Pyrosome Ltd v Secretary of State for Levelling Up Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 14 March 2023 |
| Neutral Citation | [2023] EWHC 563 (Admin) |
| Docket Number | Case No: CO/4261/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 563 (Admin)
Mr Justice Fordham
Case No: CO/4261/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonas Stanius (Claimant Company Director) in person
Killian Garvey (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 14.3.23
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is a renewed application for permission to bring a Statutory Review pursuant to section 288 of the Town and Country Planning Act 1990. At the paper stage Lang J refused permission. In doing so she refused an extension of time for the “Form N208PC” Statutory Review claim form which was filed and issued with the £569 fee on 16 November 2022. The strict deadline for the application was midnight on 4 November 2022. Lang J also found that the claim was unarguable because no error of law had been identified in the Inspector's decision, and that this was an impermissible challenge to an exercise of planning judgment. On this renewed application I have considered all issues afresh. I have had the advantage of the written and oral submissions by Mr Stanius the Director of the Claimant company, who addressed me carefully and with clarity, and Mr Garvey who appears for the Secretary of State.
Standing
One of the supposed ‘knockout’ points identified by the Secretary of State in the Acknowledgement of Service related to standing. However, the authorities there cited recognised that a person “who has a relevant interest in the land” does have standing to bring a challenge ( Eco-Energy (GB) Limited v First Secretary of State [2004] EWCA Civ 1566 [2005] 2 P & CR 5 at §7). There is a witness statement before the Court which explains that the Claimant company has become the direct and ultimate owner of the property title which is 9 Cheyne Avenue TW2 6AN. The standing point was not maintained at this renewal stage by the Secretary of State.
Delay
A “jurisdictional” point that is maintained by the Secretary of State relates to delay. What happened was that on 4 November 2022 the Claimant filed a judicial review claim “Form N461” with the £154 fee applicable to such a claim. There is some email correspondence in the bundle between the Claimant and the Court. The time limits are strict but the Secretary of State's Acknowledgement of Service cites authority which recognises that the Court does have a discretion to permit “the correction” of “the filing of the claim on the wrong claim form”. The case is Croke v SSCLG [2019] EWCA Civ 54 [2019] PTSR 1406 and the passage is at §9. The point that has been maintained is that this was not just a case of the wrong claim form but the wrong fee. With conspicuous fairness, Mr Garvey has today produced Hayes v Butters [2021] EWCA Civ 252 [2021] 1 WLR 2886. That is a decision of the Court of Appeal recognising the force in the concerns, for the purposes of the Limitation Act, of disallowing a claim based on an inadvertent miscalculation of a court fee. Mr Garvey rightly points out that at Hayes §24 it is clear that the views expressed were not necessary to resolve the decision in that case and are therefore “obiter”. He candidly tells me that he is not aware of any authority on the ‘wrong fee’ point for the purposes of the planning legislation. If anything turned on this issue I would without hesitation be directing a “rolled up” hearing so that this issue could be considered substantively at a substantive hearing. I cannot see that there is a ‘knockout blow’. If there is legal merit in this challenge I would not be shutting the claim out at this stage by reference to a hotly controversial point about the implications of not paying the fee. As it seems to me, once it is recognised that the Court can properly allow the “correction” of someone using the “wrong claim form” it must logically follow that it is likely that the ‘wrong fee’ will have been paid. That is this case. I cannot see the justice of allowing, in principle, the wrong claim form to be excusable, but not permitting the accompanying wrong fee to be equally excusable. That is notwithstanding that, as Mr Garvey points out, it is possible that someone might mistakenly use the wrong form but pay the fee applicable to the right form.
The Target Decision
I am therefore quite satisfied that it is necessary to consider whether there is any legal merit in this challenge. The target challenged is the decision of the Planning Inspector on 23 September 2022, dismissing an appeal against the local authority's refusal of planning permission on 28 January 2022. The case has a history including the dismissal of a previous appeal in November 2017. For anyone wishing to see the materials and background in the public domain the appeal reference is APP/L5810/W/22/3291683. The planning application was reference 21/4141/FUL. All materials are in the public domain including the Appeal Decision by the Inspector. It is for that reason – in case any reader of this Judgment does wish to follow through into public domain materials – that I will be giving paragraph numbers in the Decision.
The Inspector identified four main issues (at §3). In relation to the fourth of them (“living conditions”) no adverse conclusion was arrived at (§§22–24, 28). But in relation to each of the other three points there were adverse conclusions: first, on “character and appearance of those property and surrounding area” (§§4–12, 29); secondly, on “adequate car parking” (§§13–18, 29); thirdly, on “affordable housing” (§§19–21, 29).
Permission for Statutory Review
Mr Stanius recognises rightly that a Statutory Review challenge can only succeed if there is a public law legal error. The claim documents characterise the grounds of challenge as involving ‘errors of law’ or ‘unreasonable’ evaluative judgments. For the purposes of today the permission threshold is one of arguability.
Character and Appearance
The first ground of challenge concerns the first objection: character and appearance. The argument, in essence, is that a number of basic mistakes were made in the reasoning of the Inspector. Whether individually or cumulatively, they constitute a “misconception” of the local area and its character. In public law terms they constitute either an ‘error of material fact’ or ‘unreasonableness’. At my request, Mr Stanius was able to take me in detail through a number of examples of arguments which are advanced under this ground.
Mr Stanius said that the Inspector was wrong (at §4) to describe properties in this residential area as being “within generous sized plots”, as to which he showed me a photograph where there is a small self-contained garden with its own fence, within a bigger plot. But I have no doubt that it is the bigger plot that the Inspector was describing. Mr Stanius said that the Inspector was wrong to talk of properties “set back from the highway” (§4) and pointed to a photograph which showed that the very bottom part of one house's extension involving a low roof and wall adjacent to the pavement. That was the same point that featured later in the argument, by reference to two examples of extensions given by the Inspector himself (at §9). One example was 192 Waverley Avenue, said by the Inspector (at §9) “not directly adjacent [to] the pavement” but said by Mr Stanius, based on a photograph, to be – so far as the lower part of the extension is concerned – directly adjacent to the pavement. The other was 7 Cheyne Avenue, said by the Inspector (at §9) to be “located close to the back edge of the pavement” but said by Mr Stanius, based on a photograph, not to be “close” but “at” the back edge of the pavement. These sorts of point,...
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