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

The claimants, members of the Traveller and Gypsy community, challenged (i) the Secretary of State's directions recovering their planning appeals for his own determination and (ii) his subsequent decisions dismissing those appeals. The court accepted the findings in Moore and Coates that the pattern of recovery decisions in respect of traveller sites in the green belt had been applied unlawfully, but held the present judicial review challenges to the recovery directions to be out of time and refused extensions.

The court rejected arguments that the EU principle of effectiveness required time limits to be tolled. It held that the Secretary of State had no statutory power to review or revoke decisions already made on section 78 appeals and that, as a matter of statutory design, his determinations of section 78 appeals after a recovery direction were not necessarily nullities even if the recovery direction was unlawful. Finally, the court dismissed the claimant Smith's separate challenge under section 288 of the Town and Country Planning Act 1990 on the substantive planning reasons given by the Secretary of State.

Background and parties: The claimants, Bernadette Mulvenna and Elias Smith, are members of the Traveller and Gypsy community whose applications for planning permission on green belt land were refused by their local authorities and whose appeals were recovered by the Secretary of State for determination. The Equality and Human Rights Commission intervened supporting an argument that unlawful recovery decisions rendered subsequent appeal determinations void.

Nature of the claims and relief sought:

• The claimants sought judicial review of the recovery directions (on grounds derived from Moore and Coates that the recovery policy as applied was discriminatory and breached the public sector equality duty).
• They sought revocation or review of the Secretary of State's appeal decisions made after recovery, asserting those decisions were tainted by the unlawfulness of the recovery directions and therefore nullities.
• Mr Smith also pursued a statutory challenge under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State's planning decision on conventional grounds of legal error in reasoning.

Issues framed by the court: (i) whether the claimants could overcome the strict six-week time limit for planning judicial review and obtain an extension; (ii) whether the EU doctrine of effectiveness required the domestic time limits to be adjusted; (iii) whether the Secretary of State had any power to review or revoke decisions on appeals once made; and (iv) whether an unlawful recovery decision rendered subsequent appeal determinations nullities such that they could be challenged outside the statutory section 288 scheme.

Reasoning and disposition: The court held that the claims attacking the recovery directions were plainly out of time and that extensions of time should not be granted. The EU principle of effectiveness did not justify disapplying the planning time limits. The statutory code in the 1990 Act gives the Secretary of State no power to review or revoke decisions on section 78 appeals once made; relief of that kind is not available other than by the statutory mechanisms. On the question of nullity, the court concluded that although unlawful administrative acts are void in principle and Moore and Coates established unlawfulness of the recovery practice, the statutory design of the planning appeals regime contemplates appeals as being to the Secretary of State and confers jurisdiction on him to determine appeals following a recovery direction. Accordingly the unlawfulness of a recovery direction did not automatically render the Secretary of State's appeal determination a nullity in these circumstances. Finally, Mr Smith's section 288 challenge to the substantive decision failed because the Secretary of State's reasons were adequate and attributing weight was a matter of planning judgment.

The claimants' judicial review challenges to the Secretary of State's recovery directions are dismissed as out of time and no extension of time is granted. The Secretary of State has no statutory power to revoke decisions already made on section 78 appeals. The Secretary of State's determinations of the appeals are not rendered nullities by the unlawfulness of the recovery directions. Mr Smith's section 288 challenge to the substantive decision fails because the Secretary of State provided adequate and intelligible reasons and his weighing of matters was a matter of planning judgment.