The claimant owned one property, no 221, jointly with his wife and owned the adjoining property, no 223, in his sole name. Derelict garages and workshops lay to the rear of the properties. In 1999, the claimant demolished a number of the derelict buildings and constructed a residential unit that lay mostly within the curtilage of no 221, with a small part extending onto no 223. In 2002, the second defendant council issued an enforcement notice against the claimant complaining of a change of use without planning permission from garages to living accommodation, and requiring removal and reinstatement. The notice mistakenly referred to no 223 rather than no 221. The claimant’s appeal against the notice was allowed by the first defendant’s inspector on the ground that the notice had identified the wrong site and was too imprecise in its requirements.
In June 2004, the second defendants issued a further enforcement notice, this time in respect of no 221. On appeal against that notice, the claimant argued that the development had become immune from enforcement action by virtue of section 171B(2) of the Town and Country Planning Act 1990, because more than four years had passed since the development had taken place. The second defendants relied upon the provisions of section 171B(4)(b), under which they could still take enforcement action in respect of the breach if, in the preceding four years, they had “taken or purported to take enforcement action in respect of that breach”. They argued that the earlier enforcement notice related to essentially the same breach as was complained of in the second notice. The claimant argued that, inter alia, the two notices related to different properties with different registered titles and specified different breaches, with one alleging change of use and the other alleging operational development. The inspector took the view that the two notices related to essentially the same breach since both notices dealt with residential development and required its removal, and there was no doubt that the first notice had been aimed at the dwelling at no 221. The claimant appealed.
Held: The appeal was dismissed.
Section 171B(4)(b) applied where two enforcement notices related to essentially the same development and constituted the same action albeit in different terms. Although the section was of no assistance where notices related to two different physical developments or different changes of use, it applied where the notices simply used different ways of describing the same thing. The inspector had correctly found that the two notices issued by the second defendants related to essentially the same breach, notwithstanding that they specified different sites in their descriptions, since they both dealt with the same development by the same owner: Jarmain v Secretary of State for the Environment, Transport and the Regions [2000] JPL 1063; [2000] 2 PLR 126 applied.
Christopher Boyle (instructed by Lawrence Graham LLP) appeared for the claimant; Charles Bourne (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
