planning inspectorate was asserting that it could itself determine what was necessary for the planning application to be valid.[19]Against this background the claimant argued that it was not for the Secretary of State to second guess a local planning authority on matters which by statute were for it to determine. In his letter of June 2009 the Secretary of State (acting by the planning inspectorate) proposed to go too far. He was not entitled to do this as if he were able afresh to exercise his own determination as if he were the local planning authority.[20]The argument referred to paragraphs 20 and 30 of circular 02/2008. Paragraph 20 I have already recited. Paragraph 30 is advisory upon the local authority urging it to be in a position to justify the need for information before declaring an application invalid, and Mr Ponter added that as for the question of process the effect of the Secretary of State asking “is it manifestly invalid?” where that question was answered in the negative was to cause there to be an appeal which involved a considerable waste of time, trouble and expense in the course of its determination if, in the event, it was indeed invalid and that therefore invalidity should be determined discreetly and separately as a first step in the determination by the Secretary of State.[21]The defendant submitted that one should take as a starting point the right of appeal conferred by Section 78. Miss Davies submitted that the question for the Secretary of State was whether he had jurisdiction over any appeal, that this was not dependent upon the view that a local planning authority took of that question, and she supported that by referring to that which Schiemann LJ had said in the case of Gill v the Secretary of State for the Environment [1998] All ER [digest] 713. I shall return to what he said in due course when I consider the authorities. She made reference to the subsequent consideration of the Court of Appeal in the case of R (Bath and North East Somerset District Council) v Secretary of State Court of Appeal 26 May 1999 QPCOF 1099/0112/4. In particular she pointed in that case to the conclusion in the judgment of Pill LJ, with which Otton and Roch LJJ. agreed that the words “which the local authority considered to be valid” could not be read into Section 78 of the Town and Country Planning Act in order to govern the word application, and they concluded that a determination of invalidity by a local planning authority did not exclude the right of appeal to the Secretary of State on the question of validity.[22]Miss Davies argued that there has to be a purpose behind a right of appeal, which it was common ground in this case existed; that if the invalidity was simply a clear matter of determining whether particular requirements had on the face of them being honoured or not it was in effect a simple clear cut exercise and therefore in effect deprived the appeal process of any real meaning. She argued that there was no clear cut line between a precedent fact and other matters such as necessity and referred in that respect to the guidance which had been provided by the circular.[23]As to whether the Secretary of State was obliged as a first step to determine the issue of validity, she submitted that it was open to the Secretary of State to adopt the pragmatic approach which he had adopted in this particular case, that given the nature of the discretionary items requested by the council it was not possible to determine conclusively on the basis of the papers alone whether the information was required to allow the application to be properly considered. And she took as an example to illustrate her argument one item from the local list applicable to the local planning authority, in this case that of an assessment of land contamination. There what was published on the website read as follows:
“For all new development with a sensitive end use (e.g. residential, nurseries, schools) a minimum of a Preliminary Risk Assessment (PRA) will be required regardless of the history of the site, contaminated or otherwise. Also, for all new developments on land which adjoins an affected contamination site a PRA will be required as a minimum. Dependent on the site and end use and the potential for contamination to affect the development proposals, it may be a requirement that a PRA, Site Investigation and Risk Assessment and Remediation Strategy need to be submitted with the application.”
There are a number of phrases in that requirement which are pregnant with uncertainties. What is, for instance, a sensitive end use? What precisely is involved in a preliminary risk assessment? If a preliminary risk assessment is required as a minimum, what is actually being required? What precisely is the relevance of site and end use and the potential for contamination to affect development proposals to the decisions that might be made as to whether site investigation, risk assessment and remediation strategies need to be submitted?[24]Both counsel referred me to the two Court of Appeal authorities which I have mentioned. The case of Gill was a very different case on its facts, relating as it did to an appeal against an enforcement notice in circumstances where a local planning authority had not returned the fee paid for an application for retrospective planning permission though holding that the application was invalid. There were at that time no formal requirements in the legislation as to validity. What Schiemann LJ said, accepted as obiter at what is page 8 of 10 of the report put before me in a Section headed “a) Cases other than EN [that is, enforcement notice] cases” at paragraph 3 was:
“The Act has not provided for an appeal against a decision to declare an application invalid. If the applicant tries to appeal under Section 78 (2) in order to bring himself within the section he would have to assert that he is a person who has made an application for PP” [that is planning permission]. “If he does so assert the 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 PP. 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 ….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 fact that a local planning authority has failed after declaring the application invalid to return the fee is wholly irrelevant.”
[25]In R (Bath and North East Somerset District Council) v Secretary of State for Environment Transport and the Regions the Court of Appeal, again dealing with the precursor statutory provisions, had to decide whether or not the Secretary of State had the right to consider the validity of a planning application when a local planning authority had rejected it as invalid. If invalid it could not form the basis for his jurisdiction. The issue set out in the judgment of Pill LJ at page 2 was “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”.[26]The local planning authority there submitted that it alone had the power to decide if there was sufficient detail within an application to entertain it as a valid planning application. They argued that if they decided there was not then the Secretary of State had no power to second guess them. The case turned upon the interpretation of the legislative provisions in force at the time, of which only Section 78 survives unamended in any material respect to this day.[27]The judgment however noted that the statutory provisions relating to planning applications as at the time that the case was heard were split between the Town and Country Planning General Development Procedure Order 1995 (“GDPO”) and the Town and Country Planning Applications Regulations. The GDPO as I have noted has been amended. Regulation 3 of the latter regulations, the 1988 regulations, provided that an application for planning permission should be made on a form provided by the planning authority and should include the particulars specified in the form. Section 10 of the Listed Buildings Act provided that an application should include amongst various items “such other particulars as may be required by the authority”.[28]Regulation 4 of the 1988 Regulations entitled “Directions by the Local Planning Authority” provided that a local planning authority could direct an applicant in writing to supply further information. In that case no such directions were given.[29]The answer that the court gave to the question whether there was any appeal which the Secretary of State could entertain at all, and whether he could consider for himself whether a purported application was valid was: yes, he could. He could determine the validity of the application, but it was emphasised that a planning authority’s conclusion that an application was not valid was not binding upon the Secretary of State, nor did it fetter his ability to decide that issue for himself.[30]All that is as I have indicated accepted by counsel for the claimant here. None of it affects the principles by which a decision maker is to determine whether validity has or has not been established. As I have said, the matters thus far decided are not controversial for present purposes but the appellant argues that it begs the question as to the test to be applied to determine validity and notes in that respect what was said at a later stage in the judgment of Pill LJ. What he said was:
“As the judge pointed out, it is not stated in terms in the statutory provision is 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 which 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".”
He argues that that sets the context within which the Bath case was determined: one in which the applicable statutory provisions did not suggest that a local planning authority was entitled to judge what was necessary to be submitted in an application.[31]Miss Davies for her part does not and cannot draw from the Bath case a test by which the Secretary of State is entitled to decide validity, although she can point to the agreement that there is an appeal encompassing validity as the foundation for her submission that the starting point for the court’s determination is necessarily Section 78. In effect what she submits is that if there is an appeal and that includes determination of validity then the Secretary of State can determine for himself that which by statute is said to be for the decision of the local planning authority.[32]It is to be noted from the Bath case that despite the terms of the Listed Buildings Act referred to in the citation I have just read, the court concluded as Pill LJ said:
“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.”
[33]Having determined that on a purposive reading of the Act, noting the powers of appeal in many respects conferred by many sections of the Act, that there must be an appeal even on the question of validity, he concluded that there could be no different a position under the Listed Buildings Act.

Conclusions

[34]In my view Section 78 has to be read consistently with Section 62.3 and Article 20, that is, that a planning application is to be regarded as valid only if it contains requirements thought necessary by the local planning authority or specified by the local planning authority - provided that their requirement is consistent with the development order made under 62(1), see to that end Article 20 paragraph (3A). It must also be the case that they may insist or regard as necessary for the purposes of validity only those matters which have been included in the local list published on the website under paragraph (3A) of the general development order. Validity in my view is a concept which must be understood in the light of the cases, which are to the effect that an application if it is invalid cannot be considered as the foundation for any jurisdiction of the Secretary of State in an appeal and he must decline jurisdiction, just as if a local planning authority treats an application as invalid they are entitled not to determine it.[35]Whatever the position may have been in Bath and in Gill, since the statutory changes there is in my view no room here for doubt as to what is or what is not a valid application in principle. That is defined by Article 20 which refers to Section 62(3). In particular it seems to me that Article 20 means that an application is valid if it contains in part the particulars or evidence required by an authority under Section 62(3), and therefore it is invalid if it does not. And Section 62(3), containing as it does the words that the local planning authority may require that an application must include “such particulars as they think necessary”, is making the local planning authority the arbiter of what is necessary. The wording is not, as it might otherwise have been, “as are necessary” or for instance some such longer phrase as “such particulars as are items chosen from a local list by the local authority as may be necessary”. That would leave the question of what is necessary for the determination of others but that is not what the statute says.[36]The Secretary of State may therefore ask if the applicant has acted sufficiently so as to comply with the requirements of the local planning authority: he may assert that he has, and the local planning authority may assert that he has not, but what is not in issue in my view is the requirement itself, merely whether it has been satisfied by what the applicant has done. There is no provision for an appeal from the Secretary of State against the local authority’s decision to impose the requirement as to what they consider necessary. Any appeal in that respect is in my view properly to be brought by judicial review by someone in a position such as the interested party in this case and not by the reference of the planning application or purported application by someone in such a position to the Secretary of State under the Section 78 appeal procedure.[37]What the Act does not say is that the Secretary of State on appeal may determine whether the local planning authority reasonably required the items which they have thought necessary or further, as the Secretary of State asserts, he may hear whether it was in the circumstances of any case necessary for the local planning authority to make the requirement. The Secretary of State is not given the powers of the court in that respect. Indeed it seems to me that the whole point of the way in which Section 72 has been redrafted together with Article 20 of the GDPO is to provide that the Secretary of State may make certain provisions for the whole country as to the contents of a planning application in the standard form planning application which was introduced at the time of these provisions, but that the local planning authority will have regard to local conditions which necessarily the Secretary of State cannot be so familiar with. The local planning authority is responsible to a local electorate for whom the Secretary of State has no specific responsibility since his responsibilities are, instead, national. It is difficult for the Secretary of State to put himself into the shoes of a local planning authority in determining what is necessary in the light of local conditions when the Secretary of State does not have specific local perspective, and that may well be one reason why the Act is drafted as it is, so as to provide for the input of the local planning authority into that which is it is necessary to provide to make valid an application for planning permission.[38]Taking this as the purpose of these provisions, therefore, it does not seem to me contrary to any purposive approach to the statute to take the view which I do that validity or invalidity is to be approached by accepting the local planning authority’s decision as to what is necessary, provided those items come within Article 20 of the GDPO and subject of course always to a potential challenge of those requirements as appropriate by the interested party.[39]In my view so to decide does not deprive an appeal under Section 78 of its substance. I have been troubled by the examples which Miss Davies has produced as to some of the uncertainties which are inherent in the language of some items from the local list. However, Mr Ponter points out that there may be difficult issues which will arise as to their interpretation, but whether the item itself is necessary or not for the application for planning permission to be valid is nonetheless a matter for the decision of the local planning authority.[40]I am conscious that I have dealt therefore with the first and central point on this appeal. As to the second point, that which I mentioned first in time at the start of this judgment, it seems to me that it is for the Secretary of State to decide how to resolve the issue of validity which it is open to him on any appeal to resolve. It is not for the local planning authority to dictate to him the form in which he will do that. It is agreed that he will need to resolve the question of validity as a precondition for allowing any wider appeal but it is for him, as it seems to me, to judge what is the most effective procedure by which he should do that. There is nothing unlawful in my view in his taking a pragmatic approach. It may well be that if what informed his choice in this particular case was a view of the test of validity to be applied, which was erroneous as it appears to me to be for the reasons I have given, then he might otherwise have adopted a more summary procedure, but that, as it seems to me, must be a matter for him and it is not something upon which this court would dictate any particular conclusion.[41]It follows that the application must be allowed. Mr Ponter, do you wish a declaration? MR PONTER: My Lord, I do not seek a declaration. The relief sought in the claim is that the decision of 11 June 2009 be quashed, and I am content that an order be made in those terms. The Secretary of State has the full content of your judgment and will no doubt bear that well in mind when it comes to reconsider that determination. MR JUSTICE LANGSTAFF: Yes, that seems to me perhaps appropriate. What do you say about that? MR EVANS: My Lord, that seems to me appropriate as well. The Secretary of State will no doubt take careful note of the judgment and then be informed by that, so in those circumstances I am not sure a declaration would be… MR JUSTICE LANGSTAFF: It would not add anything so I shall not make it and I shall simply say then that insofar as the letter of 11 June contains a decision to approach the appeal applying the test there indicated, it is quashed. MR PONTER: My Lord, I make an application for the claimant's costs in this matter. A schedule was provided, I understand, to the court as well as to the defendant that contains a total of some £16,700 odd, but, my Lord, there has been some discussion this morning between respective solicitors of the parties and a global figure of £13,000 has been agreed between those parties MR JUSTICE LANGSTAFF: So that is what you are advising me to award …. MR PONTER: My Lord, I am inviting your Lordship to summarily assess our costs at £13,000 which I understand is an agreed figure. MR EVANS: That is an agreed figure, my Lord, and obviously there can be no dispute as to the principle of costs. My Lord, whilst I am on my feet I do ask for permission to appeal. I think I have to put that submission primarily on the basis of the point of general importance that arises in respect of the planning system and the role of the inspectorate in cases of this nature, which I think once before the court has told us it is quite a common occurrence so I do make an application, my Lord. MR JUSTICE LANGSTAFF: Yes. Very well, the application is refused. It is refused on this basis, that it seems to me that the statutory provisions now in force are clear. However, there is a second ground upon which an appeal may be considered, that is the point is of general public interest. It seems to me that there is some force in that submission but not sufficient in my view for me to grant permission for appeal, but if you wish permission you must therefore go to the Court of Appeal itself. MR EVANS: So be it, my Lord. MR JUSTICE LANGSTAFF: Can I thank you, and through you, Miss Davies, for the quality of the submissions which have been given to me.

Cited in 1 later judgment