Monday, 13 September 2010

To right a wrong


I have commented twice before on the injustice which can be caused by the preclusive provisions of s.285 of the 1990 Act. The problem, it seemed to me, was that it would be difficult to correct this anomaly without opening the door to spurious defences to enforcement notices being put forward simply as a ploy to delay effective enforcement against breaches of planning control.

I was reflecting on this the other day when it occurred to me that there is scope for a compromise position, whereby s.285 (or an equivalent provision) need not preclude all challenges to enforcement notices other than by way of an appeal under s.174 (and any subsequent appeal to the High Court on a point of law under s.289).

It seems reasonable that if an appeal has been dismissed by an Inspector under s.174, then further challenges to the enforcement notice in question (other than under s.289) should be precluded. This would apply irrespective of the precise grounds on which the appeal proceeded, as the appellant would have had the opportunity to include all or any of the statutory grounds in their appeal and also to take any points regarding the lawfulness of the notice (e.g. as to its being a nullity or ultra vires). [On further reflection, I think this may still be unduly restrictive. The prosecutor could simply rely on the doctrine of res judicata or issue estoppel where an Inspector had already dealt with one of the 'technical' grounds in determining an appeal. The effect of this would be to leave it open to a defendant to raise one of the other technical grounds as a defence to a prosecution for non-compliance.]


So it seems to me that if no appeal has been determined under s.174, whatever the reason may have been (for example because no appeal was ever made against the notice), then it would not be unreasonable to allow the purely ‘technical’ grounds of appeal (Grounds (b), (c), (d) or (e) and particularly the last of these where there had been no appeal because the defendant was simply unaware of the enforcement notice) to be raised as a defence to a prosecution under s.179 for failure to comply with the notice, or to be prayed in aid in any proceedings seeking to prevent an authority from exercising its default powers under s.178.

This is unlikely to delay effective enforcement action being taken against unauthorised development, because in the absence of any appeal there will have been no delay in the enforcement notice coming into effect. Thus, any prosecution against non-compliance is likely to be launched much sooner than could be done if the notice had been appealed, and there is no reason why the proceedings in the Magistrates’ Court or the Crown Court should be delayed by one of the ‘technical’ grounds being pleaded as a defence to the charge of non-compliance. The Court should have no difficulty in making a determination as to any disputed evidence or points of law arising from such a defence.

In the same way, it would not be unreasonable for s.191 to be amended to allow an application for a Lawful Development Certificate, necessarily limited to cases in which Grounds (b), (c) or (d) in s.174 might have applied, to be made where there had been no determined appeal against an enforcement notice which remains in force. This would be slightly more problematic and would, I suggest, involve the determination of a two-part question, first as to whether the enforcement notice was invalid for one or more of the reasons set out in the first three of the ‘technical’ grounds in s.174, so as to establish that the development was lawful at the time when the now impugned enforcement notice took effect and, secondly, (in cases relating to material changes of use) whether the development is still lawful, taking into account the proper operation of the 4-year rule or the 10-year rule (whichever is applicable) in the intervening period.

Whether the government could be persuaded to make such a change to such a longstanding statutory provision in the principal Act is perhaps questionable, but I have previously drawn attention to two or three cases in which the current preclusive provisions have caused injustice, and so a reform of s.285 (and of s.191) along the lines I have suggested is worthy of consideration by the government.

Later: On further reflection, a defence to prosecution for failure to comply with the requirements of an enforcement notice (in the absence of an appeal) ought properly to include at least part of Ground (f), to the extent that the requirement or requirements in question can be shown (objectively) to be outside the scope of what could properly be demanded by the LPA in order to remedy the breach of planning control alleged by the enforcement notice.

What I have proposed would in effect give a person served with an enforcement notice a choice of appealing against that notice under s.174 or of defending a subsequent prosecution for non-compliance on certain of the 'technical' grounds (but it would be 'either/or'; they could not have two bites of the cherry.) More time could be gained in practice by going through the appeal process under s.174 (as at present), and they might prefer such matters to be determined by a planning inspector rather than by the court. So the only people who would be likely to avail themselves of the 'technical' defences in the absence of a s.174 appeal would be those who had failed to appeal in time, for whatever reason, or subsequent owners who had 'inherited' an unappealed enforcement notice. I can confirm from my own professional experience that these situations do arise in practice for all sorts of reasons, and it is in order to remedy the resulting injustices which can be caused by the preclusive provisons of s.285 that I have proposed the changes outlined here.

MARTIN H GOODALL

No comments: