Maximus Networks Ltd v SSCLG

On an appeal under section 79 of the Town and Country Planning Act 1990, the Secretary of State has a discretion to determine whether an application is valid and whether to entertain an appeal despite procedural defects in the application.

The discretion is fact-sensitive. Relevant considerations may include the nature and extent of the breach and whether prejudice may arise, but the court should not equate this discretion with its separate discretion to quash a planning permission. Clear non-compliance with mandatory procedural requirements may justify declining to entertain an appeal, even where the applicant asserts that no prejudice could result.

Where an appeal is rejected because the underlying application is invalid, the application fee must be refunded under regulation 14(3) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012.

The claimant made numerous applications under Part 16 Class A of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 for telecommunications infrastructure. Some applications were not determined within the statutory period; others were treated as invalid because the claimant had not given the required developer’s notice or supplied evidence of compliance.

The Planning Inspectorate, acting for the Secretary of State, declined to entertain the resulting appeals. The claimant sought judicial review, arguing that the Secretary of State had failed to recognise or irrationally exercised a discretion under sections 79(1) and 79(6) of the Town and Country Planning Act 1990. It also sought repayment of fees under regulation 14(3) of the 2012 Regulations.

1. Discretion under section 79. Sections 79(1) and 79(6) of the Town and Country Planning Act 1990 give the Secretary of State a discretion to decide whether an application forming the basis of an appeal is valid and whether to decline to determine the appeal. There is no necessary temporal distinction between the discretions under the two subsections.
2. The discretion permits the Secretary of State to continue processing an appeal despite procedural non-compliance where that is appropriate. Its exercise is fact-sensitive. The nature and extent of the breach and the possibility of prejudice may be relevant, but the range of relevant considerations cannot be prescribed exhaustively.
3. The authorities concerning the court’s discretion to quash a defective planning permission, including Main v Swansea City Council, are not directly equivalent. They may provide some guidance, but the court’s discretion to grant judicial review relief differs from the Secretary of State’s statutory appeal discretion.
4. The Planning Inspectorate had not misunderstood its powers. Its decision, read fairly and as an administrative decision, recognised the section 79 framework and explained why the applications were regarded as invalid. The clear failure to comply with the developer-notice requirements, together with the statutory context and the absence of any later attempt to cure the defect, made the decision to decline the appeals rational. Grounds 1 and 2 therefore failed.
5. Under regulation 14(3) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, a fee must be refunded where an application is rejected as invalid. A rejection of an appeal on the basis that the underlying application was invalid falls within that provision. The claimant was therefore entitled to a declaration that the fees relating to the applications made to the first interested party must be refunded.

First-instance judicial review claim. The judgment refers to the earlier decision in Winters v SSCLG [2017] EWHC 357 (Admin), which confirmed the existence of an appeal under section 78 where the local planning authority failed to determine an application within the statutory period.