Wednesday, 14 December 2011

Challenging an Enforcement Notice - Nullity as a defence

After I wrote the two previous pieces on questioning the validity of enforcement notices published here on 20 April and 8 September this year, it occurred to me to revisit R v. Wicks to refresh my memory as to what the Court had actually decided in that case. This led me on to look at Palacegate Properties Ltd v. Camden LBC [2000] PLR 59 (CA). If the Planning Encyclopedia is to be believed, a court trying an alleged offence under s.179 has no power to inquire into the validity of an enforcement notice on grounds of “nullity”, but that is not what that case decided. The Court did not say that the nullity of the enforcement notice cannot be raised as a defence to a prosecution for non-compliance with the notice, but it did restrict the definition of ‘nullity’ to a very narrow compass.

The EN would be a nullity if the person issuing it had no authority to do so. Thus there must have been a resolution of the Council or of a committee or subcommittee exercising a power duly delegated to that committee or subcommittee under the Council’s standing orders or scheme of delegation, or it must have been issued by an officer acting under a power duly delegated to a specified officer under the Council’s standing orders or scheme of delegation. Note, however, that the Courts have shown some flexibility in this regard and are content that the EN should have been issued in the name of the officer having the delegated power to issue it, even if that officer did not personally sign it. Only if some junior officer had gone off on a frolic of their own and was acting entirely outside the scope of their authorised sphere of action could it be argued that the notice was a nullity. Moreover, if the person issuing the EN has ostensible authority to do so, issues such as bad faith, bias, etc. cannot make the notice a nullity. These might make the notice voidable if challenged either on appeal under s.174 or by way of an application for judicial review, but the EN cannot be treated as a nullity on these grounds.

The only other basis on which an EN can be a nullity is if some vital element required by statute to be included in the notice is missing from the notice. It is not sufficient to argue that the notice is void for uncertainty; it has to be so fundamentally defective as not be a notice at all. The statutory requirements are set out in s.173 and in regulations made under s.173(10), in Part 2 of the Town & Country Planning (Enforcement Notices and Appeals)(England) Regulationss 2002. It might be argued that some of these requirements are more important than others, and it is a moot point as to whether some minor omission in respect of the prescribed contents would be sufficient to render the notice a nullity, or whether a failure to include or serve with the notice the explanatory note prescribed by Reg 5 would be sufficient to render the notice a nullity. I would very much doubt that the latter would render the notice itself a nullity; that would most likely be seen as a procedural irregularity which could conceivably lead to the EN being quashed, but would be unlikely to render the notice a nullity as such.

This does perhaps leave open a question as to whether, if some element of the notice were to be so garbled as to be completely unintelligible, it might then be argued that there had been a failure to include the relevant element in the notice, thus rendering it a nullity. However, Malcolm Spence QC’s argument in Palacegate Properties that the EN in that case did not make sense even to an informed reader was rejected by the Court. I strongly suspect that the courts would be unsympathetic to such an argument on the basis of Wicks and Palacegate Properties, but there must surely be some threshold beyond which the relevant element in the notice is so hopelessly defective as not to comply with the statutory requirements at all. What, for example, if the same section of two unrelated ENs were accidentally transposed, so that in each case the relevant section in fact related to an entirely different site or to an entirely different and unrelated breach of planning control? Surely it could not be argued that because on the face of it the notice contained the relevant elements as required by statute, the notice could not therefore be a nullity, notwithstanding that it made no sense in the context of that notice?

What is nevertheless clear is that the scope for arguing that an Enforcement Notice is a complete nullity as a defence to a prosecution under s.179 is very restricted. So I hope no-one had false hopes raised by my earlier pieces on questioning the validity of an enforcement notice.


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