Review of decisions by the Secretary of State (SoS) in the courts Q & A DCP Section 6.4

As described at (5.4), decisions made by the SoS, or by an inspector or reporter acting on their behalf, may be challenged in the High Court in England and Wales under sec.288 or sec. 289 of the 1990 Act, or in Scotland in the Court of Session under sec.237 and sec.239 of the Town and Country Planning (Scotland) Act 1997. Many conflicts are based purely on factual interpretation of planning law or policy and are detailed in the appropriate sections of this manual. Alternatively, there may be dispute as to whether the relevant rules have been followed (see 5.3). However, a considerable number of other decisions are questioned as to the reasonableness, correctness or justness of the way in which they have been arrived at, and it is these that mainly concern this section. Sheer weight of numbers precludes mention of all the cases that touch upon these matters. Examples have therefore been selected to illustrate the various ways in which decision letters have been called into question, together with the ensuing results.

Q & A    6.4/10

How much weight does an appeal decision notice (dismissal) have if it has been challenged in the High Court and a further public inquiry is scheduled for an almost identical scheme on the same site, before the judgement is delivered?

I would have thought that in this circumstance, the second inspector would be expected to make a decision based upon the evidence presented at the inquiry. Naturally the findings of the first inspector would be a material consideration in the determination of the case.  If there were any disagreement with the findings of the first inspector, this would have to be carefully reasoned, but the fact that a High Court hearing was pending on an aspect of those findings would not in itself be relevant.

I am in the situation where a new structure plan policy has recently come into force which would preclude the type of development I am proposing. Meanwhile I have made an appeal to the Scottish Executive for non-determination. Does a reporter determine the appeal on the policies in place at the time of submission of the application, or at the time at which the application should have been considered by the local authority or at the date of the appeal inquiry?

A reporter or inspector would be bound to make a decision based on the evidence put in by the parties to the inquiry. The fact that the appeal had been provoked by the original failure of the planning authority to make a decision would make no difference to this fundamental. Therefore, as it seems unlikely that the structure plan policy change you mention would not be used by objectors, the weight to be given to it would be highly material to the reporter's reasoning.

Why don’t inspectors include reasons for conditions when allowing appeals? The only explanation I have ever managed to get from the Inspectorate is that "the reasons are in the decision letter". Surely this is contrary to the spirit of Article 22 of the General Development Procedure Order 1995, which requires reasons for conditions (imposed by LPAs at least) to be stated "clearly" and "precisely". It also presents difficulties when LPAs are later faced with applications for renewal of permission.

As you state local planning authorities are under a statutory obligation to state their full reasons for conditions applied to planning permissions. This requirement does not extend to decisions to allow an appeal, although to be fair many inspectors will give reasons within the narrative of their decision letters, particularly in respect of the more specific or unusual conditions applied. In any case, the circumstances of an appeal decision are somewhat different from those of a local authority determination, as in the former procedure most conditions to be applied will have been suggested and discussed by the parties to the case. I am not altogether sure whether it would be helpful for the reasons for conditions imposed by an inspector to be spelt out, and wonder if any reader has a view on the matter?

Response

We have received an appeal decision from the Scottish Reporters Unit that gave a reason after each condition. If the Scots can do it, there is no reason why the English and Welsh cannot.

A client has asked us to appeal a planning refusal or to reapply for permission.  The refusal date, however, is six days before the site notice period expired. Article 20(5) of the General Development Procedure Order states a local authority shall not determine an application before the site notice period ends.  We drew the council’s attention to this and invited them to withdraw the decision, which they refused to do. Is the refusal valid given the mandatory direction in Article 20(5)?

The only way to challenge a planning decision would be to apply to the High Court. The court would, however, only be likely to quash it if a different outcome were likely on redetermination. The only circumstances where this would apply in your case would be if support letters had been received in the period before the notice expired.

Response

I suggest the applicant appeals against the prime facie refusal but points out the discrepancy and invites the inspector, if they agree that the decision was not valid, to consider the appeal as one against non-determination. Such a course was followed, albeit many years ago, by an inspector appointed to determine an appeal where the application had not been advertised as affecting a conservation area’s character when it should have been.


Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Sign up now
Already registered?
Sign in

Have your say...

Before commenting please read our rules for commenting on articles.

If you see a comment you find offensive, you can flag it as inappropriate. In the top right-hand corner of an individual comment, you will see 'flag as inappropriate'. Clicking this prompts us to review the comment. For further information see our rules for commenting on articles.

comments powered by Disqus

Join the conversation with PlanningResource on social media

Follow Us:
Planning Jobs

Our Events