England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QBD ADMIN COURT
(MR JUSTICE CRANSTON)

		Royal Courts of Justice Strand London, WC2A 2LL
		10 July 2014

LORD JUSTICE SULLIVAN:

Introduction

1. This is an appeal from the order dated 21 October 2013 of Mr Justice Cranston dismissing the appellant's claim for judicial review of: (i) a letter dated 19 March 2013 from the planning inspectorate purporting to "withdraw" a decision dated 18 March 2013 of a planning inspector, allowing the appellant's appeal under Section 78 of the Town and Country Planning Act 1990 ("the Act") and granting conditional outline planning permission for a residential development comprising up to 180 dwellings on lands south of Filands, Malmesbury, in Wiltshire; (ii) a direction dated 20 March 2013 made by the Secretary of State purporting to recover the appellant's appeal for the Secretary of State's own determination under paragraph 3 of schedule 6 to the Act.

Background

2. The factual background to the appellant's claim for judicial review is set out in some detail in paragraphs 3 to 12 of Mr Justice Cranston's judgment which is reported at 2013 England and Wales High Court 3166 (Admin). The legal and policy framework is set out in paragraphs 13 to 19 of the judgment. There is no challenge to these aspects of the judgment and I gratefully adopt them and need not repeat all of the detail which is set out in those paragraphs.
3. For the purposes of this appeal, I can summarise the legal and factual matrix as follows. The Secretary of State's power to determine appeals under Section 78 of the Act is contained in Section 79 of the Act. Sub-section 79(7) gives effect to Schedule 6 to the Act which makes provision for the determination of certain appeals, in practice the great majority of appeals, by an "appointed person", in practice a planning inspector. In the present case a planning inspector was appointed to determine the appellant's appeal under Section 78. Sub-paragraph 2(1) of Schedule 6 provides that an appointed person shall have the same powers and duties in relation to an appeal under Section 78 as the Secretary of State. In particular sub-paragraph 2(6) provides that:

"Where an appeal has been determined by an appointed person his decision shall be treated as that of the Secretary of State."

4. However, the Secretary of State has power under paragraph 3 of Schedule 6 to the Act to recover jurisdiction to decide an appeal for himself. The material parts of paragraph 3 of schedule 6 are set out in paragraph 17 of the judgment below, but since they are of critical importance in this appeal I will set them out as follows:

"(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State.

"(2) Such a direction shall state the reasons for which it is given and shall be served on the person, if any so appointed, the appellant, the local planning authority and any person who has made representations relating to the subject matter of the appeal, which the authority are required to take into account under any provision of a development order made by virtue of Section 71(2)(a).

"(3) Where in consequence of such a direction an appeal falls to be determined by the Secretary of State, the provisions of this Act which are relevant to the appeal shall, subject to the following provisions of this paragraph, apply to the appeal as if this Schedule had never applied to it.

"(4) The Secretary of State shall give the appellant, the local planning authority and any person who has made any such representations as mentioned in sub-paragraph (2) an opportunity of appearing before and being heard by a person appointed by the Secretary of State for that purpose if (a) the reasons for the direction raise matters with respect to which any of those persons have not made representations; or (b) in the case of the appellant or the local planning authority either of them was not asked in pursuance of paragraph 2(2) where they wished to appear 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."

5. It is common ground that if an appeal has been determined by an appointed person the Secretary of State has no power to make a direction under paragraph 3. That is reflected in the current guidance on recovery from the Secretary of State whih states that:

"Recovery can occur at any stage of the appeal, even after the site visit, a hearing or enquiry has taken place, but it cannot be after the inspector has issued their decision."

6. The inspector's decision in determining the appeal at the present time was issued at 3.34 pm on 18 March 2013 and was received by the appellant a few minutes later at 3.52. The critical question in this appeal is therefore whether there was a direction for the purposes of paragraph 3 of Schedule 6 prior to 3.34 pm on 18 March 2013 when the inspector's decision was issued. If there was such a direction, then the inspector had no power (see sub-paragraph 3(3) of Schedule 6) to issue his decision. If there was not such a direction then the inspector's decision is to be treated as that of the Secretary of State, see sub-paragraph 2(6) of schedule 6.
7. On behalf of the respondent, Mr Swift QC, submitted that an e-mail sent at 1.03 pm on 18 March 2013 by Mr Richard Watson, the Head of Planning Case Work in the Department for Communities and Local Government, to Mr Paul Bennett of the Planning Inspectorate's case work team, was a direction for the purposes of article 3 which preceded the issuing of the inspector's decision. The judge accepted that submission, see paragraphs 25 and 26 of the judgment.
8. Before considering Mr Swift's submissions in more detail, it is necessary to set out the text of Mr Watson's e-mail on 18 March. At 12.54 the Assistant Private Secretary to the Minister e-mailed Mr Watson saying:

"Richard, Nick [Bowles MP, the Parliamentary Under Secretary (Planning for Communities) and Local Government] has confirmed that he wants to recover this appeal in Malmesbury."

Mr Watson transmitted this to Mr Bennett with his e-mail at 1.03 pm saying:

"Paul - over to you. Pleased to arrange letters, et cetera. Happy to discuss (maybe tomorrow) and help. Richard."

In his witness statement, Mr Watson explains the reference in his e-mail to arranging letters. He says in paragraph 12:

"I instructed Mr Bennett to arrange the recovery letters. This was in accordance with standard procedure when a decision has been taken to recover an appeal. Such letters are prepared and issued by the Inspectorate on the Secretary of State's behalf."

In Paragraph 15 of his witness statement Mr Watson said:

"During the morning of 19 March it came apparent that the 18 March letter had been issued in error. Once this mistake had been appreciated, the letter was sent out by the Inspectorate later in the day on 19 March 2013, stating that the letter dated 18 March 'was issued in error and should not have been sent out, given that the Minister had decided to recover the appeal' ... on 20 March 2013, in accordance with my e-mail to Mr Bennett, the inspectorate sent a further letter to the parties stating that the appeal had been recovered ... the text used in the letter is standard with only the reason for recovery as set out in the third paragraph of the letter being subject to change, depending why particular appeals are recovered."

The letter dated 19 March from the Planning Inspectorate said:

"The decision issued on 18 March was issued in error and should not have been sent out, given that the Minister had decided to recover the appeal. Therefore the decision has been issued without authority and is hereby withdrawn."

9. It was signed by a Mr Halland, the Director of Case Work. It is important to note the terms of the standard form "recovery letter" dated 20 March 2013. The letter was addressed to the appellant's planning consultants, under the heading:

"Town and Country Planning Act 1990, appeal by Gleeson Strategic Land, site of land, south of Filands Malmesbury."

The letter said this:

"Although under the Town and Country Planning (determination of appeals by appointed persons) (prescribed classes) Regulations 1997 the appeal was to have been decided by an inspector, the Secretary of State considers that he should determine it himself. Accordingly, in exercise of his powers under Section 79 and paragraph 3 of schedule 6 of the Town and Country Planning Act 1990, the Secretary of State hereby directs that he shall determine this appeal instead of an inspector. This means that instead of writing a decision, the inspector will prepare a report and recommendation which will be forwarded to the Secretary of State. The reason for this direction is that the appeal involves proposals for residential development of over 150 units, all on sites of over 5 hectares, which would significantly impact on the government's objective to secure a better balance between housing demand and supply and create high quality, sustainable mixed and inclusive communities. This direction has been served on the inspector, the appellant (or their representative) and the local planning authority ... "

Discussion

10. Mr Swift submitted that sub-paragraph 3(1) of Schedule 6 set out what would constitute a direction. All that was required for this purpose was that there be an "instructions" from the Minister, and in at the present time an instruction had been given to the Planning Inspectorate in Mr Watson's e-mail. Sub-paragraph 3(1) of the schedule was to be distinguished from sub-paragraph 3(2). The requirements in the latter sub-paragraph were purely procedural. The reasons for the "instruction" (the direction) could be given at a later stage, and the direction could be served at a later stage. Neither a failure to state the reasons for which the direction was given, nor a failure to serve the direction in accordance with sub-paragraph 3(2) affected the validity of an "instruction" (also known as a direction) given under sub-paragraph 3(1).
11. I have no hesitation in rejecting that submission. In my judgment paragraph 3 must be read as a whole in order to determine what amounts to a direction for the purposes of the paragraph. Mr Swift's submission overlooks the clear wording of the first part of sub-paragraph 3(2). Sub-paragraph 3(2) does not simply deal with the service of a direction. Plainly something which is a direction must be in existence before it is capable of being served. That is why sub-paragraph 3(2) provides that a direction:

" ... shall state the reasons for which it is given and shall be served ... et cetera."

12. Sub-paragraph 3(2) does not provide that the reasons for a direction shall be stated, which might have admitted of the possibility that the giving of reasons subsequently would suffice. The opening words of the sub-paragraph require the direction itself to state the reasons for which it is given. That is not in the least surprising, see sub-paragraph 3(4)(a) above. The Secretary of State's reasons may prompt an appellant, or a local planning authority, or any of the other persons who have made representations; to make further representations if the Secretary of State's reasons raise matters on which those persons have not previously made representations and/or they may prompt those persons to ask for a hearing, if one has not already been arranged, because, for example, they have previously been content for the appeal to be dealt with on the basis of written representations.
13. Turning to the requirements in sub-paragraph 3(2) for service, for the purposes of the present appeal I am content to accept the proposition that the "and "in the sub-paragraph is disjunctive so that the requirements as to service of the direction in the latter part of the sub-paragraph can be categorised as procedural. If that is the position, it would follow that, for example, a failure to serve one or more of those who have made representations to the local planning authority, which the local planning authority was required to take into account under the Town and Country Planning (Development Management Procedure)(England) Order 2010 would not necessarily be fatal to the validity of a direction.
14. I can see that a distinction can properly be drawn between the direction itself and service of the direction. However, it is unnecessary to decide that issue because in this case there was no service on 18 March on any of the persons who were listed in paragraph 3(2) of Schedule 6. Whatever might be the consequence of non-service on persons other than the inspector, it seems to me that even if the requirements as to service are treated as "merely" procedural, there can be no valid direction for the purposes of paragraph 3 until it has at least been served on the person who has been appointed to determine the appeal. Until he or she has been served with a direction under article 3, that appointed person has jurisdiction to determine the appeal, see sub-paragraph 3(4) of Schedule 6. It is of the essence of an effective direction under article 3 that it tells the appointed person that they no longer have jurisdiction to determine the appeal and that jurisdiction has passed to the Secretary of State.
15. Mr Swift submitted that the "instruction" contained in Mr Watson's e-mail had been communicated to the Planning Inspectorate. The plan fact is that, unsurprisingly, because there was no direction that could be served, nothing was served on the inspector who had been appointed to determine this appeal before his decision was issued. The practical difficulties posed by the need to serve all of the persons listed in sub-paragraph 3(2), a factor which was much relied upon by Mr Swift in his submissions, and which the judge accepted in paragraph 25 of the judgment, are in my view more illusory than real. The reality is that if the direction is served on the appointed person, then he or she will not proceed to determine the appeal, but will instead submit a report, making recommendations to the Secretary of State. If there has been some attempt at service upon the other persons or bodies listed in sub-paragraph 3(2), but for some reason it has been unsuccessful, it will be for the court to decide whether that procedural defect was a fatal flaw in the direction.
16. That issue simply does not arise in the present case because prior to the inspector's decision being issued on 18 March 2013 there was (a) nothing which stated any reasons for giving a direction and therefore there was no direction; and (b) because there was no direction, there was nothing to be served and nothing was served on the appointed person or on any of the other persons or bodies listed in sub-paragraph 3(2).
17. The judge did not set out the text of the two e-mails on 18 March. Nor did he set out the text of the recovery letter dated 20 March. Since it is Mr Swift's submission that the e-mail was the direction, it is necessary to focus upon the precise terms of Mr Watson's e-mail and the recovery letter that was sent in response to that e-mail. When that is done, it is plain that the e-mail did not purport to be a direction for the purposes of paragraph 3. On the contrary, it asked the Planning Inspectorate to "arrange letters" (that is to say to prepare and issue a direction) which are referred to in the witness statement by Mr Watson as "the recovery letters". Mr Swift submitted that the recovery letter dated 20 March 2013 simply gave notice of the earlier direction. That is not what the recovery letter says.
18. I have set out the terms of the recovery letter dated 20 March 2013, which of course post-dated the inspector's decision. As Mr Watson explains in his statement, it is a standard form recovery letter. On the basis that the letter does mean what it says, it is plain that the letter is the direction for the purposes of paragraph 3 of schedule 6. The letter does not refer to the making of some earlier direction on 18 March, it says in terms:

"The Secretary of State hereby directs that he shall determine this appeal instead of an inspector."

The letter continues:

"The reason for this direction is that ... "

The letter further explains:

"This direction is being served on the inspector ... et cetera."

19. Thus the terms of the recovery letter make it plain beyond any doubt whatsoever that Mr Watson's e-mail was not, and was not purporting to be, a direction for the purposes of paragraph 3 of schedule 6. Mr Watson was requesting the Planning Inspectorate to prepare and issue a direction and offering to help with the drafting of that direction. The Planning Inspectorate acceded to Mr Watson's request. There was only one direction, the recovery letter, dated 20 March 2013, and that post-dated the inspector's decision. It follows that there was no direction prior to the inspector's decision. The inspector therefore had power to determine the appeal on 18 March, and the purported direction, two days later, was of no effect whatsoever.
20. I turn to the second ground of appeal. Before the judge, it was argued on behalf of the Secretary of State that even if there was no valid direction before the inspector's decision was issued, the Secretary of State had power to "withdraw" the inspector's decision. It was accepted on behalf of the Secretary of State that the Act did not confer any express power to withdraw a decision, but it was submitted that such a power could be implied as a matter of statutory construction, because within any legislative code there were implicit ancillary powers which facilitated the exercise of those powers that were expressly conferred by the statute, see paragraph 35 of the judgment. The judge said that three authorities threw light on the submission that there was such an implied power of withdrawal. Only one of those authorities was decided in the context of the planning Acts. The Crown (Trustees of the Friends of the Lake District) v Secretary of State for the Environment [2005] England and Wales High Court 281 (Admin, (2002) 1 Property and Compensation Reports 23. The judge said (paragraph 36 of the judgment) that in that case:

"Mr Justice Harrison held that although the power of 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 the planning application he would be duty bound to decide it himself, even though, due to changed circumstances, it would be contrary to his own call in policy to do so'."

21. Having referred to the two other authorities that were cited in support of the Secretary of State's submission, the judge said in paragraph 39 of the judgment that implying a power of withdrawal into the 1990 was:

"The most troubling aspect of the Secretary of State's case."

The judge recognised that the cases cited in support of the Secretary of State's submission were not on all fours with the present case, but "not without some doubt" he concluded in paragraph 40 of the judgment:

"That Parliament intended a modest power of withdrawal to be implied into the 1990 Act to enable simple and obvious administrative errors within the relatively short timescale, as in the circumstances of this case. Applying the analysis of Chief Justice Gleeson 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 ... "

22. Mr Swift submitted that the judge was correct so to conclude. There was here an administrative within the planning inspectorate which the Secretary of State had an implied power to correct under the Act. I do not accept that submission. In the absence of any direction under paragraph 3 of schedule 6, the inspector had power to determine the appeal on 18 March 2013. It is important to remember that the inspector's decision was not simply a determination of the appellant's Section 78 appeal, it was a grant of outline planning permission, subject to the conditions set out in Annexe A to the decision, see paragraph 1 of the decision under the heading "Formal Decision". If a planning permission has been granted, whether on appeal by the Secretary of State or by an appointed person, or on an application for planning permission by a local planning authority, there is no power to "withdraw" that planning permission on the basis that there has been an administrative error at some stage in the decision making process. Once granted, a planning permission may be revoked only under the procedure contained in Sections 97 to 100 of the Act. Although Mr Swift criticised the appellant's reliance on the well known proposition that the Planning Acts form what has been described as "a comprehensive code", there can no doubt that they do comprise a very detailed and highly prescriptive legislative code. The code prescribes how planning permissions, once granted, can be revoked, and in Sections 56 and 59 of the Planning and Compulsory Act 2004 it describes the extent to which and the manner in which errors in planning decisions can be corrected under the "slip rule".
23. Far from supporting the Secretary of State's case, the decision in the Lake District case reinforces the appellant's submission that there is no implied power to withdraw a planning permission once it has been granted. Mr Justice Harrison said in paragraph 38 of his judgment that in coming to the conclusion that the Secretary of State did have an implied power to withdraw a call in direction made under Section 77 of the Act:

"I have born in mind that the power to call in a planning application is a procedural step which determines who the decision-maker will be, not what the decision will be. In other words, it confers a procedural rather than a substantive right. It is a power which the courts have frequently held, involves a wide measure of discretion. In my view the very nature of the power is such that it should not be regarded as irrevocable."

24. The contrast between that case and the present case could not be more stark. A planning permission confers a substantive right, often a very valuable substantive right, and it is therefore by its very nature irrevocable, save under the procedure which is contained in Sections 79 to 100 of the Act which make provision for compensation. The judge applied the analysis of Chief Justice Gleeson in Minister for Immigration v Bhardwaj (2002) High Court of Australia 11, but that case was concerned with the extent to which a decision taker, in that particular case the Immigration Review Tribunal, can reopen a decision that it has taken in error, see paragraph 38 of the judgment below.
25. In the present case there was no error on the part of the decision taker. In the absence of any direction under paragraph 3 prior to the issue of his decision, the inspector, as the appointed person, had authority to issue his decision. He intended to allow the appeal and to grant planning permission, and he did so. While an administrative error did occur elsewhere within the Planning Inspectorate, to confer on the Secretary of State a power to "withdraw" a planning permission that has been lawfully granted, on the basis of some administrative error at some stage in the process by a person other than the decision taker cannot, by any stretch of the imagination, be described as "an implicit auxiliary power" which facilitates the exercise of any of the powers that are expressly conferred by the Act. In paragraph 39 of his judgment, the judge appeared to acknowledge that there was force in the appellant's submission that the ambit of an implied power to withdraw a planning permission on the basis of administrative error would be wholly uncertain in its extent:

"How extensive it would be and how long following grant of planning permission it could be exercised."

An implied power of such an uncertain extent has no place in such a highly prescriptive code.

Conclusions

26. The considerations that I have set out above should, in my judgment, have led the judge to conclude that the Secretary of State did not have any implied power under the Act to "withdraw" the inspector's decision. For these reasons, I would allow this appeal, I would set aside the judge's order and substitute an order allowing the claim for judicial review, and quashing both the letter dated 19 March 2013 and the direction of 20 March 2013.
27. LORD JUSTICE RYDER: I agree.
28. LORD JUSTICE LAWS: I also agree. In the circumstances, it is unnecessary for the court to go into the question of whether ground three should be the subject of permission. That has not been argued, nor has it been necessary that it should be. Accordingly, the appeal will be allowed for the reasons given by my Lord, Lord Justice Sullivan.