Gleeson Developments Ltd v Secretary of State for Communities And Government & Ors

A direction under paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 must be read as a whole. It must itself state the reasons for which it is given. At least service on the appointed person is essential, because until then that person retains jurisdiction. An internal instruction to prepare recovery letters is not a direction, and a later direction cannot retrospectively displace a decision already issued.

Once planning permission has been lawfully granted, it is a substantive right. The Act contains no implied power to withdraw it for administrative error. Revocation must follow the statutory procedures, including those in sections 97 to 100. The appeal was allowed.

Gleeson Developments appealed against the dismissal by Cranston J of its judicial review claim. The claim challenged a letter dated 19 March 2013 purporting to withdraw a planning inspector’s decision and a direction dated 20 March 2013 recovering the appeal for the Secretary of State.

The inspector had issued conditional outline planning permission on 18 March 2013. The Secretary of State argued that an email sent earlier that day was already a recovery direction, or alternatively that he had an implied power to withdraw the permission for administrative error. The central questions were whether a valid direction existed before the inspector’s decision and whether a lawfully granted planning permission could subsequently be withdrawn.

Appeal allowed. Sullivan LJ gave the reasons, with Ryder and Laws LJJ agreeing.

1. Paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 had to be read as a whole. Sub-paragraph 3(2) required the direction itself to state the reasons for which it was given. The requirement was substantive, not merely a requirement to provide reasons later. The reasons could affect further representations and requests for a hearing under sub-paragraph 3(4)(a).

2. The court did not need finally to determine the consequences of failing to serve every person listed in sub-paragraph 3(2). However, service on the appointed person was essential. Until that person had been served, he or she retained jurisdiction to determine the appeal.

3. The email from the Head of Planning Case Work did not state reasons and asked the Planning Inspectorate to arrange and prepare recovery letters. It was not a direction under paragraph 3. The recovery letter dated 20 March 2013 was the only direction, and it post-dated the inspector’s decision. The inspector therefore had power to determine the appeal, and the later direction had no effect.

4. There was no implied power to withdraw the planning permission. A planning permission was a substantive right and could be revoked only under the statutory procedures in sections 97 to 100 of the Act. The decision in The Crown (Trustees of the Friends of the Lake District) v Secretary of State for the Environment [2005] England and Wales High Court 281 (Admin) concerned withdrawal of a procedural call-in direction under section 77, not withdrawal of a substantive planning permission. Minister for Immigration v Bhardwaj (2002) High Court of Australia 11 concerned reopening a decision by the decision-taker because of that decision-taker’s own error. Here the inspector had authority and intended to grant permission; the administrative error occurred elsewhere.

5. The High Court order was set aside. The judicial review claim was allowed, and the letter dated 19 March 2013 and the direction dated 20 March 2013 were quashed.

• Court of Appeal (Civil Division) — Appeal allowed. The High Court order was set aside, the judicial review claim was allowed, and the 19 March letter and 20 March direction were quashed.
• High Court, Queen’s Bench Division, Administrative Court — Cranston J dismissed the judicial review claim. The decision is reported at 2013 England and Wales High Court 3166 (Admin).