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

1. MRS JUSTICE LANG: The applicant seeks permission to proceed with a claim for planning statutory review under section 288 Town and Country Planning Act 1990 (‘ TCPA 1990 ’) and/or an appeal under section 289 TCPA 1990, in respect of a decision of the first respondent's Inspector, dated 10 February 2025, in which he dismissed the applicant's appeal against an enforcement notice issued by the second respondent (‘the Council’), on 2 July 2024, in respect of development carried out in breach of planning controls at the Old Steam House, Lime Park, Church Road, Herstmonceux, Hailsham, BN27 1RF (‘the Site’). Preliminary Issues

2. There are some preliminary issues to be determined at the outset.

3. The first respondent applies for an order pursuant to CPR 11.1 declaring that the court has no jurisdiction to determine the claim for planning statutory review under section 288 TCPA 1990 , nor the appeal under section 289 TCPA 1990, and for an order that the claim form should be set aside. The claim form has never been validly served and the procedural requirements in CPR 54D have not been complied with. The Council supports the first respondent's position.

4. The first respondent and the Council also submit that this claim falls outside the scope of section 288 TCPA 1990 and is only capable of being pursued under section 289 TCPA 1990.

5. The appeal was brought under grounds (a) (b) (c) (e) and (f) of section 174(2) TCPA 1990 . As the appeal included a ground (a) appeal, the applicant was deemed to have made an application for planning permission under section 177(5) TCPA 1990. However, the Inspector's decision only concerned the enforcement notice; it did not concern any separate application for planning permission by the applicant.

6. In De Souza v Secretary of State for Communities and Local Government [2016] EWHC 2245 (Admin) , Ouseley J explained why section 288 TCPA was not engaged at [10] – [13]. His reasoning was helpfully summarised in the headnote as follows: "These proceedings related to an enforcement notice issued by Test Valley BC, the second defendant, in March 2014 regarding an unauthorised material change in use of land to use for open storage of builder's materials. The claimant appealed against the notice under the Town and Country Planning Act 1990 (“ the Act ”), section 174 . The appeal was rejected and the claimant appealed to the High Court under section 289 of the Act on a point of law for which leave of the court is required. The application for leave came before Gilbart J, who refused leave in relation to the ground (c) (d) and (g) appeals. However, he ordered that the application under ground (a) in respect of the decision to refuse the deemed application for planning permission stood as a ground of application under s.288 of the Act for which no leave is required and should be listed accordingly. The application then came before Ouseley J as a s.288 application. As a preliminary point, Ouseley J asked for submissions as to whether Gilbart J had jurisdiction to make such an order in light of ss. 284 , 288 and 289 of the Act . Ouseley J held that s.288 had no application and section 289 was the only possible avenue for challenge for the following reasons. S.289 is broad and provides the avenue to appeal on a point of law against the decision of the Secretary of State in proceedings on any appeal against an enforcement notice, but s. 288(4) , when read with s.284(3) (e), provides that s.288 applies to any decision to grant planning permission under the deemed application for permission under s.177(5). However, s. 288 only applies to a decision to grant planning permission and not to any decision on the deemed application for permission under s.177(5) or to any decision on an appeal under ground (a). The reason for the distinction between grant and refusal in s. 284(3) (e) appears to be that those “aggrieved” by a grant of permission on an enforcement notice appeal should have a right of application to the court equivalent to that which they would enjoy under s. 288 , particularly because the language of standing between an “aggrieved person” for s. 288 purposes and the more limited range of those who can appeal under s.289 . Accordingly, the only jurisdiction in relation to a decision of the Secretary of State challenged by this applicant lay under s.289 for which leave to appeal was required. The hearing could not take place as a s.288 hearing and Gilbart J had no jurisdiction to order such a hearing…..".

7. I accept the first respondent's and the Council's submissions that the principle enunciated in the case of De Souza also applies here, and this claim could only proceed, as a matter of law, under section 289 TCPA 1990 . Nonetheless, I proceed to consider whether the procedural requirements for issuing a section 288 claim were satisfied, as well as those for a section 289 appeal, as it seems to me that the issue of service is a prior procedural requirement that goes to jurisdiction in relation to both the claim and the appeal.

8. The applicant filed a part 8 claim form (Form N208PC) applying for planning statutory review at the Administrative Court Office on 10 March 2025. It was issued by the Administrative Court Office on 11 March 2025.

9. Section 3 of the claim form relates to the decision to be statutorily reviewed. The applicant stated that the decision under challenge was a decision letter in "planning enforcement and deemed planning application" under appeal reference APP/C1435/C/24/3349236. In the next part of section 3, the applicant had to indicate the nature of the statutory review. He ticked the box which indicated that it was a claim under section 288 TCPA 1990 . He also ticked the box for "Other" and stated that the challenge was being made under section 289 TCPA 1990.

10. In section 5 of the claim form, under the heading "Detailed Statement of Grounds", the applicant stated in two places that he "seeks leave to appeal to the High Court (Planning Court) under section 289 (or 288)" of the TCPA 1990 .

11. A challenge under section 289 TCPA is a statutory appeal not a Part 8 claim and it proceeds by way of an application for permission to appeal, accompanied by an appellant's notice (see PD 54D, paragraph 6.4). It was not appropriate to seek to commence the statutory appeal under section 289 in a Part 8 claim form.

12. The correct way in which to proceed with a statutory appeal under section 289 TCPA is set out in PD 54D as follows: 6.1 An application for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 ('the TCP Act') or section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ('the PLBCA Act) must be made within 28 days after notice of the decision is given to the applicant. 6.2 The application— (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. 6.3 The applicant must, before filing the application, serve a copy of it on the persons referred to in paragraph 6.11 with the draft appellant’s notice and a copy of the witness statement or affidavit to be filed with the application. 6.4 The applicant must file the application in the Administrative Court Office 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. 6.5 An application will be heard— (a)by a single judge; and (b)unless the court otherwise orders, not less than 21 days after it was filed at the Administrative Court Office. 6.6 Any person served with the application is entitled to appear and be heard. … 6.9 Where on the hearing of an application the court is of the opinion that a person who ought to have been served has not been served, the court may adjourn the hearing, on such terms as it directs, in order that the application may be served on that person. 6.10 Where the court grants permission— (a)it may impose terms as to costs and as to giving security; (b)it may give directions; and (c)the relevant appellant’s notice must be served and filed within 7 days of the grant. 6.11 The persons to be served with the appellant’s notice are— (a)the Secretary of State; (b)the local planning authority who served the notice or gave the decision, as the case may be, or, where the appeal is brought by that authority, the appellant or applicant in the proceedings in which the decision appealed against was given".

13. I accept the submissions made by the first respondent and the Council that the applicant has failed to comply with the required procedural steps set out in PD 54D.

14. First, the applicant failed to comply with paragraph 6.3. Prior to filing the application, it failed to serve a copy of the application, the witness statement and the draft appellant's notice on the persons in paragraph 6.11, namely, the first respondent and the Council.

15. Second, the applicant failed to comply with paragraph 6.4(d) as it did not file a witness statement stating who had been served with the application, and why any person who ought to have been served had not been served. The applicant also failed to provide a copy of the decision under challenge as required by paragraph 6.4(a).

16. Third, these steps had to be completed before the expiry of the 28 days allowed for making the application: see Wenman v Secretary of State for the Environment [1995] JPL 1040 in which Mr D Keene QC (as he then was) held that these steps were a precondition for a properly-constituted application for permission under section 289 TCPA 1990 and the procedural rules then in force. The last day for filing in time was 10 March 2025, the day on which the claim was filed. The required steps had not been completed before the expiry of the 28-day time limit and, therefore, a properly constituted application was not filed within the time limit.

17. Fourth, the applicant has never effected valid service of the application and the draft appellant's notice on the first respondent. By application of paragraph 6.3 of PD 54D, the time limit for doing so was prior to the expiry of the 28-day time limit for filing the application (i.e. 10 March 2025) (see also Secretary of State for Levelling-Up, Housing and Communities v Rogers [2024] EWCA Civ 1554 , per Coulson LJ at [4]).

18. On 12 March 2025, the applicant sent a letter by post to the first respondent, the Secretary of State for Housing and Communities, with a copy of the claim form and bundle. It arrived on 17 March 2025. However, pursuant to the Crown Proceedings Act 1957 and CPR 6.10 and PD 6.6, service on a minister of the Crown must be made on the Treasury Solicitor at the Government Legal Department. Service on the first respondent at the Ministry of Housing, Communities and Local Government at Marsham Street was an invalid mode of service. The applicant's documents were forwarded to the Government Legal Department by staff at the Ministry on 31 March 2025, but the applicant cannot rely upon this as valid service. The Government Legal Department first learned of the claim on 27 March 2025 when informed of it by the Council.

19. For the same reasons, the applicant also failed to effect valid service of his claim under section 288 TCPA 1990 .

20. On 10 April 2025, the first respondent filed an acknowledgment of service and an application for an extension of time in which to do so if required. As valid service had not taken place, the requirement to file an acknowledgment of service within 21 days had not been triggered in respect of the section 288 claim and there is no acknowledgment of service requirement in a section 289 appeal. However, CPR 11(2) requires an acknowledgment of service to be filed in accordance with CPR 10 in order to dispute the court's jurisdiction and that is why the first respondent has filed one in this case. CPR 10.3 provides for the acknowledgment of service to be filed no more than 14 days after service of the claim form, but, as I have already said, the claim form has never been validly served on the first respondent and, therefore, the date by which the acknowledgment of service had to be filed cannot be identified. In these unusual circumstances, I am not sure that an extension of time is required, but, out of an abundance of caution, I will simply make an order extending time for filing the acknowledgment of service if required.

21. In its letter dated 17 April 2025 to the court, the applicant asked for permission “to file the appropriate form(s) retrospectively in the interests of justice”. The applicant submits that it acted in good faith. It submits that it was clear from the claim form that it was seeking permission to appeal to the High Court under section 289 or section 288 TCPA 1990 .

22. The clerk in the Fees Office advised the applicant as to the correct fee to pay. The applicant was charged £626, which Mr Kruschandl believed to be in excess of the fee for a section 288 TCPA 1990 claim alone. At the time, Mr Kruschandl, who was filing the claim on behalf of the applicant, believed the applicant had been charged for and paid for two claims, the section 288 claim and the section 289 appeal. The applicant was not advised that another form had to be completed. The applicant submitted that any delay in resolving this matter would not cause any disadvantage to the first respondent or to the Council.

23. Mr Kruschandl, in his oral submissions, submitted that the errors could easily be rectified by filing an application for permission to appeal under section 289 . He explained that the applicant had not taken any steps to rectify the position because he expected that that would be dealt with the court at today's hearing.

24. Dove J made an order on 2 May 2025 referring the first respondent's application for permission to an oral hearing. Dove J mistakenly believed that this was a claim for judicial review. It is not. I agree with the first respondent that judicial review would not be appropriate, where there is a statutory right of appeal under section 289 TCPA 1990 or planning statutory review under section 288 TCPA 1990.

25. Yesterday, the claimant emailed to the parties and the court a document which he described as a "draft claim form for judicial review". It was drafted on a plain piece of paper, not a court form; no attempt had been made to file it and any such claim would be plainly out of time. The matter was not pursued by Mr Kruschandl at the hearing today.

26. The first respondent submits, and I accept, that the test to apply to the applicant's application under section 289 TCPA 1990 is whether or not there should be relief from sanctions. He referred to the observations of Holgate J in R (Ibrar) v Secretary of State for Levelling-Up, Housing and Communities [2022] EWHC 3425 (Admin): "61. This issue involves consideration of whether a party should be allowed to substitute a s.289 appeal where an extension of time is needed to do so. Indeed, there is only really a potential difficulty where an extension of time is needed or where a party seeks to persist with the judicial review claim. Where a judicial review claim was filed within the s.289 period of 28 days and where the party is content to proceed by way of s.289 and to convert to that there is likely to be no difficulty. In those circumstances there would be no prejudice, absent special circumstances, in allowing the judicial review grounds to stand as a s.289 appeal.

62. It was agreed before me that the question of an extension of time is to be considered by reference to the Denton v White test namely considering in the light of the overriding objective the seriousness of the relevant breach; the explanation that is proffered; and then looking at all the circumstances of the case to consider whether justice requires relief to be granted or refused.

63. Bringing a s.289 claim out of time will always be a serious matter even if the period in question is only a short one. That is because of the nature of the proceedings which raise the issue of the continuance in force of an enforcement notice and because of the provisions which emphasise the need for speed and expedition. The strength or otherwise of any particular explanation will depend on the particular circumstances of the case in question. Those circumstances will vary …"

27. In R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ. 1633 , the Court of Appeal gave guidance on applications for extensions of time to appeal which is of wider application. At [42], Moore-Bick LJ held that a more lenient approach to defaults cannot be adopted merely because of the public interest element in public law challenges. At [44], Moore-Bick LJ acknowledged the difficulties faced by litigants in person but concluded: "…if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules… being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules".

28. At [46], Moore-Bick LJ held that, in most cases the court should decline to embark on an investigation of the merits of the appeal. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play.

29. In Barton v Wright Hassall LLP [2018] UKSC 12 , Lord Sumption approved Hysaj on the issue of litigants in person. He observed at [18] that lack of representation will often justify making allowances in making case management decisions and conducting hearings, but it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The CPR does not distinguish between represented and unrepresented parties and the rules provide a framework which balances the interests of both sides. That balance is disturbed if a litigant in person is entitled to greater indulgence than a represented person. Unless a rule or practice direction is particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the applicable rules.

30. Bearing that guidance in mind, I turn now to consider and apply the three stages of the Denton test. First, the procedural breaches were undoubtedly serious. Second, the applicant was responsible for the procedural breaches and apparently failed either to research the procedural requirements adequately itself or to obtain legal advice. The fact that the applicant had difficulties finding a solicitor is not an excuse,

31. Third, I must consider all the circumstances so as to deal with the application justly. I accept that the wording of the claim form makes it clear that the applicant intended to pursue the challenge under either section 288 or section 289 TCPA 1990 or both. Use of the wrong form may not be fatal where other procedural requirements, such as service, are met: an order permitting one form, for example, a judicial review claim form, to stand as a section 289 form, as was permitted in the case of Ibrar, is possible. But here the applicant completely ignored the requirements of PD 54D. The most egregious error was the failure to serve the proceedings on the first respondent, which is a fundamental requirement when a claim or an appeal is commenced. It was not the responsibility of the clerk in the Fees Office to advise the applicant on how to complete the paperwork correctly. The clerk was only responsible for collection of fees.

32. Moreover, even once the first respondent pointed out the errors that had been made, the applicant still did not seek to effect service, as required by PD 54; nor did it file a formal application for an extension of time to effect valid service. A request was made to rectify matters in the letter of 17 April, but this was not made promptly and not acted upon by the applicant.

33. I do not consider that the provisions in the CPR are particularly inaccessible or obscure so as to excuse the applicant's non-compliance with them. Applying Hysaj , it is not appropriate for me to seek to scrutinise the merits in detail, but, on the basis of the Inspector's decision and the Council's summary grounds of defence, my preliminary view is that the grounds of appeal are not strong.

34. The consequence of the applicant's defaults is that the first respondent has not yet been in a position to prepare and present its case for the permission hearing. If I grant the applicant permission to rectify its procedural errors, it will be necessary to adjourn today's hearing, thus causing further delay and incurring further costs, which may or may not be recoverable for both respondents.

35. In all the circumstances, I consider that the procedural failures are so serious and extensive that relief from sanctions should not be granted. The court lacks jurisdiction to determine the claim and the appeal because of the failure to comply with the requirements of PD 54D, in particular the failure to effect valid service.

36. Turning now to the claim under section 288 TCPA 1990 , the applicant was required to file and to serve the claim under section 288 TCPA within six weeks from the day after the date of the decision ( section 288 (4((b)) TCPA 1990). In Secretary of State for Levelling-Up, Housing and Communities v Rogers [2024] EWCA Civ 1554 , Coulson J confirmed at [38] that the approach taken by the Court of Appeal in R (Good Law Project Limited v Secretary of State for Health and Social Care [2022] 1 WLR 2339 , which was a judicial review claim, ought also to be applied to a statutory review claim under section 288 TCPA 1990 . An application for an extension of time to serve the claim form ought to be determined in accordance with the principles set out in CPR 7.6. By rule 7.6.3, a claimant must show, first, that he had taken all reasonable steps to serve the claim form by the deadline, but had been unable to do so, and, second, that he had acted promptly in making the application for an extension of time. Coulson LJ explained at [20] that in Good Law , Carr LJ made plain at [79] that the principles in respect of relief from sanctions and the well-known authority of Denton v T H White (Practice Note ) [2014] 1 WLR 3926 were not engaged in any consideration of rule 7.6. Among other matters, that meant, when considering the application of rule 7.6, the court would not have regard to the merits or otherwise of the case in question.

37. Applying these principles to this claim, although the claim was filed in time, it was never validly served on the first respondent, for the reasons I have already explained. The applicant has not demonstrated that it took all reasonable steps to save the claim form by the deadline, but had been unable to do so. The applicant could and should have discovered the service requirements, either through its own research or by seeking advice. The applicant also cannot show that he acted promptly in making the application for an extension of time. No such application has been made. His letter in response was not sent until 17 April 2025.

38. Therefore, I conclude that the Court also lacks jurisdiction to determine the claim under section 288 TCPA 1990 , because of the failure to effect valid service on the first respondent.

39. I propose to make a declaration to that effect and to set aside the claim form sealed on 11 March 2025. __________

40. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]