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 WC2A 2LL
		10 June 2016

1. MR JUSTICE HOLGATE: The Claimant, Dr Rahimian, applies for judicial review of the decision of the Defendant, the Secretary of State for Communities and Local Government, given in a letter dated 14 August 2015, declining jurisdiction to entertain two appeals under section 174 of the Town and Country Planning Act 1990 ("the TCPA 1990") against two enforcement notices issued under section 172 by the Interested Party, Wycombe District Council. Permission was granted by Lang J on 19 February 2015,
2. On 20 June 2014 the District Council issued, and subsequently served on the Claimant, an enforcement notice in respect of two breaches of planning control, namely the siting of a container and the construction of hardstanding on land at The Clock House, Frogmoor, High Wycombe. On the same day, the council issued a second notice relating to a material change in the use of the land to an unauthorised house in multiple occupation. Each notice stated that it would take effect on 1 August 2014 unless an appeal was made to the Secretary of State prior to that date.
3. By section 174(3) of the TCPA 1990:

i. "An appeal under this section shall be made -

(b) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or

(c) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date; or

(d) by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date."

4. It is well established that these statutory time limits for the exercise of the right of appeal against an enforcement notice are absolute and are therefore incapable of being extended. Parliament has not conferred any power to extend these time limits (see Howard v Secretary of State for the Environment [1975] QB 235; R v Secretary of State for the Environment ex parte JBI Financial Consultants (1989) 58 P & CR 84; R (Stern) v Horsham District Council [2013] PTSR 1502 (paragraph 45).
5. The language of what is now section 174(3) has changed over the years. Howard and JBI related to predecessor provisions, but Stern dealt with section 174(3) in its current form. It is common ground between the parties that there have been no material change in the wording of the legislation as regards the legal effect of the time limit for appealing; it remains an absolute time limit which is incapable of extension. I agree.
6. The Claimant instructed Moira Gomes, a lawyer but not, I believe, a solicitor, to submit notices of appeal to the Planning Inspectorate. There is no dispute for present purposes that using the Inspectorate's online facility, the Planning Portal, notices of appeal in respect of the two enforcement notices were received by the Inspectorate at 2.56 and 3.59 am on 1 August 2014. If the Claimant failed to give or send his notices of appeal in accordance in section 174(3) before midnight on 31 July 2014, then his appeals would be out of time and the Defendant would have no jurisdiction to entertain them.
7. In her witness statement, Miss Gomes describes difficulties she encountered in submitting the appeals online between 29 July and the evening of 31 July 2014. She says (inter alia) that she could not obtain proper receipts for the documentation which she sought to enter or send via the portal.
8. At 5.29 am on 1 August Miss Gomes sent an e-mail to the Inspectorate describing the problems she had experienced in using its system. The problems included difficulties in attaching documents and in downloading copies. The email does not give a great deal of information, least of all on timings; nor does it refer to the blank receipts which she alleges in her witness statement she received from the portal.
9. At 15.19 on 1 August the Inspectorate replied by e-mail saying that:

(a) "I understand that there can be compatibility issues with the portal and this may have caused issues for you. I will forward this e-mail on to the team dealing with the appeals for their consideration."

10. In an incomplete copy of an e-mail from Miss Gomes to the Inspectorate it was stated that:

i. "I now realise that I should have attached the blank receipts saved on my computer evidencing my repeated attempts to log both appeals. These are now attached for the avoidance of doubt and I look forward to hearing further from you."

11. The date of that e-mail is not given on the copy supplied to the court, nor indeed the time it was sent. Although it was copied to Mr Butler, who has been instructed throughout on a Direct Access basis, he was not able to say when this was sent. This was only one of several respects in which the bundle put before the court by the Claimant was unsatisfactory. The receipts have not been produced. Instead the copy e-mail shows five, not six, PDFs which are said to be the blank receipts, but the content of the PDFs has not been produced or verified to the court. I note that from a subsequent letter of 18 August 2014 from Miss Gomes to the Inspectorate that it is possible, albeit not certain, that this e-mail was sent by her to the Inspectorate on 1 August 2014 at 14.14.
12. On 14 August 2014 the Planning Inspectorate issued its decision as to whether it would accept the appeals against the enforcement notices. The letter stated:

i. "I am sorry to tell you that the appeals cannot be accepted. For an enforcement notice appeal to be valid, it must be made either:-

(a) by giving written notice before the date specified on the notice as the effective date; or

(b) by sending written notice so that in the ordinary course by post it would be delivered before the effective date.

ii. We did not receive your appeals until 1 August 2014. However, the effective date in the enforcement notice is 1 August 2014 and the appeals were not sent in time to arrive before that date. There is no power to accept a late appeal or to extend the time for making an appeal."

13. On 18 August 2014 Miss Gomes wrote to the Planning Inspectorate giving further details of the difficulties she had encountered in seeking to lodge the appeals against the enforcement notices within the time limit.
14. On 28 August 2014 the Inspectorate sent an e-mail to the District Council in the following terms:

i. "I have spoken to our Customer Service Team (Ian Goodall) and our Planning Portal team. Both confirm that there were no problems with the online appeal service on the evening of 31 July 2014. However, albeit there is no clear evidence to suggest this was an issue in this instance, we also do acknowledge that there have been some ongoing web browser compatibility problems preventing some customers lodging appeal online over recent months (and have been minded to accept some late appeals where we are unable to discount such an issue on that basis).

ii. Mrs Gomes has sought to provide evidence of her attempts to meet the deadline by attaching what she describes as "blank screen receipts". As far as I can tell, these prove inconclusive either way. Nevertheless, I have spoken to my line manager and his initial thoughts are that Mrs Gomes' explanation does not sound unreasonable and we could reconsider our decision and accept two of her appeals ..... provided the Council do not oppose our consent.

iii. I have enclosed Mrs Gomes' challenge to our turn away letter and can verify that that (sic) the submitted forms before us do show that attempts were made to lodge appeals throughout the early hours of 1 August 2014... The receipt and timing of these appeals tie in with the explanation which she has provided but it was 05:29 before she informed us of her difficulties making submissions.

iv. I should point out that there would have been no problem accepting the appeal forms on the effective date had Mrs Gomes e-mailed the Inspectorate before midnight on 31/7/14 to let us know of her intention to appeal.

v. Before taking the final decision, I would be grateful for confirmation from your Council that you would be willing to support a decision taken to accept these appeals. Whilst it seems harsh, based on the evidence before us, we are still seemingly obliged to turn these appeals away otherwise."

15. This letter reads as if the Inspectorate had been purporting to exercise a discretion to accept late appeals. It suggests also that the Inspectorate would reconsider their decision of 14 August 2014 provided that the Council consented to the appeals being accepted. If, however, the council did not support the decision to accept a decision to accept the appeals, then the Inspectorate would still feel obliged to turn the appeals away.
16. On 29 August 2014 the District Council sent an e-mail expressing their strong opposition to the appeals being received out of time. Their representations were addressed to (a) whether the circumstances put forward in section 174(3)(c) arguing that they did not and (b) that an extension of time should not be allowed for the receipt of the appeals out of time.
17. On 1 September 2014 the Inspectorate sent an e-mail to Miss Gomes simply stating:

i. "Given it seems clear that the Council are challenging any decision we make to accept your late appeal then, regrettably, our original decision to turn away your appeal stands."

18. The Claimant issued judicial review proceedings on 13 November just within three months from the date of the decision letter dated 14 August 2014. In fact, the claim should have been brought within six weeks of that date (see CPR 54.5(5)).
19. Inexplicably, the form named the Secretary of State for Environment, Food and Rural Affairs as the Defendant instead of the Secretary of State for Communities and Local Government. The District Council pointed out that error and in the meantime served an acknowledgment of service in order to protect its position, bearing in mind the inability of the correct Defendant to respond to the claim at that stage.
20. Subsequently, the Government Legal Department acting on behalf of the Defendant agreed to submit to judgment for the quashing of the decision dated 14 August 2014 on the basis that there would be no order as to costs. The Council then stated that it would continue to defend the claim.
21. Following the order of Lang J, the Defendant filed a position statement dated 24 March 2015. Paragraph 28 stated:

i. "The Defendant maintains that there is no power for the Planning Inspectorate to extend time to appeal against the issuing of an enforcement notice. However, they remain prepared to consider whether on the particular facts of this case the Claimant's appeal would in the ordinary course of transmission have been delivered on the relevant date."

22. At the hearing before me, Miss Parry on behalf of the Defendant accepted that paragraph 28 acknowledged that the Inspectorate had not given any consideration to the application of section 174(3)(c) before deciding to decline jurisdiction. She assured the court that if the decision were to be quashed, the Inspectorate would still be able to investigate at this point in time the Claimant's claims regarding the attempts made to send the notices of appeal via the Planning Portal, as well as the operation of its system towards the end of July 2014.
23. Paragraph 26 of the Claimant's grounds for judicial review states:

i. "The Planning Inspectorate has made a decision based on the representations of the Council, rather than making a decision based on the facts. Having confirmed that the system had had some ongoing web browser compatibility problems preventing some customers lodging appeals online over recent months and that the Planning Inspectorate had been minded to accept late appeals where they were unable to discount such an issue on that basis, it is submitted that the decision to not accept Dr Rahimian's late appeals was Wednesbury unreasonable and substantively unfair."

24. Those grounds proceeded wholly, or at least in substantial part, on the basis of a misconceived view that the Defendant had a power to extend time to accept a late appeal. No authority was cited by Mr Butler to support any submission that either ground one or ground two could overcome the absolute nature of the statutory time limit. He did not pursue these grounds.
25. It was therefore understandable that the Council should initially have resisted the claim as formulated in that way. But the position changed when Lang J granted permission to apply for judicial review and the Defendant filed his position statement. From then on it is clear that the Defendant was accepting, by implication at least, that he had not considered whether the circumstances of this case fell within section 174(3)(c).
26. The decision of 14 August 2014 must, subject to the question of delay, be quashed because it is accepted by the Defendant, and not contradicted by the Council, that the Inspectorate did not consider the application of the relevant provision in section 174(3)(c). The letter itself only deals with section 174(3)(a) and (b), which were not really in point.
27. The Council then sought to suggest that that error was overcome by the Inspectorate's subsequent decision in the email dated 1 September 2014, but that decision, when read in the context of its email dated 28 August 2014, involved two further legal errors. First, it purported to deal with the matter as a possible extension of time when the Defendant had no power to grant any such extension. Secondly, the Inspectorate treated its use of an assumed power to extend time as being dependent upon the Council's consent, which was inconsistent with the proper exercise of a discretion to extend time if that power did exist.
28. Crucially, what the Inspectorate's second decision did not do was to reach a view on the application of section 174(3)(c). Accordingly, subject to the issue of delay, to which I now turn, the Claimant is entitled to have a decision from the Defendant on that point following the quashing of the Defendant's decision dated 14 August 2014.
29. Paragraph 28 of the council's skeleton for the hearing before me pointed out the Claimant's failure to bring the claim within the six weeks' time limit and the absence of any application to extend time. Nevertheless, it is agreed that no party raised this point by the time that Lang J considered the application for permission on the papers. There has been no application to set aside the grant of permission. The application for judicial review was listed for substantive hearing and only much later, when the skeleton argument on behalf of the Interested Party was served on 24 May 2014, did the Council take a point on delay.
30. Miss Tafur has put her submissions solely in the context of detriment to good administration under section 31(6) of the Senior Courts Act 1981. She advances two points. First, she submits that there has been "generic" detriment to good administration because there is a public interest in finality and certainty which requires a Claimant for judicial review to comply with time limits, especially in the context of enforcement against breaches of planning control.
31. Second, she says that the Council suffered specific detriment in that during the period between the expiry of the six week time limit and the date when the claim was actually issued, the Council had in effect a legitimate expectation that the decision of 14 August 2014 would not be challenged and therefore that the enforcement notices had become immune from any appeal.
32. It was not suggested that the Council had altered its position in any way because of the delay in issuing the claim, nor was it suggested that the grant of substantive relief at this stage alters that position in relation to good administration.
33. In my judgment, any detriment to good administration through delay in issuing the claim is of very limited weight in the circumstances of this case. It is insufficient to justify the refusal by the court of an order to quash the decision made on 14 August 2014 to decline jurisdiction to determine appeals against the enforcement notices. The effect of that decision was that the Claimant did not obtain a determination from the Defendant on whether his appeals were served in time under the relevant statutory provision. A refusal to quash the decision would mean that he would not be able to obtain any such decision and would have lost a right of appeal where section 174(3)(c) had not been considered by the Defendant. I do not think that that outcome can properly be justified on the grounds of generic or specific detriment to good administration.
34. In this judgment I have refrained from commenting in any detail on the merits of the competing arguments as to whether section 174(3)(c) was satisfied in this case. That is a matter for the Secretary of State to determine. The representations and supporting evidence on each side of the argument remain to be examined and tested. How the Defendant deals with that aspect procedurally is a matter for him, but perhaps consideration should be given to the holding of an inquiry where evidence can be given and questioned, if necessary on oath.
35. For these reasons, the decision of 14 August 2014 must be quashed. For the reasons that I gave during the course of the hearing on 8 June, there will be no order as to costs as between any of the parties.
36. MR JUSTICE HOLGATE: Now, is there anything further I need to deal with?
37. MISS PARRY: No, my Lord. (Pause)
38. I am very sorry. My learned friend has just offered to draw up the order. We were just considering it amongst ourselves.
39. MR JUSTICE HOLGATE: I am sorry. I did not hear that.
40. MISS PARRY: I am sorry. We were just considering amongst ourselves who was to draw up the order and my learned friend has just --
41. MR JUSTICE HOLGATE: Well, I think it is a pretty straightforward order. Yes, the associate will do it.
42. MISS PARRY: I am grateful.
43. MR BUTLER: My Lord, I am grateful for you sitting at 12 o'clock.
44. MR JUSTICE HOLGATE: I understand the difficulties and the other matter was removable. Anyway, we got through it.
45. MR BUTLER: Thank you.
46. MR JUSTICE HOLGATE: Thank you all for your help.