Mulvenna and Smith v Secretary of State for Communities and Local Government & Anor

Planning judicial review claims must be brought promptly. A claimant cannot ordinarily await another person’s successful challenge before attacking a similar public-law decision. The EU principle of effectiveness does not remove appropriate domestic time limits where a remedy remains realistically available.

An unlawful recovery direction does not necessarily make a subsequent planning appeal decision a nullity. The effect of the earlier illegality depends on the statutory scheme and on whether validity of the first act was a jurisdictional condition for the later act. Under the Town and Country Planning Act 1990, planning appeals remain appeals to the Secretary of State, whose jurisdiction to determine them was not lost by an unlawful recovery direction.

The claimants, members of the Gypsy and Traveller community, challenged decisions by the Secretary of State to recover their planning appeals concerning proposed residential sites in the green belt and then dismiss those appeals.

The recovery practice had been held unlawful in Moore and Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin). The claimants sought extensions of time, contended that the EU principle of effectiveness required an effective remedy, argued that the Secretary of State should review or revoke his appeal decisions, and submitted that those decisions were nullities because the recovery directions were unlawful. Mr Smith also brought a statutory challenge to the reasoning of his appeal decision.

1. The challenges to the recovery directions were substantially out of time. The court refused extensions under CPR 3.1(2)(a). A person wishing to challenge a public authority’s decision must take the initiative and do so promptly. The claimants could not wait for Moore and Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) to establish that the way was clear. A claim could instead have been issued and stayed pending a test case.
2. The EU principle of effectiveness did not alter that conclusion. It prevents domestic procedural rules from making EU rights virtually impossible or excessively difficult to exercise, but does not prohibit appropriate time limits. The successful claims in Moore and Coates demonstrated that the applicable planning time limit was not impossible to meet. Mr Smith was out of time even if time began when that judgment was handed down.
3. The Secretary of State had no statutory power to review or revoke the substantive appeal decisions. Planning legislation forms a comprehensive statutory code. The appeal determinations remained lawful and valid unless set aside by the court.
4. The appeal decisions were not nullities. Although unlawful administrative acts are void in principle, the validity of a later act depends on the legal powers of the later decision-maker and the statutory scheme. Sections 78 and 174 appeals were appeals to the Secretary of State. The regulations and Schedule 6 enabled appointed inspectors to determine them, subject to recovery, but did not make a lawful recovery direction a jurisdictional prerequisite to the Secretary of State’s own determination. The recovery directions’ unlawfulness therefore did not invalidate the later decisions.
5. The statutory challenge in Mr Smith’s case failed. The Secretary of State was entitled, as a matter of planning judgment, to attach less than significant weight to the family’s need for the site and personal circumstances. His reasons were adequate and intelligible, and the challenge impermissibly sought to contest the weight given to the evidence.

The judicial review claims failed, the power-to-revoke argument failed, the nullity argument failed, and Mr Smith’s section 288 challenge failed.

First-instance judicial review and statutory planning challenges. The judgment itself does not state any subsequent appellate decision.