Gleeson Developments Ltd., R (on the application of) v Secretary of State for Communities and Local Government & Anor

A recovery direction under paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 takes effect when made, rather than only when served on every specified recipient, unless the statute makes service the mode of exercising the power. Once effective, it removes the appointed inspector’s authority to determine the appeal.

A modest ancillary power may be implied to withdraw an inadvertently issued planning decision where the error is simple and obvious, the withdrawal is prompt, and the power is exercised consistently with ordinary public-law and Convention principles. Such withdrawal is distinct from statutory revocation or modification of planning permission.

The claimant sought judicial review after a planning inspector’s decision letter apparently allowed its section 78 appeal and granted outline permission for up to 180 dwellings. Before the letter was issued, the Minister had decided to recover the appeal for determination by the Secretary of State. The letter was issued by mistake, withdrawn the following day, and the Secretary of State formally confirmed recovery.

The claimant challenged the effectiveness, consultation, rationality and reasons for the recovery direction. Alternatively, it challenged withdrawal of the inspector’s decision and alleged interference with property protected by Article 1 of Protocol 1 to the ECHR.

1. Recovery direction. Paragraph 3(1) of Schedule 6 to the Town and Country Planning Act 1990 separates the making of a recovery direction from its service under paragraph 3(2). Service is not the manner in which the power is exercised. The direction took effect, at the latest, when the department notified the Planning Inspectorate.
2. The notification principle in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 did not apply. That principle concerns decisions adversely affecting a person’s position. Recovery changed the decision-maker, not the claimant’s substantive entitlement. The inspector therefore had no remaining function when his letter was mistakenly issued, and it had no legal effect. This was supported by Norfolk County Council v Secretary of State for the Environment [1973] 1 WLR 1400 and Cooperative Retail Service Ltd v Taff-Ely BC (1980) 39 P&CR 223.
3. Consultation, reasons and rationality. The Act contained no consultation requirement, and the courts should not readily imply one. Schedule 6 anticipated recovery after representations or an inquiry, while paragraph 3(4) protected the parties by providing an opportunity for further representations. Although the recovery letter inadequately explained the reasons, it substantially reflected the ministerial recovery policy because the newly published draft neighbourhood plan made the development relevant to the stated housing and sustainable-community criterion.
4. Withdrawal. Alternatively, a modest implied power existed to withdraw an inadvertently issued decision within a short period to correct a simple and obvious administrative error. The power was ancillary to the statutory scheme and was not inconsistent with the express power to revoke or modify permission under sections 97–100, which addressed a different situation and carried compensation rights. The analysis in Minister for Immigration v Bhardwaj [2002] HCA 11 supported that conclusion.
5. Article 1 of Protocol 1. Any interference with a putative property right was de minimis, promptly corrected, justified by a fair balance between private and public interests, and proportionate. The claimant retained the right to a fair determination of the recovered appeal. The judicial review failed.