Council allowed to challenge planning inspector’s appeal decision despite service out of time

Harrogate Borough Council v Secretary of State for Communities and Local Government & Anor [2014] was an application for an extension of time to serve appeal procedings under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”).

The Council were challenging a planning inspector’s decision to award Mr Zammitt planning permission on appeal.

In resisting the Council’s application, Mr Zammitt relied on 4 defects in the Council’s actions to date:

1. The claim form was not served in time. In so far as it was served at all it did not come to his notice until 18th January 2014. The last day for service was 16th January 2014.

The court accepted that there may have been a small amount of prejudice caused by the late service of the claim form but it had not been significant.

2. The claim form was served at the wrong address. The claim form was hand delivered and posted to the address of Zammitt Developments Ltd (“ZDL”), 53A East Parade, Harrogate on 17th January 2014. Mr Zammitt’s residential address was, at the time, 1 Barnwell Crescent, Harrogate.

Although it was arguable that it was, the court assumed (without deciding) that 53A East Parade, Harrogate was not Mr Zammitt’s last known residence. However, it was a plain case for the court to make an order Under CPR 3.10 validating the service as at 18th January 2014.

3. Under paragraph 22.4 of Practice Direction 8A the claim form must be served on “every person who would, if he were aggrieved by the decision …, be entitled to apply to the High Court under … section 288 of the Town and Country Planning Act ….”

The Council had failed to serve/join other interested parties in the proceedings. Mr Zammitt argued that ZDL and his wife were interested parties.

However the court said a person would ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenged and their complaint was that the decision was not properly made.

In this case Mr Zammitt was the sole appellant. Mr Zammitt certified that he was the owner of all of the relevant land. The decision letter contained no reference to either ZDL or Mrs Zammitt in any capacity.

True, the appeal statement prepared by Mr Zammitt’s planning consultant made a number of references to Zammitt Developments, but it made no reference to a limited company, and did not define who Zammitt Developments were, and the Inspector took the view that Mr Zammitt was the appellant.

Neither ZDL nor Mrs Zammitt were a “person aggrieved” by the decision.

The claim form was served at ZDL’s registered office and was addressed to its sole director and shareholder – Mr Zammitt. ZDL had contributed to the error by not making it clear in the application for planning permission that it had an interest. Mrs Zammitt has been content to leave matters to her husband and the Council had no reason to know she had any interest either.

4. The Council failed to comply with the Practice Direction for Pre-Action Conduct and inform Mr Zammitt of its intention to appeal.

It was common ground between the parties that there was no specific pre-action protocol dealing with claims under section 288 of the 1990 Act.

Neither the Secretary of State nor Mr Zammitt had the power to change the decision. It could only be quashed by an order of the High Court. So it was not a case where the parties could settle the matter without legal proceedings and the parties knew all about each other’s case. The only question was whether the Inspector’s decision is wrong in law. This was not the sort of case that had been targeted by the Practice Direction nor had it been appropriate for there to be an exchange of information prior to the proceedings. So there had been no breach of the Practice Direction. In any event it would not have been appropriate to impose any sanction on the Council.

Under section 288(3) of the 1990 Act an application under section 288 must be made within 6 weeks. That time limit was jurisdictional and could not be extended. The application was made 2 days within time.

The delay in serving the claim form was two days. Due to a miscalculation of the dates, the Council had not appreciated that the application was out of time for service until it received an email on 31st January 2014. The application for an extension was issued on 12th February 2014, after efforts to get Mr Zammitt to agree one had failed. That was sufficiently prompt. It was an appropriate case for granting relief against the consequences of late service.

Had it been untrivial, the miscalculation was not a good reason and the court would have had to consider all of the circumstances of the case.

On principle relief should not usually be given because the two factors mentioned in rule 3.9 normally outweighed all other factors.

However, the court would still have granted relief. The public interest in challenging the decision coupled with the relatively short delay in service of the claim form would have outweighed the two factors in CPR 3.9 and any minor prejudice Mr Zammitt may have suffered by reason of the two day delay.

Accordingly the Council’s application for an extension of time succeeded

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.