Latimer & Anor, R (on the application of) v Chief Clerk to the Justices, Bury Magistrates Court & Ors

An appeal under section 217 of the Town and Country Planning Act 1990 is effected when the complaint or notice of appeal is received at the magistrates’ court. Where it is common ground that the document was posted, the court may draw a common-sense inference that it was received. This is an evidential inference, not a presumption of law. The inference may be displaced by reliable evidence. A magistrates’ court cannot properly determine the issue solely on legal advice that the document cannot be found, without addressing whether it may have been lost or misfiled within the court. A decision based on that approach is legally flawed and may be quashed and remitted for reconsideration.

The claimants owned property subject to an untidy land notice served under section 215 of the Town and Country Planning Act 1990. They instructed solicitors to send a letter to Bury Magistrates’ Court indicating that they wished to appeal under section 217. The letter was posted but could not be found in the court’s records.

After later attempts to progress the appeal, the magistrates were advised that no extant appeal existed. They declined to stay criminal summonses alleging non-compliance with the notice. The claimants sought judicial review of the legal adviser’s decision and the magistrates’ decision. The central issue was whether the court was entitled to conclude that no timely appeal had been lodged merely because the posted letter could not be located.

1. The claim was allowed. The decision that no extant appeal existed was quashed, and the matter was remitted to the magistrates with a different legal adviser for reconsideration.
2. Under section 217 of the Town and Country Planning Act 1990, a complaint and appeal are launched when the document is received at the magistrates’ court, including the court office. The court therefore had to determine the factual question of receipt.
3. Where it was common ground that the letter had been sent, the proper approach was to draw the reasonable inference that it had been received. This was a common-sense inference from the facts, rather than a presumption of law. The inference could be displaced by evidence showing that the letter had not arrived.
4. The absence of a court record did not establish non-receipt. Documents could be lost or misfiled within court premises, particularly where the document was not attached to an existing case. The magistrates had not themselves investigated the issue and had acted on advice that treated the absence of a record as legally decisive.
5. The issue was whether the decision was wrong in law, not whether it was perverse. Advice that the missing letter necessarily meant that no timely appeal had been lodged was legally insufficient.
6. Recent evidence concerning searches for the letter did not justify refusing relief. The evidence had deficiencies, including the apparent failure to search the miscellaneous pre-court file. The magistrates were directed to reconsider the matter afresh, with the parties’ assistance and such legal advice as was necessary. The interested party was ordered to pay the claimants’ costs, to be assessed if not agreed.

• Bury Magistrates’ Court: the magistrates, having been advised that no appeal had been lodged, declined to stay the criminal summonses.
• High Court (Administrative Court): the decision was quashed and remitted for reconsideration with a different legal adviser.