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 [2010] 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 [1984] AC 262 and was amplified in R v Wicks [1998] A.C. 92. It was also established in R v Caradon DC, ex parte Knott [2000] 3PLR 1, and recently confirmed in Health & Safety Executive v. Wolverhampton City Council ([2010] 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 [1985] 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 [2002] 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.



HW said...

Hi Martin, informative post. I find there is little in the way of information about how to deal with issues of "expediency" in a notice. I am really only familiar with Scottish Planning legislation however, on a recent enf. appeal the issue of expediency was raised with the reporter in a challenge to the vires of the notice. As it is a statutory requirement to give reasons for issuing the notice, it seems that challenge may be made in regards to expediency if therein contains lack of, unsound, or indeed no reasoning as it has been shown on previous appeals that where such issues are raised, the SOS has no alternative but to consider them since they go to the question of his jurisdiction. In the case which I speak of, the reasons on the notice only stated that the reason for issuing the notice was because it was a breach of planning control. The reporter actually refused to deal with the vires challenge to this aspect by stating that as the appeal was not a deemed appeal because of lack of challenge on ground A, expediency did not come into it. Frankly, this seemed erroneous to me but, as the appeal was allowed on another ground, the issue obviously wasn't taken any further. Can you shed any light on this?

Secondly, it seemed to me that if you take Flashman v LBOC 1979 into account, an enforcement notice may also be ultra vires on the ground that the planning authority misused their discretionary powers, the validity of a notice might be challenged on the grounds that in deciding to serve the notice, the authority had failed to take account of some relevant factor. Of course, in the case I speak of above, it contained no reasoning of expediency regarding provisions of the development plan or other material considerations nor with regard to harm to environment or public amenity. This seems to me to count as "relevant factors" considering the legislation states,

(1)The planning authority may issue a notice (in this Act referred Act as an “enforcement notice”) where it appears to them—

(a)that there has been a breach of planning control, and

(b)that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

As far as I'm concerned, 127(1)(a) has an "and" after it, therefore, it seems to me that not providing reasoning regards expediency would be a major defect of any notice and could qualify as a misuse of discretionary power.

It is interesting to see in your post how residual grounds such as expediency may be challenged by way of judicial review. Is it correct to presume a defence to a prosecution may also rely on this residual ground?

Martin H Goodall LARTPI said...

One can certainly take legal points in planning appeals outside the scope of the statutory grounds (listed in Section 174 of the 1990 Act in England and Wales), although I have never attempted to question the expediency of the enforcement action in this way. More often one is likely to contend that the enforcement notice is a nullity, that is to say that the notice itself is so irretrievably defective as not to be an enforcement notice at all. Arguably the vires of the LPA’s decision to serve an enforcement notice could be challenged in the same way, although it seems to me that, as an alternative, a challenge on this ground by way of an application for judicial review is not precluded by s.285.

In England, it is the Enforcement Notices and Appeals Regulations (SI 2002/2682) which require that the enforcement notice must include a statement of the reasons why the LPA considers it expedient to issue the notice. Any challenges on appeal are most likely to be directed to the adequacy of the statement of reasons rather than to the underlying justification for serving the notice, but a more fundamental attack on appeal against the decision to serve the enforcement notice should not be ruled out. I just have a gut feeling that in these circumstances an application for judicial review might be a better way of dealing with the point. If, nevertheless, the point were to be canvassed in an appeal but dismissed by the Inspector, then it seems to me that this point might be retaken in an application to the High Court under s.289.

So far as a defence to prosecution is concerned, the notice will have come into effect by this time (hence the prosecution) and so it would be too late to seek to defend the prosecution on the basis of the vires of the LPA’s action in serving the enforcement notice (and the House of Lords decision in R v. Wicks confirms this). On the other hand, if the notice is a complete nullity, then a defence based on that nullity would not necessarily appear to be precluded. If there is no notice, then there can be no prosecution.