Maile, R (on the application of) v Secretary of State for the Home Department

A discretionary statutory power to make grants does not create an entitlement to apply for funding or require the decision-maker to maintain an open grant scheme. Fairness depends on the circumstances. Where the decision-maker has publicly explained the purpose of the power, the intended beneficiaries and the allocation of available funds, refusing to consider further applications because the allocated funds are exhausted is not unfair or insufficiently transparent. Decisions about seeking further Treasury and Parliamentary funding involve high-level resource allocation and are subject to a very high irrationality threshold.

The claimant, director of the Campaign for Planning Sanity, sought judicial review of the Secretary of State’s refusal to invite or consider an application for a grant under section 304A of the Town and Country Planning Act 1990. The power had been used to fund Planning Aid and the Planning Advisory Service. The claimant alleged unfairness, discrimination, lack of transparency and irrationality, arguing that the Campaign was eligible to seek funding and should have been allowed to make its case. The central issue was whether the Secretary of State was required to operate a wider grant regime or consider an application when no funds remained available for that purpose.

1. Application dismissed. The claimant was not entitled to relief. The defendant was awarded costs, subject to detailed assessment unless agreed.
2. Section 304A conferred a discretionary power to make grants. As with any statutory discretion, it had to be exercised fairly, but what fairness required depended on the factual circumstances.
3. The defendant had publicly explained the purpose of the power, the proposed beneficiaries and the sums to be provided. The funding for Planning Aid had been publicly announced following consultation, and funding was also provided for the Planning Advisory Service. The process was therefore sufficiently transparent.
4. There was no unfairness in refusing to invite an application from the Campaign when the available funds had been committed. It would have been pointless to require an application which was bound to fail because the relevant funding allocation was exhausted.
5. The defendant’s decision not to seek further Treasury support or Parliamentary approval involved judgment about competing departmental demands. The irrationality threshold for such a discretionary resource-allocation decision would be very high. No irrationality or unlawfulness was established.
6. The apparently inconsistent departmental replies were explained by the different roles of the officials involved. In substance, the position was clear: funds were available only for the identified schemes.
7. Permission to appeal was refused. The alleged apparent bias arising from the judge’s former legal membership of the Royal Town Planning Institute had no arguable basis, given that the membership had ended about eight years earlier and the judge had not been involved in Planning Aid.

This was a first-instance judicial review in the Administrative Court. Permission to appeal was refused by Mr Justice Sullivan.