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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lakeheath Investments Ltd, R (on the application of) v Secretary of State for Communities and Local Government [2012] EWHC 3767 (Admin) (06 December 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3767.html
Cite as: [2012] EWHC 3767 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF LAKEHEATH INVESTMENTS LTD | Appellant | |
| v | ||
| SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT | Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Defendant was not present and was not represented
____________________
Crown Copyright ©
- THE DEPUTY JUDGE: This is an application for permission to appeal under section 289 of the Town and Country Planning Act 1990. It comes by way of a challenge to a planning inspector's decision of 5 July 2012 in respect of an appeal against an enforcement notice issued by the second respondent. The appeal was dismissed.
- The subject of the enforcement notice which was issued on 17 August 2011 was an allegedly unauthorised rear extension to land at 28-30 Rivington Street, London, EC2. The claimant company is the owner of those premises and was at the material time. They consist of a restaurant and bar on the ground floor with serviced rooms and apartments above.
- This notice of appeal was filed on 3 August 2012. The grounds are firstly that the requirements of the enforcement notice are ambiguous and appear to require removal of lawful development, namely terrace and decking and a bin store. The ambiguity was recognised in the decision but the enforcement notice was not amended.
- I am not over impressed by that ground if it stood alone, but since I propose to give permission on other grounds, I do not think it helpful to look into that in detail. To my mind, read as a whole – and in particular looking at paragraphs 13 and 15 of the decision letter -- there was no overall ambiguity. That will be a matter that can be developed further at the full hearing.
- The second point that is taken (although it is put under two heads, it really amounts to one) is that the claimant company was not properly served with the enforcement notice. As a result it was unable to put forward evidence, material evidence, showing that parts of the property were immune from enforcement under section 117(b) of the 1990 Act because they had been substantially completed in March 2007, more than four years before the enforcement notice was issued.
- That immunity was considered by the inspector but on limited evidence put forward by the tenant who pursued the appeal. This appellant company, the owner, was not represented and did not put forward any evidence in relation to the appeal which was decided on written representations.
- The Town and Country Planning Act 1990 by section 172(2)(a) requires an enforcement notice to be served on the owner and on the occupier of the land to which it relates. By section 174(1), a person having an interest in the land to which an enforcement notice relates may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
- One of the possible grounds of appeal to an inspector is that the copies of the enforcement notice were not served as required by section 172, but such grounds or an appeal on such grounds must be served on the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect, which in this case was 30 September 2011.
- Nobody has considered at this stage whether in fact the company instead of filing this notice of appeal could have raised that before the Secretary of State -- and I have heard no argument on that point. I ignore it for the purpose of this application.
- Section 176(5) allows the Secretary of State to disregard a failure to serve a person if, "Neither the appellant nor that person has been substantially prejudiced by the failure to serve him."
- Section 329 provides various methods of service, in effect, deeming certain steps to be service whether or not the matter came to the attention of the person concerned. If, of course, the matter has been brought to the attention of (in this case) the owner then that is actual service whether or not one of the routes set out in section 329 has been followed.
- Section 329(1)(d) provides a method of service on an incorporated company by delivering it to the registered or principal office or sending it there by various forms of letter.
- Unfortunately, the appellant when it originally became the owner was known as Miltrex Investments Limited. That was so until 1 February 2010, when it changed to Macy Investments Limited. A further change to Lakeheath Investments Limited took place on 22 June 2011, some two months before the enforcement notice was issued. Neither of those two name changes were recorded with the Land Registry, so that when the second respondent checked the Land Registry records, it found the registered owner was still recorded as Miltrex Investments Limited. Its usual practice would be to cross-check with Companies House which would have shown that Miltrex Investments Limited no longer existed. That check may have shown that that company was now called Lakeheath Investments Limited, although the material provided before me is a little difficult to follow on that. It appears that there have been two companies called Miltrex Investments Limited, one with the number 06442840, which was dissolved on 17 August 2010; and the other with the registered number 06079688. It is difficult to see when that second company started from the documents before me, but it moved through the process that I have indicated to become Lakeheath Investments Limited. So the cross-check with Companies House may or may not have indicated the true name of Lakeheath Investments Limited as the current owner. At any rate the council sent the enforcement notice to Miltrex Investments Limited at what they thought was the registered address, which was that shown in the Land Registry, but by then was no longer the registered address and anyway it was a company that was no longer the owner. A notice was also sent to Miltrex Investments Limited at the Rivington Street address, but since Miltrex was not the owner that was not deemed to be service under section 329(1)(d).
- Section 329(2)of the Town and Country Planning Act 1990 allows alternative service to be deemed as proper if the name of the owner cannot be ascertained after reasonable inquiry. As I have indicated before, it is not quite clear whether an inquiry starting with the Land Registry details would have led to Lakeheath, and a decision must be taken on whether, though it was the council's practice, it was reasonable to expect such a cross-check to take place in every case. For the moment I consider it arguable at any rate that a reasonable inquiry would have disclosed the true name and therefore subsection 2 does not apply. Mr Parkinson for the appellants has conceded that if it did apply the proper steps were followed, because there was another copy of the enforcement notice sent to "The owner" at the address of the premises. This which would either qualify under subsection 2(b), or indeed under subsection 2(a), because that address was shown as the address for service at least for any notice under the Landlord and Tenant Act to be served by the tenant, pursuant to clause 8 of a tenancy agreement dated 8 August 2011.
- The appellants have put forward a series of new statements to show that it has been prejudiced so that section 176(5) does not apply and could not have been applied had the inspector been alerted to the point. At the moment it does not seem to me that those statements are put forward by way of fresh evidence, to be considered on the merits and for a decision to be made by this court on the full hearing, so it is unlikely that the Ladd v Marshall test would apply, but that is a matter that may have to be argued hereafter.
- I have serious concerns about this case but I am just persuaded they are concerns that must be investigated by oral evidence and on a full hearing. It is worth my setting out those concerns.
- A letter dated 17 May 2011 warning about enforcement was sent to Miltrex Investments Limited at the address Unit 846, 19-21 Crawford Street. The council received a reply from a company naming itself, "City Investments Europe Limited" at that address. It appears that that company is not registered and therefore is in terms of UK company law a non-existent company. The same letter was also sent to the owner at the Rivington Street address. In a telephone conversation on or about 23 June 2011 it was admitted, according to notes made by the council, that this correspondence had been received by the owner. If that is right then shortly before the issue of the enforcement notice, the company, whatever its then name, was aware that enforcement action was being considered and likely.
- There is a company called "City Europe Lets Limited" which has a registered office at 46 Langham House, 28-30 Rivington Street. Its director is Ms Sandhya Tuli of the same address. Miss Tuli is the sole director of Lakeheath Investments Limited. She has provided three witness statements in this case and the third one gives 28-30 Rivington Street as her address. One might have expected, therefore, that a letter addressed to the owner at 28-30 Rivington Street would have got to her.
- As I have mentioned before, the tenancy agreement dated 1 August 2011 shows the appellant company's address as 28-30 Rivington Street: and clause 8 provides for all notices to be served on it at that address.
- Then there is the further appeal statement in the bundle; page 144 of the bundle that I have is where it starts. It is dated 19 January 2012. It purports to relate to the appeal by the tenant City Executive Lets Limited of 28-30 Rivington Street, but it includes information which predates that company's involvement with the premises and is peculiar to the history of this appellant company in its dealings with the local council. There is no indication at present as to where those assertions and the documents referred to in that document could have come from.
- For these reasons the basis of this application is to my mind extremely unsatisfactory. It is not for me to form a concluded view on whether there has been an attempt to mislead the court. I am just persuaded that I should not draw conclusions adverse to the appellant company and Miss Tuli (who has submitted witness statements with a statement of truth) without the company and her having the opportunity to back them up with oral evidence and to be cross-examined. This is a matter properly to be investigated on a full hearing and not at this stage.
- Equally, there are problems about the new evidence that is sought to be put forward, particularly because there was a period between 2008 and 2010 where enforcement proceedings were being taken. If it is right that all this work had been carried out by 2007, it is quite extraordinary that those proceedings refer only to a terrace and storage bins, not to the completely enclosed premises as they are now. But again I am persuaded that that is something that is properly investigated on the full hearing of this appeal.
- For those reasons I grant permission, but I grant permission on the basis that there will need to be oral evidence on whether the enforcement notice came to the attention of Miss Tuli or anyone else on behalf of Lakeheath, including the managing agents. I have directed, therefore, that the appellants should file any statements within six weeks and statements in response from the respondents should be filed within 21 days thereafter. I grant permission to appeal with these comments and direct a hearing with a time estimate of one day.
- MR PARKINSON: My Lord, in that case I do have an application just in terms of the order. Just before the end you spoke about the evidence and said that that would also be investigated at the full hearing. Are the witness statements to cover that?
- THE DEPUTY JUDGE: How do you want to deal with that? I mean, that is the sort of thing I suppose that could be dealt with on paper in the same way as representations. But is that documentation and that evidence sufficient to counter all the other contemporaneous evidence from the enforcement proceedings and what the inspector found? Since there are positive assertions by Miss Tuli then they could be subject to oral evidence and cross-examination as well.
- MR PARKINSON: That is what I wanted to confirm. I would have thought that the oral evidence would be confined to a matter of service because otherwise there would be a danger that we would strain to having a rehearing of the appeal that should be heard before the inspector.
- THE DEPUTY JUDGE: Well that is the problem, is it not, and it may well be much easier for the judge, if persuaded, that there has not been service? I am not sure that proper service is the right word, because it seems to me that service is service. There are certain proper ways in which service can be deemed, as I have indicated, but if it has come to the attention of someone that service whether it has gone through the proper channels or not. Anyway, that is for the judge hearing the full hearing. But no, I think oral evidence should be limited to the question of service, and the point of prejudice, if it is taken, would have to be considered on paper and one can understand from what you have said and Simplex, the case you referred to, that it is a fairly low threshold you argue. Well I can see that may be so. Thank you very much for your assistance.
- Will you include in the draft order, Mr Parkinson, that a transcript of my reasons should be provided -- otherwise I am told it will not be done -- to all parties and for the court file.
- I have been given the standard form to give reasons in relation to any possible appeal. Two problems about that is you have got what you wanted so you will not be appealing. But anyway there is no appeal, is there, from this decision?
- MR PARKINSON: I am not sure.
- THE DEPUTY JUDGE: You are not sure about that, you ought to know about that, I might have found the other way.
- MR PARKINSON: Presumably it would be a second appeal and it would have to meet the tests and I do not think I have (inaudible).
- THE DEPUTY JUDGE: I suspect this is unnecessary but I will just say no application, permission granted and no appearance by respondents.