Wednesday, 20 April 2011

Questioning the validity of Enforcement Notices

A recent comment from HW relating to my piece on “Judicial Review of enforcement action” (Tuesday, 18 January 2011), to which I have replied in the comments section in that post may be of interest to readers who have not found these comments on the original page.

HW commented that there is little in the way of information about how to deal with issues of "expediency" in relation to the service of an enforcement notice. HW’s comment was based on Scottish Planning legislation, but this is sufficiently similar to the English legislation on this topic to make no real difference in practice.

In a recent enforcement appeal in Scotland the issue of expediency was raised with the Reporter [Inspector] in a challenge to the vires of the notice. HW points out that, as it is a statutory requirement to give reasons for issuing the notice, it seems that a challenge may be made with regard to expediency if the stated reasons for issuing the notice reveal a lack of proper reasoning or an unsound basis for the issue of the notice, or indeed if they show no rational basis for the issue of the notice at all. It has been shown in previous appeals that where such issues are raised, the Secretary of State [now Scottish Ministers] has no alternative but to consider them since they go to the question of his jurisdiction. In the case referred to by HW, 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 HW but, as the appeal was allowed on another ground, the issue obviously wasn't taken any further. HW asked whether I could shed any light on this.

Secondly, it seemed to HW that if you take Flashman v Camden LBC (1979) into account, an enforcement notice may also be ultra vires on the ground that the planning authority misused their discretionary powers. He suggests that 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 HW spoke of above, the notice contained no reasoning as to expediency by reference to the provisions of the development plan or other material considerations nor with regard to harm to the environment or to public amenity. In HW’s view, these must count as "relevant factors" considering the requirements of the legislation (s.127 of the Scottish legislation) so that it would seem to him that not providing reasoning as regards expediency would be a major defect of any notice and could be categorised as a misuse of discretionary power.

HW commented that it was interesting to see in my post how residual grounds such as expediency may be challenged by way of judicial review, and asks whether it is correct to presume that a defence to a prosecution may also rely on this residual ground.

My response to these points is that 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 [or Reporter in Scotland], then it seems to me that this point might be retaken in an application to the High Court under s.289 [in the English and Welsh Act].

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 would seem to confirm 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.


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