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

When an appeal notice identifies the wrong enforcement notice by mistake, its validity is not determined solely from the document’s face. The decision-maker must consider the factual context known when the mistake is identified. A procedural or descriptive error should not defeat an appeal where the intended subject is objectively clear and refusing to recognise it would cause serious injustice without corresponding prejudice. The statutory appeal provisions do not impose a rigid formality requiring an appeal notice to be interpreted in isolation. Where an enforcement notice has been withdrawn and replaced, an appeal notice referring to the withdrawn notice may, in the circumstances, be treated as relating to the extant notice. The Planning Inspectorate’s contrary decision was quashed.

The appellant sought judicial review of a Planning Inspectorate decision declaring invalid his appeal against an enforcement notice. The enforcement notice originally served by the local planning authority was withdrawn and replaced the following day by a substantially identical notice. Through his agent, the appellant’s appeal notice referred to the date of, and enclosed, the withdrawn notice, although the undisputed circumstances showed that the intended appeal was against the replacement notice.

The Administrative Court, before Sir Michael Harrison, dismissed the claim on 18 November 2004. It held that the appeal notice had to be interpreted from its face and that the Secretary of State had no jurisdiction to treat it as an out-of-time appeal against a different notice. The central issue on appeal was whether the Inspectorate had to take the known factual context into account when determining what notice the appeal concerned.

Appeal allowed. The decision of the Planning Inspectorate was quashed, with costs agreed at £29,000.

1. The appeal notice appeared to identify the withdrawn enforcement notice A1, and the replacement notice A2 was not attached. However, the undisputed context established that A1 had been expressly withdrawn and replaced by A2 one day later. Once that fact was known, the only proper conclusion was that the appeal was intended to concern A2.
2. Section 174 of the Town and Country Planning Act 1990 requires an appeal to be made by written notice before the enforcement notice takes effect, but it does not prescribe a rigid formula for identifying the notice. Section 174(1), which permits an appeal by a person who has not seen a copy of the notice, indicates that formality is not required at the outset. Section 174(4), allowing further information to be supplied, supports the same conclusion.
3. The Inspectorate was entitled initially to treat the notice as an appeal against A1 because that was what the documents appeared to show. It was required, however, to consider the later information that A1 had been withdrawn. The court must examine the context in which the document was issued and avoid treating an error as a nullity where the intention is objectively clear. This approach was supported by Regina v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354 and Finbow v Air Ministry [1963] 1 WLR 697.
4. Refusing to recognise the appeal would risk grave injustice to the appellant, while recognising it would cause no injustice. The Inspectorate therefore erred in declaring the appeal invalid and should proceed to hear the appeal against A2. A mandatory order was unnecessary because the Secretary of State was expected to ensure that course.

• Court of Appeal (Civil Division): On 9 June 2005, allowed the appeal, quashed the Planning Inspectorate’s decision, and ordered costs in the agreed sum of £29,000.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Sir Michael Harrison dismissed the judicial review claim on 18 November 2004, holding that the appeal notice identified the withdrawn enforcement notice and could not be treated as an out-of-time appeal against the replacement notice.