The recipient of such a notice may appeal to a planning inspector under s174 of the Town and Country Planning Act 1990. Furthermore, s289 of the Act provides that the decision of the Inspector following that appeal can be challenged by appeal to the High Court. The time limit for lodging such an appeal is 28 days, rather than the 6 week period that applies to judicial review claims, by virtue of the Civil Procedure Rules.

The statute does not however expressly exclude the scope for seeking judicial review of an Inspector’s decision following a s174 appeal. 

In these unrelated cases (Ibrar and Sumaidiae), the recipient of the enforcement notice brought judicial review proceedings, having failed before the Inspector in their s174 appeal. Both claimants brought their claims for judicial review within the 6 week period for judicial review proceedings, but outside of the 28 day period.

The situation arising in these cases is not uncommon for practitioners, however this is the first time in many years that a Judge in the High Court has had occasion to write a judgment setting out the relevant principles that apply, following a contested hearing, with counsel instructed by all parties.

The Judge held that normally s.289 provides an adequate alternative to a judicial review challenge to a decision of an Inspector and normally it will not be appropriate to grant judicial review to a party who could have appealed under s.289. The circumstances in which s.289 does not provide an adequate remedy, and where it is appropriate to grant judicial review even if s289 would provide an adequate remedy, were held by the Judge to be “vanishingly rare”.

Mr Justice Eyre acknowledged, without deciding the matter, that there may be a limited category of mistake of fact which could not be the basis of a s289 appeal but which could be the basis for a judicial review claim. However, the Judge held that the grounds which formed the basis of the claimants’ challenge to the respective inspector decisions were firmly within the scope of a s289 appeal. 

On the facts the Judge refused permission for judicial review, and also the various sundry applications made by the claimants to seek to rectify the procedural errors that had been made.

The judgment is available here.

Horatio Waller appeared for the Secretary of State.