R Rahimian v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 10 June 2016 |
| Neutral Citation | [2016] EWHC 1634 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2016 |
| Docket Number | CO/5263/2014 |
[2016] EWHC 1634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/5263/2014
Mr Simon Butler (instructed by DPA) appeared on behalf of the Claimant
Miss Clare Parry (instructed by Government Legal Department) appeared on behalf of the Defendant
Mr Charles Forrest appeared on behalf of the Interested Party
The Claimant, Dr Rahimian, applies for judicial review of the decision of the Defendant, the Secretary of State for Communities and Local Government, given in a letter dated 14 August 2015, declining jurisdiction to entertain two appeals under section 174 of the Town and Country Planning Act 1990 ("the TCPA 1990") against two enforcement notices issued under section 172 by the Interested Party, Wycombe District Council. Permission was granted by Lang J on 19 February 2015,
On 20 June 2014 the District Council issued, and subsequently served on the Claimant, an enforcement notice in respect of two breaches of planning control, namely the siting of a container and the construction of hardstanding on land at The Clock House, Frogmoor, High Wycombe. On the same day, the council issued a second notice relating to a material change in the use of the land to an unauthorised house in multiple occupation. Each notice stated that it would take effect on 1 August 2014 unless an appeal was made to the Secretary of State prior to that date.
By section 174(3) of the TCPA 1990:
i. "An appeal under this section shall be made —
(b) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or
(c) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date; or
(d) by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date."
It is well established that these statutory time limits for the exercise of the right of appeal against an enforcement notice are absolute and are therefore incapable of being extended. Parliament has not conferred any power to extend these time limits (see Howard v Secretary of State for the Environment [1975] QB 235; R v Secretary of State for the Environmentex parte JBI Financial Consultants (1989) 58 P & CR 84; R (Stern) v Horsham District Council [2013] PTSR 1502 (paragraph 45).
The language of what is now section 174(3) has changed over the years. Howard and JBI related to predecessor provisions, but Stern dealt with section 174(3) in its current form. It is common ground between the parties that there have been no material change in the wording of the legislation as regards the legal effect of the time limit for appealing; it remains an absolute time limit which is incapable of extension. I agree.
The Claimant instructed Moira Gomes, a lawyer but not, I believe, a solicitor, to submit notices of appeal to the Planning Inspectorate. There is no dispute for present purposes that using the Inspectorate's online facility, the Planning Portal, notices of appeal in respect of the two enforcement notices were received by the Inspectorate at 2.56 and 3.59 am on 1 August 2014. If the Claimant failed to give or send his notices of appeal in accordance in section 174(3) before midnight on 31 July 2014, then his appeals would be out of time and the Defendant would have no jurisdiction to entertain them.
In her witness statement, Miss Gomes describes difficulties she encountered in submitting the appeals online between 29 July and the evening of 31 July 2014. She says (inter alia) that she could not obtain proper receipts for the documentation which she sought to enter or send via the portal.
At 5.29 am on 1 August Miss Gomes sent an e-mail to the Inspectorate describing the problems she had experienced in using its system. The problems included difficulties in attaching documents and in downloading copies. The email does not give a great deal of information, least of all on timings; nor does it refer to the blank receipts which she alleges in her witness statement she received from the portal.
At 15.19 on 1 August the Inspectorate replied by e-mail saying that:
(a) "I understand that there can be compatibility issues with the portal and this may have caused issues for you. I will forward this e-mail on to the team dealing with the appeals for their consideration."
In an incomplete copy of an e-mail from Miss Gomes to the Inspectorate it was stated that:
i. "I now realise that I should have attached the blank receipts saved on my computer evidencing my repeated attempts to log both appeals. These are now attached for the avoidance of doubt and I look forward to hearing further from you."
The date of that e-mail is not given on the copy supplied to the court, nor indeed the time it was sent. Although it was copied to Mr Butler, who has been instructed throughout on a Direct Access basis, he was not able to say when this was sent. This was only one of several respects in which the bundle put before the court by the Claimant was unsatisfactory. The receipts have not been produced. Instead the copy e-mail shows five, not six, PDFs which are said to be the blank receipts, but the content of the PDFs has not been produced or verified to the court. I note that from a subsequent letter of 18 August 2014 from Miss Gomes to the Inspectorate that it is possible, albeit not certain, that this e-mail was sent by her to the Inspectorate on 1 August 2014 at 14.14.
On 14 August 2014 the Planning Inspectorate issued its decision as to whether it would accept the appeals against the enforcement notices. The letter stated:
i. "I am sorry to tell you that the appeals cannot be accepted. For an enforcement notice appeal to be valid, it must be made either:-
(a) by giving written notice before the date specified on the notice as the effective date; or
(b) by sending written notice so that in the ordinary course by post it would be delivered before the effective date.
ii. We did not receive your appeals until 1 August 2014. However, the effective date in the enforcement notice is 1 August 2014 and the appeals were not sent in time to arrive before that date. There is no power to accept a late appeal or to extend the time for making an appeal."
On 18 August 2014 Miss Gomes wrote to the Planning Inspectorate giving further details of the difficulties she had encountered in seeking to lodge the appeals against the enforcement notices within the time limit.
On 28 August 2014 the Inspectorate sent an e-mail to the District Council in the following terms:
i. "I have spoken to our Customer Service Team (Ian Goodall) and our Planning Portal team. Both confirm that there were no problems with the online appeal service on the evening of 31 July 2014. However, albeit there is no clear evidence to suggest this was an issue in this instance, we also do acknowledge that there have been some ongoing web browser compatibility problems preventing some customers lodging appeal online over recent months (and have been minded to accept some late appeals where we are unable to discount such an issue on that basis).
ii. Mrs Gomes has sought to provide evidence of her attempts to meet the deadline by attaching what she describes as "blank screen receipts". As far as I can tell, these prove inconclusive either way. Nevertheless, I have spoken to my line manager and his initial thoughts are that Mrs Gomes' explanation does not sound unreasonable and we could reconsider our decision and accept two of her appeals ….. provided the Council do not oppose our consent.
iii. I have enclosed Mrs...
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