Newcastle Upon Tyne City Council v Secretary of State for Communities And Local Government

Under section 62(3) of the Town and Country Planning Act 1990 and article 20 of the Town and Country Planning (General Development Procedure) Order 1995, the local planning authority decides which locally listed particulars are necessary for an application to be valid. On a section 78 appeal, the Secretary of State may decide whether the applicant has complied with those requirements and may investigate any necessary precedent facts. He may not substitute his own view of whether the requirements were necessary. The validity issue must be resolved before jurisdiction is exercised over the merits, but the Secretary of State may adopt a pragmatic procedure and need not determine validity in a separate hearing.

The claimant local planning authority required information accompanying a planning application, including studies and assessments identified in its local list. The applicant supplied none of them and appealed under section 78 of the Town and Country Planning Act 1990 after the authority failed to determine the application within the prescribed period.

The Secretary of State, acting through the planning inspectorate, indicated that he would decide whether the information was necessary and whether the application was valid. The authority sought judicial review, arguing that the Secretary of State could not second-guess its statutory judgment and that validity had to be determined separately before the merits. The central questions were the proper test for validity and the procedure for determining it.

1. The application was allowed. The Secretary of State’s letter of 11 June 2009 was quashed insofar as it adopted an erroneous test of validity. No declaration was made. Costs were summarily assessed at £13,000, and permission to appeal was refused.
2. Section 78 must be read consistently with section 62(3) of the Town and Country Planning Act 1990 and article 20 of the Town and Country Planning (General Development Procedure) Order 1995. An application is valid only if it contains the particulars or evidence required by the local planning authority under section 62(3), provided the requirement is consistent with the development order and falls within the authority’s published local list.
3. The words “such particulars as they think necessary” make the local planning authority the arbiter of what is necessary for validity. The Secretary of State may not decide whether the authority reasonably required a particular item or whether it was necessary in the circumstances. A challenge to the requirement itself is by judicial review, not by the section 78 appeal.
4. The Secretary of State may decide whether the applicant has complied with the authority’s requirement. He may also investigate whether a factual precondition to a listed requirement has been established. He is not confined to accepting or rejecting validity summarily in every case.
5. Validity is a precondition to determining the wider appeal, but the Secretary of State controls the procedure. He may determine validity and other issues at the same hearing, provided validity is resolved before jurisdiction is exercised over the merits. A pragmatic approach is lawful.

This was a first-instance judicial review in the Administrative Court. The court quashed the Secretary of State’s proposed approach to validity and refused permission to appeal.