McKay, R (on the application of) v First Secretary of State & Anor [2005] EWCA Civ 774

Case No C1/2004/2551[2005] EWCA Civ 774
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SIR MICHAEL HARRISON)
Venue Royal Courts of JusticeDate Thursday 9 June 2005
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
LORD JUSTICE MAY
and
LORD JUSTICE DYSON
Between
The Queen on the application ofAppellantJONATHAN McKAYAppellantFIRST SECRETARY OF STATERespondent(for Planning Inspectorate)RespondentWYCOMBE DISTRICT COUNCILInterested Party
(Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4A 2HDTelephone 020 7421 4040Official Shorthand Writers to the Court)
MR ROBERT McCRACKEN QC (instructed by Russells, London W1B 5LJ)appeared for APPELLANTMR JONATHAN MOFFETT (instructed by the Treasury Solicitor)appeared for RESPONDENT for THE INTERESTED PARTY did not appear and was not represented
JUDGMENTThursday 9 June 2005THE LORD CHIEF JUSTICE:
[1]This is an appeal by Mr Jonathan McKay from a decision of Sir Michael Harrison in the Administrative Court on 18 November 2004. The judge dismissed Mr McKay's claim for judicial review. Mr McKay had applied for judicial review of a decision of the Secretary of State's Planning Inspectorate dated 26 February 2004. The Inspectorate in its decision concluded that Mr McKay's appeal against an enforcement notice served on him by the Wycombe District Council ("the council") was invalid. Mr McKay in the appeal seeks an order that that decision of the Planning Inspectorate should be quashed and a mandatory order requiring the Planning Inspectorate to deal with Mr McKay's appeal.[2]For present purposes the facts can be stated shortly, although they are important to explain why we have this appeal before us.[3]Mr McKay is the owner of a house with extensive grounds at Beacon Hill near High Wycombe, Buckinghamshire. He had improved the parking arrangements at that property which he thought were a permitted development under the Town and Country Planning (General Permitted Development) Order 1995 so as to facilitate vehicular access on what he considered to be part of the curtilage of his house. The council took the view that the works which were carried out were in breach of planning control and required planning permission. On 22 December 2003, they served two enforcement notices on Mr McKay. The first notice "A1" related to the erection of new gates, gate piers and walls and the creation of a driveway and a gravelled parking area. The second notice, "B" related to the change of user of the land from woodland to residential curtilage. Both of the notices were expressed to take effect on 10 February 2004.[4]It came to the council's attention that notice A1 was possibly defective in that the plan supplied with the notice did not contain the coloured areas referred to in the enforcement notice. To amplify that point it is necessary to look at the enforcement notices. The notice identifies the matters which appear to constitute the breach of planning control in these terms:
"A. the erection on the Land of new timber gates together with brick built gate piers and walling all in excess of 1 metre in height adjacent to a highway (namely Beacon Hill) shown by the blue line on the Plan B. the creation of a formal driveway across the Land as shown coloured brown on the Plan C. the creation of the gravelled parking area on the Land"
However, the plan did not have upon it any blue line, as it was suggested it should have on the face of the enforcement notice. Nor did it show any land coloured brown. Instead it merely showed the site delineated by a line which followed the parameters of Mr McKay's land.[5]Having realised that they had made a mistake in that respect, on the following day from the day on which the previous enforcement notice had been served, the council served a second notice, notice A2. The second notice was virtually (if not entirely) identical to the first, except that the matters which appeared to constitute the breach of planning control made no reference to there being a blue line on the plan or land being coloured in brown. In addition, that enforcement notice had attached a plan. That plan was the same as was attached to A1. A2 also indicated, as did A1, that a notice of appeal was required to be lodged by 10 February 2004.[6]Mr McKay, having elected to appeal, completed two appeal forms -- one in respect of notice B and one in respect of notice A1. Notice A1 had by that time been withdrawn by the council. But unfortunately Mr Pearce, who was Mr McKay's agent in these matters, on his notice of appeal, which was dated 16 January 2004, described the enforcement notice in relation to which the appeal related as being that of 22 December 2003, which was the date of notice A1. It also appended to the notice of appeal the enforcement notice A1. Clearly Mr Pearce had made what he accepts was an unfortunate mistake. That mistake gave rise to the proceedings which came before the judge and have come before this court. He should have referred to notice A2 and, instead of referring to the date of 22 December 2003, should have referred to 23 December 2003. The appeal form was received by the Planning Inspectorate both in respect of notice A1 and notice B. The Planning Inspectorate at that stage had no knowledge that there had been a notice A1, which had been withdrawn and replaced by notice A2. The Planning Inspectorate therefore wrote to Mr McKay on 12 February 2004 indicating that the appeals were valid and setting out the steps which were to be taken.[7]On 24 February 2004, whilst preparing the appeal documentation, the council realised that the date of the enforcement notice referred to in the notice of appeal was the date of A1 and not A2. The council informed both the Planning Inspectorate and Mr Pearce of the error. There is some dispute factually as to what happened thereafter, but that factual dispute is of no relevance to this appeal. The result of what happened is not in doubt. The Planning Inspectorate came to the view that although they would have been happy to find a way of accepting the appeal as relating to the notice A2 rather than notice A1, they had no jurisdiction to do so in the face of the opposition of the council who contended that the notice of appeal was invalid.[8]Before the judge it was contended on behalf of Mr McKay that there clearly had been a mistake, but there was no dispute on the material on which the Inspectorate was entitled to rely that the intention was to appeal against notice A2 and not notice A1. The judge rejected that view. He considered that to take any other view than that the notice of appeal was invalid would open up a Pandora's box and create real problems for the Planning Inspectorate. However, he expressed sympathy for Mr McKay and recognised that the result was most unfortunate. He summarised his views in paragraphs 31-35 of his judgment. He referred to the submissions of counsel then appearing on behalf of the Secretary of State, Mr Moffett, who has also appeared before us. He contended that one must look at the face of the written notice of appeal to see if it makes clear what was intended. Only if what was intended is made clear on its face can a mistake be excused. In this case he contended that there was no indication whatsoever on the face of the notice of appeal that the claimant intended to appeal anything other than the enforcement notice A1. In these circumstances he submitted that the Secretary of State was entitled to take the decision which was taken on his behalf by the Planning Inspectorate.[9]Mr McCracken QC, who appeared in the court below and who has appeared before us, had drawn the judge's attention to authorities which he considered did not advance the position of the appellant and he concluded that Mr Moffett's submissions were right. As

the judge said:

"32. .... This is a case where I have some sympathy with the claimant, because the intention obviously was to appeal the extant enforcement notice, which I have referred to as enforcement notice A2. However, that was not what was done. The notice of appal expressly referred to the date of the enforcement notice appealed against as being 22nd December 2003, the date of the withdrawn enforcement notice A1, and, what is more, the withdrawn enforcement notice A1 was actually appended to the appeal notice. Nothing could be clearer. In those circumstances, I fail to see how the Inspectorate could have interpreted the appeal notice as referring to enforcement notice A2, which was dated 23rd December 2003 and which was not appended to the appeal notice." "33. .... To allow this matter to be dealt with by way of interpreting the appeal notice as referring to enforcement notice A2 would not only be wrong, but, as a matter of principle, it would open up a Pandora's box of difficulties in many cases as to how the Secretary of State should go about trying to interpret the appellant's intention from material other than that appearing on the face of the appeal notice. In this case the Secretary of State would, in effect, be allowing an amendment to permit an appeal against a different enforcement notice out of time, which the Secretary of State has no jurisdiction to do."
Later he said:
"35. As I mentioned at the beginning of this hearing, it is in fact open to the council to withdraw enforcement notice A2 under section 173A of the 1990 Act, even though it has become effective, and then to reissue it, so as to allow the claimant to appeal against it. That, though, is a matter for the council, albeit that many would think that it would be a reasonable course of action for a responsible public body to take rather than to take advantage of the error that has been made."
However, the judge concluded that, while the council could have taken a different view, he was afraid that the claim must be dismissed.[10]In referring to the approach of the council the judge obviously had in mind the communications which took place after the error was discovered, where the council made it clear that they would not agree to the appeal being heard and the indications that had been given by the Inspectorate that if the situation were not one where the council opposed the appeal being heard, they would probably have been content for the appeal to proceed. There would have been considerable good sense in the council allowing the appeal to proceed because, first of all, there has never been any dispute that the appeal against notice B is a perfectly valid appeal and will in due course have to be heard. Furthermore, although the position so far as Mr McKay is concerned would not be as beneficial as it would be if this appeal is allowed, it is right that he could, if he had wished to do so, have applied for planning permission. If that planning permission had been granted, the effect of the legislation is that it would retrospectively mean that he has had planning permission throughout the relevant period. There would have been problems from Mr McKay's point of view of taking the course of applying for planning permission and not proceeding with the appeal because he could, in the intervening period once the enforcement notice came into force, be guilty of a criminal offence and furthermore enforcement action could be taken against him.[11]The issue which is before us as it seems to me depends upon whether or not the judge was right to take the view that he had to determine this matter purely as a matter of interpretation of the notice of appeal, including the enforcement notice attached to the notice of appeal, without regard to the factual context in which the notice of appeal came to be served. As the judge indicated, it is right that the notice of appeal undoubtedly referred to the notice A1. Equally, however, it is clear, as everybody involved in this case has indicated so far, that once it is known that notice A1 had been withdrawn, it was obvious that the notice of appeal was intended to relate to notice A2. That is not dependent upon any view of the subjective intention of Mr Pearce; it depends upon undisputed facts that were before the judge and are before us -- in particular the fact that notice A1 had been withdrawn and replaced a day later by notice A2.[12]I have no doubt that the judge was in error in his approach. In the situation which existed there was a requirement that, in coming to the conclusion which they did, the Planning Inspectorate did not close their eyes to the facts of which they were aware, namely that notice A1 had been replaced by notice A2. Not only had it been replaced by notice A2, A1 had been expressly withdrawn in accordance with the provisions of the legislation.[13]It is convenient to turn to the relevant provisions of the legislation. The starting point is section 173 which provides:
"(1) The local planning authority may -- (a) withdraw an enforcement notice issued by them; or (b) waive or relax any requirements of such a notice and, in particular, may extend any period specified in accordance with section 173(9)."
The power which the council was exercising in this case to withdraw notice A1 was clearly under section 173A(1).[14]Section 174 deals with an appeal against an enforcement notice. Section 174(1) provides:
"A person having an interest in land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. [my emphasis]" 17. "
An appeal under this section shall be made -- (a) 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 (b) 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 (c) 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." Subsection (4) goes on to provide: 18. "A person who gives notice under subsection (3) shall submit to the Secretary of State, either when giving the notice or within the prescribed time, a statement in writing -- (a) specifying the grounds on which he is appealing against the enforcement notice; and (b) giving such further information as may be prescribed." As was pointed out by May LJ in argument, the words which I emphasised in section 174(1) indicate that the nature of an appeal notice in respect of an enforcement notice is not one which requires formality from the outset. Subsection (1) clearly anticipates that there can be circumstances where an appellant has not even seen a copy of the notice that has been served. It can be envisaged that because of a notice not having been seen by someone who is entitled to appeal, it would be inevitable that the notice of appeal will have to be general in terms. In addition, I take the view that subsection (4) gives the same impression because of the ability which it gives to the Secretary of State to obtain further information, particularly information that may be prescribed. However, the power which so far has been prescribed would not necessarily help the Planning Inspectorate to obtain information which helps to identify to which enforcement notice a notice of appeal is intended to apply in the present situation.[15]On the other hand Mr Moffett submits that section 174 as a whole clearly intends the notice of appeal to indicate the enforcement notice to which it relates. Although no formula is specified by which the enforcement notice has to be identified, it is clearly intended that it should be identified. I would accept that that submission is probably correct. If in this case the position was that the Inspectorate did not receive any additional information, then the Inspectorate would have been perfectly entitled to look at the document that they received and treat it as an appeal against the enforcement notice A1, particularly as the enforcement notice A1 was attached to the notice of appeal. However, that was not what happened in this case. They were in due course informed that notice A1 had been withdrawn and in those circumstances the issue I have identified had to be decided.[16]The judge said that the authorities which were presented to him, provided limited assistance. I would accept that they could each be distinguished. There were, however, two other cases to which the judge could have been referred, but neither of which had been identified at the time of the hearing before the judge. The first of those two other decisions is Regina v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354. That was a case which dealt with very different matters from those which were before the judge and are before this court. It dealt with an appeal in regard to a decision of a special adjudicator under the asylum procedures which come before this court from time to time. In the course of a judgment of mine, I sought to give general guidance as to the approach which courts should adopt with regard to procedural irregularities. The relevant part of the judgment starts at page 358E and continues at some length to deal with the sort of problems that arise on this appeal. In particular I referred to the speech of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 188-190. In the course of my judgment I sought to indicate that it was important not to attach too much significance to procedural requirements in legislation for the reasons that I gave. In particular at 359B I said:
"Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation the tribunal's task will be to seek to do what is just in all the circumstances."
Although Mr Moffett would say that here there is no issue as to any procedural requirement, but rather a matter of interpretation of the notice of appeal, I consider that the general approach indicated in Ex parte Jeyeanthan is of relevance. I do so for the obvious reason that from the factual context that I have set out earlier in this judgment it is clear that a grave injustice could be done to Mr McKay if he was not in a position to appeal; whereas it seems to me that no injustice would be done if when the circumstances are looked at the conclusion is reached that the only proper conclusion intended by this notice of appeal is that it should be taken to refer not to the enforcement notice A1 but to the enforcement notice A2. I consider that my earlier judgment in Ex parte Jeyeanthan is of some assistance in resolving this case.[17]However, Dyson LJ drew the attention of both myself and counsel to an earlier decision of the Queen's Bench Division in Finbow v Air Ministry [1963] 1 WLR 697. In that case a mistake was made by the Minister. In error the Minister purported to act under an Act which was no longer in force, instead of referring to the Act which replaced the earlier Act. It was said that what the Minister had done affected its validity. In his judgment McNair J set out his view of the reliance on a mistake of that sort. The judge made it clear that the consequence should not be to make what happened a nullity. At page 709 he said:
"The document was in the circumstances in which it was executed plainly intended by the Minister to be an approval in the exercise of his statutory powers. These powers at the date of the instrument were to be found only in section 2 of the Act of 1948. To hold that the mis- description of his powers rendered the document a nullity, would, in my judgment, defeat the plain intention of the Minister to be deduced from the circumstances and the date of its execution. It is, in my judgment, a plain case for the application of the maxim falsa demonstratio non nocet and of the principle embodied in the maxim magis valeat quam pereat. There is a total inconsistency and repugnancy between the Minister's manifest intention and the literal effect of the document, and, in my judgment, the former should prevail. In this connection, reference may be made to In re Lockwood, Atherton v Brooke, where Harman J was confronted with a rather similar problem arising out of mistake in a statute and approved a citation from Maxwell on Statutes (now 11th ed. (1962) p 243) to the following effect: 'The authorities do .... establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt test, when satisfied, on solid grounds, from the context or history of the enactment or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention and that this amendment probably does.'"
Although dealing with a different situation, that supports in my judgment the proper approach to the particular facts of this case. It makes it clear that when the error was drawn to the attention of the Inspectorate, they should then have asked themselves what was it that the notice of appeal was intended to refer to when it indicated it was an appeal against an enforcement notice which was, prima facie, enforcement notice A1? In my judgment the authority shows a sensible approach of requiring the court to apply itself to the context in which what happened occurred. When that is done in this case it is clear that the decision of the Inspectorate was one which was made in error. The Inspectorate was of the view that the notice of appeal was invalid. It was not. They should have therefore proceeded to hear the appeal against the notice A2.

Subsection (4) goes on to provide:

[18]It will be sufficient for the purpose of disposing of this appeal if we quash the decision of the Inspectorate indicating that they have no power to hear the appeal. I have no doubt that if we take that action the Secretary of State will ensure that the Inspectorate proceeds to hear the appeal. In those circumstances it would not be appropriate to make a mandatory order, and I would not recommend that such an order should be made. LORD JUSTICE MAY: I agree. LORD JUSTICE DYSON: I also agree.

ORDER

23. Appeal allowed with costs in the agreed sum of £29,000; decision of the Inspectorate quashed.

Cited in 1 later judgment