Section 174 of the Town and Country Planning Act 1990 provides for an appeal to the secretary of state against an enforcement notice on one or more of seven specific grounds. However, section 285 also provides that the validity of an enforcement notice shall not – save by way of such an appeal – be questioned in any court proceedings on any of those seven grounds, subject to one limited exception.
This provision recognises the fact that the seven specific grounds of appeal are more suited to decision makers on appeal than to the courts, particularly where planning merits are in issue. However, anyone served with an enforcement notice should not forget that residual grounds of challenge falling outside those set out in section 174 may subsist, thus enabling a claim for judicial review to be made. This would be so, for instance, where fraud or bias was established.
In R (on the application of Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin); [2010] 50 EG 62 (CS), the claimants had appealed to the secretary of state against two enforcement notices that alleged a material change of use and certain operational development on land in which they had a legal interest. Separately, they sought judicial review of the decision by the local planning authority (LPA) to delegate to the planning officer the taking of enforcement action against them. They contended that the LPA had erred in law in a number of respects, particularly in relation to the issue of expediency. The initial question for the court was the extent to which it had jurisdiction to hear the claim.
The judge held that the residual category of grounds was not limited to cases of bad faith or bias. It also included the exceptional case of a decision to issue the notice being based on irrelevant or improper grounds. If matters that were relevant to the question of expediency, and beyond the reach of the statutory grounds of appeal, were ignored, or if irrelevant matters were taken into account, section 285 did not exclude the court’s jurisdiction. Accordingly, an attack on the LPA’s decision on the expediency of taking enforcement action might legitimately be pursued by means of a claim for judicial review as long as the challenge belonged to the residual grounds outside the scope of section 174.
John Martin is a freelance writer
