Tuesday, 24 August 2010

Rogue enforcement notices


Another planning law blog (yes, this one isn’t the only planning law blog around) recently posed a question regarding the legal effect of an enforcement notice which was out of time under the 4-year rule or the 10-year rule (whichever applies in the case in question) but was not appealed. The same question could legitimately be posed in respect of an enforcement notice which alleges a breach of development control which has never occurred. This is an issue on which I previously commented in this blog (see below) and the answer, unfortunately, is that if the enforcement notice comes into effect, either because it has not been appealed or because an attempted appeal was ineffective or was dismissed, the preclusive provisions of Section 285 prevent the validity of the notice being questioned in any other proceedings. This can lead to injustice, as I have previously pointed out.

The only exception to this rule would be an enforcement notice which was in fact a nullity. However, this means a notice which is not merely defective but one which is so bad as not to be an enforcement notice at all. In that case, there would still be scope for defending a prosecution against non-compliance.

The piece I wrote previously gave two examples of the injustice which Section 285 can cause in practice. Ideally, the legislation should be amended to enable some of the ‘technical’ defences to an enforcement notice (under Grounds (b), (c) or (d) for instance, and possibly even Ground (e)) to be raised as a defence to a prosecution for non-compliance if they had not previously been raised on appeal. Alternatively, there should perhaps still be scope for applying for a Lawful Development Certificate (currently precluded by Section 191(2)(b)). [Of course, if these points had been raised on appeal and had been dismissed, then res judicata or ‘issue estoppel’ would apply.] However, I do appreciate the desirability of preventing unmeritorious attempts to gain time before unlawful development has to be remedied, and so any amendment would have to be carefully drafted to avoid creating a loophole for the unscrupulous.

This is what I wrote earlier:

An injustice

[First published on 27 February 2008]

Consider the following facts. The front wall of a domestic curtilage was accidentally damaged as a result of a traffic collision, and the householder decided to remove the remains rather than rebuilding it. He then decided to lay out a hardstanding in his front garden and parked his car on it. The house fronts onto a classified road.

The LPA served an Enforcement Notice. I have not seen that notice but it presumably alleged the unauthorised formation of a means of access onto the highway. The householder was not professionally advised, and it appears that rather than appealing the notice, he attempted to argue about it with the LPA.

In the absence of an appeal, the EN duly came into effect. The householder was subsequently prosecuted in the magistrates’ court for non-compliance with the enforcement notice, and not being professionally represented or advised, he was fined. The LPA is now threatening further action.

That enforcement notice should never have been served, and if appealed it would very probably have been quashed under Ground (c). The removal of the wall did not require consent (and was in any event accidental). The formation of the hardstanding was clearly Permitted Development under Part 1, Class F. No other building or engineering works were carried out.

What about the formation of an access to the highway? It is a classified road, and so could not be Permitted Development under Part 2, Class B. (Note in passing that if the road had not been classified, the formation of the hardstanding might have constituted the necessary qualifying permitted development required by Part 2, Class B.) The essential point, however, is that what happened did not constitute the formation of a new access to the highway in any event. Thus there was no breach of planning control in this case.

The mere removal of a wall, fence, hedge or other boundary feature between a property and the adjoining highway does not constitute the formation of an access to the highway as such, even though it may facilitate access to the highway. This is a proposition which has certainly been accepted on appeal, and I was under the impression that there was also judicial authority to this effect, but I have been unable to find the case I had in mind.

The injustice in this case is two-fold. First the LPA has done the householder an injustice by serving an enforcement notice in the first place. More seriously, in the absence of an appeal under Section 174, the preclusive provisions of Section 285 effectively prevent anyone going behind an enforcement notice once it has come into effect. Thus the unrepresented layman without resort to professional advice has no defence to a prosecution for non-compliance, even where the notice, while falling short of being a complete nullity, is incontestably bad.

This is not the first time I have come across this situation. I recall a case in London in which I was asked to advise where an enforcement notice had alleged a change of use of the flat roof of a house by the formation of a roof garden. This was a nonsense, as it was all part of one and the same planning unit within Use Class C3. There had been no building operations, as there was an existing parapet on the roof. Nevertheless, the householder had failed to appeal the notice, which had consequently come into effect, and so there was no defence to a prosecution for non-compliance with the requirements of the enforcement notice, nor could the position subsequently be corrected.

Perhaps there should be some provision for a retrospective LDC application to be made to overturn ‘bad’ enforcement notices in such circumstances. It might be difficult to frame it in a way that would prevent its being exploited simply as a means of staving off justified action by an LPA in pursuance of a soundly-based enforcement notice, but there are enough cases of injustice being caused by the current rules to make the effort worthwhile.

© MARTIN H GOODALL

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