Inspector’s dismissal of appeal against enforcement notice — Application form for appeal lodged — Supporting documents not filed until later date — Whether appeal “made” for procedural purposes — Whether making of appeal to be considered a process — Application for leave to appeal refused
The appeal site was on land at Berthorpe Farm, Guildford, Surrey, and concerned the stationing of two mobile homes there. The local authority issued an enforcement notice against the applicant, W, and the decision on behalf of the Secretary of State was made on October 7 1993. It should have been received by W on or about the following day. Under the Rules of the Supreme Court Ord 94, rl2(1) an application for leave to appeal should have been made within 28 days, ie on November 4 1993. On that day a purported application for leave was filed in the Crown Office together with a draft originating motion. The decision letter was not filed and there was no affidavit verifying the facts as required by Ord 94, rl2(2)(c). Furthermore, subpara (d) required that before filing under (c), the respondents should be served with the application, the draft motion and the affidavit. None of those steps had been taken. The affidavit verifying the facts was sworn on December 22. According to later evidence, a conference took place on November 4, ie the very day that the time was about to expire; the application was then drafted by counsel and filed. The applicant argued that he did not require an extension of time as it was a case where an application had been “made” within the 28-day period. All that went wrong was that the requirements under Ord 94, rl2 were not carried out. Such a case was covered by Ord 2, which provided that non-compliance with the rules was an irregularity which need not nullify the proceedings. In the alternative, the applicant sought an extension of time. The respondents argued that the concept of an application for leave to appeal should not be construed in too narrow a manner. It was not a mere matter of a form to be filled in, but constituted a process or series of actions which amounted to an application.
Held The application for leave was refused.
1. There was no authority for the proper construction of the “making” of an application under rl2(2)(c). In Smith v Secretary of State for the Environment (unreported, June 22 1987), the Court of Appeal upheld a decision that, in the absence of good reason to excuse delay, the court should not extend time for applying for leave under the town and country planning legislation.
2. The court accepted that Ord 94, rl2(2)(c) should be read in its entirety. Therefore, when an application “shall” include certain matters and “shall” be accompanied by other matters, it meant that the making of an application amounted to the whole of the matters referred to therein.
3. It was not simply filling in a form, but required certain steps, including service on the respondents, for constituting an application, ie it was not merely a form but a process. That construction accorded with common sense so that important procedural steps were taken to ensure that those who needed to know of the application were informed. Therefore, the application was not “made” within 28 days because of its deficiencies.
Jonathan Clay (instructed by Paul Gromett & Co) appeared for the applicant; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Anne Williams (instructed by the solicitor to Guildford Borough Council) appeared for the local planning authority.
