Time-limits — Town and Country Planning Act 1990 — Section 288 application — Delay — Crown Office erred in advising commencement of six-week period — Whether application statute-barred
In a decision letter dated 24 June 1998, the inspector dismissed an appeal and refused to grant the applicant planning permission in respect of a dwellinghouse. The applicant applied to quash that decision under section 288 of the Town and Country Planning Act 1990. Having been wrongly advised by the Crown Office that the application should be lodged within six weeks of publication or receipt of the inspector’s decision letter, the applicant filed his application dated 3 August 1998; the Crown Office stamped it on 7 August 1998. In January 1999 the Crown Office informed the applicant that the time-limit for making the application had expired on 5 August 1998, unless he could produce evidence to the contrary. The Secretary of State for the Environment sought to have the application dismissed on the ground that it was not made within six weeks of the decision as required by section 288(3) of the 1990 Act.
Held The Secretary of State’s application was allowed and the substantive proceedings were dismissed.
Account was taken of the fact that the applicant was a litigant in person, that the Crown Office, in its original letter, gave erroneous advice on the six-week period, and of the appropriateness of making assumptions favourable to him. If there were some real possibility that he could have produced such evidence, as of posting, this would have led to a conclusion that the application was probably received at the Crown Office within time. Accordingly, an adjournment would have been allowed for the preparation and swearing of affidavits to enable the case to proceed. On the evidence before the court, the applicant could do no more than say that he believed that he had posted the letter first class on 3 August 1998. This was insufficient to displace as evidence the date of receipt stamped on the form in the Crown Office.
Low v Secretary of State for Wales [1994] JPL 41
This was an application to dismiss a purported application under section 288 of the Town and Country Planning Act 1990 seeking to quash the decision of the Secretary of State for the Environment, |page:43| Transport and the Regions, by his inspector, dismissing an appeal against a refusal of planning permission.
MR GEORGE BARTLETT QC: The applicant in this case applies under section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector, dated 24 June 1998, dismissing the applicant’s appeal against the refusal of planning permission for a detached dwellinghouse on land at 1 Princess Avenue, Weston Coyney, Stoke-on-Trent. The matters that the applicant, Mr Locker, seeks to raise in his challenge are that the inspector left out of account certain material considerations, conducted the hearing improperly and failed to carry out a proper site inspection.
For the Secretary of State, Mr Gibbon asks me to dismiss the application on the ground that it was not made within six weeks of the decision, as required by section 288(3) of the 1990 Act.
Yesterday afternoon, Mr Locker sent a fax to the Crown Office asking for an adjournment. The grounds upon which he did so are not clear, although at the end of this fax — which relates to a range of matters — he says that he is unable to attend owing to the after-effects of an accident. It does not, however, appear that he is requesting an adjournment on that ground, and I can see no basis, on what he has written in the facts, to adjourn this hearing.
A letter from solicitor Crick & Mardling to the Treasury Solicitor, dated 10 November 1999, referred to an application for legal aid that was being made on behalf of Mr and Mrs Locker, and sought the agreement of the Treasury Solicitor to an adjournment. I consider that I ought to have regard to the question of whether the matter should now be adjourned on that ground.
The six-week period within which application under section 288 had to be made expired on 5 August 1998. The application of Mr Locker is dated 3 August 1998, and on the top of the form he wrote, ‘sent 3/8/98, send original and copy’. The form bears the Crown Office stamp dated 7 August 1998. Mr Locker had previously been sent a standard Crown Office letter that had been wrongly dated 18 January 1998, which stated that the application must be lodged within six weeks of the day the decision is published or received by letter. That advice was wrong. It is the date of the decision itself that counts.
A hearing fixed for 15 December 1998 was cancelled and, on 18 January 1999, the Crown Office wrote to the solicitor that Mr Locker had instructed, pointing out that the application was apparently out of time and that, to be shown to be within time, evidence that it had been delivered to the Crown Office before the end of the statutory period would |page:44| be required. The letter referred to Low v Secretary of State for Wales [1994] JPL 41. The need for an affidavit was pointed out.
Mr Locker’s solicitor replied, acknowledging that what was needed was an affidavit as to the fact of postage of the application. A hearing fixed for 24 February 1999 was cancelled and the solicitor said that Mr Locker had applied for legal aid. Legal aid was, however, refused.
I will assume that Mr Locker still seeks an adjournment so that he can make a further application for legal aid. Despite the obvious delay that there has been on Mr Locker’s part, I bear in mind that he is a litigant in person, the erroneous advice in the Crown Office’s original letter on the six-week period, and the appropriateness of making assumptions that are favourable to him, as the Court of Appeal did in Low. Were I of the view that there was some real possibility that Mr Locker would be able to produce such evidence of posting as would lead to a conclusion that the application was probably received at the Crown Office within time, I would adjourn the case so that an affidavit could be prepared and sworn. But, on the basis of what is before me, he would not be able to do more than to say that he believed that he had posted the letter first class on 3 August 1998, the date he entered on the form.
In my judgment, this would be insufficient to displace as evidence the stamp on the form in the Crown Office. Accordingly, it would not be right for me to grant Mr Locker’s application for an adjournment and, the application being out of time, these proceedings must be dismissed.
Application allowed.
