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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Prashar, R (on the application of) v Secretary Of State For Transport, Local Government & Regions [2002] EWCA Civ 1669 (30 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1669.html Cite as: [2002] EWCA Civ 1669

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN and
MR JUSTICE RICHARDS)

		Royal Courts of Justice Strand London, WC2 Wednesday, 30th October 2002

1. LORD JUSTICE DYSON: The background to the applications before me this morning is that enforcement notices were issued by the Slough Borough Council in relation to a property known as Poyle Place, Horton Road, Colnbrook, Slough on 5th February 1999 and again on 14th March 2000. Mr Prashar and a firm called Kelly Communications have interests in that land. The details are unknown to me, but I think they are immaterial for present purposes. Mr Prashar and Kelly Communications appealed against those enforcement notices.
2. On 2nd August 1999 the Planning Inspectorate wrote to Mr Prashar saying that where more than one person appealed against the same enforcement notice, only one needed to pay a fee for the deemed application for planning permission to be considered. They also said that the fee could not be transferred to another appeal if the person paying the fee subsequently withdrew his appeal.
3. Kelly Communications informed Mr Prashar that they had paid the fee. Mr Prashar withdrew he appeal on 25th February 2000. He tells me that he was forced to withdraw his appeal, and the way he puts it in a document that he has put before me this morning is this. He says:

"... I was forced to withdraw my appeal, first, because of denial of ground 'a' to me, due to no fault of mine on 25-2-2000."

4. I confess that I have not fully been able to understand why Mr Prashar says that he was forced to withdraw the appeal. He asks me to adjourn his application this morning so that the Treasury Solicitor can produce to the court evidence confirming that he was indeed forced to withdraw his appeal.
5. I do not think that it would be right for me to adjourn this application for that purpose. It seems to me that if it were relevant that Mr Prashar had been forced to withdraw his appeal, then that is a matter which Mr Prashar can state to the court and explain to the court himself. He does not require the Treasury Solicitor to confirm that matter, even assuming that she were willing and able to do so.
6. On 28th February 2000 following Mr Prashar's withdrawal of his appeal, the Planning Inspectorate wrote to him saying that in the light of Mr Prashar's withdrawal no further action would be taken on his appeal.
7. The next thing that happened was that on 1st March 2000 Kelly Communications withdrew its appeal. The papers do not disclose why Kelly Communications took that course. Mr Prashar tells me that Kelly Communications was compelled to do so because it could not proceed with its appeal on its own; that is, without Mr Prashar. If that were the true position, it would clearly be an incorrect reason for its withdrawal of its appeal. As I see it, there would be nothing to stop Kelly Communications from continuing with its appeal without Mr Prashar.
8. The effect, however, of Kelly Communications' withdrawal of its appeal was that ground (a) of the appeal -- that is to say, that planning permission for the use which was the subject of the enforcement notices should be granted -- that ground of appeal could not be considered.
9. Mr Prashar's appeal against the enforcement notice issued on 14th March 2000 was dismissed by the Planning Inspectorate on 10th January 2001.
10. On 31st July 2001 Mr Prashar wrote to the Planning Inspectorate complaining about the handling of the appeals. He made a number of complaints. In particular, he complained that the appeals procedure had not been clearly and fully explained to him, the result of which was that Kelly Communications had withdrawn its appeal and ground (a) was denied to him and it.
11. It would seem from the papers that the Planning Inspectorate had made a final decision on the matter on 26th June 2001, when it dismissed an appeal against the refusal to grant outline planning permission for the parking of vehicles on the site and upheld the enforcement notices. A substantive response to Mr Prashar's letter of 31st July 2001 was provided by the Planning Inspectorate in its letter of 31st August 2001. The Inspectorate said that as a result of what had happened, the deemed planning application (that is to say ground (a)) would only be considered on the appeal of the person who paid the fee. If Mr Prashar had wanted ground (a) to be considered on his appeal, then he needed to ensure that he had also paid the fee. The Planning Inspectorate apologised for some lack of clarity in its letter of 2nd August 1999 in relation to the question of payment of fee, and said that in so far as the matter was unclear it was taking steps to ensure that this problem was rectified for the future.
12. Mr Prashar issued proceedings seeking permission for judicial review of the "decision" of the Planning Inspectorate contained in the letter of 31st August 2001. This he did by notice of motion filed on 21st November 2001.
13. The application was refused on the papers by Collins J, and on 12th April 2002 by Sullivan J following an oral hearing. Sullivan J said (at paragraph 7 of his judgment):

"I am quite satisfied that there is no reviewable decision contained in the letter of 31st August. It is true that it does not accept Mr Prashar's complaint in full measure, but it does, in terms, acknowledge that the earlier letter was not clear, and goes on to say that steps are being taken for the future to rectify that position. So it is impossible to see what could be achieved for Mr Prashar, or in the public interest generally, by permitting this application to proceed."

14. After the reference to "further and overriding obstacle" in the path of Mr Prashar, the judge said:

"... and it is this: it is perfectly true that Kelly Communications withdrew their appeal so their appeal on ground (a) (that planning permission should be granted) could not be considered, but there was nothing to prevent Mr Prashar, if he so wished, from ensuring that the planning merits of the matter were examined by making a further application for planning permission."

15. I can see no answer to the reasoning of the judge. First, the letter of 31st August did indeed contain no reviewable decision. Secondly, even if it did, there was an alternative remedy available to Mr Prashar, which was to apply for planning permission, which application would, upon his payment of the appropriate fee, have had to be considered by the planning authority.
16. On 25th September 2001 Mr Prashar had started other judicial review proceedings, this time seeking permission to challenge the enforcement notices of 5th February 1999 themselves, as well as the inspector's final decision upholding those notices on 26th June 2001. This application too was refused by Collins J on the papers. Mr Prashar renewed his application, and that was heard by Richards J on 10th May 2002.
17. In relation to the decision by the Inspectorate on 26th June 2001, the judge said that there was an insurmountable obstacle facing Mr Prashar. He put it like this (at paragraph 5 of his judgment):

"By virtue of section 288(4) and section 284(3) of the 1990 Act, a decision of the Secretary of State by his Inspector under section 78 is one of the actions of the Secretary of State to which the statutory procedure applies. By virtue of section 284(1), it is the only procedure available by way of challenge to such a decision, since that subsection provides that the decision shall not be questioned in any legal proceedings whatsoever, save as otherwise provided by that part of the Act which includes section 288."

18. In my judgment, Richards J was plainly right in saying that the sections of the Act to which he referred made it impossible for Mr Prashar to challenge the decision of 26th June 2001 by way of judicial review.
19. As regards the challenge to the enforcement notices, Richards J said this (at paragraph 20):

"... it seems to me that the claimant has an equally insurmountable hurdle in this context, too. He had a statutory right of appeal to the Secretary of State under section 289 of the 1990 Act. He exercised that right of appeal, but then he withdrew his appeal on 25th February 2000, as a result of which the Secretary of State wrote on 28th February 2000 saying that no further action would be taken on the appeal."

As Richards J pointed out, the existence of the statutory appeal route made judicial review quite inappropriate. The fact that he, Mr Prashar, exercised the statutory right of appeal and then withdrew his appeal made judicial review doubly inappropriate.

20. I can see no answer to the reasoning of Richards J. It seems to me that, for the reasons that he gave, Mr Prashar has no prospect of succeeding with his judicial review challenges.
21. I should say that Mr Prashar asked me this morning to adjourn his application, not only to enable him to obtain evidence from the Treasury Solicitor to confirm that he was forced to withdraw his appeal on 25th February 2000, but also because he felt that he wished to instruct a barrister to represent him on these applications. I have already explained why I was not prepared to adjourn his applications for the first purpose. I not feel that I should adjourn this matter to enable Mr Prashar to obtain legal representation, since it seems to me that it is too late for him to seek to take that course. In any event, I am so completely convinced that there is no prospect of his being able to disturb the decisions of Sullivan and Richards JJ, that I see no useful purpose in adjourning the matter to enable Mr Prashar to seek legal representation to advance what I regard as a case which has no possibility of success.
22. For all these reasons, I refuse these applications.
ORDER: Applications for permission to appeal refused. (Order not part of approved judgment)