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URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/969.html
Cite as: [2025] EWHC 969 (Admin)

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Neutral Citation Number: [2025] EWHC 969 (Admin)
Case No: AC-2025-LON-00328

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
17 April 2025

B e f o r e :

HHJ KAREN WALDEN-SMITH
____________________

Between:
(1) MR BASHARAT HUSSAIN KHAN
(2) MRS SAFREEN KHAN
Applicants
and

(1) THE SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
(2) THE LONDON BOROUGH OF WALTHAM FOREST
Respondents

____________________

MR MASHOOD IQBAL (instructed by Dysons Solicitors) for the Applicants
MR NICK GRANT (instructed by the GOVERNMENT LEGAL DEPARTMENT) for the First Respondent

Hearing date: 8 April 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 17 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................

    HHJ KAREN WALDEN-SMITH:

  1. This is an application for permission to appeal pursuant to the provisions of section 289 Town and Country Planning Act 1990 ("TCPA 1990") brought by the applicants, Mr and Mrs Khan, against the first respondent, the Secretary of State for Housing, Communities and Local Government, with respect to the decision of 31 October 2024, taken by the Secretary of State's Inspector to dismiss the applicants' appeal against the enforcement notice served upon them relating to the construction of an extension and outbuilding at 23 Rosebank Road, Walthamstow, London ("23 Rosebank Road"). The second respondent, the London Borough of Waltham Forest ("LB of Waltham Forest") has not taken any active role in these proceedings.
  2. I am grateful to both Mr Iqbal, on behalf of the Applicants, and Mr Grant, on behalf of the Secretary of State, for their helpful written and oral submissions, albeit Mr Iqbal's skeleton was only delivered minutes before the hearing.
  3. The Permission is sought on four grounds:
  4. (i) Ground 1: that the Secretary of State's Inspector failed to have regard to a policy in the development plan;
    (ii) Ground 2: that the Inspector failed to have regard to a material planning consideration;
    (iii) Ground 3: that the Inspector was misled by the planning officer and by the statutory declaration of a neighbour, which declaration was biased and was not challenged by cross examination;
    (iv) Ground 4: that the Inspector failed to give adequate reasons for his determination.
  5. I determined that the Applicants should not be granted permission to appeal at the hearing. The application for permission to appeal was not made within time and I did not extend time as the same was not properly justified. Further, the various grounds of appeal set out above have no realistic prospect of success. These are the full reasons for those determinations.
  6. Appeal is Out of Time

  7. The CPR provides that any application for permission to appeal pursuant to the provisions of section 289 of the TCPA 1990 must be made within 28 days of the decision being given to the applicant (see CPR 54DPD 6.1). The application for permission to appeal (a) must be in writing and must set out the reasons why permission should be granted; and (b) if the time for applying has expired, must include an application to extend the time for applying, and must set out the reasons why the application was not made within that time (see CPR 54DPD 6.2). The CPR further provides that the application must be served upon the respondents before filing the draft notice together with a copy of the witness statement or affidavit filed with the application (CPR 54DPD 6.3) and file the application in the Administrative Court 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.
  8. The court does have the power to extend the 28 day time limit pursuant to the provisions of CPR 3.1(2)). The time limit applies to both the service and the filing of the documents for bringing an application for permission to appeal, see SSLUHC v Rogers [2024] EWCA Civ 1554. CPR 3.1(2)(a) expressly provides that the court may extend time for compliance even after the application is made after time has expired. The Good Law Project v Secretary of State for Health and Social Care [2022] EWCA Civ 355 provides that an application for a retrospective extension of time for service of a judicial review claim should apply the provisions of CPR 7.6(2) by analogy. In Waterhouse v SSHCLG [2024] EWHC 2628 (Admin), Fordham J applied the Denton principles to a public law challenge filed out of time. The application of the Denton principles may provide a more favourable outcome to any applicant who is out of time and, for these purposes I apply the Denton principles, although in my judgment the better analysis is to apply the provisions of CPR 7.6(2) as that relates to the service of a claim form rather than compliance with a rule or order with respect to a step in the proceedings.
  9. Any application to extend time must set out the reasons why the application was not made in time. In Smith v Secretary of State for the Environment, The Times, July 6, 1987, the Court of Appeal set out that it was not a sufficient explanation for a delay, when seeking an extension of time in relation to an appeal under s.289, merely to set out the chronology of events which had resulted in delay without giving any reasons which would tend to excuse it as time limits must normally be complied with and the fact of being able to obtain an extension of time under the rules did not provide an "easy escape route" for practitioners who did not conduct their clients' cases with reasonable expedition. Similarly, in Ynys Mon BC v Secretary of State for the Environment [1992] 3 P.L.R. 1 the Court held that a legal adviser's misappreciation of the time limit was not a reason why time should be extended, although Sullivan J in R. (Wandsworth BC) v Secretary of State for Transport, Local Government and the Regions [2004] P. & C.R. 32, was willing to extend time under s.289(6) where there had been a delay of two weeks, due to an error on the part of the appellants' solicitors in commencing their proceedings under s.288, but where there was no question of delay being used as part for a deliberate attempt to string out proceedings.
  10. The decision of the Inspector was issued on 31 October 2024, and the deadline for making the application was therefore 28 November 2024. The notice of appeal was filed on 29 January 2025 (there having been an incorrect N461 claim filed on 6 January 2025). The Applicants failed to serve the draft application upon the Secretary of State and did not provide a witness statement or affidavit verifying the factual matters relied upon by the Applicants nor a witness statement providing the dates places and times of service. These matters are requirements for the bringing of the application for permission to appeal and, given those failures, the application could not succeed in any event.
  11. Further, it was properly conceded by Counsel for the Applicants that the delay in bringing the application was both serious and significant and there was no valid excuse or explanation for that delay. The decision was sent to the Applicants' professional representatives on 31 October 2024 and the only reasons given by the Applicants for the delay is that they received copies of the decision "very late as they were out of the city", that they could not instruct a firm of solicitors due to unspecified health issues, Christmas and New Year Holidays, and that they filed the claim initially in January ( 6 January 2025) but this was returned by the High Court because the wrong claim form had been used. None of these provide an explanation for the significant and serious delay.
  12. Pursuant to the provisions of Denton, the court will look at all the circumstances of the case so as to enable it to deal justly with the application. As is recognised by the Applicants there is no good reason for the serious and significant delay for the making of this application and, for the reasons set out further herein, this application is without merit and there is no prospect of the Applicants succeeding in an appeal. There is no basis for extending time pursuant to the principles set out in Denton. If the provisions of CPR 7.6(2) were to apply then permission to extend time would not be granted.
  13. The Substantive Grounds of Appeal

  14. As I am not granting permission to make this application out of time, this application fails. However, for completeness I will deal with the substantive grounds. As it is an application for permission to appeal, the test set out in CPR r. 52.6 applies and so the Applicants need to establish either that there is a realistic prospect of success or that there is some other compelling reason. The Applicants fail on both limbs.
  15. The factual background

  16. The Appellants are the owner and occupiers of 23 Rosebank Road. A single storey rear, side wrap around extension and a single storey outbuilding, has been erected without planning permission.
  17. The LB of Walthamstow Forest have issued an Enforcement Notice on 2 March 2023 in its capacity as Local Planning Authority. The Applicants appealed the Enforcement Notice on the single ground that it was too late to take enforcement action as, at the time the Enforcement Notice was issued because more than four years had passed since the building was substantially completed.
  18. The Applicants decided to use the Written Representations Procedure and an appeal statement was provided by the Applicants' planning consultant contending that the work had been completed by January 2019. In support of this contention, the Applicants provided a building control certificate dated 5 February 2019 and purportedly issued by the LB of Waltham Forest and signed by Sean Lines, featuring reference number 180747; they also provided both a Google Street View image from March 2019 purportedly featuring the development and a Google Earth image, said to be dated July 2019 and said to feature the development and an email from the building control officer of the LB of Waltham Forest, dated 6 April 2023, which stated "during the completion inspection of the rear extension, observing the site surroundings, there appeared to be a near finished outbuilding, which was not part of the Building Regulations application."
  19. On 20 June 2023, the LB of Waltham Forest wrote to the Planning Inspectorate indicating that its Building Control Systems showed the completion date as 26 April 2019, but that this had been input in error and the completion certificate was issued in February 2019, so they intended to withdraw the Enforcement Notice.
  20. A neighbour of the Applicants, Mr Nurmahomed, then submitted a statutory declaration and supporting evidence. This supporting evidence included photographs that had been sent to him after the 5th February 2019; a certificate for completion of works with the same reference number as that relied on by the Applicants, 180747, but dated 26 April 2019 and signed by a different person - a Mr Ruaux; a suggestion that the other signatory, Mr Lines, only became Head of Building Control from November 2020; and contemporaneous photographs from 19 and 23 February 2019.
  21. As a consequence of receiving this statutory declaration and the attached evidence, the LB of Waltham Forest wrote to the Planning Inspectorate saying that it would contest the appeal and would not be withdrawing the Enforcement Notice. The LB of Waltham Forest provided its appeal statement together with Google map photos from May 2018, which undermined the Applicants' alleged start date of April 2018; Google Street View photos from 2 months after the alleged completion date, showing building materials still present at the property; information provided by Mr Nurmahomed; and additional internal information indicating the Building Control records indicate the completion date as 26 April 2019, but stating that there were errors on the system which needed to be investigated such that the system could not be relied upon by either party. The LB of Waltham Forest also provided the Council Officer's Report which noted that on 10 February 2019 the Council's building control officers had visited the site and noted the loft had been substantially completed and foundations for the ground floor extension laid.
  22. Copies of these submissions were provided to the Applicants on 30 June 2023 in order that the Applicants could comment but the Applicants did not provide a response and the Inspector dismissed the appeal.
  23. As the Inspector set out, the onus is on an appellant to make its case on the balance of probabilities, but that if no evidence is provided to contradict or make the Appellant's version of events less probable, it should be accepted. He outlined a number of weaknesses with the Appellants' evidence, namely that the 6 April 2023 email was an unsworn document, prepared for the purpose of the appeal, and so could only be given limited weight; it was imprecise and ambiguous as whether "near finished" meant "substantially completed"; the Google Street View image (said to be from March 2019) only showed one flank of the elevation of the extension, did not show whether it had a roof, and its timing was imprecise and ambiguous; the July 2019 Google Earth image was not created more than 4 years before the Enforcement Notice was issued so was not probative; and the Applicants' version of events was contradicted by the LB of Waltham Forest records of its visit on 10 February 2019 and Mr Nurmahomed's evidence and statement.
  24. As the Applicants had the opportunity to comment on, and contradict Mr Nurmahomed's evidence if they so wished, but had not done so, the Inspector had no reason to dispute what had been said by him. He also gave the Statutory Declaration significant weight in this written procedure appeal, as it was a sworn document.
  25. In all the circumstances, and taking into account everything that the Planning Inspector had before him, he considered that the Applicants had not shown on the balance of probabilities the development was constructed more than 4 years prior to the Enforcement Notice being issued.
  26. The Applicants' planning agent was emailed with the decision on 31 October 2024 – the date of the decision.
  27. The Legal Framework

  28. Carrying out development without planning permission is a breach of planning control pursuant to the provisions of section 171A(1) TCPA 1990. Local Planning Authorities (LPAs), in this case the LB of Waltham Forest, are given the power to issue enforcement notices to restrain such breaches (s. 172(1) and s. 173(3) TCPA 1990).
  29. A person with an interest in land served with an enforcement notice has a right to appeal to the Secretary of State under certain grounds specified under section 174(2) TCPA 1990. The Applicants challenged the Enforcement Notice under (d) namely "that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters." The time limit for taking enforcement action was 4 years from the date on which the work was substantially completed, pursuant to section 171B(1)(a) TCPA 1990.
  30. The burden lies upon the Applicants to establish that a breach of planning control has become lawful, applying the civil standard: see Ravensdale Ltd v SSCLG [2016] EWHC 2374 and Ozyurekliler v Secretary of State [2013] EWHC 2648. It is for the parties to a planning appeal to place before an Inspector the materials on which they rely: in West v First Secretary of State [2005] EWHC 729, Richards J held :
  31. "42. In my judgment …the general rule is that it is incumbent on the parties to a planning appeal to place before the Inspector the material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The Inspector is entitled to reach his decision on the basis of the material put before him. 43. That general rule accords with principle, is supported by the discussion in Patel and is consistent with the decision in E v. Secretary of State. It also accords with the acceptance by Pill LJ in Dyason that "an appellant must be expected to tell the Inspector all he wishes to tell him": that was said in the context of an oral hearing, but seems to me to apply with at least as much force in the context of the written procedure. There is nothing inherently unfair in the operation of that general rule. 44. In reaching his decision on the basis of the parties' written representations, the Inspector is subject to the inquisitorial burden referred to in Dyason and must subject the material before him to rigorous examination. As Pill LJ observed, "[w]hatever procedure is followed, the strength of a case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case". In general, however, that process does not require anything beyond proper consideration of the material put forward by the parties."
  32. It is for the Applicants to show that there has been real unfairness causing substantial prejudice.
  33. The Inspector's decision on an Enforcement Notice decision can only be appealed to the High Court on a point of law. In St Modwen Developments Ltd v SSE [2018] PTSR 746, Lindblom LJ (as he then was) gave guidance to the approach to be taken in the analogous s. 288 context:
  34. "In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the 'seven familiar principles' that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again—and reinforced. They are: '(1)Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). (2)The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B–G). 14 (3)The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F–H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6)."
  35. In relation to findings of fact, a factual error which was not unlawful in the public law sense is not an error of law and a contention that an inspector failed to properly weigh evidence does not give rise to a question of law sufficient to ground an appeal under s. 289: see ELS Wholesale (Wolverhampton) Ltd v SSE (1988) 56 P&CR 69 per May LJ :
  36. "It is my experience that, more often than not in those cases—and indeed in this particular case—the grounds of appeal contained in the notice of appeal are on these sort of lines: that the judge or the inspector paid no or no sufficient heed to something; or that there was no or no adequate evidence upon which the judge or inspector could reach a particular conclusion; or, finally, that the judge or inspector failed to take into account sufficiently or at all some consideration in reaching his conclusion. If there were no evidence for a particular finding, or if the tribunal did not take into account at all a relevant consideration then these could well be grounds of appeal raising a question of law. But the contention that a tribunal failed to give adequate weight to evidence, or adequate or sufficient consideration to a particular circumstance does not. The weight which a tribunal, inspector or judge gives to a particular piece of evidence or a particular consideration is a matter for that tribunal, judge or inspector. … … a contention that the mere weight given by a tribunal to evidence or material considerations does not raise a question of law."

  37. It is incumbent on parties to a planning appeal to place before the decision maker the material on which they rely. An Inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument which was not relied upon in the appeal and parties are generally expected to bring forward their whole case when a matter is heard and determined.
  38. As resources for planning inquiries, as with court hearings, are finite there is a strong public interest in the finality of proceedings.
  39. The Grounds of Appeal

  40. Counsel for the Applicants did not appear to proceed with grounds 1, 2 or 4 in his oral submissions. For completeness I deal with all the grounds in this judgment.
  41. Ground 1 – that the Secretary of State's Inspector failed to have regard to a policy in the development plan.

  42. This ground has no realistic prospect of success. The development plan was entirely irrelevant to the single factual question on appeal.
  43. Ground 2: the Inspector failed to have regard to a material planning consideration or took into account an immaterial consideration

  44. This ground has no realistic prospect of success. There is no discernible failure to omit to consider a planning considering or to include consideration of one when it should not have been considered.
  45. Ground 3: the Inspector was misled by the planning officer and the Appellants' neighbour about the material considerations as he relied upon the neighbour's statutory 18 declaration, but it was "biased". Further, it was unfair to rely on the Statutory Declaration without it being subject to cross examination

  46. This ground is that there was procedural unfairness in the manner in which the appeal was dealt with by the Inspector.
  47. First, with respect to the Statutory Declaration, the Inspector was properly entitled, and indeed obliged, to have regard to the statutory declaration of Mr Nurmahomed. It was obviously not a legally immaterial consideration. The weight to be given to the Statutory Declaration was a matter for the Inspector, and his approach was in no way irrational and therefore cannot give rise to an appeal on the law.
  48. The Applicants complain that Mr Nurmahomed was 'biased' and, as a neighbour impacted by the development, he may be said to have an interest in the outcome of the enforcement proceedings but there is no evidence of any actual bias despite the fact that the Applicants had the opportunity to put forward any comments they had with respect to the contents of the statutory declaration. Had the Applicants put forward any comments on the statutory declaration then the Inspector would have been able to consider the same and come to findings. The Applicants cannot now raise concerns, having decided not to make those concerns known to the Inspector. The Applicants decided to opt, through their Planning Consultant, to the Written Representations procedure. They cannot now say that Mr Nurmahomed needed to be cross examined. The Applicants did not even take the opportunity under the Written Representation procedure to make written representations.
  49. In the oral submissions, Counsel sought to expand upon this ground by contending that the Inspector had placed weight upon the Council's records, including the building control certificate, and the neighbour's statement when he should not have done and should have considered whether the appeal should in fact have been by way of a hearing rather than by way of written representations. New grounds cannot be raised in this way but, in any event, for the reasons already given, this ground has no merit.
  50. Ground 4: Inadequate reasoning

  51. The Inspector's reasoning is clear and comprehensive and there is no lack of reasoning. There is no complaint that can legitimately be made with respect to the Decision Letter.
  52. Conclusion and costs

  53. For the reasons set out this application for permission to appeal is without merit and permission to appeal is not granted.
  54. The Applicants are to pay the costs of the First Respondent summarily assessed in the sum of £5281.70.


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