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IN THE SUPREME COURT OF JUDICATURE QBCOF 1099/0112/4

(MR CHRISTOPHER LOCKHART-MUMMERY )

Royal Courts of Justice

Strand

London WC2

Wednesday, 26 May 1999

B e f o r e:

LORD JUSTICE ROCH

LORD JUSTICE OTTON

LORD JUSTICE PILL

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REGINA

Respondent

- v -

BATH AND NORTH EAST SOMERSET DISTRICT COUNCIL

Appellants

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR M LEWIS (Instructed by Sharpe Pritchard, London, WC1V 6HG) appeared on behalf of the Appellant

MISS A ROBINSON (Instructed by Treasury Solicitor) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LORD JUSTICE PILL:

This is an appeal by Bath & North East Somerset District Council (“the appellants”) against a judgment of Mr Lockhart-Mummery QC, sitting as a Deputy High Court Judge, given on 6 January 1999. The judge refused an application by the appellants for an order prohibiting the Secretary of State for the Environment, Transport and Regions (“the respondent”) from holding a public local inquiry into appeals by Ski Enterprises (UK) Ltd (“the Company”) under section 78 of the Town and Country Planning Act 1990 (“the planning act”) and under section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the listed buildings act”). The issue is whether the respondent has power to hear appeals sought to be made to him by an applicant under the planning act and the listed buildings act when the appellants, as local planning authority, have determined that the applications to them, which provide the basis for the right of appeal, are invalid. As expressed by the appellants the general issue is “Where a local planning authority has declined to accept an application for planning permission as valid, does the Secretary of State have jurisdiction to consider an appeal from the ‘applicant’?”

By applications made on 24 November 1997, the Company applied for planning permission and listed building consent for premises forming part of 21-22 Vineyards, Bath. The proposal was to convert the premises to a “live/work unit”, that is, a development with both residential and commercial elements. The proposal involved internal and external alterations to a listed building and a material change of use and both planning permission and listed building consent were required. Considerable detail, by way of narrative and drawings, was supplied to the appellants in support of the proposal. The premises subject to the application are a part of what is knows as the Bath Antiques Market.

The appellants are the local planning authority for the City of Bath. The City is a UNECO-designated World Heritage Site and contains a 1915 hectare Conservation Area and about 5,000 listed buildings. In his statement which was before the judge, a Principal Planning Officer stated that “as local planning authority for Bath, the Council take their responsibilities extremely seriously and seek to ensure that the essential historic character of the City is not diluted through inadequate attention to the details of development proposals”.

By letter of 26 November 1997, the appellants stated that they regretted “that the submitted documents were not adequate to enable the Council to consider the proposal and the application(s) cannot be accepted or processed further until additional information is provided”. In a subsequent letter supporting the request, the appellants stated that the character of the building “resides not only in the overall appearance and massing of the building but also in the smallest details”. The Company declined to provide the detail requested on the ground that until they knew whether a change of use to a live/work unit was in principle acceptable, the detail could not sensibly be provided. The detailed design would depend on the use permitted.

By letter dated 18 December 1997, the appellants described the applications as invalid. It was stated that “these applications have not been registered and will not be processed further until the requested details have been received”. On 5 February 1998, the Company appealed to the Secretary of State on the ground that the appellants had failed within the appropriate period to determine the applications. By letters of 25 February 1998 and 13 March 1998, the respondent, by the Planning Inspectorate, fixed the time and place for a local inquiry into the appeals. The Inspectorate also expressed the view that “the information and plans submitted with the application should have been sufficient for you to be able to register the applications” (8 April 1998). It is common ground that it is not for the Court in this case to determine the adequacy of the documentation on its merits. By letter of 29 April 1998, the appellants submitted to the respondent that “in the case of the applications submitted by Ski Enterprises (UK) Ltd these are not yet complete, are not valid, have not been registered, and are therefore not yet subject to an eight week determination period”.

It was submitted that the Planning Inspectorate had “no jurisdiction in these matters, as no valid appeals can be lodged”. In a subsequent letter, the appellants submitted that “an application will not be registered until it is valid. An assorted bundle of documents does not become a valid application for planning permission or listed building consent until it includes all the information required by the LPA in accordance with the relevant legislation and/or regulations”. The appellants’ submission was that they alone had power to decide whether sufficient detail was included with the applications. They commenced the present proceedings when the Planning Inspectorate indicated that they were not prepared to cancel the Inquiry. It was in the event adjourned.

Further applications have since been made by the Company with the detail requested and permissions were granted on 25 March 1999, that is, since the judgment at first instance. The appellants have however stated that they “still wish to pursue a formal determination as to the extent of the Planning Inspectorates’ jurisdiction with regard to appeals against applications which are regard by the Council as being invalid ...”. The same issue is likely to arise upon further applications, it is stated. A separate point taken by the respondent that a timely notification of alleged invalidity was not given by the appellants was not pursued at the hearing before the judge.

The provisions under which the Company purported to appeal to the respondent are contained in section 78 of the planning act and section 20 of the listed buildings act. Section 78 provides:

“(1) Where a local planning authority —

(a) refuse an application for planning permission or grant it subject to conditions;

(b) ...

(c) ...

the applicant may by notice appeal to the Secretary of State.

(2) A person who has made such an application may also appeal to the Secretary of State if the local planning authority have [not given notice of their decision on the application] within such period as may be prescribed by the development order ...”.

Section 20 is, for present purposes, to the same effect. Section 79 of the planning act and section 22 of the listed buildings act confer broad powers upon the Secretary of State when determining appeals.

Section 62 of the planning act provides:

“Any application to a local planning authority for planning permission —

(a) shall be made in such manner as may be prescribed by regulations under this Act; and

(b) shall include such particulars and be verified by such evidence as may be required by the regulations or by directions given by the local planning authority under them.”

Article 20(1) of the Town and Country Planning (General Development Procedure) Order 1995 (“the GDPO”) provides:

“Where a valid application under ... Regulation 3 of the Town and Country Planning (Applications) Regulations 1988 has been received by a local planning authority, they shall within the period specified in paragraph (2) give the applicant notice of the decision or determination ...”

Thus the Article introduces the concept of the “valid application”.

The period specified in paragraph (2) is “a period of eight weeks beginning with the date when the application was received by the planning authority”. The corresponding provisions in the listed building legislation are, for present purposes, identical. Regulation 3(4) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 also includes the expression “where a valid application has been received by a local planning authority”.

The provisions relating to planning applications are split between the GDPO and the Town and Country Planning (Applications) Regulations (“the 1988 Regulations). Regulation 3 of the 1988 Regulations provides:

“(1) ... an application for planning permission shall —

(a) be made on a form provided by the planning authority;

(b) include the particulars specified in the form and be accompanied by a plan which identifies the land to which it relates and any other plans and drawings and information necessary to describe the development which is the subject of the application; and

(c) except where the authority indicates that a lesser number is required, be accompanied by three copies of the form and the plans and drawings submitted with it”.

Section 10 of the Listed Buildings Act provides:

“(2) An application for listed building consent shall be made in such form as the [local planning] authority may require and shall contain —

(a) sufficient particulars to identify the buildings to which it relates, including a plan;

(b) such other plans and drawings as are necessary to describe the works which are the subject of the application;

(c) such other particulars as may be required by the authority”.

Article 5(4) of the GDPO provides:

“Where, after sending an acknowledgement as required by paragraph (2) of this Article, the local planning authority consider that the application is invalid by reason of a failure to comply with the requirements of Regulation 3 of the 1988 Regulations ... or any other statutory requirement, they shall as soon as reasonably practicable notify the applicant that his application is invalid”.

The standard form of acknowledgement under Article 5(2) is set out in Part I of Schedule 1 to the GDPO:

“I am still examining your application form and the accompanying plans and documents to see whether they comply with the law.

If I find that your application is invalid because it does not comply with the statutory requirements then I shall write to you again as soon as I can.

If, by [insert date at end of period of eight weeks beginning with a date when the application was received]

you have not been told that your application is invalid ...

then you can appeal to the Secretary of State for the Environment under section 78 of the Town and Country Planning Act 1990 ...”.

There are similar provisions in the Listed Buildings Regulations, Regulation 3(3) and Part I of Schedule 1. Where Article 5(4) uses the word “considers”, Regulation 3(3) provides: “forms the opinion”.

The general duty as respects listed buildings in exercise of planning functions is set out in section 66(1) of the listed buildings act:

“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”

Similar terminology appears in section 16 of the Act, which deals with decisions on applications.

Before leaving the statutory provisions, I refer to Regulation 4 of the 1988 Regulations entitled “Directions by the local planning authority”. Its opening words are that “the local planning authority who are to determine an application may direct an applicant in writing to supply any further information ... .” It is not suggested that any such directions were given in the present case. Mr Lewis, for the appellants, describes as a moot point, and one which need not be resolved in the present appeal, whether failure to comply with a Regulation 4 direction renders an application for planning permission invalid. Miss Robinson, for the respondent, submits, with force in my view, that an application which has the status that it is to be “determined” cannot be rendered by subsequent events invalid from the start.

The appellants submit that the effect of the statutory provisions is that the determination of the question of validity of an application for planning permission or listed building consent is a matter for the local planning authority and not for the Secretary of State. Regulation 3 of the 1988 Regulations and section 10 of the Listed Buildings Act impose requirements as to the particulars to be included with the appropriate application for permission. The right to appeal to the Secretary of State arises only when a “valid” application has been made and no such applications were made in this case. By virtue of Article 5(4) of the GDPO and Regulation 3(3) of the 1990 Regulations, the local planning authority has the power to determine that the applications are invalid and that power was exercised in this case. The standard form of acknowledgement provided in the Order and Regulations makes clear that the right to appeal to the Secretary of State arises only in the case of applications not declared invalid by the local planning authority. In the case of the listed buildings application, the conclusion that the decision as to the validity of the application is one for the local planning authority is reinforced by the requirement of Section 10(2)(c) of the Listed Buildings Act that the application shall contain “such other particulars as may be required by the [local planning] authority”. In the absence of valid applications for planning permission and listed building consent, the right to appeal to the Secretary of State does not arise and the only remedy is by way of judicial review. To hold that notification by the local authority that an application was invalid did not exclude the right of appeal to the Secrete of State would be to render the Regulations meaningless and nugatory.

The appellants further rely upon the guidance given in PPG 16. It provides that it is generally preferable for related planning and listed consent applications to be considered concurrently and in relation to listed building consent “advises local planning authorities not to accept applications for listed building consent until they have sufficient information to provide a full understanding of the impact of a proposal on the character on the building in question” (Paragraph B3 of Annex B of PPG 15 as clarified in Appendix C to Circular 14/97.) That reflects the general duty in section 66 of the listed buildings act. As local authority, the appellants were best placed to assess the adequacy of detail. PPG 15 also emphasises the importance of early consultation with local planning authorities on development proposals affecting listed buildings. The functions of the local planning authority should not be usurped by central government.

In Geall v S of S for the Environment, Transport and Regions (Unreported 11 December 1998), this Court considered, as Schiemann LJ put it at the beginning of his judgment, “in what circumstances is a request for planning permission not to be treated as an application for planning permission and who is the person who is to decide whether a request constitutes an application?” The Court held that the Secretary of State was entitled to decide whether, in the context of that section of the Planning Act dealing with enforcement notices, the appellant had made “an application to the local planning authority for planning permission for the development to which the relevant enforcement notice relates”. The Court held that the Secretary of State was entitled to decide that acceptance of a fee by a local planning authority and their failure to notify an applicant that his application for planning permission was invalid did not render valid an otherwise invalid application. The Secretary of State agreed with the local planning authority that the application submitted to that authority was incomplete and did not fulfil the requirements of Regulation 3 of the 1988 Regulations.

Schiemann LJ stated:

“I therefore consider that the Secretary of State was right himself to take the decision as to whether or not what was done by the Appellant in 1993 amounted to making an application ... The scheme of the Act is that the Secretary of State should make up his own mind as to whether this is the case. It would be inimical to good administration to require him to research the whole background of relations between applicants and the local planning authority. He should be able to form a view on the material which, pursuant to the GDO, is placed before him.”

I am content for present purposes to take a narrow view of the ratio in Geall but the general observations of Schiemann LJ are nonetheless persuasive. Dealing also with the general question he had posed at the beginning of his judgment, Schiemann LJ stated:

“If the local planning authority refuse what purports to be an application for planning permission and the applicant wishes to appeal, he will need to rely on section 78(1). In such circumstances it will be common ground between the applicant and the local planning authority that what purports to be an application is indeed an application. A question might arise as to whether the Secretary of State has jurisdiction to entertain the appeal if he takes the view that the purported application is not an application. The question is unlikely to arise often in practice, but in my judgment, if the Secretary of State takes that view then he has no jurisdiction to entertain the appeal - until such time, if any, as his decision that the purported application is no application, is quashed by way of judicial review.

If the local planning authority decides not to process the application but declares the application invalid the applicant can challenge that decision by judicial review. The Act has not provided for an appeal against the decision to declare the application invalid. If the applicant tries to appeal under section 78(2), in order to bring himself within the section he will have to assert that he is a person who has made an application for planning permission. If he does so assert, a question will arise as to whether the Secretary of State has jurisdiction to determine whether the applicant is a person who has made an application for planning permission. Again, the question is unlikely to arise often in practice, but in my judgment, if the Secretary of State takes the view that no application for planning permission has been made, then he has no jurisdiction to entertain the appeal - until such time, if any, as his decision that the purported application is no application, is quashed by way of judicial review. If, on the other hand, the Secretary of State takes the view that an application for planning permission has been made then, in my judgment, the Secretary of State is under a duty to entertain the

appeal. ... .”

The appellants submit that those remarks of Schiemann LJ were obiter, as they were. They also submit that, in the light of fuller argument in this case, they should not be followed.

The judge in the present case stated that, even in the absence of Geall, he would have rejected the appellants’ submissions. The judge stated:

“Article 20 of the DGPO does not prescribe who is to determine the question of validity of a planning application. Specifically, it does not provide that this question is exclusively within the jurisdiction of the local planning authority. It does not provide ‘where in the opinion of the local planning authority a valid application’. Mr Lewis relies on the form of acknowledgement prescribed by Article 5(2). But this is an inadequate basis for the submission to prevail. It is clear from Article 5(4) that the matter of the validity of the application is for the local planning authority in the first instance. But Part I of Schedule 1 does not prescribe that if an applicant has been told that his application is invalid, there is accordingly no right of appeal, in other words as Miss Robinson put it, one cannot assume the converse of the form. It is accordingly clear, in my judgment, that the question as to whether “a valid application” for the purposes of Article 20(1) has been made is one which is not exclusively for determination by the local planning authority but one which the Inspectorate, when seized of the matter, may determine.”

The judge also expressed his agreement with the general statements of Schiemann LJ.

Miss Robinson’s submission, rightly in my view, concentrates upon section 78 of the planning act and section 20 of the listed buildings act as the starting point for determination of the issue. Moreover, as she submits, the wording of some of the legislation supports the view that an application is valid for the purposes of those sections even when the local planning authority gives notice of invalidity. Regulation 4 of the 1988 Regulations, while not directly in point on the facts of this case, appears to confer a status on an application at the time a direction is given. The authority are to “determine” it, that is by grant or refusal, rather than decide whether it is valid. It is when considering whether to grant consent that “special regard” must be had under sections 16 and 66 of the listed buildings act and not when considering whether an applications is valid. The wording assumes the existence of what for the purposes of section 78 and section 20 may be considered as applications.

The appellants’ submissions are not without force in my view. Time starts running under Article 20(1) of the GDPO where a “valid application” has been received. Under Article 5(4), the local planning authority are entitled to form an opinion that an application is invalid by reason of a failure to comply with the requirements of Regulation 3 of the 1988 Regulations and to notify the applicant that the application is invalid. Moreover, it is possible to draw the inference from the standard form of acknowledgement provided in the Order that the right of appeal only arises if the applicant has not been told that the applicant is invalid.

I have however come to the conclusion that a right of appeal does arise even when the local planning authority have formed the opinion that the application is invalid. The applicant is entitled to have the opinion of the Secretary of State on the question of validity. I reach that conclusion upon a purposive construction of the statutes and a consideration of the scheme as a whole. With the notable and long-standing exception that there is no statutory right of appeal against a grant of planning permission by a local planning authority, it provides, in a variety of situations, an appeal to the Secretary of State. In addition to a right of appeal against planning decisions and failure to take planning decisions, the planning act provides for appeals against enforcement notices, certificates of lawful use or development, tree preservation order consents, advertisement consents, appeals against tree replacement requirements and appeals against information requirements of the planning authority. In addition, the Secretary of State has the power under section 77 of the planning act to call in planning applications. The scheme of the Act gives a status to the Secretary of State such that a construction of statutory provisions dealing with appeals which has the effect of conferring exclusive jurisdiction on the local planning authority does not fit easily with that scheme.

As the judge pointed out, it is not stated in terms in the statutory provisions that the local planning authority is the sole arbiter upon validity. Regulation 3 of the 1988 Regulations does not purport to make the local planning authority the sole judge of what plans, drawings and information are necessary to describe the development. (In this respect, the appellants are on stronger ground on the listed buildings act which does include the expression “such other particulars as may be required by the [local planning] authority”.)

The case turns upon the meaning of the word “application” in section 78 of the planning act and section 20 in the listed buildings act. In my judgment, and in the context of the statutes, it includes an application which the local planning authority consider to be invalid under the Regulations. The words “which the local authority consider to be valid” should not be read into section 78 of the planning act and section 20 of the listed buildings act to govern the word “application”. A determination of invalidity by the local planning authority does not exclude the right of appeal to the Secretary of State on the question of validity. The applications in this case remained applications for the purpose of triggering the operation of the appeal provisions in the legislation notwithstanding the view of the local planning authority that the applications were invalid.

Though I have reached the conclusion by a somewhat different route, it follows that I agree with the views expressed by Schiemann LJ in Geall and with the conclusion of the judge in the present case. The Company was not restricted to a remedy by way of judicial review.

I cannot conceive that the purpose or effect of the legislation is to produce a different result upon a listed building application from that upon a planning application. Section 10(2) of the listed buildings act deals with the “form” of the application for listed building consent. An application may not be in the required form if there is a failure to give “such other particulars as may be required by the [local planning] authority”. A failure to comply does not in my view prevent the document from being an application within the meaning of section 20.

I agree with Mr Lewis that the judge’s reliance, as expressed, on Article 3 of the GDPO was misplaced. The outline planning permission procedure allows a planning authority to give a decision in principle and to reserve details for subsequent approval. If an authority who are to determine an application for outline permission are “of the opinion that, in the circumstances of the case, the application ought not to be considered separately from all or any of the reserved matters”, they shall “notify the applicant that they are unable to determine it unless further details are submitted, specifying the further details they require”. (Article 3(2)). This is not in my judgment a procedure “parallel” to that under consideration, as the judge stated, but a separate one provided to deal with a potential difficulty peculiar to the outline application procedure. It is not, and could not be, suggested that failure to submit further details invalidates the outline application. However, a right of appeal to the Secretary of State undoubtedly arises under this procedure because a time limit for appealing to him is specified in Article 23(2)(c) of the GDPO. To the extent that the analogy provides another illustration of what I regard as the general scheme of the legislation, it supports the conclusion reached by the judge and by me.

Nothing in the judgment should be read as to discouraging applicants for planning permission and listed building consent from providing appropriate detail with their applications or from co-operating with local planning authorities. Moreover, there could be requests for permission which are so deficient in form and substance that no reasonable local authority or Secretary of State could reasonably treat them as “applications” within the meaning of the legislation.

I would dismiss this appeal.

LORD JUSTICE OTTON:

I agree.

LORD JUSTICE ROCH:

I also agree.

Order: Appeal dismissed with costs; leave to appeal to the House of Lords refused. ( This order does not form part of the approved judgment )