Corbett, R (on the application of) v First Secretary of State

Planning law is governed by the statutory code. A power may be implied only where necessary to give effect to the legislation and the code is silent or ambiguous. The inherent right to withdraw a planning appeal does not imply a power for the Secretary of State to reinstate it. Reinstatement would revive rights which the statutory time limits had extinguished and would conflict with the structure of the Town and Country Planning Act 1990. Administrative unfairness arising from incorrect advice does not justify implying such a jurisdiction, particularly where the withdrawal was effective and the statutory scheme provides alternative routes for a fresh application.

The claimant, a former local councillor, sought judicial review of the First Secretary of State’s decision to reinstate a withdrawn appeal concerning approval of reserved matters for a proposed golf development. The appeal had been withdrawn after the Planning Inspectorate advised that withdrawal would allow the local planning authority to resume consideration of the application. That advice was later recognised as incorrect.

The central issue was whether the statutory planning code conferred, expressly or by necessary implication, jurisdiction to reinstate an appeal after withdrawal, notwithstanding the expiry of the statutory period for making an application for approval of reserved matters.

1. The claim succeeded. The Secretary of State’s decision to reinstate the appeal was quashed, with the defendant ordered to pay the claimant’s costs subject to detailed assessment if not agreed.
2. Applying the approach in Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] 1 A.C. 132, planning law is a statutory code. Private-law principles may be used only exceptionally where the code is silent or ambiguous and their use is necessary to give effect to Parliament’s intention. There was no such lacuna here.
3. An appellant’s power to withdraw an appeal is necessarily implied in the statutory right to bring it. The statutory provisions concerning costs and the consequences of withdrawal support that conclusion. Withdrawal ends the appeal and the ordinary legal consequences of its ending follow.
4. No corresponding power to reinstate an appeal is implied. Reinstatement would revive rights which had ended under sections 73(4) and 93(4) of the Town and Country Planning Act 1990. It would also create an additional appeal or extension of time not provided for by the statutory scheme, which permits only one appeal in respect of an application.
5. The reasoning approved by the Court of Appeal in R v Leicester City Council, Ex P. Powergen U.K. Limited (2000) 81 P. & C.R. 5, including the approach in Pye v Secretary of State for the Environment [1998] 3 P.L.R. 72, reinforced the importance of recognising the practical consequences of expired planning permission.
6. Injustice caused by the Planning Inspectorate’s advice did not alter the result. The withdrawal was effective, and the circumstances did not establish an ineffective withdrawal, estoppel or abuse of power. Authorities concerning procedural irregularities, including R (on the application of McKay) v First Secretary of State 2005 24 EGCS p178 and R v IAT ex parte Jeyeanthan [1999] 3 All ER 231, did not govern a completed withdrawal.

This was a first-instance judicial review in the Administrative Court. The court quashed the Secretary of State’s decision to reinstate the withdrawn planning appeal.