This is the third in my series of articles concerning the validation of applications for planning permission.
The first article reviewed the correct procedure for the registration and validation of applications. The second considered the extent to which LPAs have discretion to consider invalid applications. This article explores the application of section 62(3) of the 1990 Act, which concerns the so-called Local List provisions.
These provisions were considered in detail in Newcastle Upon Tyne City Council v Secretary of State for Communities and Local Government [2009] EWHC (Admin) 3469.
At §9 of the judgment, the judge summarised the common ground between the parties as to the law in this area.
“a) if the local planning authority fails to determine an application such as the one in this case within the specified time it is for the Secretary of State to determine on an appeal and there is an entitlement to appeal;
b) the right to appeal does not depend upon whether the application is held invalid by the local planning authority. There is a right for an applicant to appeal to the Secretary of State if the applicant contends that his application is valid, contrary to the view of the local planning authority;
c) the first question for the Secretary of State on such an appeal is whether the application is valid — only after determining that can he deal with the merits;
d) if the Secretary of State is faced with an application which obviously does not comply with the national requirements or is manifestly invalid, he may reject it without more ado as being invalid; but
e) to the extent that any item selected by the local planning authority from the local list as necessary requires particular facts to be established as a necessary precondition for what is typically a study or assessment to which that item relates, it is open to the Secretary of State to consider whether or not that precondition has actually been established and he may reach his own view as to that. If he were to decide that the necessary precedent fact had not been established, he would be entitled to regard the requirement dependent upon it as having been satisfied in that particular case.”
Ultimately the judge concluded:
36. The Secretary of State may therefore ask if the applicant has acted sufficiently so as to comply with the requirements of the local planning authority: he may assert that he has, and the local planning authority may assert that he has not, but what is not in issue in my view is the requirement itself, merely whether it has been satisfied by what the applicant has done. There is no provision for an appeal from the Secretary of State against the local authority’s decision to impose the requirement as to what they consider necessary. Any appeal in that respect is in my view properly to be brought by judicial review by someone in a position such as the interested party in this case and not by the reference of the planning application or purported application by someone in such a position to the Secretary of State under the Section 78 appeal procedure.”
Conclusion
In summary, if the LPA thinks that the Local List requirements are appropriate and meet the statutory tests, the Secretary of State does not have the power to determine whether it was reasonable in that requirement. That power rests with the court alone through the mechanism of judicial review.
