Mulvenna and Smith v Secretary of State for Communities and Local Government [2015] EWHC 3494 (Admin)

In this round in the battle over the Secretary of State’s practice of calling in gypsy and traveller cases involving development in the green belt, the High Court rejected applications for judicial review  by two claimants in circumstances where the Secretary of State had already gone on to determine their substantive appeals. The claims were brought in the wake of the decision in Moore and Coates v. Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) in which Gilbart J held that the Secretary of State had acted unlawfully in recovering jurisdiction over all appeals  involving sites for travellers in the green belt.  In Moore and Coates, the claims for judicial review had been brought and heard at a time when the Secretary of State had still not determined the substantive planning appeals. Following Moore and Coates the Secretary of State carried out a review of the recovery decisions in all other similar cases where the appeal which had not yet been determined, but concluded that he had no power to reconsider those appeals in which jurisdiction had been recovered and a decision letter issued. The claimants in Mulvenna and Smith fell within this latter category.  Although brought shortly after the decision in Moore and Coates, their claims were significantly outside the normal six week time limit for challenging the recovery decision.  Accordingly, the main issues before the Court were:

1. Whether to grant an extension of time (and whether an extension was necessary in order to ensure an effective remedy under European law);
2. Whether the Secretary of State had the power to revoke or reconsider his decision on the substantive appeals;
3. Whether an unlawful recovery decision rendered the subsequent decision on the substantive appeals unlawful.

Dismissing the claims, Cranston J held that:

1. time for making the applications for judicial review should not be extended. Anyone objecting to a decision of a public authority by way of judicial review must challenge it without delay, and “cannot wait until others show that the way is clear”. In circumstances where the Secretary of State had gone on to determine the appeals in reliance on the validity of the recovery decision, there would clearly be detriment to good administration if time were extended. The tight time limits for judicial review were compatible with the principle of effectiveness;
2. the Secretary of State had no power to revoke his decisions on the appeal, whether or not the recovery decisions were lawful;
3. the Secretary of State’s decision on the appeals could only be challenged under section 288, and not by judicial review. The fact that a recovery decision was unlawful did not mean that the subsequent substantive determination on the appeal was unlawful.

Paul Brown QC and Stephen Whale acted for the Secretary of State.  A copy of the judgment can be found here.