PP 2010/124

Westminster City Council v Davenport [2010] EWHC 2016 (QB); [2010] PLSCS 228 serves as a reminder of the importance of lodging a timely appeal to the secretary of state against an enforcement notice where it is considered that one or more of the statutory grounds for the appeal may be established. Such an appeal can be crucial because section 285(1) of the Town and Country Planning Act 1990 expressly prevents the validity of an enforcement notice from being challenged on any of the statutory grounds other than by means of an appeal to the secretary of state. In practice, this means that any challenge to the enforcement notice brought in court proceedings has to be based on the argument that the notice was a nullity. Earlier authorities establish that for an enforcement notice to be treated as a nullity, it must be defective on its face. This would be the case, for instance, if it failed to specify the date on which it was to take effect or to state adequately the matters alleged to constitute the breach of planning control. The simple question, according to one appeal judge, is whether it tells the recipient fairly what it as done wrong and what it must do to remedy it. In Davenport, the local planning authority (LPA) had served an enforcement notice on the occupier of a London town house requiring him to stop using the premises for commercial and non-residential uses and to use it only for residential purposes. No appeal was lodged with the secretary of state. The LPA subsequently obtained an interim injunction restraining the occupier from committing further breaches of planning control, and in the present proceedings sought to continue it on a permanent basis. The occupier applied to have the injunction discharged, contending that the enforcement notice was a nullity because the LPA had not correctly identified the actual or apprehended breaches of planning control. In particular, the commercial uses complained of were ancillary to residential use. The court ordered the permanent continuation of the injunction, holding that the enforcement notice was not a nullity. The notice had informed the occupier of what he had done wrong and how he could remedy it. Furthermore, the LPA had established that the uses complained of were not ancillary to residential use. The enforcement notice, since it was valid and had not been appealed, crystallised the position at that time so that the only authorised use thereafter was for residential purposes. John Martin is a freelance writer