England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		18th July 2005

1. MR JUSTICE OUSELEY: The claimant is a former councillor of Restormel Borough Council; he is a resident in that area with a long-standing interest in its proper planning. In 1994, the Borough Council granted outline planning permission for the construction of a tournament standard golf course with various facilities, including golf lodges and holiday apartments. In 1997, that planning permission was either renewed or granted again, pursuant to section 73 of the Town and Country Planning Act 1990, to the Newquay International Golf Centre. The permission contained standard conditions as required by statute: one required details of the siting, design and external appearance of the buildings to be submitted to the Council for approval within 3 years from July 1997; and another required the development to be begun before the later of either 5 years from July 1997, or two years from the final approval of the reserved matters.
2. On 20th July 2000, that is to say with one day to go before the expiry of the time limited by those conditions, the NIGC submitted an application for approval of reserved matters to the Borough Council. Following a protracted period of discussion, on 14th March 2003 the NIGC appealed to the First Secretary of State against the non-determination by the Borough Council of its application. Although the Borough Council raised a question over the validity of an appeal made so much later than the time allowed, the Secretary of State exercised the powers which he had to extend the time for appealing. He did so either on the basis that the parties had been in negotiation for that period, or possibly may have treated the discussions as constituting an informal but effective extension of the time which the Borough Council had to determine matters. However, the circumstances which follow are those which have given rise to the challenge in this case.
3. On 20th August 2003, NIGC, as appellant, wrote to the Planning Inspectorate, or PINS, withdrawing its appeal. The next day PINS wrote to the appellant confirming that the appeal file was closed and confirmed to the Borough Council on 28th August 2003 that the appeal had been withdrawn. NIGC later sought reinstatement of the appeal but was told on 9th March 2004 by the Planning Inspectorate that reinstatement of the appeal was not legally possible. On 10th August 2004, PINS wrote to the appellant and to the Borough Council announcing that it had changed its mind and decided that it both had power to reinstate the appeal and indeed would do so. It is that decision to reinstate the appeal which is the subject matter of challenge by this claimant. It is necessary to set out a little more of the background to what happened during the course of the appeal process.
4. After the lodging of the appeal, NIGC continued its negotiations with the Council and, as a result, it learned from the Borough Council that subject to certain amendments the reserved matters application was finally acceptable. In the light of that, on 18th August 2003 NIGC wrote to PINS letting them know that its discussions with the Borough Council had proved fruitful. It asked PINS to confirm that if the Borough Council and it so wished, the application could be recovered by the Borough Council for determination by it. It was asked if it would agree to such a joint request; this was seen as the most efficient and cost-effective way of resolving that particular matter.
5. Following that letter, an officer with PINS telephoned the representative of NIGC and advised that, following consultation with colleagues, the application would indeed return to the Borough Council for consideration if the appeal were withdrawn. It is said by NIGC, in correspondence from its solicitors, that what that official said was not qualified in any way, nor was it indicated that there was any doubt about the view expressed. NIGC was not at that time professionally represented. In reliance on that advice, NIGC wrote to PINS on 20th August 2003 withdrawing the appeal, and also wrote to the Borough Council on the same date making the same point as had been made to it by the official at PINS about the return of the decision-making process to the Borough Council, were the appeal to be withdrawn.
6. On 21st August 2003, PINS wrote a short letter to NIGC saying that the appeal had been withdrawn. After that, PINS wrote to the Council on 28th August 2003 confirming that it was its view that the application for approval of reserved matters could still be determined by the local planning authority, provided there was agreement to an extension of the period for consideration of the application. It was in this letter for the first time that the qualification appears to have been introduced that, although the advice that that was the position came from the PINS legal branch, it was not an opinion which had been tested in the courts.
7. The claimant however sought advice as to the effect of the withdrawal of the appeal. Armed with the benefit of legal advice from leading counsel, the claimant approached the Borough Council, which was persuaded by this advice, to conclude in December 2003 that it did not have jurisdiction to determine the reserved matters application. PINS also reconsidered its position and on 30th December 2003 wrote to the Council to say that it had changed its mind about whether the withdrawal of the appeal had led the Council to regain jurisdiction.
8. On 30th January 2004 NIGC, by now benefiting from professional advice from solicitors, wrote to PINS saying that the withdrawal of the appeal had been done on the advice of PINS and asked them to reinstate the appeal or to treat the withdrawal as merely a purported withdrawal in the light of NIGC's reliance on erroneous advice. On 9th March 2004, PINS replied stating that it could not reinstate the appeal because there was no longer an appeal, as it had been withdrawn. However, NIGC's solicitors on 19th May 2004 sent PINS a pre-action protocol letter contending first that the First Secretary of State had a discretion to reopen the appeal, and second that the withdrawal was vitiated because it was based on a mistake of fact as to the consequences of the withdrawal of the appeal for the ability of the Borough Council further to consider the application.
9. The position therefore at this stage as arrived at by PINS and the Borough Council was that the appellant had withdrawn its appeal against non-determination of the application for approval of reserved matters; it could no longer make a fresh application for approval of reserved matters because the time for doing so had lapsed, but the local planning authority no longer had jurisdiction to consider the original application for approval of reserved matters. In consequence, the 1997 outline planning permission would lapse.
10. It was thought by PINS that such an outcome was unfair, particularly because the NIGC had acted upon the advice which an official of PINS had given it. Accordingly, the First Secretary of State reconsidered his position and decided that he did have jurisdiction to reinstate an appeal which had been withdrawn, and that the circumstances here were sufficiently exceptional to warrant him doing so. It is that decision which is under challenge, but the challenge is now confined to the issue of whether or not the Secretary of State has jurisdiction to reinstate the appeal. It is not disputed, but that if he has jurisdiction, his exercise of the power is not irrational.
11. I turn to the relevant statutory provisions, but before doing so, I point out that it is agreed that there is no express statutory provision which permits or prohibits the reinstatement of an appeal. It is also common ground that the local planning authority did not have jurisdiction to continue considering the application for approval of reserved matters once it had been appealed, and that the withdrawal of the appeal did not reinstate its power to do so.
12. The relevant statutory provisions start with section 78 of the Town and Country Planning Act 1990, which provides the right of appeal where an application for approval of reserved matters is refused or if it has not been decided within the 8 weeks allowed for the purposes of such a decision. The determination of appeals is governed by section 79. It empowers the Secretary of State to allow or dismiss the appeal or to reverse or vary any part of the decision and to deal with the application as if made to him in the first instance.
13. Section 73(4) and sections 92 and 93(4) are also relevant. Section 92 imposes the statutory conditions dealing with the time span within which development must be begun and applications for approval of reserved matters must be made. Section 93 deals with the consequences of those time limits elapsing. It provides in subsection 4:

"(4) In the case of planning permission (whether outline or other) which has conditions attached to it by or under section 91 or 92 -

(a) development carried out after the date by which the conditions require it to be carried out shall be treated as not authorised by the permission; and

(b) an application for approval of a reserved matter, if it is made after the date by which the conditions require it to be made, shall be treated as not made in accordance with the terms of the permission."

In this case, it is common ground that the time permitted for the lodging of applications for the approval of reserved matters has lapsed and indeed lapsed some time ago.

14. Section 73 deals with applications for permission to develop land without compliance with conditions attached to a previous permission. Subsection 2 requires the local authority only to consider the conditions subject to which planning permission should be granted. Subsection 4 provides:

"(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."

15. I also note section 322A which deals with costs. It enables the Secretary of State to order any party to an appeal to pay the costs of any other party, including in circumstances where a hearing or inquiry does not take place. The guidance relating to the exercise of that power is contained in Circular 8/93 entitled "Award of Costs Incurred in Planning and Other... Proceedings". Paragraphs 13 and 14 of annexe 1 and paragraphs 5 and 6 of annexe 2 make it clear that that statutory power can be exercised where costs are wasted because an appeal has been withdrawn. It depends upon the circumstances in which such an appeal is withdrawn, eg whether it is excusable because of an agreement that may have been arrived at between the parties, or whether it is perhaps less excusable where there has merely been a late realisation of the weaknesses of the case.
16. I also mention in passing section 173A which deals with the ability of a local planning authority to withdraw an enforcement notice; section 175(4) explicitly refers to the withdrawal of an enforcement notice appeal by an appellant. It does so in terms which assume rather than create the power to withdraw the appeal. I add that there are no provisions which deal with the withdrawal of planning applications once they have been made, although it is a commonplace that that happens.
17. It is also relevant to look at the Town and Country Planning (General Development)(Procedure) Order 1995 (SI 1995/419). Article 20 specifies the time within which decisions have to be made; article 23(2) provides for those who wish to exercise the right to appeal to give notice of appeal within 6 months of the expiry of their 8 week determination period:

"... or such longer period as the Secretary of State may, at any time, allow."

With those provisions in mind, I turn briefly to the submissions made by the parties.

18. Mr Humphreys for the claimant submits that there is no jurisdiction in the Secretary of State to reinstate an appeal which has been withdrawn because there is no express provision to that effect, and none is implicit in the statutory code comprised by the Planning Acts and statutory instruments. There is nothing exceptional about the circumstances which might give rise to the reinstatement of an appeal which would warrant the implication of such a power, or the culling of private law concepts to fill some statutory lacuna.
19. The specific statutory provisions for the extension of time, and which provide for the loss of the effectiveness of a planning permission in section 93(4), showed that indeed there was a contrary intention in the statutory code, Mr Humphreys submitted that one would expect express provision for what he submitted was, in effect, a second appeal or an extension of the length of the decision-making process. He also submitted that where the consequence of the withdrawal of the appeal was that a planning permission which had expired by law would be resurrected, were the appeal to be reinstated, it was particularly unlikely that Parliament had intended such a result.
20. There was some debate in the skeleton arguments about whether an appeal could be withdrawn without the consent of the Secretary of State, but the claimant submitted that there was a right to withdraw an appeal, which required no consent from the Secretary of State, and was merely inherent in the right to make an appeal. Consequently, there was no parallel which could be drawn between the right to withdraw an appeal and the reinstatement of an appeal.
21. Mr Brown for the Secretary of State submitted that there was neither an express power to withdraw an appeal, nor an express power to reinstate an appeal, but the two represented closely related powers. He pointed out that it was agreed that an appeal could be withdrawn. That reflected proper inquiry case management in the public interest in avoiding wasted time and costs in hearing a case that no-one wanted to pursue. The jurisdiction to reinstate an appeal was equally part of proper inquiry case management and equally not set out in the Act. It was a jurisdiction which would be necessarily sparingly exercised, but its recognition was necessary in order to avoid injustice which could arise in a variety of circumstances. Here it arose because PINS, it was accepted, had given the wrong advice to NIGC about the effect of the withdrawal of the appeal on the power of a local planning authority to continue considering the appeal. Both Mr Humphreys and Mr Brown relied on a number of cases to which, in due course, I shall turn.
22. I do not accept that the Secretary of State has any power to reinstate an appeal. The normal approach, as agreed by both parties, is set out in Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] 1 A.C. 132 where Lord Scarman said, at pages 140H to 141C:

"Planning law is the creature of statute. It is an imposition in the public interest of restrictions on private rights of ownership of land... It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. Planning law, though a comprehensive code imposed in the public interest, is, of course, based on land law. Where the code is silent or ambiguous, resort to the principles of private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statue law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute or statutory code, considered as a whole."

23. I do not see scope in this particular context for resorting to principles of private law, whether property or contract, to resolve difficulties created by any lacuna.
24. I do not consider that there is, in reality, a lacuna in relation to the reinstatement of an appeal. There is no provision for it, because the code does not intend that it be done. It is agreed, as I have said, that there is no express power to reinstate and no express power to withdraw an appeal in the first place, but the two stand in stark contrast rather than in a close relationship. I regard the power which an appellant has to withdraw an appeal as inherent in his right to make an appeal. There is no statutory provision or indication to the effect that the Secretary of State, or anyone else, has any power to prevent the withdrawal of an appeal. The only legal power which he has is to regulate the consequences of that withdrawal through the costs provisions of section 322A, which provisions imply that there is a statutory power to withdraw an appeal. That is also reflected in the advice in Circular 8/93 in the paragraphs to which I have made reference. There would also be an administrative power to notify the parties of the fact of the withdrawal of an appeal. All those references assume not just the power to withdraw an appeal as an inherent part of the right to make one, but also that there is no intervention which the Secretary of State can undertake to prevent the withdrawal of the appeal.
25. There are obvious practical reasons why the statute should be construed as containing, as a necessary implication, the right and power to withdraw the appeal which someone has the right and power to make. This is in order to avoid the pointless incurring of time and costs by appellant, by other parties including the local authority and by the Secretary of State in dealing with an appeal which no-one wants to pursue. The same thinking applies to the withdrawal of a planning application itself, although there is no express power to withdraw it, whether it has been called in or not.
26. Likewise, as the initiating party, a local planning authority can withdraw an enforcement notice, but specific statutory provision as to the consequences of the withdrawal of an enforcement notice was necessary. There is also an explicit provision which assumes that an enforcement notice appeal can be withdrawn. The power does not specifically say that it can be withdrawn, but it is a necessary implication from the way in which the consequences of the withdrawal are dealt with.
27. Those provisions show that the power to withdraw a notice and an appeal was explicitly dealt with, where there were necessary consequences of withdrawal which had to be provided for. That is self-evidently the case when the consequence of withdrawal of an enforcement notice appeal is to make the enforcement notice effective, and the withdrawal of a notice removes the threat to the landowner.
28. Withdrawal is an act which ends the appeal, the appeal is no more and the legal consequences which then flow are the consequences which flow from the ending of the appeal. The ending of the appeal means that if time has expired for the making of further applications for the approval of reserved matters, no further applications can be made. It means that development under the permission, if time has passed, cannot be undertaken; so the effect of section 93(4) comes into play.
29. This is very different from reinstatement. It is not inherent in an express power to make an appeal, and in an inherent power to withdraw it that it can then be reinstated in those circumstances. If reinstatement were possible, it would revive rights which, by section 93(4), had been ended.
30. I also point out that it is not suggested by anybody that the appellant can simply reinstate the appeal. It is not suggested that, however the system of reinstatement is meant to work, it is one for the option of an appellant alone. The Secretary of State suggests that he alone has power to permit an appeal to be reinstated. He suggests that he can do that even though he has not instigated the process, whether the making of an appeal or withdrawing it, to which his power is said to be a necessary and inherent part. In my judgment, that shows that it is not inherent at all in the power to withdraw an appeal, contrary to Mr Brown's submissions.
31. I further take the view that the legal consequences of reinstatement would have been expressly provided for by statute if such a power existed. The legal consequences include problems as to the effect of it on section 93(4), and the time at which reinstatement can take place, and the principles which might have to be applied were such a discretionary power to be created for the Secretary of State But there is no hint in any statutory provision on any of those matters, let alone any provision actually dealing with them. No guidance covers those points indicating that the Secretary of State might, albeit erroneously, have thought such a power to exist.
32. I accept Mr Humphreys' submission that, if the Secretary of State were right, it would be akin to providing for a second appeal or for a further extension of time for the making of an appeal. There is no provision for the former and indeed it is clear from the appeal provisions that there can only be one appeal in respect of one application. There is no provision for the latter because extensions of time are fully provided for in article 23 of the GPDO. It would be very surprising in those circumstances if there could be a reinstatement.
33. Particularly telling, in my judgment, are the provisions of sections 73(4) and 93(4). An applicant cannot put in a further application for approval of reserved matters, nor carry out development, once time had passed, under either limb of section 93(4). It is difficult to see why reinstatement should be possible as a matter of jurisdiction, subject only to the discretion of the Secretary of State, in the teeth of that provision. Under section 73(4), it is not possible to seek to extend the time limited by a condition, if the time has expired. Yet reinstatement of an appeal in such circumstances would be possible if Mr Brown's submissions were right. It would create an anomaly within the statute.
34. This position is emphasised by the decision of the Court of Appeal in R v Leicester City Council, Ex P. Powergen U.K. Limited (2000) 81 P. & C.R. 5, page 47. The Court of Appeal approved what Sullivan J said in Pye v Secretary of State for the Environment [1998] 3 P.L.R. 72:

"In my view, however, the position is different where ... an application is made under section 73 to alter a condition, so as to extend the period for submission for reserved matters at a time when the original planning permission is no longer capable of implementation by reason of the effect of section 93(4), because time for submission for reserved matters has expired.

"While the council are constrained to consider only the question of the conditions subject to which planning permission should be granted, in deciding whether to grant a planning permission subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), are they required to ignore the fact that the original planning permission is no longer capable of implementation, so that if they adopt the latter course it will not be possible for the development to take place, whereas if they adopt the former course, it will be possible for the development to take place?

"In my view, there is nothing in section 73 that requires the local planning authority to ignore the practical consequences generally of imposing a different condition, and this is surely a most important practical consequence of granting an application for planning permission under paragraph (a) or refusing the application under paragraph (b)."

If the approach there set out is correct, as it is, it is particularly surprising there was no provision for, or governing, reinstatement in the light of the problems to which it would give rise.

35. Mr Brown says: why should there not be a reinstatement power if an appeal has been withdrawn at a time when a first appeal could still have been brought or brought with an extension of time? The answer to that is that there is one appeal in respect of one application, and the party making it should not withdraw it if he wishes it determined by the appellate authority. There may be circumstances in which an applicant would still be in time, under the planning conditions, to make a second application for approval of reserved matters which he could then appeal if it were refused or left undetermined. That consideration shows that the reinstatement of the first appeal is by no means necessary, in a number of circumstances, in order for an application to be properly dealt with.
36. It is my judgment, therefore, that the statutory indicators are not merely clear that no power of reinstatement is inherent in the statutory code; rather the existence of such a power is refuted by the way in which it would conflict with various statutory provisions, and with the aim embodied in sections 73(4) and 93(4) of bringing some degree of certainty to the planning process.
37. I do not accept either the argument from Mr Brown that injustice can occur in circumstances which mean that they are a strong contra-indicator to what the statute otherwise means. First, and this is important, it was not contended here by the Secretary of State that the circumstances were such that the appellant's decision to withdraw the appeal was itself vitiated, if that is the appropriate terminology, for mistake of fact or law; nor is that the way the case has been defended. I say if "vitiated" is the correct terminology because it is closer to what, in private law, might be regarded as a plea of non est factum. Second, the present circumstances which are said to illustrate why the power asserted by the Secretary of State is necessarily implicit in the statutory code, are not particularly persuasive to that end. If the circumstances are such that there has been no effective withdrawal of an appeal, there is no need for a power of reinstatement in order to avoid injustice. But an ineffective withdrawal of an appeal is very different from the creation of a power to reinstate one that has effectively been withdrawn.
38. This withdrawal, and all withdrawals of appeals, arise from the exercise of a choice by an appellant and represent that appellant's decision, whether he is advised professionally or not. It is for an appellant to consider what the consequences of such a withdrawal are. Even taking the specifics here, they do not attract the sympathy which Mr Brown suggested they ought to. NIGC did not seek its own legal advice about the implications of a procedure which it was proposing to adopt. It is not the task of PINS to be the legal advisor to a party to an appeal as to the consequences of a particular act. Even less so is it the task of PINS to advise an appellant as to what the powers of another body, in this case the Borough Council, are. This is not equivalent to PINS saying to an appellant how PINS will react to a particular state of affairs in terms of the exercise of its discretion or its view of the law, still less was it done in a way that gives rise to an estoppel or abuse of powers. I can see no real distinction between this situation and the situation had the appellant been given negligent advice by its own solicitors.
39. NIGC does not appear to have contacted the Borough Council to make sure that it was of the same view as to what should happen, before taking steps of some legal consequence. Nor does it appear that NIGC took the step of seeking advice in writing and ascertaining the legal qualifications of the PINS official to provide such advice.
40. It is also right, if one is looking at this case as an example of the necessity for a power of reinstatement, to recognise that this has been a very long time in the gestation process. The original application was made in 1994, it was renewed in 1997 and only on the very last day was an application for approval of reserved matters made, which was then some 3 years in consideration before an appeal was made. Even after the appeal had been withdrawn, it was some months before the question of reinstatement arose.
41. Third, this case illustrates the importance of certainty within the planning process in the public interest, of giving effect to those provisions which bring to an end the effectiveness of a planning permission in order that the principles of its grant can be re-examined. That is the statutory purpose of the time limits and they would not be advanced by regarding this case as one which illustrates the need for a reinstatement provision.
42. Other considerations support that. If an appeal is withdrawn against a refusal of outline planning permission, an appellant can make a fresh application. If the appeal is in respect of the approval of reserved matters, the appellant can either, if withdrawing an appeal misguidedly, make a further application if the permission has not lapsed, or he can make a fresh outline planning application. It is of course the case that that may give rise to expense, delays and a re-examination of the principle of the permission, but those are the proper consequences of the withdrawal of the appeal allied to the statutory provisions of the code.
43. It is of course different if an enforcement notice appeal is withdrawn, because the enforcement notice then becomes effective. But that is no reason for concluding that there should be a reinstatement provision. It rather shows that there should be care before appeals are withdrawn. There is no general injustice to support the implied jurisdiction which Mr Brown has had to argue for.
44. The cases do not generally advance matters very far. R v Secretary of State for the Environment ex parte Monica Theresa Crossley [1985] JPL 632 held that the withdrawal of an enforcement notice appeal, albeit under a misapprehension as to the effect which that would have on what the local authority then did, did not permit the reinstatement of that appeal.
45. Whilst I accept that there are certain differences, they do not persuade me that a different result should be arrived at here. However, it is a decision which I regard as helpful rather than decisive. Of course Mr Brown is right to point out the need for certainty in enforcement notice appeals because of the criminal law, and an enforcement notice takes effect upon withdrawal of an appeal. But those consequences would argue for a greater flexibility over reinstatement of an appeal in enforcement cases, yet the considerations are not so different from those which would apply to the resurrection of a planning permission that had previously ceased to be effective by virtue of section 93(4), but which might be revivified by the reinstatement of a withdrawn appeal, if the Secretary of State were right.
46. Mr Humphreys relied on the decision in R v Thanet District Council ex parte Tapp and Britton [2001] 81 P & CR 37 page 520. That case concerned the differences between the statutory provisions permitting a local planning authority to modify the description of operations in a certificate of lawful existing use, as opposed to the position in relation to a certificate of proposed lawful use or development. It was plain from the juxtaposition of those sections, dealing with closely allied matters that the difference between the provisions would be regarded as significant. That case does not advance matters.
47. Reference was also made to the decision of Harrison J in R (on the application of the Trustees of the Friends of the Lake District) v the Secretary of State for the Environment 2002 JPL 72 in which he considered whether the Secretary of State had the power to withdraw a direction, calling in an application for his own determination. There was no express provision enabling him to do so, but Harrison J held that it was necessarily implicit in the statutory provision that he could do so; it was a reasonable incident of the primary power to call in. He advanced, as part of his analysis, the practical considerations, not very different from those which have weighed with me here, as to why the Secretary of State should necessarily have that implied power. That is of some assistance in relation to this matter. The initiator of a process implicitly has power to terminate it by withdrawal.
48. Mr Brown put considerable emphasis on the decision of the Court of Appeal in R (on the application of McKay) v First Secretary of State 2005 24 EGCS p178. In this case, the applicant received an enforcement notice which was withdrawn the next day and replaced by a second one. His planning adviser appealed but referred, in the appeal, to the wrong notice. He referred to the one which everyone knew had in fact been withdrawn and he did not refer to the one which was its replacement. The question in that case was whether the enforcement notice appeal had been duly made in respect of the second replacement notice.
49. The statute required the enforcement notice to be identified in the notice of appeal. The case was concerned however, in my judgment, with that procedural error by the appellant and whether that error should deprive him of the right of appeal. The matter was expressed at paragraph 11 of Lord Woolf CJ's judgment in this way:

"The issue which is before us as it seems to me depends upon whether or not the judge was right to take the view that he had to determine this matter purely as a matter of interpretation of the notice of appeal, including the enforcement notice attached to the notice of appeal, without regard to the factual context in which the notice of appeal came to be served."

Having raised that as the issue, the Court of Appeal concluded that it would have been quite wrong for PINS to deal with the appeal as if it was unaware of the background, namely that the relevant enforcement notice had not been mentioned, and the withdrawn one for which it had been substituted had been mentioned instead. Stopping there, McKay is of no real help.

50. In the course of his judgment, however, the Lord Chief Justice referred to an earlier judgment of his in the case of R v IAT ex parte Jeyeanthan [1999] 3 All ER 231. That case also concerned a deficiency in the notice of appeal and the terms of the judgment show that it is considering the legal consequences of a procedural error. The real point of that decision is that a court should focus not on how the provision breached is classified, but on how the statute makes provision for the consequences of any error.
51. Mr Brown submits that the Court of Appeal did not treat McKay as simply a case of procedural error because of the passage in paragraph 16 in which Woolf LCJ says this:

"Although Mr Moffett [for the Secretary of State] would say that here there is no issue as to any procedural requirement, but rather a matter of interpretation of the notice of appeal, I consider that the general approach indicated in Ex parte Jeyeanthan is of relevance."

52. But I do consider that Lord Woolf CJ is saying that McKay and Jeyeanthan are cases of procedural irregularity. He is saying that the consequence of irregularity is not a matter of interpreting the notice of appeal alone; it is a matter of interpreting the notice of appeal in the light of the known facts and then asking whether that constituted a procedural irregularity of such a nature that the statutory context provided for the appeal to be a nullity.
53. I confess that I do not find the language of either Jeyeanthan or McKay of any real assistance in this case. This case is not concerned with a procedural error. I appreciate that there are general references which can be seen as a proper warning against an unduly finicky or legalistic approach to procedural matters. But that, in my judgment, is a far cry from saying that, because it might seem harsh on this particular appellant that he has withdrawn his appeal in the particular circumstances, there should be implied into the Act a power of reinstatement on the part of the Secretary of State. The withdrawal of an appeal should take with it the consequences of the withdrawal of an appeal. That is to say, it is the end of the appeal, and nothing more is to be done with it. This was a decision made by the appellant. It may have been ill advised but the withdrawal is as effective as it would be if he had acted upon the negligent advice of his solicitor. No reinstatement power should be implied.
54. Accordingly, my overall conclusion is that there is no necessarily implicit provision under the statutory code for reinstatement and that such a provision would be contrary to it. I acknowledge the attractiveness of the submissions for Mr Brown and the difficulties which understandably the Secretary of State finds himself in as a result of the advice which he has given to NIGC. The interested party has not sought to pursue its contention here in relation to an ineffective withdrawal. The particular circumstances are not as sympathetic to my mind as to his and do not impel the court to take the view that a power of reinstatement should exist as a matter of jurisdiction. That would have been an example of a hard case making bad law.
55. Accordingly, the decision of the Secretary of State at issue is quashed.
56. MR HUMPHREYS: My Lord, just before I ask for my costs may I just firstly indicate my gratitude to you for referring me to the last words of section 175 subsection 4. I am grateful for the appeal in the context which I had not looked at earlier. I would ask that the decision be quashed with costs. Unfortunately, the parties are too far apart for an agreement of the costs and I would therefore ask that this be a matter for detailed assessment.
57. MR JUSTICE OUSELEY: It would not normally on a case which lasted less than a whole day.
58. MR HUMPHREYS: That is right; there is a very substantial gap between the parties and obviously costs are an important matter down to the Secretary of State and to my client.
59. MR JUSTICE OUSELEY: Do you want to say anything about that?
60. MR BROWN: My Lord, I cannot resist in principle. If my learned friend were to make an application for a summary assessment, I am not sure that I can ask my Lord to summary assess in the circumstances where my learned friend does not, subject to taxation unless agreed.
61. MR JUSTICE OUSELEY: Yes. There will an order for the defendant to pay the claimant's costs, subject to detailed assessment if not agreed.
62. MR BROWN: My Lord, for the avoidance of doubt I am not instructed to seek permission to appeal. If the golf course wants to take it further, it is a matter for them.