Friday, 5 February 2016

Enforcement Notice issued without authority

My attention has been drawn to an appeal decision in Hertfordshire in November 2015 (Ref: 3005612), where an enforcement notice was found to be a nullity because it was issued without proper authority.

One of the first things that was drummed into me in my first job in local government back in 1979 (at Hertsmere Borough Council, as it happens) was that, when taking any action on behalf of the Council, officers should always ask themselves “What is my authority for doing this?” In those days, this usually meant finding the appropriate committee minute authorising the action being taken, but with the increasing use of delegated powers by officers, it is often a question nowadays of checking the Council’s scheme of delegation and ensuring that the officer who purports to have authorised a particular action, such as the service of an enforcement notice, has delegated authority to do so and that the action is taken in the name of that officer.

The usual practice in most authorities to enable officers to exercise delegated powers used to be to designate the Chief Officer in the department concerned as the officer having the relevant delegated power, although other named officers may be given specific delegated powers. There is judicial authority (although I am sorry I haven’t got time to look it up at the moment) that indicates a fairly relaxed attitude on the part of the courts to the actual detail of the exercise of such delegated power. It seems that the courts do not insist that the Chief Officer should personally sign off the action concerned, provided that the action is taken in the Chief Officer’s name by someone acting on instructions within the scope of their own proper responsibilities. The notice should certainly bear the name of the Chief Officer (or other officer) to whom the relevant delegated power has actually been assigned, even if this is only a rubber stamp or a facsimile signature. There must however be an ‘audit trail’ that enables the action to be traced back to that senior officer through a line of reporting, even though that senior officer may not actually have actively instigated the action in question.

The old rule - “Delegatus non potest delegare (a person with delegated power cannot sub-delegate that power) still applies, in the sense that ultimate responsibility must still rest with the officer to whom executive authority has actually been delegated under the council’s scheme of delegation. But provided another officer acting on their behalf and with their knowledge (in a general sense) is acting within the limits of their own responsibilities and reporting obligations, the courts have not been prepared to treat the resulting action as a nullity for want of authority, just because the senior officer did not personally take the formal decision themselves to initiate the action in question.

Where the local planning authority went wrong in the present case was that the council’s officers got into a muddle over recording the delegation of power to issue enforcement notices to the officer by or in whose name this enforcement notice was issued and, when challenged by the appellant’s representative in the appeal, were unable to produce a written record showing that this officer had actually been given the relevant delegated power to issue the enforcement notice. A notice issued without proper authority must be ultra vires and a nullity; it cannot be an enforcement notice at all, and so there was nothing to quash. For the reasons briefly outlined above, the inspector concluded that the notice was a nullity and therefore took no further action in connection with the section 174 appeal against the purported enforcement notice.

The LPA could have had a ‘second bite’ by serving another enforcement notice within 4 years, taking care this time to ensure that it would be issued under properly delegated authority, but in practice, planning permission was granted by the Inspector in a parallel section 78 appeal against the refusal of planning permission, and this no doubt resolves this particular case.



Anonymous said...

I'm confused by "second bite" in cases where the EN is a nullity. If it effectively never existed, wouldn't a re-issue be a "first bite"?

Martin H Goodall LARTPI said...

In answer to the anonymous query of 16 February, section 171B(4)(b) allows another enforcement notice to be served within four years where an LPA “have taken or purported to takeenforcement action in respect of that breach”.

Doubt has sometimes been expressed (as in the query above) as to whether an LPA can properly claim that it ‘purported to take’ enforcement action where that original action was so seriously defective as to be a nullity. However, it is clear that the courts are prepared to take a liberal view of the phrase ‘purported to take’ (as illustrated by the judgment of the High Court in R (Lambrou) v. SSCLG [2013] EWHC 325 (Admin)), even where the original action was not properly authorised or where the first enforcement notice was technically a nullity.

There might in theory be circumstances in which the action taken by the LPA fell so far short of amounting to enforcement action at all that it could not be claimed that the LPA had ‘purported to take’ enforcement action but, except in the most extreme cases, the courts can be expected to uphold the LPA’s action, rather than allow a ‘technical’ challenge to defeat the purpose of section 174B(4)(b).

Anonymous said...

This is not particularly related to the point above but I welcome your comments.

I have a site that is consented and ready to build but wish to carry out the works in a slightly different manner which would technically breach a condition to comply with submitted details and may need additional or a variation to the planning permission.

The LPA have said it would be a minor breach and would not be permitted development but would not support a planning application (due to planning law technicality) HOWEVER they are more than happy with the proposal because it is so minor and they have confirmed verbally that they would NOT take any enforcement action as there would be no visual impact, no impact of any neighbouring parties and not in the public interest to pursue any enforcement action….

….so how do I demonstrate to my lender or future buyer that the LPA are happy and definitely won’t take any enforcement action?

Would a formal letter from the LPA be sufficient bearing in mind the general rule under case law (as far as I am aware) is that an officer’s opinion even in writing cannot be formally replied upon?

If not, is there any way to obtain a notice or certificate to say that despite an intended breach, the LPA confirm that no enforcement action would be taken?

Martin H Goodall LARTPI said...

As regards the anonymous query of 27 September, there is really no practical answer to this problem. Variation without consent would be a breach of planning control. It is very unlikely that the council’s officers would be prepared to put their assurances about enforcement action in writing at this stage, and in any event any such assurance, even if in writing, would be of no legal effect and could not be relied upon. Thus a cautious lender, or a cautious purchaser (and their advisers) would be very unlikely to accept this situation. There really is no alternative to regularising the position by seeking and obtaining formal permission for the variation in the consented scheme.

On the other hand, if an Enforcement Notice were to be served following the breach of planning control mentioned above, the LPA could then exercise its power under section 172A of the 1990 Act. This enables them to give the person on whom the enforcement notice has been served a letter assuring them that, in the circumstances as they appear to the authority, that person is not at risk of being prosecuted under section 179 in connection with the enforcement notice. The snag is that the LPA can later change its mind and withdraw this assurance. So if I were advising a lender or purchaser, I would advise them not to rely on a “section 172A letter”.

In this case, it seems that some way will have to be found of persuading the council’s officers that they can and should accept a planning application to vary the details of the development.