Akhtar, R (On the Application Of) v Secretary of State for Communities And Local Government

Where an appeal procedure imposes a time limit for further evidence, compliance remains important, but fairness requires the decision-maker to retain discretion to consider late material. Administrative staff should not automatically return potentially decisive evidence without it being placed before the inspector. The inspector must decide whether the evidence should be admitted, allowing the opposing party an opportunity to comment. A four-year period for immunity from enforcement is brought to an end by service of an enforcement notice, even if the notice is invalid. Permission to pursue a challenge may properly be granted where late evidence could materially affect the result and the procedure may have operated unfairly.

The claimant challenged an enforcement notice concerning the use of an outbuilding as a self-contained dwelling. The central issue was whether the use had continued for more than four years before service of the notice, so as to become immune from enforcement action.

The Planning Inspectorate determined the appeal by written representations. The claimant later submitted a tenancy agreement and supporting statement outside the prescribed timetable. Those documents were returned and were not considered by the inspector. The claimant sought permission to challenge that approach and applied for an extension of time after an earlier claim had been brought using the wrong procedure.

1. Permission and extension of time. The court extended time because the claimant was acting in person and had initially taken an unfortunate but understandable procedural route. Permission was granted to pursue the challenge. The grant of permission did not indicate that the claimant would ultimately succeed.
2. Late evidence. The written representations regulations imposed procedural deadlines, and the claimant had failed to comply with them. Nevertheless, the regulations did not remove the decision-maker’s discretion to consider late evidence. The procedural guide stated that late evidence would normally be returned, but it did not define what circumstances could be exceptional.
3. Fairness. At least two late documents could materially affect whether the four-year period had been established. Their relevance and reliability were matters for the inspector, not an administrative official dealing with the documents before the inspector had considered them. Fairness might therefore require the material to be placed before the inspector, with the local planning authority given copies and an opportunity to comment.
4. Enforcement period. The four-year period was treated as ending on service of the enforcement notice under section 171(B)(4)(b) of the Act, even if the notice was invalid. The earlier notice had been treated as null because it failed to state its date of effect, contrary to section 173(8).
5. The court considered that there was a real possibility that the claimant had not been treated fairly. The challenge could therefore proceed so that the court could receive a full explanation of the decision to return the material without referring it to the inspector.

The judgment records that an earlier judicial review claim had been filed in time but was struck out because judicial review was considered the wrong procedure. The present application was brought out of time and time was extended. Permission was then granted to pursue the challenge.