McKay, R (on the application of) v The First Secretary of State

Under section 174 of the Town and Country Planning Act 1990, an appeal notice must identify the enforcement notice to which it relates. Where the notice unequivocally identifies a withdrawn enforcement notice, the Secretary of State cannot interpret it as an appeal against a replacement notice. Doing so would, in substance, amend the appeal and permit an appeal against a different notice out of time. The court cannot rely on an alleged underlying intention to overcome clear identification on the face of the appeal notice. Authorities concerning statutory requirements, contractual mistake, or amendment of other planning proceedings do not justify a different conclusion where the statutory appeal notice identifies the wrong enforcement notice.

The claimant sought judicial review of the First Secretary of State's Inspectorate decision that his appeal against an enforcement notice was invalid. Wycombe District Council had withdrawn the original notice, A1, and issued a replacement notice, A2. The claimant's agent lodged an appeal referring expressly to A1 and enclosing that withdrawn notice, although the intended appeal was against A2.

The Inspectorate initially treated the appeal as valid but later rejected it after discovering the discrepancy. The central issue was whether the appeal documents could objectively be interpreted as referring to A2, or whether section 174 required the written notice of appeal to identify the enforcement notice it challenged.

1. The claim was dismissed. The Inspectorate had lawfully concluded that the appeal was invalid. The claimant was ordered to pay the defendant's costs of £4,832.
2. Section 174(3) of the Town and Country Planning Act 1990 requires written notice of an appeal before the enforcement notice takes effect. Read with section 174(1), the appeal notice must identify the enforcement notice to which it relates. That requirement is implicit in the statutory scheme.
3. The appeal notice unequivocally identified notice A1. It stated that the appealed notice was dated 22 December 2003 and enclosed A1. It did not identify replacement notice A2, dated 23 December 2003. The Inspectorate therefore had no proper basis for interpreting the notice as an appeal against A2.
4. Adopting the claimant's approach would not be interpretation of the appeal notice but its amendment. It would effectively permit an appeal against a different enforcement notice after the statutory deadline. The Secretary of State had no jurisdiction to make that alteration or to extend time in those circumstances.
5. The authorities relied upon by the claimant did not compel a different result. Howard v Secretary of State for the Environment concerned the interpretation of statutory appeal requirements; Morrow v Nadeem concerned a different notice and contained only an obiter observation; Hartog v Colin and Shields concerned contractual mistake; and Cala Homes (South) Limited v Chichester District Council and Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions concerned different statutory and procedural contexts.
6. The council was entitled to withdraw A1 and issue A2. The court observed that the council could withdraw A2 under section 173A of the Act, despite its having taken effect, and reissue it so that a valid appeal could be made. That was a matter for the council and did not confer jurisdiction on the Inspectorate to treat the existing appeal as one against A2.

• High Court (Administrative Court): McCombe J granted permission to bring the judicial review claim on 12 July 2004. Sir Michael Harrison dismissed the claim and refused permission to appeal, holding that an appeal would not have a real prospect of success.