Council issuing enforcement notice but misdescribing breach – Council issuing second notice four years after building operations substantially completed – Whether second enforcement notice valid – Whether second notice was taking further action in respect of breach for which council had commenced enforcement action by first notice – Town and Country Planning Act 1990, section 171B(4)(b) – Notice held to be valid – Appeal dismissed
In 1983, Welwyn Hatfield District Council (the second respondent) granted the appellant temporary planning permission for a mobile home on his farm at Milkwood Farm, Dixons Close, Welham Green, Hatfield. The permission was subsequently renewed up to 31 March 1995, however, a further application for renewal was refused on the ground that, between March and April 1993, the mobile home had changed to a permanent single-storey dwelling.
In March 1996, the council issued an enforcement notice against the appellant which alleged breach of condition by the retention of the mobile home on the land after the expiry of planning permission. On 14 April 1997 the appellant made an application for a certificate of lawfulness for a single storey dwelling.
On 3 March 1998, the council withdrew the initial enforcement notice and issued a second enforcement notice, which alleged unauthorised erection of a single storey dwelling. The appellant appealed against the notice relying, inter alia, on section 17B of the Town and County Planning Act 1990, as amended, whereby no enforcement action could be taken in respect of certain breaches of planning control for four years after the date on which the operations were substantially completed. The appellant claimed that the building of the single storey dwelling had been substantially completed on 13 April 1993 and, accordingly, the four year period had expired on 13 April 1997.
The council relied on section 171B(4)(b) of the Act which allowed for the ‘taking of further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.’ The council contended that the second enforcement was merely further action taken, within the four year period, in respect of the breach for which the council had issued the first enforcement notice.
The inspector found that although the description of the breach differed in each notice, in issuing the second enforcement notice the council were purporting to take action in respect of the same breach as the first and therefore section 171B(4)(b) of the Act applied and the notice was valid. The appellant’s appeal was dismissed by a deputy judge who held that the council had been fully entitled to issue the second notice under section 171B(4)(b) because they had been taking further enforcement action in respect of the same physical structure as they had purported to take enforcement action against by their first notice (see [1999] PLSCS 63 and [1999] EGCS 41).
The appellant appealed again contending that the words ‘that breach’ in section 171B(4)(b) had to mean that the breach of planning control which founded the first enforcement notice was the same as the breach which founded the second notice. It was submitted that the breaches stated in the two notices were different, as one was a breach of the condition of temporary permission and the other was the carrying out of a building operation without planning permission. The appellant contended that the difference was further demonstrated by the fact that the time-limits within which enforcement action could be taken were different, being 10 years in the case of the former and four years in the case of the latter.
Held: The appeal was dismissed.
The issue was whether the phrase “that breach” in section 171B(4)(b) of the Act referred to the physical situation on the land, be it a structure or an operation or activity, or whether it referred to the legal concept of a breach of planning control. Although section 171B(4)(b) of the Act had to be taken literally, it was to be concluded it was the former. If the appeal were to be allowed there would be a danger of allowing enforcement law to return, in part, to the world of pettifoggery and arid technicalities which had attracted strong judicial disapprobation in the 1970’s and 1980’s.
The court was to be very slow to depart from the approach to the interpretation of section 171B(4)(b) which had been adopted by the deputy judge, who had great experience in the planning field. He had been satisfied that the relevant breach of planning control had consisted of the erection of the unauthorised structure in the position marked on the plan attached to the enforcement notices. The council purported to take enforcement action in respect of that breach by their first notice but had failed to do so because they had misdescribed the breach. They were therefore entitled by section 171B(4)(b) to take further enforcement action because four years had not elapsed since the date of the earlier purported action. Given the well known mischiefs which the 1991 reforms were enacted to remedy, the deputy judge had interpreted section 171B(4)(b) correctly. William Boyer (Transport) Ltd v Secretary of State for the Environment (1995) 69 P&CR 630, considered.
Christopher Katkowski QC (instructed by Leigh Day & Co) appeared for the appellant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Tom Elliott, barrister
