Howard v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP,LORD JUSTICE ROSKILL |
| Judgment Date | 19 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1019-1 |
| Date | 19 October 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1019-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of Mr. Justice Bristow on 29th March 1972.
The Master Of The Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Roskill.
Mr. KEITH GOODFELLOW, Q. C., and Mr. ANTHONY DINKIN (instructed by Messrs. Hunt and Hunt) appeared on behalf of the Appellant Plaintiff.
The Honourble SAMUEL SILKIN, Q. C., and Mr. GORDON SLYMN (instructed by The Solicitors to the Secretary of State of the Environment) appeared on behalf of the Respondent.
We are here concerned with the validity of an appeal against an enforcement notice. The statutory requirements are contained in section 16 of the Town and Country Planning Act, 1968, which says, so far as material:-
"(1) A person on whom an enforcement notice is served…. may, at any time within the period specified in the notice as the period at the end of the which it is to take effect, appeal to the Minister against the notice on any of the following grounds:-
(There are then set out seven grounds of appeal: (a), (b), (c), (d) (e), (f) and (g).)
(2) An appeal under this section shall be made by notice in writing to the Minister, which shall indicate the grounds of appeal and state the facts on which it is based….
(3) When an appeal is brought under this section, the enforcement notice shall be of no effect, pending the final determination or the withdrawal of the appeal."
In 1957 Mr. Howard bought a piece of land, No. 6 Birkbeck Road, Romford. He was a transport contractor and he used this land for the purposes of his business. He used to park lorries and so forth. In 1970 the local planning authority (they London Borough of Havering) were of the opinion that this was contrary to planning control. So they served on him an enforcement notice. It was dated 7th October, 1970. It said that it appeared to the Council that the plot of land was being used as a transport contractor's depot without the grant of the required consent; that it started after the end of 1963 and was still continuing. By the notice, the Council required Mr. Howard within one month to discontinue the use of it. The notice concluded with these words:-"This notice shall take effect at the expiration of a period of forty-two days after the date hereof, unless before the expiration of the said period an appeal against the notice is made to the Minister of Housing and Local Government in pursuance of Section 16 of the Town and Country Planning Act, 1968, in which even the notice will have no effect pending the final determination or withdrawal of the appeal."
So the specified period was 42 days. It was due to expire on 18th November, 1970j. Mr. Howard had to appeal within that time. Twelve days before it expired, namely, on 6th November, 1970, the solicitors for Mr. Howard wrote this letter to the Ministry:-
"We have been instructed by our Client, Mr. H. Howard, of 6 Birkbeck Road, Romford, regarding the Enforcement Notice herein dated 7th October, 1970, received from the London Borough of Havering, and would ask you kindly to accept this letter as formal notice of appeal on his behalf."
The question in the case is whether that letter amounted to an "appeal" within the specified period of 42 days. It was certainly sent and received within the 42 days, but was it a sufficient "appeal"? The Ministry say that it was not, because it did not indicate the ground of appeal or state the facts on which it was based. Taking that view, the Ministry sent to Mr. Howard's solicitors a letter dated 10th November, 1970, in these words:-
"You have not indicated which of the ground of appeal listed in sub-section (1) of Section 16 of the Act you consider apply to your case. Nor have you stated the facts on which the appeal is based, as required by sub-section (2) of Section 16. Unless this information is provided, the Minister will be unable to entertain your appeal. The ground of appeal and statement of facts must be sent to the Minster beforethe date on which the enforcement notice is to take effect."
It is interesting to notice that that letter was printed or reproduced in multiple form. So it must be in common use by the Ministry.
Mr. Howard's solicitors intended to comply with that letter. They prepared a letter dated 16th November, 1970, which, if it had been posted in time, would have been within the specified period of 42 days. It was quite a long letter. In it they gave notice of the appeal. They set out the grounds of appeal in four items. They set out the facts on which the appeal was based in five items, including as one ground that the land had been used for 30 years for similar purposes. That letter would undoubtedly have been a good notice of appeal if it had reached the Ministry in time, that is, by 18th November, 1970. But, unfortunately, it did not do so. Someone forgot to post it. Although it was dated 16th November, it was not actually posted until 20th November; and it did not get into the Ministry until 24th November. Whereas the specified period had ended on 18th November, 1970. And there is no power in anyone to extent the time.
Faced with this objection to the second letter, Mr. Howard's solicitors reverted back to their previous letter of 6th November in which they said: "We would ask you kindly to accept this letter as formal notice of appeal." They submitted that this letter was sufficient to satisfy the statute: and that it was in time.
The contest is this: Mr. Howard says that a simple letter saying that he "appeals" is sufficient so long as it is within the specified period. But the Ministry says that an appeal, in order to be good, must comply with sub-section (2), which says that an appeal "shall be made by notice in writing which shall indicate the ground of the appeal and state the facts on which it is based."
The issue depends on whether that provision is imperative or directory. The distinction was explained by Lord Penzance in Howard v. Bodington (1877) 2 P. 203 at page 210:-
"Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the Courts of Westminster …… A thing has been ordered by the Legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail."
In applying that distinction, I must draw attention to a case which was decided on section 35(1) of the Caravan Sites and Control of Development Act, 1960. That section was the predecessor to section 16 of the 1968 Act. It said that an appeal shall be "by a written notice which shall indicate the grounds on which the appeal is brought". The case was Chelmsford Rural District Council v. Powell (1963) 1 W. L. R. 123. A written notice of appeal was given in due time. It set out two ground of appeal. Neither ground was substantiated. But, before the hearing, the appellant (long after the time for appeal had expired) submitted a further ground of appeal. The Minister allowed this ground to be raised and he allowed the appeal. The local planning authority urged that the Minster ought not to have considered this further ground. They said that the section was imperative, But the Divisional Court ruled that it was not imperative, but only informative, that is, directory. So it was open to the appellant to go into the further ground although it was out of time and hadnot been contained in the original notice.
I think that decision was perfectly correct. It is common practice in these appeals to allow new ground of appeal to be added, and new facts to be stated. Very often the true facts do not emerge until the hearing by the Inspector, and Justice requires that new ground be added and new facts stated.
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