Griffiths and Another v Secretary of State for the Environment and Others
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Scarman,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 20 January 1983 |
| Judgment citation (vLex) | [1983] UKHL J0120-3 |
| Court | House of Lords |
| Date | 20 January 1983 |
[1983] UKHL J0120-3
House of Lords
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Scarman
Lord Bridge of Harwich
Lord Brandon of Oakbrook
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I would dismiss this appeal.
My Lords,
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. I, too, would dismiss this appeal.
My Lords,
When the Secretary of State in the exercise of the appellate power conferred upon him by section 36(3) 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, the 8th December 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, the 8th December 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 the 13th December 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 L.J. 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 L.JJ. agreed with Templeman L.J.
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 the 8th December 1980, Mr. Griffiths was out of time when he made his application to the High Court on the 22nd January 1981. If the date was, as he submits, the 13th December 1980, he was within the time prescribed by law.
In the Court of Appeal, Cumming-Bruce L.J. 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, i.e. 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 E.R. 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", i.e. 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, i.e. 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. e.g. delivering it personally, leaving it at the last known place of abode of the person concerned, despatch by pre-paid registered letter or by recorded delivery service, or, in the last resort, affixing it on the land. If,...
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