McKay, R (on the application of) v The First Secretary of State

SIR MICHAEL HARRISON: This is claim for judicial review of a decision of the First Secretary of State's Inspectorate, dated 26th February 2004, that the claimant's appeal against an enforcement notice served on the claimant by Wycombe District Council was invalid. The claim is brought by permission of McCombe J, granted on 12th July 2004. The district council were not represented at this hearing, but they have filed an acknowledgment of service and a witness statement of Angela Kingshott, a legal assistant with the district council, dealing with factual matters.

The claimant is the owner of a substantial house with extensive grounds where he lives with his family at The Beacon, Beacon Hill, Penn, near High Wycombe, Bucks. He constructed a vehicular access and parking areas within what he thought was the curtilage of the house and which he thought was permitted development under The Town and Country Planning (General Permitted Development) Order 1995.

The district council considered that the works were not within the curtilage of the house and that they constituted a breach of planning control. They issued and served two enforcement notices on the claimant, which were called enforcement notice A and enforcement notice B. I will refer to them for convenience as enforcement notice A1 and enforcement notice B.

Notice A1 related to the erection of new gates, gate piers and walls and the creation of the driveway and gravel parking areas. Notice B related to the change of use of the land from woodland to residential curtilage. Both notices were dated 22nd December 2003 and both were expressed to take effect on 10th February 2004.

On the next day, 23rd December 2003, the district council withdrew notice A1 under section 173A of the Town and Country Planning Act 1990, and issued another enforcement notice, which I will call enforcement notice A2. In letters dated 23rd December 2003 the council referred in one letter to "reissuing enforcement notice A" and in the other letter they referred to it as "replacement enforcement notice A". A letter from the Inspectorate of 26th February 2004 referred to the enforcement notices being re-served. The council had noticed that there was a discrepancy between the terms of enforcement notice A1 and the plan accompanying it, in that the description of two of the alleged breaches referred to coloured areas on the accompanying plan which did not actually appear on the plan itself which showed the land simply to be edged by a black line. Enforcement notice A2 omitted reference to those coloured areas, the plan remaining the same. Otherwise, enforcement notice A2 was in the same form as enforcement notice A1, save that it was dated 23rd December 2004, rather than 22nd December 2004. It was expressed to take effect on 10th February 2004 in the same way as enforcement notice A1 had been. It followed that any appeal had to be lodged before that date, otherwise enforcement notices A2 and B would become effective and any subsequent failure to comply with the requirements of the notices could render the claimant liable to prosecution in the Magistrates' Court.

The notices were served on the claimant who sent them to his agent, Mr Pearce, who received them, according to Mr Pearce's witness statement, on 5th January 2004. On 16th January 2004 Mr Pearce completed enforcement notice appeal forms relating to enforcement notices A and B. The appeal form, however, relating to enforcement notice A described the date of the enforcement notice as 22nd December 2003, which was the date of enforcement notice A1, with an effective date of 10th February 2004, and it actually had appended to it enforcement notice A1, dated 22nd December 2003. On the face of it, therefore, the appeal against notice A was an appeal against notice A1, although that notice had in fact been withdrawn and a new notice, enforcement notice A2, issued.

Although it is said in the statement of grounds that the claimant's agent posted the appeal forms well in advance of the deadline of 10th February 2004, and although Mr Pearce appears to say in his witness statement that he posted them on 16th January, it transpired during correspondence between the parties that the appeal forms were not received by the Inspectorate until 3rd February 2004. Having checked the appeal documentation, the necessary paperwork was carried out and the Inspectorate wrote to the claimant's agent on 12th February 2004 confirming that the appeals were valid, but that if it appeared at a later stage, following further information, that that may not be the case, they would write to him again. On the same date, the Inspectorate notified the claimant's agent of the fees payable for the two appeals. On 16th February 2004 the claimant's agent sent the Inspectorate cheques for the relevant fees.

Meanwhile, the district council had received notification of the appeals from the Inspectorate on 12th February 2004, giving the council 14 days to complete the relevant questionnaires. On 23rd February 2004 there was a conversation between the claimant's agent, Mr Pearce, and Ms Kingshott, about a convenient date for the enquiry.

On 24th February 2004, during preparation of the required information, the council noticed that the date of enforcement notice A appealed against, and the copy appended to the appeal form, was 22nd December 2003, not 23rd December 2003. Ms Kingshott then rang the Inspectorate to point out the error. She also rang the claimant's agent to point it out to him. According to her witness statement, he said that he was not aware that there was a replacement notice and asked her if the council could prove that the replacement enforcement notice, enforcement notice A2, had been served. She told him that they could.

Mr Pearce, however, in his witness statement says that that is not correct. He had received enforcement notice A2 from his client on 5th January 2004. When he subsequently spoke to Ms Kingshott, he simply asked for confirmation that enforcement notice A2 had been duly served.

On 25th February 2004 both the claimant's agent and the district council sent the Inspectorate a copy of enforcement notice A2 dated 23rd December 2004. On that day the Inspectorate discussed with the council the possibility of substituting enforcement notice A2 for enforcement notice A1 so that the appeal could proceed, but the council objected to that course of action. In a fax of 25th February 2004 they contended that, if the Inspectorate were to substitute enforcement notice A2 for enforcement notice A1, they would effectively be considering an appeal out of time and that they had no jurisdiction to do so. The council threatened judicial review if the Inspectorate were to adopt that approach.

As a result, the Inspectorate wrote to the claimant's agent on 26th February 2004, stating:

In reply to the claimant's letter before action the Inspectorate pointed out that they had no way of knowing prior to 10th February 2004, the effective date, that enforcement notice A1 had been withdrawn. They accepted that it was clear to all parties that there had been a human error on the part of the claimant's agent, but they said that they had no jurisdiction to impose the substitution of enforcement notice A2 without the consent of the council. In these proceedings Mr Moffett, who appeared on behalf of the First Secretary of State, described the Secretary of State as being caught between a rock and a hard place.

Section 174 of the Town and Country Planning Act 1990 provides, so far as relevant, as follows:

Subsection (2) then sets out the grounds upon which an appeal can be made.

I quote subsection (3):

Subsection (c) deals with sending a notice by electronic communications.

Subsection (4) states:

Mr McCracken, who appeared on behalf of the claimant, pointed out that there was no express requirement in section 174 for the appeal notice to identify the date of the enforcement notice. It only provided that it must be received before the relevant date. Therefore, he submitted, the question is: what did the written material, which it has been accepted had been received in time, mean? He suggested that the test in answering that question was an objective one. The question which he formulated as being the appropriate question was:

I therefore turn to deal, albeit relatively briefly, with those authorities. The first authority that was referred to was Howard v Secretary of State for the Environment [1975] 1QB 235. That was a Court of Appeal decision dealing with section 16(2) of the Town and Country Planning Act 1968, when it was held that the statutory provision specifying that an appeal must be made in writing and within the specified time was an imperative provision, but that the requirements that the notice of appeal should indicate the grounds of appeal and state the facts on which they were based were directory. The point made by Mr McCracken in relation to that case was that it suggested that the courts' approach should be one of benevolence towards a would be appellant. It is, of course, to be noted that that was a decision relating to what the statute required. It was dealing with the interpretation of the statute rather than notices served under it.

Secondly, I was referred to the case of Morrow v Nadeem [1986] 1WLR 1381. That was a landlord and tenant case where there had been a notice by the landlord which contained an error insofar as it did not refer to the correct landlord. It was found that the flaw rendered it invalid and that the tenant was entitled to have it set aside.

The part of the judgment of Nicholls LJ to which I was referred is at page 1387G where he said:

Thirdly, I was refer to the case of Hartog v Colin and Shields [1939] 3 All ER 566. That was a contract case dealing with a contract to sell Argentine hare skins where there was a mistake made by the offeror about the basis of the price of the goods. It was held that the plaintiff could not reasonably have supposed that the offer expressed the real intention of the person making it and must have known it to have been made by mistake, and the plaintiff did not by his acceptance of the offer make a binding contract with the defendants.

Mr McCracken relied upon that as being a case where there was obviously a mistake which was therefore disregarded. He said that, in this case, everybody knew that the claimant must have wanted to appeal the extant notice A and it was an obvious mistake by the claimant which the court should require the inspector to ignore. But, as I have said, that was a case dealing with contract, which, as Mr Moffett pointed out, has a long established doctrine of mistake and involves a very different context from the statutory provision that this court is concerned with in this case.

Fourthly, I was referred, to the case of Cala Homes (South) Limited v Chichester District Council [1999] 79 P&CR 430, which was a decision of Mr Robin Purchas QC, sitting as a Deputy High Court Judge. That case involved an application under section 287 of the Town and Country Planning Act 1990, seeking to question the validity of a local plan, which had been filed in the Central Office rather than in the Crown Office as it should have been.

Mr McCracken referred me to a part of the judgment of Mr Purchas when he said that the court should be astute not to extend the scope of ouster beyond the proper remit of the statutory provision in question. In another part of his judgment Mr Purchas he said:

I was also referred to a part of the judgment of Mr Purchas towards the bottom of page 441, when he said:

Finally, I was referred to the case of Thurrock BoroughCouncil v Secretary of State for the Environment, Transportand the Regions (13th December 2000). That was a case which involved a decision as to whether a claimant should be allowed to amend his claim form which had been made under section 289 of the Town and Country Planning Act 1990 so that it could continue as an application under section 288 of that Act. It, therefore, deals with different sort of considerations than this case, but it is right to say that, in that case, Brooke LJ approved the last of the quotations from the judgment of Mr Purchas in the Cala Homes case to which I have just referred.

Mr McCracken submitted, as I have already mentioned, that those cases supported the approach that he had advocated. He submitted that the only interpretation a person would put on the documents sent to the Secretary of State was that the claimant wished to appeal against the enforcement notice in its extant form, because anything else would have been absurd.

Mr Moffett, on the other hand, whilst expressing the reluctance of the Secretary of State to deprive the claimant of his right of appeal, nevertheless referred to the provisions of section 174 and submitted that it was implicit that the written notice of appeal had to identify the enforcement notice to which it related because any other conclusion would be absurd. He said that, if a written appeal notice arrived on the Secretary of State's desk which identifies a particular enforcement notice, then that written appeal notice must be taken to be a written appeal against the enforcement notice so identified. Otherwise, he said, it would make a nonsense of the whole requirement to give written notice.

He said that, in this case, the only references in the written notice of appeal was a reference to enforcement notice A1 and it could not be treated in any other way. There was no question of that notice referring to anything other than notice A1. To interpret it in any other way, he said, would not in fact be interpretation, but would be rewriting the notice of appeal and the Secretary of State had no power to rectify or amend the appeal notice. If he did have such power, the hypothetical question was asked: how would the Secretary of State determine what an appellant's intention was if he had to look beyond the documents? He submitted that it could not be the intention of Parliament to put the Secretary of State in such a difficult position. The intention was that the appellant should get the documents right, and, if he did not, then he had to bear the consequences of it. He also submitted that the authorities did not support the claimant's contentions about how intentions should be used. They showed that one must look at the face of the written document, the written notice of appeal, to see if it makes clear what was intended, and it was only if it makes clear, on the face of it, what was intended that a mistake can be excused. In this case, he said, there was no indication whatsoever on the face of it that the claimant intended to appeal anything other than enforcement notice A1. Therefore the Secretary of State was entitled to take the decision that he took.

Whilst I should say straightaway that I am grateful to Mr McCracken for drawing the court's attention to the authorities to which I have referred, I do not find them compelling or persuasive authority for the proposition advanced on behalf of the claimant. I accept Mr Moffett's submissions. This is a case where I have some sympathy with the claimant, because the intention obviously was to appeal the extant enforcement notice, which have I referred to as enforcement notice A2. However, that was not what was done. The notice of appeal expressly referred to the date of the enforcement notice appealed against as being 22nd December 2003, the date of the withdrawn enforcement notice A1, and, what is more, the withdrawn enforcement notice A1 was actually appended to the appeal notice. Nothing could be clearer. In those circumstances, I fail to see how the Inspectorate could have interpreted the appeal notice as referring to enforcement notice A2, which was dated 23rd December 2003 and which was not appended to the appeal notice.

Section 174(3) requires "written notice of the appeal". The appeal referred to is the appeal against "the" enforcement notice referred to in section 174(1). In my view, it follows that the appeal notice must identify the enforcement notice to which it relates. The appeal notice in this case did so unequivocally. There is, in my view, simply no scope for the kind of interpretation for which the claimant contends. To allow this matter to be dealt with by way of interpreting the appeal notice as referring to enforcement notice A2 would not only be wrong, but, as a matter of principle, it would open up a Pandora's box of difficulties in many cases as to how the Secretary of State should go about trying to interpret the appellant's intention from material other than that appearing on the face of the appeal notice. In this case the Secretary of State would, in effect, be allowing an amendment to permit an appeal against a different enforcement notice out of time, which the Secretary of State has no jurisdiction to do.

Although, as I have said, I have some sympathy with the claimant, the council was perfectly entitled to withdraw enforcement notice A1 when they noticed its defect and to reissue its replacement. The Inspectorate did not receive the papers until 3rd February and they were not told that enforcement notice A1 had been withdrawn until well after the 10th February 2004, when enforcement notice A2 became effective. The prime responsibility for what has happened must lie with the claimant due to the error of his agent.

As I mentioned at the beginning of this hearing, it is in fact open to the council to withdraw enforcement notice A2 under section 173A of the 1990 Act, even though it has become effective, and then to reissue it, so as to allow the claimant to appeal against it. That, though, is a matter for the council, albeit that many would think that it would be a reasonable course of action for a responsible public body to take rather than to take advantage of the error that has been made.

However, for the reasons that I have given, I am afraid that this claim must be dismissed.

MR MOFFETT: My Lord, I am very grateful for that. That being the case, I would ask for the Secretary of State's costs of this application.

SIR MICHAEL HARRISON: Can you resist that, Mr McCracken?

MR MCCRACKEN: My Lord, I can't resist that. I think the figure has been agreed between the solicitors at £4,832.

SIR MICHAEL HARRISON: Thank you very much. Then I will make an order that the claimant pay the defendant's costs in the sum of £4,832.

MR MCCRACKEN: My Lord, that, of course, leaves my application for permission to appeal.

SIR MICHAEL HARRISON: Yes.

MR MCCRACKEN: I appreciate that your Lordship obviously would not have come to the conclusion that he had unless he was satisfied that his conclusion was the right one. But the case has raised a point on which there is no prior authority. Your Lordship took the view he did about the cases to which I have made reference, and certainly it has never been part of my case that those authorities were directly on point. It has always been accepted by myself and by our client that this was a matter which had not been previously considered by the courts.

In those circumstances, my Lord, it would, in my submission, be appropriate for your Lordship to adopt what must always be an unusual course for a first instance judge of granting permission to appeal. I would therefore ask that permission to appeal be granted.

SIR MICHAEL HARRISON: Thank you very much. What do you say to that?

MR MOFFETT: My Lord, I resist that. With respect, I would say your Lordship's judgment was clear and, again with respect, I would say it was straightforward. It was a straightforward conclusion from the provisions of the section and any appeal would not have any reasonable prospect of success, my Lord.

SIR MICHAEL HARRISON: Despite the fact, Mr McCracken, that there is no prior authority on the point, I am afraid that I take the view that an appeal would not have a real prospect of success. I am not going to grant permission to appeal. Thank you very much both of you for your assistance.