Construction — Whether enforcement notice could be issued outside 10-year limitation period — Enforcement notice not served within that period — Inspector finding for local authority — Decision quashed by High Court — Appeal dismissed
This case concerned two enforcement notices relating to fields on St Alban’s Farm, Hounslow, Middlesex, used for car-breaking and commercial vehicle storage. The notices, dated July 24 1992, referred to a change of use without planning permission and were issued by the second respondents, Hounslow London Borough Council. The notices were withdrawn as being seriously defective. It was common ground that the areas to which the change of use related had been so used after 1963, but before 1982. In August 1993 the local planning authority purported to substitute their withdrawn notices with replacement notices. Under section 171B(3) of the Town and Country Planning Act 1990 (as inserted) “… no enforcement action may be taken before the end of the period of 10 years beginning with the date of the breach” (the 10-year limitation period). That section came into force on January 2 1992, but was subject to transitional provisions that until July 27 1992, it did not prevent an enforcement notice being issued in relation to a breach occurring after the end of 1963.
Under section 171B(4)(b) a local planning authority were not prevented from “taking further enforcement action in respect of any breach … if during the period of four years ending with that action, the local planning authority have taken … enforcement action in respect of that breach”.
The inspector found that the notices related to the same land and the same activities and were issued within four years of the previous ones. Therefore they complied with the statutory provisions. An application to quash that decision was granted: see [1995] 1 PLR 32. The Secretary of State appealed.
Held The appeal was dismissed.
1. The wording of section 171B(3) made it clear that after the commencement of the Act no enforcement action might be taken after the end of the period of 10 years from the date of the breach. That was subject to the extension contained in section 171B(4)(b) of four years where the local planning authority had issued or purported to issue enforcement notices in respect of the breach.
2. The authority could not rely on article 5(2) of the Planning and Compensation Act 1991 (Commencement No 5 and Transitional Provisions) Order 1991 to extend the operation of section 171B(4)(b).
3. That provision enabled a local planning authority, up to July 27 1992, to issue an enforcement notice relating to a breach of planning control which had occurred after the end of 1963. The issue of such a notice, albeit that the notice was inadequate or invalid, would amount to the taking of enforcement action by the local planning authority under section 171B(4)(b).
4. However, that was a far cry from parliament providing that enforcement notices issued after July 27 1992 were not subject to the time-limits contained in section 171B.
Richard Drabble QC and Ian Albutt (instructed by the Treasury Solicitor) appeared for the Secretary of State; Duncan Ouseley QC and Timothy Corner (instructed by Bird & Lovibond, of Uxbridge) appeared for the applicants; the second respondents, Hounslow London Borough Council, did not appear and were not represented.
