R v Secretary of State for the Environment, Transport and the Regions, Ex parte Bath and North East Somerset District Council (Bath and North East Somerset District Council, Ex parte)

An application for planning permission or listed building consent remains an application for the statutory appeal provisions even if the local planning authority has notified the applicant that it considers the application invalid. The authority determines validity in the first instance, but its view is not conclusive. The Secretary of State may decide validity when an appeal is brought and must entertain the appeal if satisfied that an application has been made.

This construction of Town and Country Planning Act 1990 and Planning (Listed Buildings and Conservation Areas) Act 1990 accords with the statutory scheme of appeals. A document may nevertheless be so deficient in form and substance that no reasonable decision-maker could treat it as an application.

Ski Enterprises (UK) Ltd submitted applications for planning permission and listed building consent for a proposed live/work unit in Bath. Bath and North East Somerset District Council considered the accompanying material inadequate, treated both applications as invalid, and declined to register or process them.

The company appealed to the Secretary of State on the ground of non-determination. The Planning Inspectorate listed a local inquiry. The council sought prohibition, contending that an invalidity notification prevented any statutory appeal and left judicial review as the sole remedy.

On 6 January 1999, Mr Christopher Lockhart-Mummery QC, sitting as a Deputy High Court Judge, refused relief. The council appealed. The central issue was whether a local planning authority's decision that an application was invalid excluded the Secretary of State's jurisdiction to determine an appeal.

1. Appeal dismissed unanimously. Pill LJ, with whom Otton and Roch LJJ agreed, held that the company was entitled to invoke the statutory appeal machinery. The local authority's notification that it considered the applications invalid did not conclusively remove the Secretary of State's jurisdiction.

2. The question turned on the meaning of application in section 78 of the Town and Country Planning Act 1990 and section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990. On a purposive construction and in the context of the statutory scheme, those provisions include an application which the local authority considers invalid under the procedural regulations. Words making the local authority's view of validity conclusive could not be read into the appeal provisions.

3. Article 5(4) of the Town and Country Planning (General Development Procedure) Order 1995 gave the authority a first-instance function to consider and notify invalidity. It did not confer exclusive jurisdiction. Nor did the prescribed acknowledgement create an implication that an applicant notified of invalidity had no appeal. The breadth of the Secretary of State's appellate and call-in functions supported that construction.

4. The same result applied to listed building consent. Section 10(2), including the power to require further particulars, concerned the form and contents of the application. Non-compliance did not prevent the document from being an application for section 20 purposes. The duties under sections 16 and 66 arose when considering whether to grant consent or permission, rather than when deciding validity.

5. Pill LJ agreed with the relevant observations in Geall, although the earlier case's ratio was confined to its enforcement-notice context. The court also held that the outline-permission procedure was separate and did not provide a parallel invalidity regime. The appeal was dismissed with costs; leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the council's appeal and upheld the refusal of prohibition.
• Queen's Bench Division: on 6 January 1999, Mr Christopher Lockhart-Mummery QC, sitting as a Deputy High Court Judge, refused the council's application to prohibit the Secretary of State from holding a local inquiry into the company's appeals.