Friday Law Report: Jurisdiction to hear planning appeals

11 June 1999 Regina v Secretary of State for the Environment, Transport and Regions, ex parte Bath and North East Somerset District Council

Court of Appeal (Lord Justice Roch, Lord Justice Otton and Lord Justice Pill) 26 May 1999

THE SECRETARY of State for the Environment, Transport and Regions had jurisdiction to hear an appeal against the failure of a local planning authority to determine an application for planning permission or for listed building consent within the necessary time period, notwithstanding that the local authority had determined that the application was invalid.

The Court of Appeal dismissed the appeal of Bath and North East Somerset District Council against the dismissal of its application for judicial review of the decision of the Secretary of State for the Environment, Transport and Regions to hold a public inquiry into the council's failure to determine certain applications for planning and listed building consents.

The council was the local planning authority for the City of Bath, which was a Unesco-designated World Heritage Site containing a 1,915 hectare conservation area and about 5,000 listed buildings.

Applications for planning and listed building consents were made to the council by Ski Enterprises (UK) Ltd ("the company") which involved internal and external alterations to a listed building and a material change of use. Considerable detail, by way of narrative and drawings, was supplied to the council in support of the proposal.

The council wrote to the company stating that the documents which had been submitted were not adequate to enable them to consider the proposal, and that the applications could not be accepted or processed further until additional detailed information was provided. The company declined to provide the detail requested on the ground that until they knew whether the change of use was acceptable in principle, the detail could not sensibly be provided.

The council then told the company that the applications had not been registered and would not be processed further until receipt of the details requested. The company appealed to the Secretary of State for the Environment, Transport and Regions, pursuant to section 78 of the Town and Country Planning Act 1990 and section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990, on the ground that the appellants had failed, within the appropriate period, to determine the applications.

The Secretary of State fixed the time and date of an inquiry into the appeals. The council applied by way of judicial review for an order prohibiting the Secretary of State from holding a public inquiry, on the ground that he had no jurisdiction to hear the appeals as the council had decided that the applications on which they were based were invalid, and it was the sole arbiter as to whether sufficient detail had been included with the applications.

Meyric Lewis (Sharpe Pritchard) for the council; Alice Robinson (Treasury Solicitor) for the Secretary of State.

Lord Justice Pill said that in the light of Geall v Secretary of State for the Environment, Transport and Regions (unreported, 11 December 1998), and upon a purposive construction of the statutes and a consideration of the statutory scheme as a whole, a right of appeal under section 78 of the Town and Country Planning Act 1990 and section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990 arose even when the local planning authority had formed the view that the application which was the subject of the appeal was invalid.

The words "which the local authority considers to be valid" should not be read into section 78 or section 20 to govern the word "application". A determination of invalidity by the local authority did not exclude the right of appeal to the Secretary of State on the question of validity.

The applications in the present case accordingly remained applications for the purpose of triggering the operation of the appeal provisions in the legislation notwithstanding the view of the council that the applications were invalid.