Introduction

After a brief summary of the procedural history, and the key conclusions reached by the Court of Appeal, we will highlight three important points of principle that were considered in this litigation: 1) the scope for lawyers to imply a power into a statutory code to revoke a final decision; 2) the jurisdiction of the Local Government Ombudsman (LGO) to investigate a complaint against a public authority that is premised upon a contentious point of law; 3) whether local planning authorities have an implied power to refund planning fees.

The Facts 

Piffs Elm Ltd (PEL) applied to Tewkesbury Borough Council (TBC) for planning permission for industrial development. When permission was refused, it applied for permission again, with the same result. PEL successfully challenged the second refusal in judicial review on the grounds of apparent bias in R (PEL) v TBC [2016] EWHC 3248 Admin, however HHJ Jarman refused to quash the second refusal on the basis PEL had an alternative remedy (appealing to the Planning Inspectorate). 

Instead of appealing to the Planning Inspectorate, however, PEL decided to apply to TBC for permission a third time. TBC declined a request to waive the fee for the third application and warned PEL that it was likely to decline to determine the third application under s70A of the Town and Country Planning Act 1990. PEL nevertheless paid the fee and TBC declined to determine the third application.

The litigation that ensued and culminated in the Court of Appeal Judgment concerned TBC’s refusal to refund the fee paid for the third application. TBC maintained that there was no power to refund it. The directors of PEL submitted complaints to the Local Government Ombudsman (LGO), principally about the refusal to refund the planning fee and the decision to decline to determine the third application. 

The LGO was initially minded to reject the complaint, but the “final report” that it issued in 2019 found TBC to have acted maladministratively. However, after TBC threatened judicial review, the LGO withdrew the 2019 final report, admitting that it was tainted by legal error, and stating that it would issue a further report in due course. 

Following the release of a further draft report in 2020, rejecting the complaint, PEL launched judicial review proceedings against the LGO. Amongst other things it argued that the LGO had no power to withdraw a “final report”. TBC then launched protective proceedings against the 2019 final report. The two claims were joined.

The Judgment 

Lady Justice Laing, giving the judgment for the Court of Appeal, found that the LGO had no power to withdraw the 2019 final report. This meant PEL was successful in appealing the First Instance Judgment on one of the stated grounds. The victory was pyric however as Laing LJ also found the 2019 final report to be unlawful and ordered that it be quashed. 

The outcome demonstrates the importance of launching protective proceedings in such cases. It was on the basis of TBC’s successful judicial review claim that PEL’s claim and appeal were ultimately dismissed.

Implied Powers to Revoke Final Decisions

As has been stated, the judgment has significance to the issue whether a public authority has an implied power to withdraw a final decision. This was said in the Judgment to be the same issue that arises when lawyers ask the question whether a public authority is functus officio. 

The Judgment is directed to the LGO’s powers which are set out in Part III of the Local Government Act 1974. The Court of Appeal decided that in the context of what, upon analysis, presents as a “complete code” of statutory powers and duties, it is not necessary as a matter of statutory interpretation to imply a power to withdraw a final report. Furthermore, the Judge held that sections 12 and 18 of the Interpretation Act 1978 do not provide any public authority with a power to rescind a final decision. 

The LGO’s Jurisdiction

Section 26(6) of the 1974 Act states that the LGO shall not conduct an investigation in respect of (amongst other things) “any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law”, but that the LGO may conduct such an investigation “if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or to have resorted to it”.

PEL’s position was that the LGO, having decided to investigate the complaint, thereby lost the ability to decline jurisdiction under s26(6). The Court of Appeal rejected this argument, finding that this provision applies throughout the investigation as it is fundamental to the LGO’s jurisdiction. Thus, if it is at any point in the investigation clear to the LGO that there is such an alternative remedy and that it was not, or would not, be unreasonable for the complainant to have resorted to it, or to resort to it, the LGO must decline jurisdiction.

Further, Laing LJ held that there was only one answer the LGO could have reached had he considered s26(6) in this case, which was that he did not have jurisdiction to investigate the complaint, because its resolution required a decision on a pure point of law, for which PEL had an alternative remedy which it would be reasonable for it to use (i.e. judicial review).

Whether There is a Power to Refund a Fee

The Judgment leaves unanswered a separate issue of implied powers. It was common ground between the parties that there were circumstances in which planning authorities must refund planning fees (see the Town and Country Planning (Fees for Applications, Deemed Applications, Request and Site Visits) (England) Regulations 2012), and that these did not apply to its third application. PEL’s complaint to the LGO argued (somewhat ironically, given its position on the LGO’s jurisdiction) that there was an implied power to refund a planning fee in other circumstances. 

TBC’s position was that the TCPA and 2012 Regulations together amount to a complete code and therefore it is not possible or necessary to imply a power to refund fees. However, the Court of Appeal decided that it was not necessary to determine this issue to resolve the two claims. The issue was thus left open, perhaps for determination in a later case. 

James Pereira KC and Horatio Waller appeared for Tewkesbury Borough Council.

The judgment, Piffs Elm Ltd v Commission for Local Administration in England & Another [2023] EWCA Civ 486, can be accessed here.