AC-2025-LON-000036 - [2025] EWHC 2701 (Admin)

Section 289(1) of the TCPA 1990 provides that where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court. Section 289(6) of the TCPA 1990 provides that no proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court.

As the Inspector’s decision was promulgated on 10 December 2024, the application for permission to appeal pursuant to the provisions of section 289 of the TCPA 1990 needed to be made on or before 7 January 2025 in order to comply with 54DPD para 6.1. The application must be in writing and set out the reasons why permission should be granted and, if the time for applying for permission has expired, must include an application to extend time for applying and the reasons why the application was not made in time (54DPD para 6.2).

Before filing an application, the applicant must serve a copy of the application on the persons referred to in paragraph 6.11 of the practice direction, with the draft appellant’s notice and a copy of the witness statement or affidavit to be filed with the application. The persons to be served pursuant to paragraph 6.11 are the Secretary of State, the local planning authority who served the notice or gave the decision with respect to a section 289(1) appeal, anyone with an interest in the land, with respect to a section 289(2) appeal, and any other person on whom the notice to which those proceedings related was served (54DPD 6.11).

The application is to be filed in the Administrative Court Office (ACO) with (a) a copy of the decision being appealed; (b) draft appellant’s notice; (c) a witness statement or affidavit verifying any facts relied on; and (d) a witness statement or affidavit giving the name and address of and the place and date of service on each person who has been served with the application. If any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason why the person was not served.

The Applicant in this matter purported to serve on the Secretary of State the appellant’s notice and a short witness statement of Tahseen Choudhry. This was not a witness statement of fact in accordance with the practice direction. This is acknowledged in the witness statement itself that the witness statement of fact will be filed on it is suggested that will be filed on 20 January 2025, 13 days after the deadline for filing the application.

The Applicant therefore failed to comply with the provisions of practice direction 54D 6.3 by failing to serve a copy of a witness statement of fact on the Secretary of State before the filing of the application, and also failed to comply with the provisions of practice direction 54D 6.4(c ) by failing to file at the ACO the witness statement of fact.

The Applicant further failed to comply with the provisions of practice direction 54D 6.4(d) by failing to file a compliant witness statement of service. The witness statement of Ms Choudhury, her second dated 6 January 2025 merely makes the following assertion:

“I confirm that the Draft Appeal and documents have been served by email on 1^st and by email on the 2^nd Respondents on 6 January 2025”

Counsel for the Applicant has referred to this part of the Secretary of State’s response as “nitpicking” and that there had not been a serious breach. Indeed, he said that his instructing solicitors had done “very well to get the application in when they did”. That unfortunately shows a fundamental lack of understanding of the importance of compliance. His submission is, in effect, that no harm has been done and any breach is one that should simply be ignored by the court. That is, of course, not the way in which the court views the Civil Procedure Rules or the Practice Directions within the CPR. These are not mere formalities. The Applicant needed to comply with the Practice Direction in order to bring the application before the court. His failure to do so means that the application has not been brought and cannot be considered (see Wenman v Secretary of State for the Environment [1995] JPL 1030; and Epic Capital UK Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 588.

On 20 January 2025, 13 days after the deadline for filing and serving the application had lapsed, the Applicant purported to file and serve two witness statements of fact. The Court does have the power to extend or shorten time for the compliance with any rule or practice direction. Any application for an extension of time for bringing the application for permission to appeal under section 289 of the TCPA is to be made in the application pursuant to practice direction 54D 6.2(b).

The explanation that the witness statements were not ready with the attempt to file the application for permission was “Due to the Christmas holiday period and offices being closed” is a woefully inadequate explanation and fails to recognise the importance of compliance with the practice direction. As Eyre J. set out in R (Ibrar) v Dacorum BC [2023] JPL 668:

“It is significant that there are special rules governing s.289 appeals. Those are rules which derive from the Rules of Court and which are there because of the context of the need for expeditious resolution of these matters. In particular, there is a need for expedition where there is an enforcement notice requiring compliance on pain of criminal sanctions. Thus, PD 54D, para.6.1, provides a time limit of 28 days. Similarly, the application for permission is to be determined at a hearing. There is no equivalent of the paper consideration followed by an opportunity to renew which would apply to judicial review. That is a reflection of the need for expedition and also of the importance of the matter. Paragraph 6.5 of the Practice Direction provides that the permission hearing is to be heard within 21 days of the filing of the appeal unless the court orders otherwise: again an indication of the expedition with which matters are to be addressed”.

The failures of the Applicant to comply with the provisions of the practice direction means that there is not any valid application for permission before the court for determination. The Applicant has failed to bring any application for relief, which would require compliance with the steps set out in Denton v TH White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. In the circumstances, there is nothing for the Court to determine.