R (Latimer and another) v Chief Clerk to Bury Justices and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SIMON |
| Judgment Date | 13 June 2008 |
| Neutral Citation | [2008] EWHC 2213 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2457/2008 |
| Date | 13 June 2008 |
[2008] EWHC 2213 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Simon
CO/2457/2008
Andrew Fraser-Urquhart (instructed by Latimer Lee) appeared on behalf of the Claimant
The First and Second Defendants were not represented and did not atten
Philip Kolvin (instructed by Bury Metropolitan Borough Council) appeared on behalf of the Interested Party
(Approved by the court)
This case raises a short point on the circumstances in which an appeal notice under Section 217 of the Town and Country Planning Act 1990 is effected. The facts in brief summary are as follows: the claimants are joint owners of property known as Whitefield House, Prestwich. On 15th November 2006 Bury Metropolitan Borough Council, which I shall refer to as “the Council”, served the claimants with an Untidy Land Notice pursuant to Section 215 of the Planning Act. It required the claimants to carry out various works to improve the property by reference to its effect upon the amenity of the area. The Notice was to take effect on 15th December 2006, unless an appeal was lodged before that date. The claimants decided to undertake the required work, but in order to protect their position, in the event of a dispute as to the sufficiency of the work, also decided to appeal against the Notice.
On 28th November 2006 the claimants' solicitors wrote to Bury Magistrates' Court, which is the second defendant in these proceedings, indicating that they wished to lodge an appeal against the Notice under Section 217. The letter also indicated that they hoped to resolve the matter amicably. It is unnecessary to say anything further about the letter, since it is accepted that if the letter had been received by the court it would have constituted a complaint and an effective and timely Notice of Appeal under Section 217.
The letter of 28th November 2006 was sent by first class post and appears at some stage to have been lost. It is unclear whether it was lost in the post and misdelivered, or whether it was lost within the court premises. In any event, the court has no record of the receipt of the letter, a matter to which I shall return later in this judgment.
So far as the appeal process is concerned, nothing happened for a number of months. The claimants rely on the fact that they wrote to the Council on 14th February 2007 telling them that the required works were carried out and that they received no response. The Council rely on the fact that the claimants never told them that they had lodged an appeal. On 12th July 2007 the Council informed the claimants that it considered that the property was still in an unacceptable condition and that the claimants were to be interviewed under caution. In response the claimants' solicitors informed the Council in a letter dated 23rd July 2007 that the claimants would now seek to proceed with their appeal. By a letter of 10th August 2007 the claimants informed the court that the claimants wished so to proceed.
The history can now be picked up by reference to the evidence of Julie Lever, a solicitor with the firm of Latimer Lee, who act on behalf of the claimants. I quote from paragraph 8:
“8. On 16 August 2007 I telephoned the [court] and spoke to a lady by the name of Dawn. I asked her what was happening with the appeal. She said that she was unsure of the procedure since we appeared to be appealing against something which had not yet been before the magistrates. She asked me to ring back later when she had made further inquiries. I subsequently spoke to a Tracy Inkinson, who advised me that the appeal would now be dealt with.
9. Not having heard anything further, on 22 August 2007 I telephoned Ruth Salem, who I understood to be the acting head of legal services at the Magistrates Court. She informed me that the matter was with their legal advisors and that I would hear further by the end of the week. The following day I spoke with David Furber, a legal adviser, who confirmed that he and his colleague Cathy Towers were drafting a complaint. We discussed the grounds of appeal pursuant to Section 217 of the Act and he confirmed that the appeal would now proceed and that we would receive a preliminary hearing date within the next few days. 10. The complaints drafted by the Court arrived shortly thereafter dated 30 August 2007. The Claimants duly signed them and I returned them immediately to the court.”
On 10th September 2007 the Council wrote saying that no valid appeal had been received in time. On 19th September 2007 a senior legal adviser to the court informed the claimants that the court “had no record” of the receipt of the claimants' appeal letter of 28th November 2006 and that the court was therefore unable to proceed with the appeal. Nevertheless, the court informed the claimants that it would list the matter.
Before the matter could be listed, on 28th November 2007 the Council wrote to the claimants enclosing criminal summonses alleging non-compliance with the original Notice. Both these matters came before the Bury Magistrates' Court on 19th December 2007. It appears that representations were made and that the clerk to the justices, representing the first defendant, then advised the magistrates in open court that “there was no extant appeal”. The court then announced that it had been “advised” that no appeal against the Section 215 Notice had been made; and, on that basis, the court could not allow the claimants' application to stay the criminal summons.
The present proceedings
The claimants seek to review both the legal adviser's decision that no appeal was extant and the magistrates' decision not to allow an adjournment for full legal argument. I also take them to wish to review the decision made in substance following the advice.
Legal argument
Both sides rely on the House of Lords case Manchester Stipendiary Magistrates ex parte Hill [1983] 1 AC 398, which makes clear that a complaint is made (and that an appeal is therefore launched) when it is received at the court, including the court office. For the claimant Mr Fraser-Urquhart submits that the matter is clear: the claimants sent a letter and the law should presume that the letter has arrived. While accepting there is no exact analogy, he relies on a number of statutory provisions and cases which he submits point to the existence of such a presumption.
For the Council Mr Kolvin makes two types of submission: first, the submission contained in paragraph 4 of his skeleton argument that “the letter was not received”. He continues in paragraph 17:
“Where, as here, the senior court officials have no trace of the document and advised the justices accordingly… a finding that there was no extant appeal cannot be subject to a public law challenge.”
His second submission is a more refined submission based on the recent evidence as to the steps taken to locate the letter. He submits that on this basis there is no point in sending the matter back since the magistrates would be bound to reach the same conclusion.
It seems to me that Mr Kolvin's first submission begs at least two questions. First, why does it follow that, because there is “no trace” of the letter in the court records, the letter was not received? It is not uncommon experience that documents do not end up where they should, even in the best run businesses. In a court which deals with large numbers of documents, it is certainly possible that documents or letters may be mislaid or misfiled. In the present case it was a single letter not attached to any current case, and the significance of it may not have been appreciated. That much is clear from paragraph 8 of Miss Lever's first witness statement.
Secondly, why was the crucial issue as to whether the letter was “received” determined by advice by a court official? It is clear that the magistrates did not carry out any personal inquiry themselves, nor was any question asked which might have revealed the possibility that the letter had been lost within the court building.
Conclusion
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