Enforcement notice — Appeal — Original notice withdrawn and replaced — Appellant mistakenly putting date of original notice on appeal form — Whether High Court correct in confirming invalidity of appeal — Appeal allowed
The second respondent council issued two enforcement notices in respect of works that the appellant had carried out in order to facilitate vehicular access to, and parking for, his house. On the following day, they withdrew one of the notices and issued another to similar effect. Both the original and the replacement notice were to take effect on the same date, by which time any appeal was required to be lodged. The appellant posted appeal forms in good time, but mistakenly put the date of the original notice, and appended that notice instead of the replacement. The Planning Inspectorate was unaware that the original notice had been withdrawn until after the date upon which the notices took effect. When it discovered this, it rejected the appeal, considering it to be invalid.
The appellant applied for judicial review of that decision. The judge dismissed his application on the basis that although he had intended to appeal against the extant notice, he had not done so; since the appeal notice expressly referred to the date of the original notice, which had also been appended, the Planning Inspectorate could not have interpreted it as being an appeal against the replacement notice. Section 174 of the Town and Country Planning Act 1990, which provided for the right of appeal, required written notice to be given of an appeal against “the” notice; the judge interpreted this to mean that the appeal notice had to identify the specific enforcement notice to which it related. He held that the appellant’s appeal notice had referred unequivocally to the withdrawn notice, and thus could not be interpreted as referring to the extant notice: see [2004] PLSCS 272. The appellant appealed.
Held: The appeal was allowed.
The judge had been wrong to decide the case solely upon the interpretation of the appeal notice, without having regard to the facts and circumstances surrounding its service. It was clear that the decision of the inspectorate had been made in error.
The correct approach to procedural irregularities was to decide what the legislator had intended should be the consequence of non-compliance. That would depend upon the facts of the case and the nature of the particular requirement. It was important not to attach too much significance to procedural requirements where that would lead to grave injustice: R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354 applied; Finbow v Air Ministry [1963] 1 WLR 697 considered.
Section 173A of the 1990 Act provided that a local planning authority could withdraw, waive or relax the requirements of an enforcement notice, and section 174(1) and (4) indicated that the nature of a notice of appeal in respect of an enforcement notice did not require formality from the outset.
The Planning Inspectorate should not refuse to consider facts of which it was aware. When the error was drawn to its attention, it should have asked to what the notice of appeal had intended to refer. In the present case, it had clearly been intended to refer to the only extant enforcement notice, and the first respondent should have proceeded to hear the appeal.
Robert McCracken QC (instructed by Russells) appeared for the appellant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents, Wycombe District Council, did not appear and were not represented.
Eileen O’Grady, barrister
