Gleeson Developments Ltd., R (on the application of) v Secretary of State for Communities and Local Government & Anor [2013] EWHC 3166 (Admin)

[2013] EWHC 3166 (Admin)

Case No CO/5096/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Bristol Civil Justice Centre

Redcliff Street

Venue Bristol, BS1 6GR

Date 21/10/2013

Before

MR JUSTICE CRANSTON

Between

The Queen on the application of Gleeson Developments LtdClaimant

(1) Secretary of State for Communities and Local GovernmentDefendants

(2) The Planning InspectorateDefendant

Wiltshire CouncilInterested Party

John Litton QC and David Blundell (instructed by Head of Legal Services, Glesson Developments Ltd) for Claimant

Jonathan Swift QC and Charles Banner (instructed by Treasury Solicitors) for Defendants

Hearing Hearing date: 7 October 2013

Approved Judgment

Introduction

[1]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 Moreover, the only basis on which the planning permission generated by the planning inspector could have been withdrawn was for it to have been revoked and the claimant paid market value compensation.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

[2]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 inspectorto 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.

[3]Mr Thompson held a public inquiry which sat over 8 days between 22 January and 15 February 2013. It included an accompanied site inspection on 28 January 2013. On 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.

[4]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.

[5]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.

[6]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.

[7]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.”

[8]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.

[9]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.

[10]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 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”.

[11]That same day Mr Thompson appears to have learnt informally about what had happened. He later converted his decision letter into an abbreviated version of a Secretary of State’s report for the purposes of the decision which was now to be taken by the Secretary of State.

[12]The present claim was commenced on 30 April 2013. Permission was granted on the papers by Hickinbottom J on 17 June 2013. Essentially the claimant seeks to challenge two decisions, firstly, the decision by the planning inspectorate on 19 March 2013 purporting to withdraw Mr Thompson’s decision letter and secondly, the Secretary of State’s letter dated 20 March 2013 purporting to recover the appeal for his own determination.

Legal and policy framework

[13]A principle of planning law is that the Planning Acts provide a comprehensive statutory code: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment

[1985] 1 AC 132

, 140H-141C, per Lord Scarman. The Town and County Planning Act is the key legislation in this judicial review.

[14]The Secretary of State has power under section 77 of the 1990 Act to call in a planning application for his own determination as opposed to the determination by a local planning authority. In R (on the application of Persimmon Homes Ltd) v Secretary of State for Communities and Local Government)

[2007] EWHC 1985 (Admin)

; [2008] JPL 323, Sullivan J observed that the Secretary of State’s discretion on whether or not to exercise his call-in power “is very broad indeed” [49] and held: “Given the breadth of discretion in Section 77, any challenge on the grounds of perversity faces a well-nigh impossible task. The question for the Secretary of State is not whether there may be conflict with national policy and whether the conflict involves important matters, but whether planning issues of more than local importance are involved. It is difficult to conceive of a more judgmental decision and one which therefore is more difficult to challenge on the grounds of Wednesburyperversity”: [69].

[15]A person may appeal to the Secretary of State from a refusal by a local planning authority of planning permission under section 78 of the Act. Section 79 enables the Secretary of State to allow or dismiss such an appeal or to reverse or vary any part of the decision of the local planning authority. In handling the appeal the Secretary of State may deal with it as if the planning application had been made to him in the first instance: s 79(1). If the appellant or the local planning authority so wishes, the Secretary of State may give each an opportunity of appearing before by the person he appoints for the purpose: s 79(2). Section 79(7) gives effect to schedule 6 of the Act. Paragraph 1(1) of Schedule 6 empowers the Secretary of State to prescribe classes of appeals which are to be determined by persons so appointed and the regulations provides for appeals to be determined by planning inspectors, not the Secretary of State. Paragraph 2 of that schedule confers on a person so appointed the same powers and duties in relation to appeals under section 78 as the Secretary of State has under section 79. The planning inspectorate, which is an executive agency within the Department of Communities and Local Government, arranges for planning inspectors to be appointed to hear such appeals.

[16]Section 97 of the Act provides for a power to revoke or modify planning permission once granted: s 97(1). In exercising that power the local planning authority must have regard to the development plan and to any other material considerations: s 97(2). Procedures for making orders under section 97 are set out in sections 98 and 99. Section 100 enables the Secretary of State to make a section 97 order himself if it appears to him that it is expedient to do so: s 100(1). That order has the same effect as if it had been made by the local planning authority and confirmed by the Secretary of State: s. 100(2). Decisions to revoke or modify a planning permission carry a statutory right to compensation: ss. 107-113. In giving judgment in R (Health and Safety Executive) v Wolverhampton City Council

[2012] UKSC 34

[2012] 1 WLR 2264

, Lord Carnwath said (and the other members of the Supreme Court agreed): “[S]ection 97 creates a specific statutory power to buy back a permission previously granted”: [51].

[17]Paragraph 3 of Schedule 6 enables the Secretary of State to recover for his own determination appeals which would otherwise be heard by an inspector. In material part it provides: “(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. … (7) In determining the appeal the Secretary of State may take into account any report made to him by any person previously appointed to determine it.” (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.

[18]The Secretary of State’s policy on the exercise of the power to recover a planning appeal is set out in a Ministerial Statement dated 30 June 2008 (“the ministerial statement”), which provides: “The majority of planning appeals in England are decided by inspectors, but a small percentage is decided by the Secretary of State for Communities and Local Government, usually because the development is large and/or controversial. Around 27,000 appeals are made each year: in 2007, 110 appeals were determined by the Secretary of State. … In future the Secretary of State will consider recovery of appeals involving:• proposals for development of major importance having more than local significance;

• proposals giving rise to substantial regional or national controversy;

• proposals which raise important or novel issues of development control, and/or legal difficulties;

• proposals against which another Government Department has raised major objections or has a major interest;

• proposals of major significance for the delivery of the Government’s climate change programme and energy policies;

• any proposal for residential development of over 150 units or on sites of over five 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;

• proposals which involve any main town centre use or uses (as set out in paragraph 1.8 of PPS6) where that use or uses comprise(s) over 9,000m(2) gross floor space (either as a single proposal or as part of or in combination with other current proposals), and which are proposed on a site in an edge-of-centre or out-of-centre location (as described in Table 2 of PPS6) that is not in accordance with an up-to-date development plan document prepared in accordance with the policy in PPS6;

• proposals for significant development in the green belt;

• major proposals involving the winning and working of minerals;

• and proposals which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site. There may on occasion be other cases which merit recovery because of the particular circumstances.”

• proposals for development of major importance having more than local significance;

• proposals giving rise to substantial regional or national controversy;

• proposals which raise important or novel issues of development control, and/or legal difficulties;

• proposals against which another Government Department has raised major objections or has a major interest;

• proposals of major significance for the delivery of the Government’s climate change programme and energy policies;

• proposals for significant development in the green belt;

• major proposals involving the winning and working of minerals;

• and proposals which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site.

[19]The criteria have most recently been reaffirmed in the draft National Planning Practice Guidance, published by the Secretary of State on 28 August 2013. In the “Appeals” section, under the heading “Who decides the appeal?” it is stated 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.”

Under the heading “What type of cases could be recovered for decision by the Secretary of State?”, the recovery criteria include the same criterion relating to development of over 150 units or on sites of greater than 1.5 hectares, and subject to requirements essentially the same as in the ministerial statement.

Recovery of the planning appeal: effectiveness

[20]The claimant challenges the Secretary of State’s direction to recover jurisdiction over the planning appeal. The first aspect of the challenge is to the effectiveness of the recovery decision: in the claimant’s submission the Secretary of State’s direction to recover the appeal did not take effect until after Mr Thompson, the planning inspector, had determined it. The argument is that the recovery direction post-dated the inspector’s determination of the appeal because it was not served on the inspector or the parties to the appeal prior to the inspector’s determination being issued. In the claimant’s submission service of the appeal is a prerequisite to its effectiveness.

[21]In advancing this ground the claimant points to the requirements for a lawful direction of recovery set out in paragraph 3(2) of Schedule 6 of the 1990 Act. It must state the reasons for which it is given and shall be served on the appointed person (if any), the appellant, the local planning authority and any person who has made representations on the subject matter of the appeal. Paragraph 3(3) then provides for the consequence of such a direction, namely that an appeal falls to be determined by the Secretary of State. Accordingly the claimant submits that the only way that the Secretary of State can recover jurisdiction from an inspector on a section 78 appeal is to issue a direction pursuant to paragraph 3 of Schedule 6 to the 1990 Act before the inspector, who has otherwise been appointed, issues his decision. To be effective that direction must contain the reasons for it and be served on the relevant persons. A direction which does not comply with these requirements is not a lawful direction. The effect of paragraph 3(3) is that only if a direction has been made and served in accordance with paragraph 3 of Schedule 6 is jurisdiction recovered by the Secretary of State, given the reference to the appeal falling to be determined by the Secretary of State in consequence of a direction.

[22]The claimant underlines its construction of paragraph 3 of Schedule 6 of the 1990 Act by reference to general public law principles: fairness requires that decisions of public authorities only take effect on their notification to those affected. In this regard the claimant placed heavy reliance on the decision of the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department

[2003] UKHL 36

;

[2004] 1 AC 618

. In that case, officials acting for the Home Secretary made a note on an internal file that the appellant’s asylum application had been rejected. The decision was notified to officials acting for the Secretary of State for Work and Pensions and the appellant’s income support was stopped as a result. But the appellant was not notified of the decision, which was only communicated to her some five months later. The House of Lords held that she was entitled to income support for the five month period, i.e. until proper notification to her of the determination. Lord Steyn (with whom Lords Hoffmann, Millett and Scott agreed) referred to the importance of the matter in public law terms: [21]. The arguments for the Home Secretary ignored fundamental principles: [26]. “[26] Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system ... [28] This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected.” Lord Steyn added that fairness was a guiding principle in public law, citing Lord Diplock in R v Commission for Racial Equality, ex parte Hillingdon London Borough Council

[1982] AC 779

, 787, (“[when] making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision.”) Thus if decisions are published or notified to those concerned the accountability of public authorities is achieved. Elementary fairness therefore supports a principle “that a decision takes effect only upon communication … [T]he decision was provisional until notified”: [30], [32].

[23]Support for the claimant’s position was also derived from Secretary of State for the Home Department v Ahmadi

[2013] EWCA Civ 512

, where the Court of Appeal considered the powers of the Secretary of State to give or refuse leave to enter and to remain in the United Kingdom, in section 4(1) of the Immigration Act 1971, which “shall be exercised by notice in writing given to the person affected”. In his judgment (with which Sir Stanley Burnton and Briggs LJ agreed), Sullivan LJ said that notice in writing under that section was not a subsequent step following the exercise of the power, but the way in which the power was exercised: [22]. Sullivan LJ contrasted this provision with sections 82 and 105 of the Nationality, Immigration and Asylum Act 2002, where there was a distinction between the making of an immigration decision and the giving of written notice of that decision to the person concerned.

[24]In this case, the claimant submitted, the planning inspector had issued his decision letter before the direction of Mr Boles MP was served on the parties. There was doubt as to whether the planning inspector, Mr Thompson, was ever served with Mr Boles’ direction; he appeared to learn of it informally. Notification by Mr Watson to the Planning Inspectorate at 1.03pm on 18 March was not sufficient, since the statutory language demanded service on the person “so appointed”, in this case Mr Thompson, as well as the appellant and others. Certainly the appellant was not served with Mr Boles MP’s direction until after it received Mr Thompson’s decision letter at 3.39pm that same day. The constitutional principle in Anufrijeva was a complete answer to a contrary interpretation of paragraph 3 of Schedule 6, since it required service of the decision in question before it could have legal effect. In the absence of a lawful direction under paragraph 3 of Schedule 6, full jurisdiction to determine a section 78 appeal remained with the appointed person, Mr Thompson, as the planning inspector.

[25]I have no hesitation in rejecting these submissions. In my view the requirements of paragraph 3(2) of Schedule 6 of the 1990 Act are equivalent to sections 82 and 105 of the Nationality, Immigration and Asylum Act 2002 mentioned by Sullivan LJ in Ahmadi; they are not comparable to section 4(1) of the Immigration Act 1971, at the heart of the decision in that case, where notice of a decision was the manner in which the power was exercised. Here the plain words of paragraph 3 separate the making of a direction in sub-paragraph (1) and its service in sub-paragraph (2) (“and shall be served on …”). If Parliament had intended otherwise it would have used other language (for example, “and should be exercised by service on …” or “and should take effect by service on …”). That construction is supported by the practical consequences of the claimant’s approach, which is that the Secretary of State’s direction to recover the appeal would not be effective until every one of the consultees identified in paragraph 3(2) was served with it. The omission by mistake to notify one consultee would mean, on this argument, that the recovery direction would not be effective. That cannot have been the Parliamentary intention.

[26]The principle stated by Lord Steyn in Anufrijeva has no application in this context. Despite the wide language of some parts of Lord Steyn’s speech it is clear that the principle that a decision takes effect only on notification is confined to situations where it would adversely affect a person’s position. That is clear from the passages quoted at paragraphs [26] and [28] of Lord Steyn’s speech and from Lord Steyn’s reliance on Lord Diplock’s speech in R v Commission for Racial Equality, ex parte Hillingdon London Borough Council. The Secretary of State’s direction to recover jurisdiction to determine the planning appeal in this case cannot be said to have affected the claimant’s position. All it did was to substitute the Secretary of State for the planning inspector as the decision-maker in the claimant’s appeal. Mr Boles MP’s direction to recover jurisdiction took effect at the latest when Mr Watson notified the planning inspectorate of it. The claimant learnt of it the next day. The hypothetical situation of the claimant not being notified for weeks of the direction does not arise in this case and I need say nothing about it.

[27]Thus the direction to recover the appeal was in force when Mr Thompson’s decision letter on the planning appeal was mistakenly issued later that afternoon. At that point Mr Thompson no longer had any function to perform and the issue of his decision letter in error was to no effect. That follows as a matter of basic principle, that a person deprived of legal authority to perform a function cannot subsequntly issue any decision having legal effect. If authority is needed it can be found in two decisions in the planning context, Norfolk County Council v Secretary of Stare for the Environment

[1973] 1 WLR 1400

, 1404 E-G, per Lord Widgery CJ and Cooperative Retail Service Ltd v Taff-Ely BC

(1980) 39 P&CR 223

, 238-9, per Lord Denning MR. A contrary conclusion is not required by the Anufrijeva principle nor by any legally recognised principle of open government.

Recovery direction: consultation and rationality

[28]The claimant’s second ground of challenge to Mr Boles MP’s recovery direction is that if it was effective, it was nonetheless unlawful. One reason is that it was issued without consultation, which was required in the circumstances of this case. The claimant had participated fully in the proceedings, including an eight-day inquiry before Mr Thompson. It had expended considerable resources and effort on pursuing the appeal, on the basis that he would be making a decision as to whether to grant planning permission. It could acquire a substantial and valuable benefit by way of the grant of the planning permission. There was also the fact that the Secretary of State had already decided in late October 2012, not to recover jurisdiction on precisely the ground the Secretary of State now invoked (i.e. the construction of more than 150 dwellings or on sites of over 5 hectares). In all those circumstances it was incumbent on the Secretary of State to consult and to invite submissions from the claimant and other relevant parties as to whether he should recover jurisdiction. Fairness demanded that because the parties had relied to their detriment on the process which the Secretary of State had allowed to take place: e.g. R v Secretary of State for Education, ex parte Southwark London Borough Council

[1995] ELR 308

, 320F, per Laws LJ.

[29]In the claimant’s submission a second reason that the recovery direction was flawed followed from the only justification the Secretary of State gave for it, set out in the letter of 20 March 2013. That referred to the 150 dwellings or more than 5 hectares criterion. But that was irrational because the Secretary of State rejected that reason at the start of the process, in late October 2012. There is no explanation as to what changed in the interim to make this a valid reason for recovering jurisdiction in March this year. That demonstrated legally inadequate reasons: South Buckinghamshire DC v Porter (No 2)

[2004] UKHL 33

[2004] 1 WLR 1953

, at [36] per Lord Brown. Moreover, in the claimant’s submission it appears that the real reason for the recovery of jurisdiction was the publication of the draft neighbourhood plan for Malmesbury. If that were the real reason for recovery, it is not one that was ever disclosed to the claimant. But even that picture is muddied, in the claimant’s submission, because of the internal discussions as to the line the department would take prior to Mr Boles MP authorising the issue of a short, factual statement in the early evening of 19 March 2013. Taking the reasons given in the letter at face value, the reference to 150 units or development on more than 1.5 hectares is not, in itself, sufficient to justify recovery under this head since the proposals must “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”. The Secretary of State has at no stage referred to any evidence which would demonstrate that this essential aspect of the recovery criteria was met.

[30]In my view these submissions lack merit. There is no provision in the 1990 Act that the Secretary of State may not recover an appeal without having first consulted the parties to it. Moreover, the courts are slow to read into legislation obligations to consult where it makes no such provision for it: see BAPIO v Secretary of State for Health

[2007] EWCA Civ 1139

, [41]-[42], per Sedley LJ. Finally, the decision to recover went to the identity of the decision-maker, not to the outcome of the appeal and the impact that could have on the claimant’s rights.

[31]The claimant’s protestation that fairness required such consultation because the parties had relied upon the process which had taken place thus far does not take the position any further, since paragraphs 2 and 4 of Schedule 6 specifically contemplate that the Secretary of State may recover an appeal after representations have already been made to the planning inspector. The position of the parties to the appeal is safeguarded by paragraph 3(4), which provides that, after a recovery direction has been made, further representations can be made to the Secretary of State. Paragraph 3(7) means that any decision letter the planning inspector has prepared need not be wasted, since it will be used to inform the Secretary of State’s decision on the planning appeal.

[32]I accept that the March 2013 recovery letter falls short in explaining the reasons for the recovery direction. In my view, however, its inadequacies do not constitute a legal flaw. Under paragraph 3 of schedule 6 of the 1990 Act the Secretary of State’s power to recover appeals for his own determination is framed in broad terms. The reason Mr Boles MP directed recovery of jurisdiction over the appeal was the publication in March 2013 of the draft neighbourhood plan and the fact that the claimant’s proposed development was inconsistent with it. As explained earlier in the judgment, the coalition government considers that neighbourhood plans, introduced by the Localism Act 2011, enable people to influence decisions about new and modified buildings in their area. Thus they can be said to play an important role in delivering sustainable and inclusive development. In that sense the claimant’s proposed development would, due to its conflict with the neighbourhood plan, “significantly impact on the Government’s objective to… create high quality, sustainable, mixed and inclusive communities”. That is one of the situations in the ministerial statement in which the policy on recovering planning appeals contemplates that proposals for residential development of over 150 dwellings or 1.5 hectares may be recovered. That was the reason given in the letter. Thus it was substantially correct. This is nothing like the situation in R v Westminster City Council, ex parte Ermakov

[1996] 2 All ER 302

, where the reasons given were not the real reasons. Any inconsistency in the way this criterion is expressed in the National Planning Practice Guidance must give way to the ministerial statement.

[33]Given the Malmesbury draft neighbourhood plan and how it can be reconciled with government policy on recovering planning appeals, it is untenable for the claimant to suggest that the Secretary of State failed to have regard to the policy contained in the ministerial statement. The claimant’s reliance on the department’s earlier decision in October 2012, at the outset of the appeal, not to make a recovery direction, ignores the fact that the draft neighbourhood plan was not available at that stage. In reality the claimant knew the situation had changed with the draft neighbourhood plan, not least because it made submissions about it to the planning inspector, Mr Thompson. There could be no significant prejudice to the claimant because of the letter’s inadequacy. The claimant tried to make something of the internal departmental discussions, and the view of a special adviser. That is hopeless since it is well established that when a decision is taken by ministers, the relevant question is what was in their mind and not that of their advisers: R (National Association of Health Stores) v Department of Health

[2005] EWCA Civ 154

, [34], per Sedley LJ (the contrary position “is the law according to Sir Humphrey Appleby”). The claimant’s challenge does not surmount the high hurdle the authorities set: see Tesco Stores Ltd v Secretary of State for the Environment

[1995] 1 WLR 759

, 780, per Lord Hoffmann. There is no basis for quashing the recovery letter.

Withdrawal of the planning inspector’s decision letter

[34]This issue only arises if I am wrong and the direction to recover the planning appeal was neither effective nor lawful with the result that the planning inspector’s decision letter on 18 March 2013 granted the claimant planning permission. The claimant challenges the lawfulness of the decision on 19 March 2013 to withdraw the inspector’s decision letter granting planning permission. Its case is that the decision to withdraw was ultra vires and unlawful. There is no statutory power to withdraw a valid grant of planning permission in the 1990 Act, which is a complete code of planning law. Moreover, there is an express power to revoke or modify a planning permission in sections 97-100 of the 1990 Act but that carries a right to compensation if it is exercised. The suggestion that either the withdrawal letter of 19 March 2013 (or the direction letter of 20 March 2013) could have been effective to revoke the planning permission granted on 18 March 2013 is inconsistent with the comprehensive statutory scheme.

[35]The Secretary of State’s case is that, in circumstances such as the present where, in the time between the Secretary of State informing the planning inspectorate of his direction to recover a planning appeal and the formal service of that direction, an inspector inadvertently publishes his decision letter on that appeal, the Secretary of State has power to withdraw it, provided he does so in accordance with ordinary public law principles. He contends that such a power can be implied in the 1990 Act as a matter of statutory construction. In his submission the fact that the 1990 Act is a comprehensive code of planning control does not mean that the present circumstances can not be addressed in a reasonable and proportionate way. Within any legislative code there are implicit ancillary powers which facilitate the powers which an Act expressly confers.

[36]Three authorities throw light on the implication of a power to withdraw such as suggested by the Secretary of State. In R (Trustees of the Friends of the Lake District) v Secretary of State for the Environment

[2005] EWHC 281 (Admin)

;

[2002] 1 P&CR 23

Harrison J held that, although the power on the Secretary of State to make a call-in direction in section 77 of the 1990 Act did not contain an express power to withdraw such a direction, it was implicit that he could do so since “to hold otherwise would mean that, once the Secretary of State had called in a planning application, he would be duty bound to decide it himself even through, due to changed circumstances, it would be contrary to his own call-in policy to do so” [37].

[37]In his judgment in the Supreme Court in R (New London College Ltd) v Secretary of State for the Home Department

[2013] 1 WLR 2358

, with which Lords Clarke, Reed and Hope agreed, Lord Sumption held that the statutory power of the Home Secretary to administer the system of immigration control necessarily extended to a range of ancillary and incidental administrative powers not expressly spelt out in the legislation: [28]. Thus the Supreme Court held that since the Immigration Act 1971 empowered the Home Secretary to regulate the entry and stay of students in the United Kingdom, including the requirement to have a suitable sponsor, she was also entitled to take administrative measures for regulating sponsors, even though these did not fall expressly within the legislation, so long as they were not inconsistent with the Act or the Immigration Rules: [28]-[29]. Lord Carnwath agreed that it was possible to imply a statutory power, reasonably incidental to an express power, although he rejected any contention that a power could be derived from the general responsibilities of the Home Secretary in the area of immigration control, apart from the statutory and prerogative powers: [34].

[38]The third case is a decision of the High Court of Australia, Minister for Immigration v Bhardwaj [2002] HCA 11, where the issue was whether the Immigration Review Tribunal could reopen a decision it had made in error, because it had overlooked a letter submitted on behalf of the applicant. In his judgment Gleeson CJ stated:

“[8] The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officiois inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?”

[39]To my mind implying a power of withdrawal into the 1990 Act is the most troubling aspect of the Secretary of State’s case. If Parliament has not incorporated that power, especially in what has been characterised as a code of planning law, how can the court be justified in reading it in? As the claimant pointed out, the authorities the Secretary of State cited are not on all fours with the present case. The power to call in a planning application, considered in Trustees of the Friends of the Lake District applies only in the process of obtaining planning permission. Nothing comparable to the power of revocation in section 97 is relevant. As for the New London College case, it was a relatively short step to imply administrative arrangements to fill out the provisions regarding sponsors to make them effective. The claimant has also underlined the uncertain boundaries of a power of withdrawal – how extensive it would be and how long following grant of planning permission it could be exercised.

[40]Not without some doubt I have concluded that Parliament intended a modest power of withdrawal to be implied into the 1990 Act, to enable simple and obvious administrative errors to be corrected, within the relatively short time scale, as in the circumstances of this case. Applying the analysis of Gleeson CJ in Bhardwaj, it would be contrary to good administration to allow an administrative error of the kind which led to the planning inspector’s decision being inadvertently issued to have a permanent and irrevocable effect from the moment it was issued, regardless of how quickly the Secretary of State and the planning inspectorate sought to put it right. It would also be contrary to fairness, since that needs to be judged not only from the claimant’s standpoint but also having regard to the public interest and other parties to the planning appeal, including the local planning authority and those local residents who objected to the claimant’s development: Henry Boot Homes Ltd v Bassetlaw District Council [2003] 1 P & C R 23, per Keene LJ. I accept the Secretary of State’s submission that they would be entitled to consider it to be quite unfair for the claimant to benefit from an administrative error of the kind which happened in the present case by obtaining a planning permission from the inadvertently issued decision in circumstances where the Secretary of State had considered the issues raised by the appeal to be of sufficient importance for the appeal to be determined by himself.

[41]Exercise of the power of withdrawal is subject to the ordinary principles of judicial review and the Human Rights Act 1998. Nothing in the legislation is inconsistent with such a power, in particular the power of revocation in section 97. That power operates in a quite different context, where there has been a change of mind on the part of the planning authorities. That is not a case like the present, where a simple and obvious error has been made, in this case the dispatch officer at the planning inspectorate misunderstanding the instruction not to issue a decision letter on this planning appeal.

Article 1, Protocol 1 ECHR

[42]Finally the claimant contended that the actions of the Secretary of State have interfered with its legitimate expectation that planning permission had been granted. That amounted to a breach of its Convention rights under Article 1, Protocol 1. The claimant invoked Pine Valley Developments v Ireland

(1991) 14 EHRR 319

. In that case the grant of planning permission created a legitimate expectation of being able to carry out development in accordance with the permission, which was protected by the Convention, even though the permission was held to be void ab initio. In this case, if the planning inspector did not have the authority to grant planning permission, his decision letter contained on the face of it the expectation of a valuable right. That this was the case was attributable to internal error on the part of the Secretary of State, not to anything the claimant had done. To deprive the claimant of the benefit of the decision letter was a disproportionate interference with its rights without compensation under the Convention. There was certainly a chance that having considered the matter the Secretary of State would eventually grant planning permission, but at the moment the claimant had nothing.

[43]One difficulty with these submissions is that Pine Valley lends no support to the notion that the Secretary of State’s error gave rise to an expectation which is to be regarded as equivalent to the planning permission that was not granted. In that case the outline planning permission granted to the first applicant was eventually held to be void ab initio by the Irish Supreme Court. In the meanwhile a court had overturned the refusal of detailed planning permission and the land had been sold to the second applicant, which was owned by the third applicant. Subsequent to the Supreme Court decision, legislation in 1982 validated retrospectively grants of planning permission affected by the previous legislation, although obiter remarks of the Supreme Court suggested that the legislation did not touch on a refusal of planning permission. The Strasbourg Court held that there had been no violation of the applicant’s Article 1 Protocol 1 rights, although there was a violation of Article 14 in conjunction with Article 1 because the 1982 legislation did not benefit the second and third applicants and therefore discriminated against them.

[44]Whether or not the claimant had a legitimate expectation constituting property falling within Article 1 Protocol 1, it faces insuperable obstacles with the other dimensions to the exercise of that Convention right: set out in Sporrong and Lönnroth v Sweden (1982) 5 EHHR 35, [61]. Since the claimant was informed of the error within the day, any interference with its Convention right which arose from the Secretary of State’s direction to recover the appeal was de minimis. Moreover, the interference was justified as a fair balance between the claimant’s interests and the general public interest, given the nature of the error in this case. The fleeting nature of any property right which existed underlines that any interference with it could not be said to be disproportionate. Moreover, even though the appeal has been recovered for determination by the Secretary of State, the claimant’s right to a fair determination of its planning appeal by the Secretary of State remains protected.

Conclusion

[45]For the reasons I have given I have concluded that the claimant’s judicial review fails.

Cited in 1 later judgment

Ioannou v Secretary of State for Communities And Local Government & Anor 2013