Prashar, R (on the application of) v Secretary of State for Transport, Local Government and the Regions

A judicial review claim requires an identifiable decision amenable to review. A letter acknowledging earlier lack of clarity and explaining steps for the future may contain no reviewable decision. Even where a reviewable decision exists, judicial review is generally inappropriate if an adequate alternative remedy is available. A statutory planning appeal or challenge procedure may be exclusive where the governing legislation prevents the decision being questioned in other legal proceedings. Withdrawal of a statutory appeal does not create a basis for judicial review of the underlying enforcement notices.

Mr Prashar and Kelly Communications appealed enforcement notices concerning Poyle Place. A fee was paid by Kelly Communications. Mr Prashar then withdrew his appeal, followed by the withdrawal of Kelly Communications’ appeal, preventing consideration of ground (a). The Planning Inspectorate later acknowledged a lack of clarity in its earlier correspondence.

Mr Prashar sought permission for judicial review of that correspondence and separately of the enforcement notices and the Inspectorate’s decision upholding them. Collins J refused permission on the papers. Sullivan J and Richards J refused renewed applications. The central issues were whether the correspondence contained a reviewable decision and whether the challenges could proceed despite statutory appeal and challenge procedures.

In a single judgment, Lord Justice Dyson refused both applications for permission to appeal.

1. Challenge to the letter of 31 August 2001. The letter contained no reviewable decision. It acknowledged that earlier correspondence had lacked clarity and stated that steps were being taken to prevent a recurrence. The court could see no answer to Sullivan J’s reasoning. In any event, an alternative remedy was available: Mr Prashar could apply for planning permission, which would have had to be considered on payment of the appropriate fee.
2. Challenge to the Inspectorate’s decision of 26 June 2001. The court adopted Richards J’s reasoning that sections 288(4) and 284(3) of the 1990 Act brought a decision of the Secretary of State’s inspector under section 78 within the statutory challenge procedure. Section 284(1) made that procedure the only available route, subject to the statutory provisions including section 288. Judicial review was therefore unavailable.
3. Challenge to the enforcement notices. Section 289 of the 1990 Act gave Mr Prashar a statutory right of appeal. He had exercised that right and later withdrawn the appeal. The existence of the statutory route made judicial review inappropriate, and the withdrawal made it doubly inappropriate. Kelly Communications’ withdrawal meant that ground (a) could not be considered, but it did not make judicial review available.
4. Adjournment requests. The court declined to adjourn so that the Treasury Solicitor could confirm that Mr Prashar had been forced to withdraw his appeal. If relevant, that was a matter he could explain himself. An adjournment to obtain legal representation was also refused because the applications had no prospect of success.

Applications for permission to appeal refused.

1. Court of Appeal (Civil Division): On 30 October 2002, Lord Justice Dyson refused both applications for permission to appeal: [2002] EWCA Civ 1669.
2. High Court, Queen’s Bench Division, Administrative Court: Collins J refused the applications on the papers. Sullivan J refused the renewed application concerning the Planning Inspectorate’s letter after an oral hearing on 12 April 2002. Richards J refused the renewed application concerning the enforcement notices and the Inspectorate’s decision after a hearing on 10 May 2002.