Wednesday, 22 September 2010

The scope of re-determination

When an appeal decision has been quashed in the High Court, to what extent should the Secretary of State (or, in practice, one of his Inspectors) re-consider the issues in the appeal?

If the appeal was brought under s.78 against a refusal of planning permission, so that the quashing order was made under s. 288, it is well-settled law that the decision, having been quashed in its entirety, is before the Secretary of State de novo. (See, for example, Kingswood DC v. SSE [1988] JPL 248.)

However, the Court of Appeal confirmed last December that this rule does not apply to an appeal against an enforcement notice under s. 174 which has been quashed under s. 289. (See R (Perrett) v. SSCLG [2009] EWCA Civ 1365.)

The difficulty in the Perrett case was that the quashing order had been made by consent, and the parties were unable to reach agreement as to the scope of the re-determination by reference to the terms of the consent order. In particular, the appellant wanted to re-run the appeal under Ground (d), but the Planning Inspectorate ruled that this issue could not be re-opened, because it had been determined on the evidence before the first Inspector. So Ground (d) was to be excluded from the scope of the re-opened inquiry.

The Court of Appeal upheld the Secretary of State’s view that he had a broad discretion as to the manner in which enforcement notice appeals are reheard and determined after they have been quashed by the Court (following the decision in Newbury DC v. SSE [1988] JPL 185). The Court in effect ruled that those grounds of appeal under s. 174 which have not been the subject of a successful challenge in the High Court cannot be re-canvassed when the appeal is re-determined. The scope of the re-hearing and re-determination is at the Secretary of State’s reasonable discretion but can properly be confined to those issues which were the subject of the successful challenge in the High Court.

The distinction between enforcement notice appeals under s. 174 and those against a refusal of planning permission under s. 78 is understandable. A Section 78 appeal embraces the whole of the planning merits of the planning application the subject of the appeal. Such issues are often closely inter-related and may not readily be separable. The grounds of appeal under s. 174, on the other hand, are separate and distinct from each other and, where they fall to be determined, each is determined separately by the Inspector. It follows that if the decision on one or more of the stated grounds of appeal has not been successfully challenged (or has not been challenged at all) then the Secretary of State is perfectly entitled to decline to re-open the appeal in respect of that particular ground.

It nevertheless remains a matter of discretion for the Secretary of State (or, in practice, PINS) as to what the scope of the re-determined appeal should be. He may possibly be persuaded that in light of the quashing of the previous appeal decision on one particular ground, certain other closely related grounds might properly be re-opened, but there is clearly very limited scope for challenging the Secretary of State’s (or PINS’) decision as to the basis on which a Section 174 appeal will be re-determined.


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