Tuesday, 18 January 2011
Judicial Review of enforcement action
The preclusive provisions of section 285 prevent a challenge to an enforcement notice except by way of an appeal under section 174. However, if the basis of the challenge falls outside the grounds of appeal set out in section 174, then there is a ‘residual’ right to challenge the enforcement notice by way of an application for judicial review. This was illustrated by the decision of Lindblom J on 3 December 2010 in Gazelle Properties Ltd and Sustainable Environmental Services Ltd v. Bath & North East Somerset Council  EWHC 3127 (Admin).
The basis on which an LPA’s decision to issue an enforcement notice can be challenged outside the scope of a section 174 appeal in this way was established in Davy v Spelthorne Borough Council  AC 262 and was amplified in R v Wicks  A.C. 92. It was also established in R v Caradon DC, ex parte Knott  3PLR 1, and recently confirmed in Health & Safety Executive v. Wolverhampton City Council ( EWCA Civ 892), that the ‘expediency’ of taking enforcement action (as required by section 172) can be challenged by way of judicial review.
So, in the present case, the judge was satisfied that, in principle, an attack on the Council's decision as to the expediency of taking enforcement action could legitimately be pursued by means of a claim for judicial review. It was, however, necessary, for each of the issues raised in this case to be considered in order to decide whether the challenge on that particular issue truly belonged to the "residual" grounds outside the scope of section 174(2) of the 1990 Act.
The first of these questions was whether, in discounting negotiations which had taken place between the Council and the appellant, the Council had failed to take into account a material consideration. Both the officers and the members appear to have convinced themselves that those negotiations were immaterial. It was clear from the Council’s minutes that the members simply prevented themselves from judging what weight the negotiations and the intentions of the appellant should have. The members ought to have been allowed to make up their own minds on the weight, if any, to be given to the negotiations and, in particular, to the appellant’s representations so that they could put that factor in the balance with the others which militated for or against the taking of enforcement action. Without that factor they could not properly strike the balance they had to strike. That they failed to do this was, in his lordship’s judgment, a basic and fatal error, and he was in no doubt that it is the kind of error which attracts relief in a claim for judicial review, rather than one which ought to be left, or could be, to an inspector hearing a statutory enforcement appeal.
The judge further decided that the delegated decision of the planning officer to take enforcement action was vitiated by a failure to have regard to the previous negotiations. The planning officer’s decision to issue the enforcement notices was infected by the same error as his lordship had found in the members' approach. He did not think that the officer's failure to have regard to the intentions of the appellant was overridden by the Government's advice in paragraph 5(5) of PPG 18 that where a local planning authority fails in an initial attempt to persuade the owner or occupier of the site to remedy the harmful effects of unauthorized development, "negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop". That advice does not say that negotiations are generally immaterial to the question of whether enforcement action is required or not, and it should not be read in that way. It needs to be set in the broader context of the advice in PPG 18, the tenor of which is to support a case-specific consideration of whether the taking of enforcement action is essential. As with the previous ground, so too with this, the error was an error of law, and there is no reason why the court should not intervene to grant appropriate relief.
The Court also decided that both the committee's decision to delegate the decision on enforcement to the planning officer and his subsequent delegated decision were unfair and irrational. This issue was closely connected with the previous two, and the judge’s conclusions on it were similar. It could not sensibly be denied that in preventing the appellant’s representative from speaking at its meeting on 18 February 2009 the Council's committee acted unfairly. He had something relevant to say about the matters in hand. He was entitled to have that taken into account by the members. There was no reasonable basis for the committee refusing to do that. Fairness in the making of a planning decision extends in both directions: to applicant and to objector (see R.v. Monmouth District Council, ex parte Jones  53 P.& C.R. 108, per Woolf J. at p.115). The unfairness in the appellant’s representative not being heard affected both the appellant and the landowner, with the latter facing the possibility of enforcement action being launched against the current use of its site. The interests of both were prejudiced. It was enough that there was something which might have affected the outcome. As was held in Hibernian Property Co. Ltd. v. Secretary of State for the Environment and another (1974) 27 P.& C.R. 197, a case in which objectors to a compulsory purchase order had not had the opportunity of commenting on information taken by the inspector from other objectors in the course of her site inspection, the court is concerned here with the loss of a chance to influence the outcome.
Furthermore, for the committee consciously to rule out any consideration of what the appellant’s representative had to say was neither reasonable nor rational. Lindblom J made it clear that he would have reached this view even in the absence of the Council's enforcement policy – underpinned as it was by national policy in PPG 18 – which refers to the prospect of negotiating a satisfactory outcome or means of regularising the use or development of a site. The existence of that policy did, however, strengthen the conclusion that for the members to deny themselves any discussion of those matters and how much, if any weight, to give them, was irrational. As on the previous two issues, Lindblom J did not doubt that this part of the claim fell well within the province of judicial review.
Finally, there had been a change of circumstances which should have been taken into account before delegated enforcement action was pursued (see Kides v. S Cambs DC  EWCA Civ 926). In pursuing the allocation of the site for a waste recycling facility the Council had self-evidently accepted the principle of this form of industrial use on the site, no matter whether it is properly to be categorized as a "sui generis" or as a Class B2 use. To have done this the Council must presumably have considered whether such a facility could be acceptable in principle, notwithstanding the site's presence in the Green Belt and its proximity to the Area of Outstanding Natural Beauty and the World Heritage Site. The fact that the site had originally been kept out of the emerging core strategy, and was only put in after enforcement action had been taken, is itself a material change in circumstances. The fact of the site's having been promoted for waste recycling development was, on any sensible view, a consideration relevant not merely to the merits of the appellant’s ground (a) appeals against the enforcement notices but also to the expediency of the very decision to enforce.
It was plain that neither by the decision of its Development Control Committee nor by the planning officer exercising his delegated authority had the Council considered whether the progress of the proposed allocation and its own support for that allocation were factors which would justify the exercise of the power available to it under section 173A. This ought to have been done. At this stage the proposed allocation was, without doubt, a material consideration which went to the expediency of the enforcement action which the Council had seen fit to take, and for this reason it was a matter for the members, not the planning officer, to weigh.
The challenge to the Council’s actions therefore succeeded and a quashing order was granted.
© MARTIN H GOODALL