Town and Country Planning Act 1971 — Time-limit under section 245 to quash a decision of the Secretary of State dismissing an appeal under section 36 from a refusal of planning permission by local planning authority — ‘Whether six weeks from the date on which . . . the action is taken’ — Whether time-limit of six weeks ran from date when Secretary of State made his decision (ie when his decision letter was signed and date-stamped) or when the letter was posted or when notification of the decision was received by the aggrieved person — Application to quash decision was out of time if the relevant date was either the date of the making or the posting of the decision (which in the present case was the same day) but was within time if it was the date of receipt of notification — Appeal by applicants from decision of the Court of Appeal that the relevant date was the date of posting — Submission by appellants that no one could be ‘aggrieved’ under section 245 by something of which he had not received notification — Held by majority of House of Lords (Lord Scarman dissenting) that time began to run from the date when the Secretary of State made his decision (evidenced by the date-stamp on the decision letter signed by him) — Arguments based on construction conclusive against date of receipt of notification — Court of Appeal’s view in favour of date of posting, on the ground that a decision letter could be recalled until posted, not accepted, although in the present case it made no difference to the result — Majority view agreed by Lord Elwyn-Jones ‘with reluctance’ — Appeal dismissed
This was an
appeal by P Eldridge Griffiths and his wife, Mrs H A Griffiths, from a decision
of the Court of Appeal holding that their application under section 245 of the
Town and Country Planning Act 1971 to quash a decision of the Secretary of
State for the Environment was out of time. The Court of Appeal had upheld,
although on different grounds, a decision of Sir Douglas Frank QC, sitting as a
deputy judge of the Queen’s Bench Division. Sir Douglas had affirmed a decision
of Master Thompson ordering the appellants’ application to be struck out as out
of time. The proceedings arose from the refusal of the London Borough of
Bromley to grant planning permission to the appellants to erect a farmhouse on
a site which was part of the green belt near Bromley.
Mr P Eldridge
Griffiths appeared in person; Simon Brown (instructed by the Treasury
Solicitor) represented the Secretary of State; the second respondents, London
Borough of Bromley, were not represented and took no part in the proceedings.
In his speech
LORD BRIDGE said: There are nominally two appellants who are husband and wife.
Your Lordships were given to understand that they have parted and that the
husband alone, Mr Eldridge Griffiths, is now interested in the subject-matter
of the appeal. It will be convenient to refer to him as the appellant and to
recount the history as though he had throughout been the sole party concerned
in the relevant transaction. The appellant argued his case in person, if I may
say so, with a degree of skill, courtesy and restraint rarely displayed by a
litigant in person. The fact that he was not professionally represented, he can
be assured, in no way operated to his disadvantage.
The appellant
applied for outline planning permission under the Town and Country Planning Act
1971 (‘the Act’) for the erection of a farmhouse on land at Orpington, Kent.
This was refused by the second respondents, as local planning authority. The
appellant appealed to the first respondent, to whom I shall refer as the
Secretary of State, under section 36 of the Act. A letter from the Department
of the Environment bearing the reference APP/5007/A/80/02871 and the date-stamp
December 8 1980 was sent to the appellant. It concluded with the words: ‘. . .
the Secretary of State hereby dismisses your appeal’. This letter was received
by the appellant on December 13 1980.
By a notice of
motion entered and served on January 22 1981 the appellant applied to the High
Court ‘for an order that a decision made by the Secretary of State for the
Environment on planning appeal 5007/A/80/02871 be quashed’. By summons dated
February 4 1981 the Secretary of State applied to strike out the appellant’s
application on the ground that it was not made within the time limited by
section 245 of the Act. An order to strike out the application was made by
Master Thompson on March 4 1981, affirmed by Sir Douglas Frank QC, sitting as a
Deputy High Court Judge, on March 10 1981, and further affirmed by the Court of
Appeal on different grounds on January 26 1982. The appellant appeals from the
decision of the Court of Appeal by leave of your Lordships’ House.
It will be
convenient to set out the provisions of sections 242 and 245 of the Act on
which this appeal primarily depends.
242 — (1)
Except as provided by the following provisions of this Part of this Act, the
validity of —
. . . . . .
(d) any such order as is mentioned in subsection
(2) of this section whether before or after it has been confirmed; or
(e) any such action on the part of the Secretary
of State as is mentioned in subsection (3) of this section,
shall not be
questioned in any legal proceedings whatsoever.
. . . . . .
(3) The action referred to in subsection (1)(e)
of this section is action on the part of the Secretary of State of any of the
following descriptions, that is to say —
. . . . . .
(b) any decision of the Secretary of State on an
appeal under section 36 of this Act;
245 — (1) If
any person —
(a) is aggrieved by any order to which this
section applies and desires to question the validity of that order, on the
grounds that the order is not within the powers of this Act, or that any of the
relevant requirements have not been complied with in relation to that order; or
(b) aggrieved by any action on the part of the
Secretary of State to which this section applies and desires to question the
validity of that action, on the grounds that the action is not within the
powers of this Act, or that any of the relevant requirements have not been
complied with in relation to that action,
he may, within
six weeks from the date on which the order is confirmed or the action is taken,
as the case may be, make an application to the High Court under this section.
(2) Without prejudice to subsection (1) of this
section, if the authority directly concerned with any order to which this
section applies, or with any action on the part of the Secretary of State to
which this section applies, desire to question the validity of that order or
action on any of the grounds mentioned in subsection (1) of this section, the
authority may, within six weeks from the date on which the order is confirmed
or the action is taken, as the case may be, make an application to the High
Court under this section.
(3) This section applies to any such order as is
mentioned in subsection (2) of section 242 of this Act and to any such action
on the part of the Secretary of State as is mentioned in subsection (3) of that
section.
For brevity I
have not included in these citations from the Act section 242(2), which lists
five types of order, or the provisions of section 242(3), except paragraph (b),
which lists another 10 types of action, to all of which the provisions of
section 245 apply. In considering when time begins to run for the purpose of
calculating the six weeks’ time-limit set by section 245 it will, however, be
necessary to refer later to some of these other cases.
At the outset
the appellant sought to argue that the Secretary of State had never decided his
planning appeal at all. This point is not open to him on the hearing of the
present appeal. What he sought to question by his notice of motion was
certainly a purported decision of the Secretary of State on an appeal under
section 36 of the Act. The validity of that purported decision can only be
questioned if the application was made in due time.
The important
point raised by the appeal is what, on the true construction of section 245, is
the meaning of the words ‘the date on which . . . the action is taken’ both
generally in relation to action of the several kinds enumerated in section
242(3) and specifically in relation to a decision of the Secretary of State on
an appeal under section 36 of the Act.
The appellant
forcibly argued that no one can be ‘aggrieved’ under section 245 by something
of which he is unaware. It follows from this, he submitted, that the action to
which section 245(1)(b) refers cannot have been taken on any date
earlier than the date when the notification of it was received by the aggrieved
person. If this is right, since the appellant did not receive notice of the
Secretary of State’s decision until December 13 1980, his notice of motion on
January 22 1981 was in time.
Mr Simon
Brown, for the Secretary of State, contends that the effective date when action
of the kind in question is taken, so making a decision on a planning appeal, is
when, in accordance with the practice of the Department of the Environment, the
decision is recorded in a formal document, ie a decision letter concluding with
the words ‘the Secretary of State hereby dismisses [or, as the case may be,
allows] the appeal’, which is both signed on behalf of the Secretary of State
and date-stamped. In this case that action was taken on December 8 1980, from
which it follows that, if Mr Brown is right, the appellant’s notice of motion
was out of time.
The Court of
Appeal rejected both these arguments and held that the Secretary of State
cannot be said to have made any decision until he has taken an irrevocable step
which puts it out of his power to change his mind and that, since a decision
letter can be recalled and the decision varied at any moment until it is
posted, it is the date of posting which is the date of the relevant action from
which time runs under section 245(1). They inferred, however, from facts put before
them by counsel in argument and verified by affidavit sworn and filed on the
same date as the hearing and decision of the appeal that the decision letter in
this case had in fact been posted on December 8 1980 and accordingly that the
appellant’s application to quash the decision had rightly been struck out on
the ground that it was not made in time.
A fourth
possible view has emerged in the course of the discussion of this appeal. This
is that there is an implied statutory obligation on the Secretary of State to
give notice of his decision on a planning appeal, presumably to all interested
parties; that the giving of such notice is an integral part of the process of
making the decision; and that the obligation can only be complied with in
accordance with the terms of section 283(1) of the Act, which provides:
Subject to
the provisions of this section, any notice or other document required or
authorised to be served or given under this Act may be served or given either —
(a) by delivering it to the person on whom it is
to be served or to whom it is to be given; or
(b) by leaving it at the usual or last known
place of abode of that person, or in a case where an address for service has
been given by that person, at that address; or
(c) by sending it in a prepaid registered
letter, or by the recorded delivery service, addressed to that person at his
usual or last known place of abode, or, in a case where an address for service
has been given by that person, at that address; or
(d) in the case of an incorporated company or
body, by delivering it to the secretary or clerk of the company or body at
their registered or principal office, or sending it in a prepaid registered
letter, or by the recorded delivery service, addressed to the secretary or
clerk of the company or body at that office.
In the instant
case there was no evidence that the decision letter was sent to the appellant
by registered post or recorded delivery service. Hence, on this view, the
appellant would be entitled to succeed on the ground that the Secretary of
State had failed to prove that the notice of motion was out of time.
My Lords, it
seems to me, first, that one would expect the provisions of section 245(1) and
(2) to operate to give a clear, certain and consistent answer to the question when
the date occurs from which time runs both in relation to the orders to which
section 242(2) applies and in relation to action of the several kinds indicated
by section 242(3); secondly, that when one finds in the Act numerous provisions
imposing an express obligation to give notice, it is impossible to imply a
statutory obligation (as opposed to a duty in the course of good
administration) to give notice, where no express obligation is imposed;
thirdly, that the possibility that maladministration by failure to notify a
decision promptly might work an injustice, even to the extent of depriving an
interested party of his opportunity to institute proceedings under section 245,
is not a sufficient ground to distort the natural meaning of the language of the
statute.
Two instances
demonstrate conclusively, to my mind, that the Act itself draws a distinction
between the confirmation of an order to which section 242(2) applies and the
taking of action to which section 242(3) applies on the one hand and the notification
to interested parties of that order or action on the other.
Section 51 of
the Act empowers the local planning authority to make orders requiring an
existing use of land to be discontinued or a building to be altered or removed.
Section 242(2) applies to such orders. Such an order does not take effect
unless confirmed by the Secretary of State: section 51(4). Section 51(7)
provides:
Where an
order under this section has been confirmed by the Secretary of State, the
local planning authority shall serve a copy of the order on the owner and
occupier of the land to which the order relates.
Hence the
confirmation of an order to which section 242(2) relates is an event distinct
from the notification of the confirmed order to the interested parties. The two
events may, and almost invariably will, occur on different dates. It is from
the date of the first event, not the second, that time runs under section 245.
When, under
Part VII of the Act, parties have become entitled to, and have claimed,
compensation arising from an unfavourable planning decision, section 38
empowers the Secretary of State to give directions which, put shortly, have the
effect of reducing or extinguishing liability to pay compensation by deeming a
more favourable planning decision to have been given. The ‘giving by the
Secretary of State of any direction under section 38’ is action to which
section 242(3)(c) applies. Section 39(3) provides:
Where the
Secretary of State gives a direction under section 38 of this Act, he shall
give notice of the direction to the local planning authority to whose decision
the direction relates, and to every person (if any) who made, and has not since
withdrawn, a claim for compensation in respect of that decision.
Hence, here
again, the giving of the direction, which is the relevant action taken, is
distinct from the notification of the direction to interested parties.
Like section
242(3)(b) all the other kinds of action listed under the subsection,
except that in paragraph (c), consist in ‘a decision by the Secretary of
State’ under various provisions of the Act. As a matter of language, when the
generic term ‘action’ is used to refer to various categories of decision, it
seems to me that it can only refer to the making of the decision, not to its
notification to third parties. Coupled with the instances cited from section 51
and section 39 this makes it impossible, in my opinion, even if one could imply
a statutory obligation to give notice of the decision, to hold that compliance
with that obligation is part of the taking of the relevant action or can affect
the date on which the action is taken within the meaning of section 245. If
this is right, this appeal cannot succeed on the ground that the decision
letter was not proved to have been sent by registered post or recorded
delivery, or, a fortiori, on the ground argued by the appellant.
It is
appropriate, nevertheless, to test the validity of this conclusion by
considering the consequences to which a contrary construction of the Act would
lead. The vital factor to bear in mind is that, when the Secretary of State
makes a decision on a planning appeal, as with most, if not all, of the other
categories of action to which section 242(3) applies, a multiplicity of parties
may be affected. In all planning appeals under section 36 there will at least
be the appellant and the local planning authority. But in many cases there will
also be the owner or owners of the land affected, who may be different persons
from the applicant for planning permission, and the tenants of any agricultural
holdings any part of which is comprised in the land affected. These parties are
entitled to make representations and when they have done so are expressly
entitled to notice of the decision: section 29(3) as applied by section 36(5).
The local planning authority have their own express right under section 245(2)
to take proceedings questioning the decision. All the others are potentially
aggrieved persons under section 245(1). This seems to me to point to the
extreme improbability of Parliament having intended that the date when the
action is taken for the purposes of section 245 should be determined by the
date on which notice is given to a multiplicity of parties, which would
presumably mean the date when the last necessary notice was given.
It must be
remembered that where, as has been held in the instant case, a decision to
refuse planning permission on appeal becomes immune to challenge by lapse of
time, the appellant can always make a fresh application; though I must
certainly not be understood as encouraging the present appellant to take that
course. The six weeks’ time-limit is of much greater importance in a case where
the decision was to grant planning permission. Six weeks after the Secretary of
State has granted permission for development on appeal, the applicant for that
permission should be in a position to proceed with confidence to carry out the
development or to buy or sell the land with the benefit of the permission. But
if time does not start to run until all interested parties have been given
notice of the decision, and if, by some administrative oversight, the decision
was never communicated either to the local planning authority or to a tenant
farmer, the permission would be liable to be invalidated after the development
had been carried out or the land had changed hands at a price reflecting the
value of the planning permission. I do not believe such a bizarre result can
have been intended.
My Lords, I
appreciate the force of the Court of Appeal’s view that the Secretary of State
does not make his decision until it becomes irrevocable by posting the decision
letter but, with respect, I cannot agree with it. When a letter recording a
decision of the Secretary of State made ‘hereby’ has been typed, signed on
behalf of the Secretary of State and date-stamped, it seems to me that the
process of decision-making is complete and that the letter itself is not the
less a decision of the Secretary of State because it is still in his power to
revoke it. I would accordingly accept Mr Simon Brown’s submission that the
relevant action is taken on the date stamped on the decision letter. The same
principle would operate mutatis mutandis, to determine the date on which
any other action is taken of a kind to which section 242(3) applies or on which
any order to which section 242(2) applies is confirmed.
For these
reasons I would dismiss the appeal.
LORD SCARMAN,
in a speech dissenting, said: When the Secretary of State in the exercise of
the appellate power conferred upon him by section 36(3) of the Town and Country
Planning Act 1971 decides to dismiss an appeal from, or reverse, or vary, the
decision of a local planning authority upon an application for planning
permission to develop land, what is the date of the action taken by him? This is the critical question in this appeal.
The Secretary
of State submits that it is the date evidenced by the date stamp, in the
absence of any evidence to the contrary, upon which the letter declaring his
decision is signed — in this case, December 8 1980. Alternatively, he submits
that it is the date of posting, by which is meant the date on which it is
confided either to the posting process of his department or to the Post Office:
also, according to the only information available, December 8 1980 in this
case.
The appellant,
Mr Eldridge Griffiths, is the owner of land, which he sought planning
permission to develop. He is aggrieved by the refusal of the Secretary of State
on appeal to permit the development. He applied to the High Court to quash the
action of the Secretary of State. The Secretary of State took the preliminary
point that his application was out of time. Mr Griffiths lost before the judge,
and in the Court of Appeal. He now appeals to your Lordships’ House. He has
argued his appeal in person with skill, brevity and clarity. He submits that
the action taken by the Secretary of State (always assuming, which he
challenges, that there is satisfactory evidence in the affidavits that he
himself took any action) was not complete until December 13 1980, the date upon
which Mr Griffiths (as also, presumably, the other appellant, his wife, who has
taken no part in the appeal) received the letter of decision which was the
first notice either of them received of the Secretary of State’s decision.
The Court of
Appeal rejected the first submission of the Secretary of State, but accepted
the second. Templeman LJ delivered the first judgment, from which I quote two
passages:
First:
It seems to
me that he took that action when he made up his mind and when he gave effect to
the decision which he had reached by despatching notice of his decision
(Emphasis supplied)
And the
second:
It seems to
me that it cannot be said that the minister has taken action until he has
committed some irrevocable step.
The learned
Lord Justice found that confiding a letter to the post was an irrevocable step
(upon which Mr Griffiths’ dry comment was: ‘so it may be: but it does not
follow that it arrives’). Dunn and Cumming-Bruce LJJ agreed with Templeman LJ.
The reason why
it is necessary to determine the date on which action was taken by the
Secretary of State is that section 245(1) of the Act prescribes six weeks from
the date on which the action was taken as the period within which an aggrieved person
may apply to the High Court to quash his action. If the date was December 8
1980, Mr Griffiths was out of time when he made his application to the High
Court on January 22 1981. If the date was, as he submits, December 13 1980, he
was within the time prescribed by law.
In the Court
of Appeal, Cumming-Bruce LJ offered a concise summary (which I gratefully
borrow) of Mr Griffiths’ argument — only to reject it as having to yield to the
specific words of the subsection. The learned Lord Justice noted that Mr
Griffiths began, as he did in your Lordships’ House, by asking the question:
how can anyone be ‘aggrieved’ by action on the part of the Secretary of State
until he is told what it is? Therefore,
in construing the subsection it can only be feasible to place upon it a
construction that time begins to run from the date on which the owner or
occupier of the land affected by the decision had his first opportunity of
knowing that he was aggrieved, ie the date on which he learns, or has a proper
opportunity of learning, what is the action taken by the Secretary of State.
This is a
powerful and attractive submission. It is difficult in terms of justice to
justify a conclusion that Parliament, when conferring a right of access to the
courts, has used language which can result in the right being lost before the
aggrieved landowner even knows or has a proper opportunity of knowing he has a
grievance in respect of which he might wish to avail himself of the right. At
the very least, Parliament could be expected to have enacted some safeguard
against so unjust an eventuality.
The question,
therefore, to be asked before imputing to Parliament any such disturbing
intention is whether the language of section 245(1) in its context is so
specific that no other conclusion is possible. The basic case of the respondent
is that it must be in the public interest that in some circumstances an
applicant’s right of access to the court has to yield to the need for a swift
finality of decision. This is, of course, a possible conclusion, for we are in
the realm of public law where, on occasions, private right must yield to public
interest. But even in public law justice remains as one of the true interests
of the law, not to be cut down or immobilised further than Parliament by express
enactment or necessary implication plainly requires. And it is unjust that one
who is given a right of access to the High Court should be at risk of losing it
before he knows, or can know, of the existence of a decision which entitles him
to exercise it.
Does then the
language of the section command this anomalous result? It all depends, as the Court of Appeal
recognised, on the meaning to be given to that very ordinary, imprecise word
‘action’ in its statutory context. The Court of Appeal refused to accept that
the arcane moment of decision taken either by the Secretary of State in his
closet or by some responsible official at his desk (the decision may, of
course, be taken by an official: Carltona Ltd v Commissioners of
Works [1943] 2 All ER 560) should be sufficient to determine the date from
which time is to run against a person aggrieved by the decision. Action must,
they thought, mean more than that. Their solution was to look for an easily
ascertainable ‘irrevocable step’, ie the moment after which the Secretary of
State could not recall his decision. I agree with them that ‘action’ need not,
as a matter of ordinary English usage, be confined to a single act but may
embrace a course of action. I also agree with them that in public law, where
the rights of the public as well as of the person directly affected by the
decision have to be considered, an easily ascertained date is necessary in
order that there may be no doubt as to the time when a decision becomes final,
ie one which ‘shall not be questioned in any legal proceedings whatsoever’
(section 242(1) of the Act).
I accept,
therefore, that Parliament must have intended an easily ascertained final date
from which time is to run. I also accept that ‘action’ can refer to a course of
action which includes but is not completed by the act of decision. Since no
decision can be challenged unless its existence be known, a challengeable
decision must be one for which the law provides a proper opportunity to
challenge. If the words ‘action is taken’ in section 245 be construed as
including both the decision and the giving of notice to the owner or occupier
of the affected land, certainty is achieved and a reasonable opportunity, even
if not always the full period of six weeks, is provided to challenge the decision
in the High Court. This is because section 283 of the Act provides a code for
the giving of notice when required or authorised under the Act. The section
permits notice to be given in a variety of ways, eg delivering it personally,
leaving it at the last known place of abode of the person concerned, dispatch
by
resort, affixing it on the land. If, therefore, for one reason or another, it
cannot be proved that the aggrieved person actually received the notice, there
are ways of proving notice by reference to an ascertainable date and with due
safeguards for the aggrieved person.
It is,
however, urged that the context negatives any such construction of the words
‘action is taken’. Two points are made. First, subsection (3) of section 245
provides that the ‘action’ to which the section applies is that which is
mentioned in section 242(3). The latter subsection lists 11 ‘descriptions’ of
action. Ten of them are ‘decisions’ and one of them is a ‘direction’ — all of
them being acts of the Secretary of State. The action in the present case is
included as ‘any decision of the Secretary of State on an appeal under section
36 of this Act’: section 242(3)(b). It is submitted, therefore, that the
word ‘action’, where it appears in section 245, refers only to the decision or
the direction of the Secretary of State and not to the notification of it to
the aggrieved landowner (or occupier). I draw no such inference. It is common
enough to describe something by a word which picks out its essential feature.
‘Decision’ is a perfectly apt description of a course of action taken under
section 36 of the Act; for the essence of the action is the decision to allow
or dismiss the appeal. The purpose of description being to describe (not to
define), I find nothing in the language of section 242 or section 245 which
compels a construction of ‘action’ as a single act. I therefore reject the
argument based on the ‘descriptions’ of action listed in section 242(3).
The second
point arises from the fact that section 245 applies not only to the action
mentioned in that subsection but also to the orders mentioned in subsection (2)
of the same section and provides that time shall run ‘from the date on which
the order is confirmed’. Confirmation is a formal act by the Secretary of
State, and, unlike the word ‘action’, is not capable of being construed as a
course of action. It is, therefore, submitted that, as Parliament has provided
for time to run from confirmation of an order irrespective of whether the
persons aggrieved have notice of it or not, there is no reason to suppose that
Parliament intended otherwise in respect of the other matter to which section
245 applies, namely, any action taken by the Secretary of State which falls
within one of the descriptions listed in subsection (3) of section 242.
This facile
equation is no guide to the interpretation of section 245. Orders confirmed by
the Secretary of State are the subject of express provision as to notice: ‘action
on the part of the Secretary of State to which this section applies’ is not. I
take two illustrations. The section applies to ‘any order under section 51 of
this Act’ (subsection 2(b) of section 242). A section 51 order requires
discontinuance of the use of land or, as the case may be, removal (or
alteration) of a building. The order does not take effect unless it is
confirmed by the Secretary of State. Where an order is confirmed, the local
planning authority shall serve a copy of it on the owner and occupier of the
land: section 51(7). If, as it is submitted, time under section 245 runs from
the date of confirmation of the order, the aggrieved person has the safeguard
of the duty to give the notice imposed by the section. It is true that
inevitably he will have less than six weeks: but, if the statutory duty of
notice is performed, he will have a reasonable opportunity to make his
challenge. If the true construction of ‘action’ is, as I think, a course of
action completed by notice to the owner or occupier of the land affected, the
same position will arise if notice is served by registered post or recorded
delivery or in any of the ways envisaged by section 283. In both cases,
therefore, ie that of a section 51 order of which notice has to be given by the
local planning authority, and that of ‘action’ interpreted as referring to a
course of action completed by the giving of notice to the owner or occupier, a
reasonable opportunity to challenge within the prescribed period will be given,
even though the full six weeks will not invariably be available.
My second
illustration is that of a tree preservation order. This also is an order which,
when confirmed, can be challenged by application to the High Court made under,
and within the time-limit set by, section 245(1). The Act again envisages the
giving of notice after confirmation, but leaves the detailed provision to
regulations: section 60(5) of the Act.
It is,
therefore, substantially true that, save where the public interest clearly
requires the contrary, the Act and the regulations made thereunder contain
provision for the giving of notice of orders and decisions made by the
Secretary of State so as to ensure that within the time prescribed by law the
person, be he the owner or occupier, whose land is the subject of the order or
decision, has a reasonable opportunity to consider his position and, if so
advised, to challenge the order or decision. (It is assumed, reasonably in my
opinion, that if notice is given to the owner or occupier, it is sufficient.) If the words ‘action taken’ in section 245 be
construed as a reference to a course of action beginning with the Secretary of
State’s decision and completed by the giving of such notice, the same just
result would ensue. A construction which limited the words to the act of
decision would not have the same result: for it would then be possible for the
right of challenge to be lost without the owner or occupier of the land knowing
of the decision or having the protection of the procedures established by section
283 as acceptable methods of giving notice. If this means that the Department
of the Environment must go to a little extra expense and trouble in instituting
section 283 procedures in respect of the decisions and directions listed in
section 242(3) of the Act, it is a small price to pay for doing justice; and it
would promote that certainty which is needed in matters of public law.
It is true
that on the facts of this case Mr Griffiths had five weeks plus a day or so in
which to make his application. It is also true that this was a reasonable
opportunity, even though it was not the full period of six weeks which Mr
Griffiths (and others) might reasonably think was their statutory right. But
the issue is not one of fact, but is as to the construction to be placed upon
the statute. If the Secretary of State’s submission is correct, the statute,
because it is silent as to the giving of notice in respect of the action taken
by him, imposes no legal duty upon him to give notice to anyone. It follows
that an owner or occupier of the land, who is aggrieved by the decision, is
deprived of the right to notice under section 283. He has no right to be
informed; nor has he the protection of the statutory safeguards for the giving
of notice. I would not hold that Parliament intended anything so arbitrary,
unless the language of the enactment revealed that such was its intention. But
the language of the section is wide enough to obviate the need to attribute any
such intention to Parliament.
For these
reasons I would allow the appeal.
LORD
ELWYN-JONES, agreeing with Lord Bridge, said: The Town and Country Planning Act
1971 makes a specific provision in section 245 that persons aggrieved by any
relevant ‘action’ of the Secretary of State should be able to make an
application to the High Court. However, it imposes a time-limit on the making
of such applications of six weeks from the date on which the ‘action’ is taken.
Whereas numerous provisions of the Act impose an express obligation on the Secretary
of State to give notice, no such obligation is imposed by section 242.
This could
have the regrettable result in a given case of an aggrieved person being
denied, by reason of late or delayed delivery to him of the Secretary of
State’s decision or for reasons of administrative convenience, any reasonable
opportunity to seek advice and to make an application in time to the court. The
fact that in the instant case the appellant received the Secretary of State’s
decision more than five weeks before he became time barred and thus had a
reasonable opportunity to apply to the High Court in good time, is too
fortuitous to be reassuring.
It is with
reluctance that I have nevertheless come to the same conclusion as that arrived
at by my noble and learned friend, Lord Bridge of Harwich, whose speech I have
had the advantage of reading, on the construction of the relevant provisions of
the Act. 1, too, would dismiss this appeal.
LORD FRASER OF
TULLYBELTON and LORD BRANDON OF OAKBROOK agreed that the appeal should be
dismissed for the reasons given in the speech of Lord Bridge.
