Shahid Ibrar, R (on the application of) v Dacorum Borough Council & Anor.

Where a planning enforcement appeal could be challenged under section 289 of the Town and Country Planning Act 1990, that appeal will normally be an adequate alternative remedy to judicial review. Judicial review will be appropriate only in the most exceptional circumstances.

The court must assess the alternative remedy when the challenged decision was made. A claimant cannot make an otherwise adequate remedy inappropriate by missing its time limit. Conversion of an out-of-time judicial review claim into a section 289 appeal is governed by the Denton approach, with particular weight given to the statutory need for expedition and the risk of circumventing the 28-day limit.

Two linked judicial review claims concerned Inspectors’ dismissal of appeals against planning enforcement notices. In each case the claim was issued after the 28-day period for an appeal to the High Court under section 289 of the Town and Country Planning Act 1990, although within or near the six-week judicial review period.

In the Sumaidiae case, the claimant challenged the Inspector’s treatment of evidence concerning the use of a property. In the Ibrar case, the claimant challenged both the validity of an Article 4 direction and the Inspector’s decision. The common issues were whether judicial review remained available, whether section 289 supplied an adequate alternative remedy, and whether the claims should be converted into out-of-time section 289 appeals.

1. Judicial review and section 289. Section 285 does not impliedly oust judicial review of an Inspector’s decision. However, section 289 will normally provide an adequate alternative remedy. The same specialist court and judges may hear the statutory appeal, which is directed to errors of law and forms part of a structured statutory route of redress. Judicial review should therefore be granted only in the most exceptional case.

2. Procedural unfairness, breach of natural justice, failure to consider relevant matters, consideration of irrelevant matters and irrationality arising from those errors can generally be characterised as errors of law suitable for a section 289 appeal. A rational but factually flawed conclusion is not itself a point of law. The tentative observations in R v Criminal Injuries Compensation Board, ex parte A did not establish a general rule permitting judicial review for factual error alone.

3. The adequacy of the alternative remedy is assessed when the decision under challenge was made. A claimant cannot rely on the later expiry of the statutory appeal period, caused by the claimant’s own failure to act, to establish that the remedy was inadequate.

4. Applications to convert judicial review proceedings into section 289 appeals, and for extensions of time, are governed by the Denton v White approach. The 28-day limit is important because enforcement notices may carry criminal consequences and the statutory scheme requires expedition. The court must consider the seriousness of the breach, the explanation, and all the circumstances, including whether the procedure was used to circumvent the statutory time limit, the use of court resources and the merits at a high level.

5. In both cases, the claimants deliberately pursued judicial review and persisted in that route until the hearing. The proposed challenges were either matters of law suitable for section 289 or insufficiently arguable to justify an extension. Permission for judicial review and extensions of time for section 289 appeals were therefore refused. The late Aarhus costs-protection application in Ibrar was also refused.