Thursday, 8 September 2011

Questioning the validity of Enforcement Notices (2)


I wrote a piece on this topic on 20 April. Since then, we have had the decision of the High Court in Britannia Assets (UK) Ltd v. SSCLG [2011] EWHC 1908 (Admin), in which judgment was given on 22 July.

In April, ‘HW’ drew to my attention a recent enforcement appeal in Scotland in which the issue of expediency was raised with the Reporter [Inspector] in a challenge to the vires of the notice. HW suggested that, as it is a statutory requirement to give reasons for issuing the notice, it seemed to him that a challenge might 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. HW referred to previous appeals where such issues were raised, which seemed to indicate that the Secretary of State [now Scottish Ministers] had no alternative but to consider them since they went 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 but, as the appeal was allowed on another ground, the issue obviously wasn't taken any further. In light of the decision of the High Court in Britannia Assets, this point would no longer appear to be arguable. Although it is an English decision, I am sure it will be of strong persuasive authority in the Scottish courts.

I do not propose to discuss the Britannia Assets judgment itself. It is abundantly clear from that judgment that a challenge to an enforcement notice based on the alleged illegality of the decision to issue the notice or on some alleged procedural irregularity in its being issued can only be brought by way of an application for Judicial Review under CPR Part 54.

Following Britannia Assets, it would therefore seem that where a defective enforcement notice is served, the legal remedy or remedies available will depend on the precise nature of the defect in the notice.

In the most extreme case, the notice might prove to be so badly drafted that it is a nullity. Such cases are very rare, and Inspectors and judges will avoid reaching that conclusion if at all possible. However, if the notice omits a vital element which is a prescribed part of the notice, it might in those circumstances be a nullity, and the effect of this is that there is no notice at all. In such a case the Secretary of State and his Inspectors have no jurisdiction to entertain an appeal. This point will usually be put to the Planning Inspectorate in writing at the outset of an appeal, and if they agree they will issue a letter declining jurisdiction. If the position is open to dispute, the point may be put to an Inspector in the course of an appeal, and if the Inspector then accepts that the notice is a nullity, he or she will confirm this and will close the matter without adjudicating on the appeal.

There are several legal consequences in a case where an enforcement notice is a nullity. First, a finding by the Secretary of State or by an Inspector that an enforcement notice is or is not a nullity cannot be challenged by way of an application to the High Court under section 289; it can only be challenged by way of an application for Judicial Review under CPR Part 54. Secondly, the fact that the notice is a nullity is one of the rare situations in which the defective notice can be raised as a defence to a prosecution for failure to comply with the notice (as per the House of Lords decision in R v. Wicks), and it would theoretically be possible, though a very high risk strategy, to ignore the notice altogether and simply to run a defence to prosecution which relies on the fact that the enforcement notice is a nullity. You would, of course, have an insoluble problem if the Court did not agree that the notice was indeed a nullity! The third consequence of an enforcement notice being a nullity, in my view, is that the ‘second bite’ provision under s.171B(4)(b) cannot operate if a further attempt to issue and serve an enforcement notice would by then be out of time. I am not aware of any judicial authority to support this proposition, but I argued the point in this blog a few years ago, if anyone would like to look it up. [It’s in the 2008-9 archive.]

The next possibility is that the enforcement notice is valid on the face of it, but is vitiated by bad faith, or failure to consider expediency (under section 172), or is ultra vires the authority or the officer who purported to issue it or not in accordance with scheme of delegation (i.e. it is vitiated by procedural impropriety). What is now clear from the judgment in Britannia Assets is that the only way in which an enforcement notice can be challenged on these grounds is by way of a timely application for Judicial Review under CPR Part 54. It is not a matter for the Inspector in a section 174 appeal, who has no jurisdiction to adjudicate on this type of issue. Nor can it be raised in a subsequent appeal to the High Court under section 289, as such proceedings can only be directed to the Inspector’s appeal decision and not to matters which were outwith his or her jurisdiction. It would in any event be too late by that time to challenge the decision of the LPA to issue the notice or to challenge the manner in which the LPA acted in doing so; the time limit for bringing an application for judicial review would be long past and so it would not be possible to turn a section 289 appeal into and an application for judicial review under CPR Part 54. On the basis of R v. Wicks, a defence to a prosecution would also appear to be ruled out in these circumstances.

An enforcement notice can still be so defective that, whilst it is not a nullity, it is incapable of being corrected by an Inspector on appeal (under the powers contained in section 176) without injustice to one of the parties. In a case of this kind, the only practicable means of challenging the notice is in the course of an appeal under section 174. An Inspector’s decision that the notice can or cannot be corrected without injustice to either party is itself capable of challenge as part of an appeal to the High Court under section 289, but the Courts have shown considerable reluctance to rule out corrections under a statutory power which was intended to be, and is in practice, widely drawn.

Thus, in most cases in which an enforcement notice is arguably defective, the practical remedy usually turns out to be its correction by the Inspector under section 176 in the course of an appeal under section 174. Judicial review is very unlikely to be an option in such cases, and only if the Inspector can be shown to have erred in law will his or her appeal decision be capable of being challenged in the High Court under section 289. R v. Wicks definitely rules out a defence to prosecution which relies on an alleged injustice to the defendant caused by an Inspector’s ‘wrongful’ correction of the notice under section 176.

© MARTIN H GOODALL

4 comments:

HW said...

Hi Martin, thanks for the heads up on this case and elaborating on the details and implications of it. It does make me wonder if inspectors/reporters will be more likely now to decline jurisdiction if there is not sufficient reasoning contained on the notice itself seeing previously they appeared to be inclined to accept vague reasoning on the notice and weigh up the intricacies of the reasons of expediency in the process of the appeal if challenged.

This does bring in another important issue that I can think of at the moment though. If the Inspector does not have jurisdiction to explore the expediency past the face of the notice what now happens to Human Rights challenges in an appeal? As human rights issues could be considered as a material consideration, it previously could be argued that the LPA did not take proper consideration of an individuals human rights in their decision to issue the notice or that the decision to serve the notice contravened the individuals rights and the LPAs action was not proportional. As these challenges go to the expediency of the action, are human rights now solely a judicial review issue?

Martin H Goodall LARTPI said...

Any issue regarding human rights would relate to the requirements of the notice (proportionality, etc.). This issue could be raised with the Inspector as part of an appeal against the enforcement notice (and subsequently in a statutory challenge to the Inspector’s/Reporter’s decision in the High Court/Court of Session). The expediency and/or vires of issuing the notice would not raise any human rights issue as such.

Anonymous said...

In Scotland, appeal ground (a) (that consent should be granted for the unauthorised development) has been abolished. This is likely to make the expediency / proportionality of issuing an enforcement notice more of a live issue. Councils have been known to be over-enthusiastic about enforcement against unauthorised development that is otherwise acceptable.

Martin H Goodall LARTPI said...

I should perhaps draw attention to a later post I wrote on this topic on Wednesday, 14 December 2011 - "Challenging an Enforcement Notice - Nullity as a defence", which provides further clarification of the scope for challenging the legality of an enforcement notice.