2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case examines the Secretary of State's authority to intervene after a planning inspector's decision is issued. The court ruled that the Secretary of State lacks the power to recover an appeal or withdraw the inspector's decision post-issuance, as no valid direction was made beforehand.
J U D G M E N T
LORD JUSTICE SULLIVAN:
Introduction
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
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.
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."
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 follo