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R (Gleeson Homes Ltd) v (1) Secretary of State for Communities and Local Government and (2) The Planning Inspectorate [2014] P.T.S.R. 135

DATE: 21 Oct 2013

This was a judicial review arising out of the mistaken issue of an Inspector’s decision letter allowing Gleeson Homes’ planning appeal and granting permission for a 180-dwelling residential development in Malmesbury, Wiltshire. At the time when the decision letter was issued, the Secretary of State had already decided to recover the appeal for his own determination and his office had communicated that decision by email to the Planning Inspectorate. The recipient of that message was, however, on leave and by coincidence on the same afternoon the Inspector sent his decision letter to the Inspectorate’s despatch office for it to be released, which, in ignorance of the Secretary of State’s decision to recover, it duly was. The mistake was discovered shortly afterwards and on the next day a letter was sent to the parties to the appeal stating that the Inspector’s decision had been issued in error and was withdrawn. On the following day, the Planning Inspectorate issued a further letter providing the parties with formal notice of the recovery direction and the reason for it.

Dismissing the claim, Cranston J. held that:

1. The proper interpretation of the provisions in paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 was that a recovery direction did not need to be served on the parties before it could take effect. The decision the House of Lords in R (Anufrijeva) v. SSHD [2004] 1 A.C. 618 did not support the broad proposition that all public law decisions do not take effect until they are communicated to the affected parties, but the narrower proposition that only those decisions which adversely affect an individual’s rights needed to be communicated to take effect. It therefore did not help Gleeson in the present case, since the Secretary of State’s decision to recover the appeal was not ‘adverse’ to anyone but simply altered the identity of the decision-maker.

2. Accordingly, the Inspector’s decision was issued at a time when jurisdiction to determine the appeal had been transferred from him to the Secretary of State. The previous cases of Norfolk CC v. SSE [1973] 1 WLR 1400 and Co-operative Retail Service Ltd. v. Taff-Ely BC (1980) 39 PCR 223 were authority for the proposition that, in the planning context, a person deprived of legal authority to perform a function cannot subsequently issue any decision having legal effect. The Inspector’s decision letter therefore had no legal effect and the Secretary of State retained the power to determine the appeal.

3. Alternatively, even if the recovery direction had not taken effect prior to its service on the parties, meaning that the Inspector continued to have jurisdiction to determine the appeal at the time when his decision letter was issued, the Secretary of State was still entitled to withdraw the decision letter in the circumstances.  Applying the judgment of the High Court of Australia in Bhardwaj v. Minister of Immigration [2002] H.C.A. 11 on the principles relevant to assessing whether a public body has power to correct its erroneous decisions, it was appropriate to imply into the 1990 Act a limited power to enable simple and obvious administrative errors to be corrected (subject to compliance with the requirements of public law). The powers of revocation in ss.97-100 of the 1990 Act (which carry with them an obligation to compensate the beneficiary of the revoked permission) did not undermine this analysis since they were not concerned with simple and obvious errors but the situation where there has been a change of mind on the part of the planning authorities.

4. The recovery direction was not irrational or inadequately reasoned, nor was there a requirement for the Secretary of State to consult the parties to the appeal before issuing the recovery direction.

5. The withdrawal of the Inspector’s decision letter without compensation was not in breach of Gleeson’s rights under Article 1 of the First Protocol ECHR. Given that the error was identified and corrected within one day, any interference with its A1P1 rights was de minimis. In any event, it was justified as a fair balance between the claimant’s interests and the general public interest.


John Litton QC and David Blundell appeared for the Claimant.

Charles Banner appeared for the Defendant, with Jonathan Swift QC.