Planning Appeal notices: enforcement notices: interpretation: planning appeals: mistakes in appeal notice: interpretation of appeal notices: factual context: s.174 Town and Country Planning Act 1990.

Where a notice of appeal had been served in a planning dispute and had mistakenly referred to a withdrawn enforcement notice, rather than the replacement enforcement notice subsequently issued, and that mistake had been clear from the facts, the respondent planning inspectorate had erred by finding that the appeal notice was invalid since it should have considered the matter with those facts in mind rather than purely upon an interpretation of the notice of appeal.

The appellant (M) appealed against a decision ((2004) EWHC 2778 (Admin)) dismissing his application for judicial review of a decision of the respondent secretary of state's planning inspectorate that his appeal against an enforcement notice was invalid. M had been served with an enforcement notice for works done to his property relating to the erection of gates, walls and the laying of a driveway. The following day the local council (W) withdrew the notice on the grounds that there had been a mistake in respect of the plan attached to it. W replaced the withdrawn notice with a fresh enforcement notice. M applied to appeal the enforcement notice. However, by mistake the appeal notice had referred to the withdrawn notice instead of the replacement notice, and had attached to the notice of appeal a copy of the withdrawn notice instead of the replacement notice, and had attached to the notice of appeal a copy of the withdrawn notice. On the basis that the first notice had been withdrawn by W the inspectorate decided that it had no jurisdiction to hear the appeal. That decision was upheld on M's application for judicial review. Dismissing the application the judge held that there had been no clearer indication to the inspectorate that the notice of appeal had referred to the withdrawn notice, and that there was no scope for a wide interpretation of M's intention from material other than that appearing on the face of the appeal notice. M had argued that the judge had been wrong to take a strict view that the inspectorate had only been entitled to look to the face of the notice of appeal to establish M's intention. HELD:

The issue in the instant case was whether the judge had been right to take the view that he had to determine the matter purely upon the interpretation of the notice of appeal without regard to the factual context in which it had been served. If one merely construed the notice of appeal on its face then it undoubtedly referred only to the withdrawn notice. Equally, however, it was clear that once it was known that the first notice had been withdrawn, and one asked to which enforcement notice the appeal notice was intended to apply, it was obvious that it referred to the replacement notice. That was not dependant upon any subjective intention but on undisputed facts that were before the judge. On the proper construction of the Town and Country Planning Act 1990 s.174, the nature of an appeal notice in respect of an enforcement notice was not one that required formality from the outset, and it was important not to attach too much significance to procedural requirements in legislation where that would cause injustice, R v Immigration Appeal Tribunal ex p Jeyeanthan; Secretary of State for the Home Department v Ravishandran (2000) 1 WLR 354, applied. Had the inspectorate not received additional information above and beyond the notice of appeal it would have been entitled to look at the document and treat it as an appeal from the withdrawn notice, particularly as the withdrawn notice was attached to the appeal notice. However, the inspectorate was informed that the first notice had been withdrawn and replaced by the second notice, and in those circumstances it should have interpreted the notice of appeal in light of those additional factors. In those circumstances the inspectorate's decision that the notice of appeal was invalid was quashed.

Appeals allowed. Jonathan MacKay v (1) First Secretary of State (2) Wycombe District Council (2005)

"Lawtel": 13.6.05