Akhtar, R (On the Application Of) v Secretary of State for Communities And Local Government [2016] EWHC 3805 (Admin)

Case No CO/2191/2016[2016] EWHC 3805 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 June 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF AKHTARClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr M Khan appeared as a litigation friend for ClaimantMr N Westaway (instructed by the Government Legal Department) appeared for Defendant
[1]MR JUSTICE COLLINS: This is an application for leave to pursue an appeal against an enforcement notice decision in relation to an unlawful use, it is said of a one bedroom building as it now is, in the grounds of an address in Dagenham, which I gather is the applicant's address. The building is used as a dwelling without planning permission.[2]There is no question but that the building has been so used. The issue is whether there has been more than 4 year use as a dwelling house which would mean that it was immune from enforcement action.[3]It is said and I have no reason to doubt that in November 2010 the relevant council officials were aware that it was being used as a dwelling house but nothing was done in relation to enforcement until 2014, when an enforcement notice was issued.[4]That was on 28 July 2015, and it required that the use of what was described as "the outbuilding" as a self-contained residential unit should cease and the kitchen and bathroom and associated fixtures, fittings, et cetera should be removed.[5]There was an appeal lodged against that enforcement notice, and in February 2015, the Planning Inspectorate instructed the council to withdraw the notice and re-serve it because there was an error in that the notice did not state the date that it came into effect and that was a breach of section 173(8) of the Act.[6]It seems that the council did not respond to that request but it seems that in March it declared (without the need to respond) that the notice should be regarded as null and the applicant was notified that that was the case.[7]On 14 April 2014, a fresh enforcement notice was served covering effectively the same and remedy the defect in the previous notice. Again, an appeal was lodged, in time on 13 May 2015.[8]The procedural requirements following that were first that the Planning Inspectorate had to decide whether this, on the face of it, should be written representations or an oral hearing and it was decided that it should be by way of written representations.[9]Although the relevant letter has not been produced in any bundle Mr Westway's instructing solicitor has made enquiries and ascertained that the start date (that is to say the date upon which it was decided that written representations should be the route) and notification of that was provided to the applicant was on 20 July 2015.[10]That letter has not been produced and the applicant says that he never received it. It was not actually sent to him, it was sent to a Mr Naim Akhtar, who I gather is his brother, but it is to be noted that a subsequent letter (which clearly was received by him) was sent to the same "Mr Naim Akhtar". However, it may be that there was a failure by his brother to notify him of that letter but it was undoubtedly properly sent by the Planning Inspectorate.[11]Once that decision had been made, 20 July was the start date of the relevant procedure in relation to written representations, the regulations which are the Town and Country Planning Act(Enforcement) Written Representations Procedure) (England) Regulations 2002, 2002/2683 had effect. These set out in Regulation 7 the timetable in relation to the representations.[12]The starting point obviously is the notice of appeal and the documents accompanying it and any statement under Regulation 6 of the relevant enforcement notices of previous regulations. In this case, unfortunately, although it was asserted that the use had occurred before the 28 July 2010, no specific evidence beyond the statement of the applicant to that effect was produced.[13]That being so, by virtue of virtue of Regulation 7.3, it is provided that:
"(3)If the appellant wishes to make any further representations to those in paragraph (1), he shall submit 2 copies of those further representations to the Secretary of State within 6 weeks of the starting date."
[14]As I say, the starting date in this case was 20 July.[15]The applicant, as I have said did not receive the letter which gave him that information, albeit he had access to it and undoubtedly as a litigant in person it would have been sensible for him to have regard to the procedural guide which is issued by the Planning Inspectorate in relation to these appeals.[16]Nonetheless, he did not take any specific action to produce any further material. He then received a letter at the end of that 6 week period dated 3 September 2015 which enclosed a copy of the Local Planning Authority's statement and had indicated that if he had any comments he should send them by 24 September, that of course being the 9 week period from the start date.[17]But it stated this:
"You cannot introduce new material or put forward arguments that should have been included in your earlier statement. If you do, your comments will not be accepted and they will be returned to you."
[18]At the end of the letter, somewhat confusingly perhaps, it is said:
"Comments submitted after the 9 week deadline will not be seen by the inspector and will be returned to you unless there are extraordinary circumstances for the late submission."
[19]In fact, it was not until the 27 November that the applicant submitted a number of documents which he wished to rely on order to establish his case. But if as I say the only ground of appeal that was material was, as I have indicated, that the use had occurred before 28 July.[20]But none of those documents go to that issue, save for two. The two in question are a copy tenancy agreement with a man named Kashif Junjua, which is said to be a tenancy agreement for letting a furnished dwelling one bed house on an assured shorthold tenancy under Part 1 of the Housing Act 1998, at the address 106 Manor Road, which is the address in question, and which ran from 1 July 2010 to 31 July 2013. There was a statement of 30 September 2015, which came from Mr Junjua and which confirmed that he had lived at the address as a private tenant from 1 July until June 2013.[21]It is of some concern and I am bound to note that there is also in the documents served an agreement which appears to be entered into in October 2012 being a tenancy agreement of what is described as:
"The dwelling house known as 106 Manor Road, only a one bed flat, all-inclusive, all including fair use."
[22]It is not entirely clear whether that is indeed the same outbuilding but it is not entirely consistent with the statement of Mr Junjua. Be that as it may, clearly the evidence from Mr Junjua and that tenancy agreement is material in considering whether the 4 year period was made out.[23]The inspector considered the evidence that was before him, because of course that additional material was not, and he indicated that it relied on the supplier's invoice an agreement with a contractor and written statements from neighbours.[24]But he took the view that because no receipts had been supplied and there was no positive evidence in written form, and so there was indeed a completion of the premises; albeit the date of completion was said to be by 15 July, and of course Mr Junjua's tenancy agreement is not inconsistent with that, because it is perfectly possible that the completion was before 15 July.[25]The neighbours' statements indicated that the refurbishment works were carried out in May and June but that was said to conflict with the later delivery date of kitchen units and fittings on the invoice; and that was a discrepancy and therefore he decided that the evidence was not sufficiently precise or unambiguous, and therefore it had not been proved and that the use of it as a dwelling house had ante-dated 28 July.[26]I say "28 July" because, as the inspector pointed out in his decision by virtue of section 171(B)(4)(b) of the Act the 4 year period is brought to an end by the service of an enforcement notice even if that enforcement notice is not a valid one.[27]The regulations say nothing about discretion to extend the time limits and undoubtedly there must be such discretion in the interests of doing justice and one must bear in mind that in many cases, and indeed this is one, individuals will act in person and no doubt it is entirely reasonable that they should be required to consider the guidance and that is given in the procedural guide.[28]That provides, so far as material, essentially it is said what follows from the regulations. It makes the point what the grounds must be set out and then in 3.1.1 under:
"Other important information", it says what happens if someone discloses evidence late and it says: "
If an appellant produces late evidence during the appeals process which was not included within the facts and grounds or in the appeal statement provided by the appellant making the appeal and at the 6 week stage, we will return it and it will not be taken into account. Similarly, if the Local Planning Authority introduces late evidence which was not included in their appeal statement at the 6 week stage, we will return it."[29]It goes on to say that that there will rare occasions where the party to the appeal considers that newly available material evidence ought to be considered and it is said that that will normally only exceptionally be taken into account.[30]Again, back in paragraph 1.10 the point is made:
"If we receive documents after the deadline normally we will return them and they will not be seen by the inspector. The inspector will not accept any documents at the site visit."
[31]I do not doubt that it is entirely appropriate that there should be regulations which require time limits to be observed and there is equally no question but that, on any view, the applicant failed to comply with relevant time limits even if he did not receive the notice of the start date which he says did not reach him.[32]But he did receive the 3 September letter and it did make a clear, albeit it said that it was only comments that he should serve whatever comments he had had with him by 24 September. Regrettably, he never indicated why he had served the material out of time.[33]However, I am bound to say I am concerned that the rigid approach that was taken if inspectors are not forwarded material which is out of time because it is surely for the inspector to exercise the discretion as to whether material should be taken into account.[34]Whether or not it is material which could make all the difference to an appeal will not necessarily be known by the official who deals with it at the stage when it is simply returned. No doubt there are problems but if it cannot be said that the evidence if true, and I, for the moment, have no reason to doubt it because it does not conflict completely with the material that there was; and if reliable, and if relied on, it will tip the balance in the applicant's favour. It is no doubt unfortunate but it seems that the council sat on their hands for over 3 years before deciding to take an enforcement action.[35]In all the circumstances I have given a judgment which I would not normally have given in detail, I think that there is a possibility that in all the circumstances Mr Akhtar has not been treated fairly in the manner in which his application has been dealt with.[36]I am bound to say with some doubt, I think it is appropriate that there should be leave to pursue this point and it is right that there should be full explanation and the court should have full information as to why it is decided that it is consistent with the regulations simply to as an administrative act return and not put to the inspector, who has to deal with the issue, material.[37]The inspector may or may not in a given case decide that it is appropriate to let that material be considered and I do not doubt that the Planning Inspectorate does not leave it until the last minute to instruct or to allocate whichever inspector is to deal with a particular appeal.[38]Of course, if there is fresh material then it is necessary for the other side to be given copies and to be able to make any comments upon it. But where, as here, at least two documents and frankly, I do not think that any other of the other documents are material, could be material: it is not a lot of paperwork for the inspector to have and I think fairness may dictate that reconsideration should be given as to whether the manner in which this is dealt with in the procedural guide in the circumstances of this case is appropriate. Nowhere is it said what can be exceptional in admitting documents.[39]For those reasons, as I say, I take the view that this is a matter which can be pursued. I make it clear, Mr Akhtar, that I am not saying that you are going to succeed because that is not for me to decide at this stage. Effectively, I am deciding that you have the right to put these points, that is all. MR WESTAWAY: My Lord, I am grateful. The court jumped to the leave application. MR JUSTICE COLLINS: I am sorry. MR WESTAWAY: Formally, there is a delay point and permission is needed to extend time. MR JUSTICE COLLINS: Yes. MR WESTAWAY: I do maintain my submissions on that, and they are there in writing but formally that decision does not need to be made by the court. MR JUSTICE COLLINS: Where is the extension of time? MR WESTAWAY: My Lord, it is, I think it is not disputed that this is late, the question then arises as to what is the explanation. MR JUSTICE COLLINS: When you say this is late, do you mean -- MR WESTAWAY: -- my Lord, it may be more and most economical to refer to the skeleton argument that I produced. MR JUSTICE COLLINS: Yes, certainly. MR WESTAWAY: There are two points there. There are two applications and the court has dealt with the first, or perhaps dealt with the -- MR JUSTICE COLLINS: I am sorry, where is the paragraph? MR WESTAWAY: In the skeleton argument, the first thing is, well, paragraph 2, if we can pause there. That is the time limit: 28 days, and then, I address -- MR JUSTICE COLLINS: -- yes, you have the -- MR WESTAWAY: -- I address this at paragraph 23 through to paragraph 28 of the skeleton. At no stage has any explanation been given. MR JUSTICE COLLINS: No, you are quite right, I overlooked that. What I dealt with is the merits but I have also to consider the question of time. The application was made originally on 25 April 2016, that is the application for this court and it is notice of the decision which was given to the applicant back in February. Thus he is well out of time and unfortunately he originally had filed a claim for judicial review but that in itself had been out of time and it had to be struck out. THE CLAIMANT: My Lord. MR JUSTICE COLLINS: Why was it? THE CLAIMANT: It wasn't out of time. The judicial review was within the time period. MR JUSTICE COLLINS: No, it was not. THE CLAIMANT: But it was struck out because it was the wrong procedure for it. If you look at the letter from the administration of the court it clearly states that the reason is on page 11. MR JUSTICE COLLINS: You are right, judicial was within 6 weeks so it was just in time, but it was appropriate for judicial review. THE CLAIMANT: That is right. The cause letter on page 11 explains that why the judge said it should go back to the different court. MR JUSTICE COLLINS: Yes, he made a mistake. He says he thought it was judicial review needed. THE CLAIMANT: That is right. MR JUSTICE COLLINS: Well, I think that I am prepared to take the view that that was something which was unfortunate but the trouble is that when one is dealing with lay people, it is not always the case that they take the right route. I am prepared to extend time in those circumstances. All right. THE CLAIMANT: Thank you. MR JUSTICE COLLINS: All right. THE CLAIMANT: So I think there is only a question with regards to costs. MR JUSTICE COLLINS: No, the costs will be in the case. THE CLAIMANT: Thank you. MR JUSTICE COLLINS: All right. THE CLAIMANT: Thanks.