Section 172 of the Town and Country Planning Act 1990, which empowers a local planning authority (LPA) to issue an enforcement notice, is clearly enacted in terms that do not envisage an enforcement notice being issued on each and every occasion when a breach of planning control occurs. An LPA “may” issue an enforcement notice where it appears to it that a breach has occurred, provided that it is also “expedient” to do so having regard to the development plan and to any other material considerations.
R (on the application of Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin); [2010] 50 EG 62 (CS) (see PP 2011/4) also provides a useful reminder of the way in which an LPA should approach the question of expediency. The claimants had sought judicial review on a number of grounds, an important one of which was that the LPA’s development control committee’s consideration of the expediency of authorising enforcement action was flawed. In that respect, they contended that the committee should have had regard to the fact that negotiations were ongoing concerning the lawful use of the land, and its possible development to provide a waste recycling facility. This fact they had been told by the planning officer to disregard, as it was not material.
The judge pointed out that section 172 of the Act required an LPA to ask itself two questions. First, whether planning control had been breached and second, whether it would be expedient to issue an enforcement notice. They were separate because they distinguished between discerning a breach and deciding what, if anything, ought to be done about it. The second question, however, also required the LPA to ask itself whether the public interest demanded that enforcement action should be taken at that stage, taking a reasonable view of the likely consequences of such action. This was an essential element of the expediency decision.
He concluded that the LPA had not approached that decision lawfully. The matters that the committee had been told to disregard were germane to the question. The committee ought to have been able to make up its own minds as to the weight, if any, to be given to the negotiations. Without that factor, they could not properly strike a balance. This amounted to a basic and fatal error that attracted relief in the claim for judicial review.
John Martin is a freelance writer
