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Reconsideration or review?

Owain Rhys James looks at an inspector’s jurisdiction under section 195 of the Town and Country Planning Act.

An aggrieved individual who is refused a certificate under either section 191 or 192 of the Town and Country Planning Act 1990 may appeal to (in England) the Secretary of State or (in Wales) to the Welsh Ministers: in practice such appeals are heard by an Inspector.

The Inspector’s jurisdiction derives from s195 of the Act 1990:

(1) Where an application is made to a local planning authority for [F1a certificate under section 191 or 192] and -

(a) the application is refused or is refused in part, or

(b) the authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority,

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

(2) On any such appeal, if and so far as the Secretary of State is satisfied—

(a) in the case of an appeal under subsection (1)(a), that the authority’s refusal is not well-founded, or

(b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded,

he shall grant the appellant [F5a certificate under section 191 or, as the case may be, 192] accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.

(3) If and so far as the Secretary of State is satisfied that the authority’s refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal.

(5A) For the purposes of the application in relation to Wales of sections 288(10)(b) and 319B(7)(d) in relation to an appeal in a case within subsection (1)(b) it shall be assumed that the authority decided to refuse the application in question.]

(emphasis added)

Re-consideration or review?

Whether the inspector is limited to conducting a review of the reasons for refusing by the Local Authority; or whether it is open to him or her to conduct a re-consideration and hear the matter de novo is a point, seemingly, without authority.

The Encyclopaedia of Planning Law and Practice states that:

The wording of subs.(2)–(3) rather suggests that s.195 appeals are strictly limited simply to a review of the authority’s decision. However, they are invariably treated as de novo appeals. This means that parties and interested persons may submit additional evidence to the Secretary of State which was not before the authority at the time of its decision. There is guidance on s.195 appeals in England in Lawful development certificates, s.17c of the Planning Practice Guidance (see paras 5-269.1 to 5.269.14 of the Encyclopaedia) and the PINS Guidance Procedural Guide: Certificate of lawful use or development appeals – England (July 2015) (paras 5-5425 to 5-5528).

That commentary differs from the view taken by the Planning Inspectorate in Wales whose guidance states that:  “s195 refers only to the refusal being well-founded or not well-founded; that is the decision itself, not the reasons for it. It would be wrong to grant an LDC where the evidence, taken as a whole, suggests that the matter in question is not lawful, even if the LPA’s original reasons can be shown later to be misplaced.”

The jurisdiction of the Inspector was a point taken by the Claimant’s, and in respect of which they were granted permission, in McGaw v Welsh Ministers [2020] EWHC 2588 (Admin). Though, as is seen below, the ground of challenge was withdrawn at the outset of the hearing.

Initially, the Claimant’s argument was that the Inspector’s jurisdiction was confined to a review of the reasons for refusal by the Local Authority. Distinctions between s195 and other statutory provisions which expressly provided for a hearing to be de novo, or for an Inspector to deal with matters as if the application had been made to him in the first instance (see s79 of the Act), were relied upon.

The Welsh Minister’s argument in McGaw was that on a proper interpretation of section 195 it is the “authority’s refusal” (i.e. to allow or refuse in whole or part) that is the subject of the appeal before the Inspector, not the reasons for the same. It follows that the Inspector may consider, and determine, the appeal on grounds which differ to those before the Local Authority. It proceeds de novo before him or her. It is a re-consideration of the refusal; not the reasons.

Reliance was placed on the absence of the words “the reasons for” or “the grounds for” or words to similar effect. Had Parliament intended the right of appeal to be limited to a review, so the argument goes, then it would have clearly said so. It did not.

That argument is supported by the fact that no meaningful distinction is drawn between the approach for a decision under 195 (2)(a) (where there is consideration of whether the “refusal was well-founded”) and a failure to give a decision under 195 (2)(b) (where there is consideration of whether, had there been a refusal, that refusal would have been well-founded). Self-evidently in the case of s195(2)(b) there can be no reasons for a refusal for the Inspector to consider, such decision having not in fact been taken. There is no obvious reason, absent the appeal being a reconsideration, why it would be framed in materially identical terms in both situations.

By analogy, support for the above interpretation may be derived from the decision of Woolf J (as he then was) in Cottrell v SSE & Tonbridge and Malling BC [1982] JPL 443The application having been refused by the LPA, the Applicant exercised their right of appeal and, in accordance with section 95 (4) of the 1971 Act, an inquiry was conducted by an inspector. The point taken by the Applicant before the Court was, in substance, the same point taken by the Claimant in the instant case, namely; “that under section 95 the Secretary of State has no power to refuse to grant an established use certificate on a different ground from that relied upon by the planning authority. The Secretary of State’s jurisdiction is limited to considering the validity of the ground relied upon by the planning authority, and if the ground is one of no substance then he is required to grant a certificate”.” (§6b-c).

The material parts of section 95 of the 1971 Act stated:

“Where an application is made to a local planning authority for an established use certificate and is refused, or is refused in part, the applicant may by notice under this  subsection appeal to the Secretary of State; and on any such appeal the Secretary of State shall:

If and so far as he is satisfied that the authority’s refusal is not well-founded, grant to the appellant an established use certificate accordingly or, as the case may, modify the certificate granted by the authority on the application; and

If and so far as he is satisfied that the authority’s refusal is well-founded, dismiss the appeal.”

Woolf J held that (at 7 c-d) “there is a distinction between the reasons the authority had for refusing and the decision of the authority to refuse. The Secretary of State is only required, in my view, to grant a certificate if he is satisfied that the decision of the authority is not well-founded. Here, the Secretary of State rejected the reasoning of the authority, He, however, has found other grounds on which he was satisfied that their decision was right, and it follows therefore that he was not bound to grant a certificate.”

The judgment continues, at 8C-E : “… As in this case, the planning authority may be misconceived in its view on the law or on the facts, and, because of that, may never go on to consider the real issue. It would be an absurd result, if it was wrong as to a technical matter, that this should result in a certificate begin granted even though on the true merits and on the true issue it is clear on the facts found by an inspector that no certificate should be granted.”

McGaw v Welsh Ministers

HHJ Jarman QC, sitting as a Judge of the High Court, was not, ultimately, required to determine the correct interpretation of section 195. However, in his judgment, he recorded:

“13. Ground 1 involved a jurisdictional point under section 195 of the 1990 Act, under which the appeal to Mr Nixon was made, and which required him to consider whether the council’s refusal of the second application was “well-founded.” The claimant’s point was that this did not allow Mr Nixon to treat the appeal as a re-consideration of the lawfulness of the proposed development.

14. Mr James, in his skeleton argument, argued that by analogy the reasoning of Woolf J, as he then was, in [1982] JPL 443 applies to section 195. That was a decision which related to similar appeal provisions under the Town and Country Planning Act 1971, and the court held that it would be absurd if an appeal against the refusal of a certificate which was wrong as to a technical matter should result in a certificate being granted when it was clear that on the true merits that none should be granted. Mr Jones realistically accepted the force of that reasoning and properly at the outset of the hearing made clear that he did not pursue this ground.”

The issue remains undecided though the logic in Cottrell seems persuasive. It remains to be seen whether any further guidance will be given by the Court's in the light of future appeals.

Owain Rhys James is a barrister at Civitas Law. He appeared for the Welsh Ministers, instructed by the Planning, Infrastructure, and Environment Team at the Government Legal Department in McGaw v Welsh Ministers.