Akhtar v Secretary of State for Communities & Local Government & Anor

This is an appeal under s.289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of Thomas Shields MA DipURP MRTPI, an Inspector appointed by the First Respondent (“the Inspector”), of 15 February 2016 dismissing the appeal against an enforcement notice (“EN”) issued by the Second Respondent on 14 April 2015 .

The Appellant, Mr Mohammed Akhtar, is the landlord of 106 Manor Road, Dagenham, Essex, the subject matter of the EN. The Second Respondent is the Local Planning Authority (“the Council”). At the hearing the Appellant was represented by Mr Khan, who acted as his litigation friend. Although Mr Mohammed Akhtar was the appellant in respect of the EN, and named as the Appellant in this court, in practice the matter appears to have been conducted throughout by his brother, Mr Naeem Akhtar. Mohammed Akhtar was not in court, but Naeem Akhtar was. Mr Khan assured me that he was acting on behalf of the Appellant and referred me to the Special Power of Attorney, made in Pakistan, which gave Naeem Akhtar the power to act on his behalf, (bundle page 14-15). In those circumstances I am confident that Mr Khan was representing the Appellant and Naeem Akhtar did not need to be joined as a second appellant.

Although some of the correspondence to which I refer below is addressed to Mohammed Akhtar all the communications in response have come from Naeem Akhtar, and Mohammed appears to have taken no active part in the events in issue. I will refer below to the Appellant, but in all instances the actions taken were by Naeem Akhtar.

The Council had issued an earlier EN in materially identical terms on 28 July 2014, but they had omitted to insert the date when that EN came into effect. In those circumstances the Planning Inspectorate indicated that they would take no further action upon that EN, because they considered it to be a nullity. The Council issued the second EN on 14 April 2015.

The EN under appeal stated, as relevant;

“THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING CONTROL

Without planning permission, the erection of a rear out-building used as

Separate residential accommodation.

REASONS FOR ISSUING THIS NOTICE

It appears to the Council that the above breach of planning control has occurred “within the last four years” and that steps should be taken to remedy the breach by Section 173(4) (a) or to remedy any amenity or injury which has been caused by the breach.

….

WHEN THIS NOTICE TAKES EFFECT

This Notice takes effect on 21^st May 2015 unless an appeal is made against it before hand

Dated 14^th April 2015”

The Appellant appealed on 13 May 2015. The appeal was brought on ground (d) alone, that is s.174(2)(d) of the 1990 Act, namely:

“that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters”.

A chronology of communications with the Appellant is set out in the witness statement of Eleanor Church, Section Head of Enforcement Casework at PINS. The content of these communications is critical to the Appellant’s case and so I will need to go through them in some detail.

In the appeal form from the Appellant, Muhammad Akhtar, it stated that Naeem Akhtar was acting as his agent, gave his email address as being naeem44@gmail.com and said his preferred contact method was by email, rather than by post. The appeal documents included two witness statements from neighbours, and receipts.

PINS sent the Appellant what is known as the “start letter” on 20 July 2015. This letter starts the timetable for the submission of subsequent documents. It set out the relevant dates, provides the web-link to the planning portal stating that further information about the appeal process can be obtained there, and includes the following;

“Keeping to the timetable

You must keep to the timetable set out below and make sure that you send us the relevant documents within these deadlines. This will mean that we can deal with the appeal(s) promptly and fairly. If you do not send us the relevant documents in time, the Inspector will not normally look at them and we will return them to you unless there are exceptional reasons for accepting them. You must note the details of the following timetable because we will not send any reminders.”

Naeem Akhtar denies receiving the start letter. On the same day there was an email from PINS about whether there was to be a ground (a) appeal. Naeem Akhtar accepts that he did receive this letter. Ms Church’s witness statement produces the email server record from PINS that shows both emails were sent. Mr Westaway assured me that a full check had been carried out of the email system to that address, and there is no record of the start letter email being returned. Mr Khan now complains that the start letter should have been sent by recorded delivery, and not just by email. However, given that the Appellant had expressly stated preferred communication by email it does not seem to me that that submission is tenable.

On 28 July Muhammed Akhtar, but using the Naeem Akhtar email address, emailed to ask for an extension of time for the submission of the “planning permission forms” to 10 August. That email also said “Rest [sic], all other dates acceptable by me”. This would suggest that the start letter had been received, because it is that letter and not the second letter of 20 July which refers to other dates.

In respect of the potential ground (a) appeal, the Appellant did not pay the requisite fee and therefore the appeal proceeded on the basis of ground (d) alone.

Statements were due on 31 August, but would have been accepted the next working day, 1 September given the Bank Holiday. The Council’s statement was submitted on that day and copied by PINS to the Appellant on 3 September, asking for any comments on it by 24 September. The PINS letter of 3 September stated “you should comment solely on the representations enclosed with this letter. You cannot introduce new material or put forward arguments that should have been included in your earlier statement. If you do, your comments will not be accepted and will be returned to you… Comments submitted after the 9 week deadline will not be seen by the Inspector and will be returned to you, unless there are extraordinary circumstances for the late submission”.

Mr Khan argued that Naeem Akhtar was confused by the email of 3 September and he thought the 9 weeks ran from 3 September. However, on 23 September Naeem Akhtar asked for additional time until 30 September to submit comments on response. PINS immediately agreed to this. On the face of it this email indicates strongly that Naeem Akhtar was well aware of the timetable, and was not confused. Mr Khan now submits that Mr Akhtar did not send, or at least has no recollection of having sent, the email dated 23 September. This seems extremely unlikely given that it came from his email address, relates to previous correspondence and shows no indication of coming from anyone else.

Nothing further was heard from the Appellant until 27 November 2015. On that date he submitted comments on the Council’s statement. No explanation was given for the two month delay. PINS wrote to the Appellant on 30 November explaining that the documents would not be considered and why. Hard copy documents were received in the post by PINS but these were returned. There was no further communication from the Appellant about these late documents. Mr Khan submits that the Appellant did not explain the delay in his representations on 27 November, or at an earlier date, because he did not realise that he was outside the 9 week period. However, even if that were the case, which I do not accept, that does not explain why when the documents were returned to him on 30 November he did not write back to PINS and explain that he had thought he remained within the time for submission of further documents. I do not accept the submission that the Appellant did not do this because he had not yet received the decision letter, and was not aware of what else to do. The Appellant had been well capable of asking for an extension when he wanted more time. There is no sensible reason why he could not, and would not, have emailed PINS to explain why his documents had been submitted in November, rather than at an earlier date.

An Inspector, Mr Shields, was appointed on 22 December 2015. He carried out a site visit on 11 January 2016 and the appeal decision was issued on 15 February 2016. The Inspector amended the EN pursuant to s.176(1)(a) of the TCPA to make clear that it was only aimed at the change of use and not the operational development. He then addressed the argument that the breach was immune because the first notice was a nullity and said;

“However, section 171B(4)(b) of the Act provides for the taking of “further” enforcement action in respect of any breach of planning control if, during the 4 years ending with that action being taken, the Council have taken, or have purported to have taken, enforcement action in respect of that breach. This applies even though the normal time-limit for such action has expired. As such, there is no doubt that even if the first notice was a nullity, the Council purported to take enforcement action by issuing it, and hence the provisions of section 171B(4)(b) apply.”

He then proceeded to consider the evidence on whether the breach had occurred 4 years before the date of the issue of the first EN, namely from 28 July 2010. He then set out his reasons for rejecting the Appellant’s arguments;

“11.

The appellant’s evidence relies on a supplier’s invoice, an agreement with a contractor for carrying out works to the building, and written statements from neighbours.

12.

The supplier’s invoice (Howdens Joinery) lists numerous priced items of kitchen units and related fittings with a delivery date of 10 July 2010. However, although it refers to 106 Manor Road it relates to Positive Financial Services as the customer, rather than the appellant.

13.

Also, it does not specify the location of where the materials were to be delivered, it has no customer signature or printed name in the spaces provided for those, and thus it appears to be an unconfirmed invoice. No receipts have been supplied to confirm that the materials were paid for and supplied. Given these factors, I conclude that the document has no evidential weight that the items were actually purchased by the appellant, or at all, or that the items were delivered to the appeal site. Moreover, it does not provide evidence of when any conversion works were commenced or completed.

14.

The contractor agreement (Prime Property Services) sets out a schedule of proposed works to be carried out (including the fitting of a kitchen) by a completion date of 15 July 2010. However, there is no date against the contractor’s and the appellant’s signatures on the last page, and so does not provide evidence of when, or if, it was finally agreed and signed. No receipts are provided to show when, or if, the required payments for works in the agreement were actually paid. Notwithstanding these factors, and that it indicates a completion date of 15 July 2010, the document relates to the carrying out of proposed works in the future. It does not therefore provide evidence of when any conversion works were actually commenced or completed.

15.

The two statements from neighbours, Mr Sharmin and Mr Seedhouse, both state that refurbishment works were carried out in May and June 2010. This pre-dates, and hence conflicts with, the later delivery date (10 July 2010) of the kitchen units and fittings on the Howdens invoice. No other explanation in the appellant’s evidence clarifies this discrepancy. In addition, neither of the statements specifically identifies the actual building by reference to a plan, photograph or description. In light of these factors I cannot attach any weight to these statements.

16.

Taking account of all the evidence, I conclude that it is not sufficiently precise or unambiguous to demonstrate, on the balance of probabilities, that the building was capable of providing viable facilities for living from or before 28 July 2010. As such, I conclude, on the balance of probability, that the breach of planning control is not immune from enforcement action”.

The Appellant then appealed this decision to the High Court.

The relevant Regulations are the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002. By regulation 4 the Secretary of State shall notify the appellant and the local planning authority of the “the starting date”, which is defined as the date of this notice. Regulation 7, as relevant provides;

“(1)

The notice of appeal, the documents accompanying it and any statement submitted under regulation 6 of the Enforcement Notices and Appeals Regulations shall comprise the appellant's representations in relation to the appeal.

(2)

The local planning authority may elect to treat the questionnaire, the documents submitted with it and the statement submitted under regulation 9 of the Enforcement Notices and Appeals Regulations as their representations in relation to the appeal; and, where they do so, they shall notify the Secretary of State and the appellant accordingly when submitting the questionnaire or sending the copy in accordance with regulation 6.

(3)

If the appellant wishes to make any further representations to those in paragraph (1), he shall submit 2 copies of those further representations to the Secretary of State within 6 weeks of the starting date.

(4)

Where the local planning authority does not elect as described in paragraph (2), they shall submit 2 copies of their written representations to the Secretary of State within 6 weeks of the starting date …

…

(6)

The Secretary of State shall, as soon as practicable after receipt, send a copy of any representations made to him by the local planning authority to the appellant and shall … send a copy of any representations made to him by the appellant to the local planning authority.

(7)

The appellant and the local planning authority shall submit 2 copies of any comments they have on each other's representations to the Secretary of State within 9 weeks of the starting date; and the Secretary of State shall, as soon as practicable after receipt … send a copy of these further comments to the other party.

…

(8)

The Secretary of State may disregard further information from the appellant and the local planning authority which was not submitted within 9 weeks of the starting date unless that further information has been requested by him.

…”

The Secretary of State produces “Procedural Guide, Enforcement notice appeals-England”. The version of the Guide at the time of the determination of the EN appeal was dated 10 July 2015. The most relevant parts are as follows;

The exceptions which are referred to in paragraph 1.11 relate to material changes in circumstances since the EN was issued. This Procedural Guidance is on the planning portal, which was referred to in the start letter, and is easily accessible to appellants, including those who are not represented. It is written in language which is aimed at lay people and not just professional advisers.

The legal principles on which an EN appeal should be determined are well established. The onus of proof in establishing, on the balance of probabilities, that a period of immunity has accrued lies on the appellant not the local planning authority, Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 40.

It is incumbent on parties to an appeal to place before an inspector the material on which they wish to rely, and an Inspector is entitled to reach a decision on the basis of the materials before him. Richards J (as he then was) stated in West v First Secretary of State [2005 EWHC 729;

“42 In my judgment, and as submitted by Mr Mould, the general rule is that it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The inspector is entitled to reach his decision on the basis of the material put before him.

43 That general rule accords with principle, is supported by the discussion in Patel and is consistent with the decision in E v. Secretary of State. It also accords with the acceptance by Pill LJ in Dyason that “an appellant must be expected to tell the Inspector all he wishes to tell him”: that was said in the context of an oral hearing, but seems to me to apply with at least as much force in the context of the written procedure. There is nothing inherently unfair in the operation of that general rule.

44 In reaching his decision on the basis of the parties' written representations, the inspector is subject to the inquisitorial burden referred to in Dyason and must subject the material before him to rigorous examination. As Pill LJ observed, “[w]hatever procedure is followed, the strength of a case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case”. In general, however, that process does not require anything beyond proper consideration of the material put forward by the parties.

45 There will be exceptional cases where, on the particular facts, fairness requires the inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing. The Regulations can accommodate such cases without difficulty.”

The Appellant in his Skeleton Argument, and briefly in oral argument, referred to Wainhomes (South West) Holdings Limited v SSCLG 2013 EWHC 597. In that case PINS had refused to consider recent appeal decisions, received after the relevant deadline had expired. Counsel for the Secretary of State had submitted that the late submission of the decisions was a breach of the 2000 Rules. Stuart-Smith J rejected that submission saying “No sensible interpretation of the rules can require the submission of information before it is in existence”. That situation is entirely different from the present one, where all the material submitted in November 2015 was perfectly capable of having been produced earlier. I therefore do not think that Wainhomes is of any assistance to the Appellant.

Mr Khan’s principal submission was that PINS erred in law in refusing to exercise its discretion to accept the Appellant’s representations on 27 November 2015. He argued that the Council had known about the residential use of the property since November 2010 when they had conducted a site visit; that they had waited until 2014 to issue the first EN and that was a nullity; and then there had been a further year until the second EN was issued in May 2015. He submitted that it was unfair that the Council had acted in this way but the Appellant, who was a layperson, was being penalised for one mistake.

He further argued that the Appellant had been confused by the email communications he had received and had not realised that he was supposed to have provided any further representations by 28 September. He submitted that Naeem Akhtar had believed that he had until November to submit further representations because he had been confused. Mr Khan stressed that Mr Akhtar was a lay person. He relied upon the Planning Inspectorate Good Practice Advice Note 09. However, this Advice Note concerns amending applications, not the situation in issue, and is in no way inconsistent with the Enforcement Appeals guidance referred to above.

Mr Khan submitted that whereas there was very considerable prejudice to the Appellant because the further representations were returned without being considered, that there was no prejudice to PINS or the Secretary of State if they had allowed the further representations to be admitted.

I have no hesitation in rejecting Mr Khan’s submission that PINS acted unfairly or irrationally in refusing to accept the representations made in November 2015, and that the decision is therefore unlawful. The Regulations and the Guidance make clear that PINS may disregard information submitted outside the normal time limits. It is plainly important for the effective and efficient administration of appeals that there are time limits for submission of documents and that save for a very good reason these time limits should be abided by. A failure to abide by time limits does cause prejudice to the proper administration of the system, and thus ultimately to other parties. Mr Khan argued that the Inspector did not actually issue the decision until mid-February 2016 and therefore there was more than sufficient time to take into account the late submissions. However, this ignores the need for a clear timetable that all parties should abide by.

There are circumstances where it is appropriate, and indeed legally necessary, to accept late documents. The Guidance gives examples of where there are material changes of circumstances after the relevant dates, and Wainhomes, where the relevant decisions were only promulgated after the time limit expired, is a clear case. There was no material change of circumstance in the present case. Further, as Mr Westaway said, all the documents which were submitted in November 2015 could have been produced at an earlier date in accordance with the timetable.

I do not accept the submission that Mr Akhtar was “confused” by the timetable, or even if he was confused that this justified the late submission of the documents. Although Mr Khan submitted that Mr Akhtar did not receive the start letter the documentary evidence suggests that he was aware of the timetable, as I have explained above, and he could and did apply for extensions when he wanted them. The emails from him indicate that he understood the process and was working within it. Further, I take note of the fact that all the relevant information was on the Planning Portal, and the links to that were given clearly in various parts of the correspondence. Mr Akhtar plainly understood the process, given that the appeal form was properly completed, albeit some of the documents submitted late.

I also reject the submission that PINS should have taken into account the earlier actions by the Council, in particular the Council possibly waiting a considerable time after they were aware of the breach before issuing the first EN. Even if the Council had been at fault, about which I express no view, that cannot have changed the position on the ground (d) appeal, which must turn on an assessment of the factual evidence about the period of breach.

For all these reasons I reject the Appellant’s principal ground of appeal and find that the First Defendant did not act unlawfully in refusing to accept the late representations submitted in November 2015.

The second ground in the Appellant’s Skeleton Argument was that the EN was a nullity. This argument seemed to rest on the fact that the first EN was a nullity. However, s.171B (4) (b) of the 1990 provides for the taking of further enforcement action, even where the normal time limit has expired. This therefore allows the second EN to relate to the immunity period which would have arisen under the first EN. In this case therefore although the second EN was issued on 14 April 2015, the earlier EN had been issued on 28 July 2014 and this was the date from which the four year immunity period ran back from. This is set out in the decision letter at paragraph 8.

Mr Khan referred to the evidence submitted to PINS in November 2015, and to a series of further evidence that was submitted to the High Court. The further evidence is of no relevance, because this court is not reviewing the merits of the decision but only whether the Inspector erred in law. This was not material that was ever submitted to PINS, whether at the initial appeal stage or with the late material in November 2015. I did review this evidence during the course of the hearing, and there is nothing in it which could lead to a conclusion that there had been some fundamental error in the consideration of the EN appeal.

In respect of the November 2015 material, as I have explained above, I consider that PINS were entitled to not accept it. However, in any event, I agree with Mr Westaway that there is no ground for considering that material would have led the Inspector to reach a different view. The documents included two statements and a number of tenancy agreements and some documentation on council tax. However, these documents did not clearly relate to the outbuilding rather than the main property, and save for one exception did not relate back to an alleged residential occupation of the outbuilding at the critical date of 28 July 2010. That one exception was the statement of Mr Janjua dated 30 September 2015. However, I note that this is not in the form of a statutory declaration and simply says that Mr Janjua was living at 106 Manor Road, rather than making any reference to the outbuilding.

I therefore reject the second ground of appeal. There are a number of related points in the Appellant’s Skeleton Argument, which Mr Khan did not withdraw. However, all of these are dealt with above.

For these reasons I dismiss this appeal.