Appropriate appeals: get it right the first time

In the case of Q Lounge 1 Ltd v Secretary of State for Communities and Local Government (4 May 2012), the applicant’s property had been subject to an enforcement notice. The Local Planning Authority believed there had been a material change of use of the property from a shisha lounge with an ancillary restaurant, to a mixed use restaurant and shisha lounge with outdoor area covered by two unlawfully erected umbrellas.

The applicant had appealed the enforcement notices and, as part of that appeal, had sought planning permission for the material change of use and the erection of the umbrellas. The inspector refused to grant planning permission and the applicant sought to have the inspector’s decision quashed on appeal under section 288 TCPA 1990.

However, this was not available as a route of appeal to the appellant who sought to question the refusal of planning permission by an inspector in an enforcement appeal (see sections 288(4) and 284(3)(2) TCPA 1990). The appeal should instead have been bought under section 289 TCPA 1990. When the error became known, the applicant unsuccessfully sought permission for an extension of time to file an appeal using the correct statutory procedure.

The Administrative Court’s view was that even though the remedy sought by the applicant was the same, namely the quashing of the inspector’s decision, allowing a new appeal under section 289 would alter the substance of the claim and would be prejudicial to the conduct of the proceedings and to the Secretary of State.

This case serves as a reminder to ensure the correct statutory appeal route is chosen from the start and to seek appropriate advice on bringing an appeal. If the wrong procedure is initiated and the time period for bringing the correct appeal has expired the courts are unlikely to grant any lenience.