Enforcement notice — Local authority notices failing to meet statutory requirements — Secretary of State quashing notices on that ground — Whether appeal against notices allowed — Whether subsequent notices invalid — Whether estoppel operating in applicant’s favour — Judicial review refused
The local authority issued two enforcement notices against the applicant for breach of planning control at Brookside Fruit Farm, Copcut, Salwarpe, near Droitwich, Worcestershire. He appealed to the Secretary of State for the Environment who, on December 4 1989, quashed the enforcement notices and allowed the appeals under section 88(6)(b) of the Town and Country Planning Act 1971 (now section 177 of the Town and Country Planning Act 1990), on the ground that the council had failed to fulfil the specified requirements by omitting a list of names and addresses of all persons to be served. The applicant contended that the effect of the Secretary of State’s decision was, inter alia, that it was no longer open to the council to serve further enforcement notices on the same grounds. The applicant sought judicial review to quash the notices.
Held Application for judicial review refused.
1. The Secretary of State did not grant or modify a planning permission in respect of the breach of planning control to which an enforcement notice related. The local authority could therefore subsequently reissue the notice in question.
2. The Secretary of State had not allowed, nor was he taken to have allowed, the appeals on any ground upon which they were made under section 88(2) of the Town and Country Planning Act 1971. The appeals had been allowed on procedural grounds and not decided on their merits.
3. With regard to the applicant’s contention that the action of the Secretary of State gave rise to an estoppel, it was to be noted that: (a) estoppel arose only after a determination on the merits; (b) where estoppel did arise, it would merely assist in establishing the same ground of appeal against a subsequent enforcement notice; (c) a decision on the ground of appeal in section 88(2)(a) that planning permission ought to be granted could not raise an estoppel per rem judicatam: see Thrasyvoulou v Secretary of State for the Environment [1990] 2 PLR 69.
4. The applicant’s contention of abuse of process also failed. To justify striking out a second action there had to be failure to comply with an order of the court: see Bailey v Bailey [1983] 1 WLR 1124. Failure to comply with the rules was not an abuse of process.
5. In the instant case there had been a continuing breach and the local authority would be failing in their duty not to halt the breach.
Moira Poolley (instructed by Alexander & Co, of Worcester) appeared for the applicant; Richard Humphreys (instructed by the solicitor to Wychavon District Council) appeared for the council; and John Howell (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
