England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th March 2002

Wednesday, 6th March 2002

1. LORD JUSTICE SEDLEY: Mr Alvand comes before the court in person today. He wants permission to appeal to the High Court against a planning inspector's decision which was given on 15th November 2000 to the effect that boundary structures which he asserts are no more than lean-to greenhouses within Class E of the General Development Order are in fact unlawfully high means of enclosure not permitted either by the General Development Order or by any specific planning consent.
2. In consequence, Mr Alvand now faces prosecution under the Enforcement Notice which the Inspector, as part of his decision, refused to quash. It is not necessary to travel further back into a history which spans pretty well the last ten years. It is, however, appropriate to note that Mr Alvand's principal ground of appeal to the High Court, if he were to obtain permission to appeal, is that the Inspector has erred in law in treating his conclusion as one of fact, and that in law the structures are within Class E of the General Development Order. Let me assume for the present that this is a viable proposition, without necessarily deciding that it is.
3. There is one procedural complication which I want to get out of the way right at the start. Time for giving notice of appeal against the Inspector's decision ran out on 13th December 2000; but it was not until 24th January 2001 that Mr Alvand's solicitors gave notice of appeal. They then ran out of funds and wrote to ask the court to let the application proceed on the basis of the written representations before it. Scott Baker J did so on 2nd March 2000 when the application was listed before him and when only one of the intended respondents attended by counsel. There is no narrative judgment of Scott Baker J in the papers but his order was that permission be refused to give notice of appeal out of time. In other words he did not decide whether there were arguable merits in the issue raised by the notice of appeal, only that it was out of time and that there was no good reason to extend time.
4. Mr Alvand renewed his application in open court before Collins J on 20th June 2001. He thought that this was the oral hearing to which he was entitled; and it is possible that he had obtained reinforcement of that belief from the court office, although I suspect he did so by assuring them that Scott Baker J had only dealt with the application on paper, which literally was true but legally was not. In any event Collins J, the transcript of whose hearing I have read, explained as kindly as he could to Mr Alvand that he could do nothing to overset Scott Baker J's refusal to extend time. Because of the probable misunderstanding I am content to write off, for present purposes, the entire time which elapsed between 2nd March when Scott Baker J gave his decision and 20th June when Collins J made it clear that he could not intervene, as time lost due to a pure misunderstanding. Even so, and counting time therefore only from 20th June, Mr Alvand's appellant's notice to this court dated 16th July 2001 is yet again out of time, this time by almost a fortnight.
5. The appeal which Mr Alvand wants this court to entertain would be a forbidden second appeal by virtue of 54(4) of the Access to Justice Act 1999 if Scott Baker J had refused it on its merits. In the case of Prashar Kay LJ held that section 54(4) applies to planning appeals to the High Court under section 288 or section 289 of the Town and Country Planning Act 1996. But this court has held in the case of Foenander, that a refusal to enlarge time is not caught by section 54(4) and so remains appealable to this court. It follows that the potentially difficult issues of law, on which otherwise I might have wanted expert assistance, seem at present to stand in Mr Alvand's favour. In other words if he can overcome the problem of time then the fact that this might otherwise have been a second appeal against a refusal of permission will not stand in his way.
6. The questions for me, therefore, are whether I should give Mr Alvand first, an extension of time for making this application to the Court of Appeal; and if I do extend his time, whether I should then give him permission to appeal against Scott Baker J's refusal to extend his time for appealing to the High Court under section 289.
7. It is worth pausing here and taking stock. If I were to do both of those things, then an appeal against the refusal of Scott Baker J to extend time would have to be heard with both respondents represented; and if it succeeded, then either this court or the High Court would then have to decide the substantive question whether the grounds of appeal in the notice of appeal to the Court of Appeal are themselves viable. I have assumed so far, as I said, in Mr Alvand's favour for present purposes that they are viable; but I should say quite clearly that the contrary might very well be decided if this point were ever reached.
8. Essentially, and I want Mr Alvand to understand this, the fact that one disagrees with an Inspector's conclusion does not raise an issue of law. It is only if it is possible to show that as a matter of law the Inspector could not come to the conclusion he did about the character of the structures that a point appealable to the High Court would arise, and even then it would not follow that the appeal would succeed.
9. If all problems of time were out of the way I think Mr Alvand should appreciate that he would still have the greatest difficulty in showing that the Inspector's decision raises an issue of law rather than being, as I suspect it probably is, a thoroughly unwelcome and contested appraisal of fact on which the Inspector, and not the High Court, has the last word. None of this, however, is a reason for refusing to enlarge time if an enlargement of time is merited. It is to that issue that I now turn.
10. I want to take the second of the two time issues first. That is to say, the period of time lost between the giving of the Inspector's decision and the giving of notice of appeal to the High Court. Mr Alvand tells me that he went to the solicitors who have been acting for him in the enforcement proceedings, Messrs Chilcotts, the moment he got the Inspector's decision, and asked them to appeal on his behalf to the High Court, but they said that this was not their field. He asked them to try to find other solicitors in Plymouth (where he lives and where all these matters have arisen) who did legal aid work but were not also working for the city council. He could find none and so he tried others in Somerset and Cornwall but they said that they could not travel on legal aid expenses, something which Mr Alvand, I think, accepts today may have been a misunderstanding. Anyway they would not take his instructions. He also tried the Law Society in both Exeter and London, but the legal aid solicitors to whom they directed him did not do planning work.
11. He finally went back to Chilcotts, who agreed to do it and reassured him, he says, that they had a good relationship with the High Court in criminal matters and would have no difficulty in obtaining extensions of time. If the solicitors really did say that I find it remarkable. This court does not hand out extensions of time, even towards Christmas, as if they were lollipops, and it is not something that the office anyway would ever volunteer to do independently of judicial decision. But even so, it was still before Christmas, according to Mr Alvand, when he went back to Chilcotts and there was therefore still the possibility, if not of staying within the allotted time which expired on 13th December, at least going only very marginally outside it. But it was not until late January that the solicitors put in their notice of appeal.
12. That is a history which does not suggest to me that Scott Baker J was arguably at fault in declining to extend Mr Alvand's time. A litigant who puts himself in the hands of solicitors cannot divorce himself from them when the solicitors make a procedural mistake. His remedy, if anywhere, lies against them. Their mistake is his mistake for the purposes of delay; and delay there most certainly was by the solicitors, of a serious order, unexplained and unexcused before Scott Baker J. That is one problem that Mr Alvand faces.
13. His second one is that he is out of time again for coming to this court. He wrote in his appellant's notice:

"I have only just instructed my new solicitors on 3rd July following delays caused by my former solicitors."

14. That date, 3rd July, was already 13 days from the date of the hearing before Collins J, which I have agreed (for reasons I have given) to treat as the date from which time started to run. In other words there had again been delay in going to solicitors, practically to the point of no return, because it was a day before the expiry of the 14-day time limit that the solicitors had, it appears, been approached.
15. In his appellant's notice Mr Alvand also says that he wants time to obtain legal aid. That is something which could be done, and indeed was done, after lodging the appellant's notice. It was not a reason for holding it up. On Monday of this week I was informed that public funding had been refused to Mr Alvand for this application, with the consequence that he is on his own before me. He tells me that he simply had no idea that there was a 14-day time limit for the giving of an appellant's notice to this court. I can accept that Mr Alvand has been in great difficulty because of his lack of funds on the one hand and his need for representation on the other. But if he could put in his present appellant's notice out of time, albeit clearly with help (it has been typed and signed on his behalf), then I cannot see any reason why he could not have done it in time. The only reason he gives me is that he did not know that there was a 14-day time limit, but I am afraid that nothing is simpler than to have made inquiries, not necessarily of a solicitors's office - the Court of Appeal office if it had been telephoned would have given this information, a Citizens Advice Bureau would have given it - and he cannot therefore, it seems to me, be absolved of his ignorance of the 14-day time limit. Thus here he is again before this court out of time.
16. I am afraid that I am not persuaded that there are grounds for my extending the period of time any further than I have already done by collapsing the period from Scott Baker J to Collins J in Mr Alvand's favour. Even with that there is unexcused further lapse of time. On both scores I am afraid this application fails. That is to say, I am not willing to extend time for appealing to this court and, even if I were, I would not be willing to give Mr Alvand permission to appeal against Scott Baker J's refusal to extend the time for appealing to this court.
17. In these circumstances no further issues on the possible merits of the intended appeal arise. I have said enough, I hope, to indicate to Mr Alvand that he should not suppose that by being shut out on grounds of time he is losing a viable appeal. There are real reasons for questioning whether he would have obtained permission to appeal on the merits anyway, given the very high factual content of the Inspector's decision. That, however, is academic for present purposes.
18. I refuse an extension of time and therefore dismiss this application for permission to appeal.
(Application for extension of time refused; application for permission to appeal refused; no order for costs).
19. LORD JUSTICE SEDLEY: Mr Alvand if you care to sit down I will explain why I said what I did about the hearing before Scott Baker J. The solicitors acting for you at that time wrote to the court:

"We refer to the above matter and the interlocutory hearing on 2nd March and confirm that due to limitations on funding in this matter Mr Alvand's application will proceed on written representations."

20. I am afraid that is why Scott Baker J was completely justified in proceeding.