Herstmonceux Museum Limited v Secretary of State for Housing, Communities and Local Government & Anor

A challenge to an enforcement-notice appeal decision lies under Town and Country Planning Act 1990, section 289, rather than section 288, where the decision concerns the enforcement appeal and not a separate decision granting planning permission. A section 289 appeal must be commenced in the prescribed form and manner, including timely service on the Secretary of State and the local planning authority. Failure to comply with those requirements may deprive the court of jurisdiction. Relief from sanctions is assessed under the Denton criteria. For a section 288 claim, an extension of time for service is governed by CPR 7.6.

The applicant challenged an Inspector’s decision dated 10 February 2025 dismissing its appeal against an enforcement notice concerning unauthorised development at the Old Steam House, Herstmonceux. The appeal had been brought under grounds (a), (b), (c), (e) and (f) of section 174(2) of the Town and Country Planning Act 1990. The applicant filed a Part 8 claim form seeking both a section 288 statutory review and a section 289 appeal.

The respondents contended that section 289 was the only available route, that the wrong procedure had been used, and that the claim and appeal had not been validly served or otherwise commenced in accordance with PD 54D. The central issues were the correct statutory route, the effect of the procedural defaults, and whether the applicant should receive permission to rectify them or an extension of time.

1. Statutory route. The court accepted the reasoning in De Souza v Secretary of State for Communities and Local Government [2016] EWHC 2245 (Admin). Section 289 is the route for a point-of-law challenge to a decision in proceedings on an enforcement-notice appeal. Section 288 was not engaged because the Inspector’s decision did not concern a separate decision to grant planning permission under the deemed application.
2. Section 289 procedure. A section 289 challenge is a statutory appeal, not a Part 8 claim. PD 54D required a timely written permission application, service before filing on the Secretary of State and the local planning authority, filing of the decision and supporting witness evidence, and subsequent service of the appellant’s notice. The applicant failed to comply with those requirements. Service on the Ministry rather than the Treasury Solicitor was invalid under the Crown Proceedings Act 1957, CPR 6.10 and PD 6.6.
3. Relief from sanctions. Applying Denton v T H White (Practice Note) [2014] 1 WLR 3926, as explained in R (Ibrar) v Secretary of State for Levelling-Up, Housing and Communities [2022] EWHC 3425 (Admin), the breaches were serious, the applicant was responsible for them, and the explanation was inadequate. The importance of expedition in enforcement proceedings, the absence of valid service even after the errors were identified, and the likely need for adjournment weighed against relief. Following R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 and Barton v Wright Hassall LLP [2018] UKSC 12, neither the public-law context nor the applicant’s lack of representation justified a lower standard of compliance.
4. Section 288 service. The section 288 claim was filed in time but never validly served. Under Secretary of State for Levelling-Up, Housing and Communities v Rogers [2024] EWCA Civ 1554, applying the approach in R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] 1 WLR 2339, CPR 7.6 required proof that all reasonable steps had been taken to serve in time and that an extension application had been made promptly.
5. Order. The court declared that it lacked jurisdiction to determine both the section 288 claim and the section 289 appeal, and set aside the claim form sealed on 11 March 2025.

First-instance decision. The judgment records the Inspector’s decision dated 10 February 2025, but no prior court judgment in the same proceedings.