The finality of decisions

Richard Harwood OBE QC considers three recent cases on whether planning authorities can issue a second decision on one application.

You can wait a long time for a decision to definitively decide a basic point of principle, and then three judgments on the same point come at once.

The Courts have for a long time suggested that local planning authorities were not able to issue a second planning decision on one application: see, e.g. R v Yeovil Borough Council Ex p. Trustees of Elim Pentecostal Church, Yeovil 70 L.G.R. 142; (1972) 23 P. & C.R. 39 at 44; Heron Corp Ltd v Manchester City Council (1977) 33 P. & C.R. 268 at 271–272. Those comments were obiter.

However in two judgments in 2013 the Courts held that local planning authorities could not withdraw and re-issue decision notices to correct errors. The English decision on the point was R (Holder) v Gedling Borough Council [2013] EWHC 1611 (Admin); [2013] J.P.L. 1426 where a council had issued a planning permission omitting large parts of an approved condition. Following a pre-action letter the Council then issued a second (but only partially) corrected notice. After a deal of resistance, it ultimately accepted at trial that it had not had the power to issue a second decision notice (Holder at para 54).

The issue was more fully considered by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council [2013] CSOH 137, [2014] J.P.L. 336. The Council had issued a notice which said it granted planning permission subject to conditions but contained no conditions and under the reason for the decision set out what was plainly a reason for refusal. Six months later the Council said that the decision notice was incorrect and sent out a new notice which stated that planning permission was refused. Lord Glennie reviewed the English and Scottish authorities extensively (although not including Holder) and held that the first notice was valid unless and until the court ruled otherwise. The Council had no power to issue a further decision until that had been done.

The same approach applies to the Secretary of State, only more so. In R (Gleeson Developments Limited) v Secretary of State for Communities and Local Government the Minister had decided to recover jurisdiction over a planning appeal. Later that same day the Inspector’s decision allowing the appeal was issued by the Planning Inspectorate. The Minister then purported to withdraw the planning permission and issue a refusal. It is not obvious what was the most astonishing: the decision of the Department that it could simply rip up a planning permission by letter; or the High Court’s judgment that this was lawful. The developer, Gleeson, appealed. The Court of Appeal did not feel the need to call on the appellant, Sullivan LJ holding in typically forthright terms that the Secretary of State could not withdraw a planning permission once it had been issued: [2014] EWCA Civ 1118. The judge said:

“22. If a planning permission has been granted, whether on appeal by the Secretary of State or by an appointed person, or on an application for planning permission by a local planning authority, there is no power to “withdraw” that planning permission on the basis that there has been an administrative error at some stage in the decision making process. Once granted, a planning permission may be revoked only under the procedure contained in ss.97–100 of the Act. Although [Leading Counsel for the Secretary of State] criticised the appellant’s reliance on the well known proposition that the Planning Acts form what has been described as “a comprehensive code”, there can no doubt that they do comprise a very detailed and highly prescriptive legislative code. The code prescribes how planning permissions, once granted, can be revoked, and in ss.56 and 59 of the Planning and Compulsory Act 2004 it describes the extent to which and the manner in which errors in planning decisions can be corrected under the “slip rule”.

24. A planning permission confers a substantive right, often a very valuable substantive right, and it is therefore by its very nature irrevocable, save under the procedure which is contained in ss.79–100 of the Act which make provision for compensation.”

Lord Justice Sullivan had also held that the Inspector had still had the power to issue the decision, since the direction to recover jurisdiction had to contain the reasons it was being made and be served on the Inspector (see schedule 6, para 3(2), Town and Country Planning Act 1990). What had happened prior to the Inspector’s decision being issued was that a Communities and Local Government employee had informed the Planning Inspectorate’s casework unit of the Minister’s desire to recover the appeal and asked PINS to arrange the necessary letters. The recovery letter was sent out, by the Inspectorate, two days later. So, the Court of Appeal concluded, the Inspector still had the power to determine the appeal when his decision was issued. There was an administrative error in that the decision was issued as the Minister had decided to recover the case – obviously the issue of the decision should have been stopped whilst the recovery letter was prepared.

The Court of Appeal’s conclusion that the Inspector still had the power to act fed into its analysis that there was no power to withdraw the permission. They distinguished an Australian decision, relied upon by the High Court, on the ability of their Immigration Review Tribunal to reopen a decision taken when it was unaware of an application for an adjournment: Minister for Immigration v Bhardwaj (2002) High Court of Australia 11. Sullivan LJ said:

“25. In the present case there was no error on the part of the decision taker. In the absence of any direction under para.3 prior to the issue of his decision, the inspector, as the appointed person, had authority to issue his decision. He intended to allow the appeal and to grant planning permission, and he did so. While an administrative error did occur elsewhere within the Planning Inspectorate, to confer on the Secretary of State a power to “withdraw” a planning permission that has been lawfully granted, on the basis of some administrative error at some stage in the process by a person other than the decision taker cannot, by any stretch of the imagination, be described as “an implicit auxiliary power” which facilitates the exercise of any of the powers that are expressly conferred by the Act.”

The Court did not therefore have to go further into any claimed withdrawal of an unlawfully granted decision, but given the approach in the local authority cases and section 284 of the Town and Country Planning Act 1990 which prevents a challenge to the validity of planning appeal decision except by application to the High Court, an unlawful decision cannot simply be withdrawn. It can of course be challenged by a section 288 application. There may be occasions when a decision is so obviously defective on its face as to not be a decision: pages may be clearly missing, or it may fail to identify the application or say whether it is granted or refused.

Richard Harwood OBE QC is a barrister at 39 Essex Street. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..