Where at any time after the period for compliance with an enforcement notice a requisite step under that notice has not been taken or an activity required by the notice to cease is continuing, section 179 of the Town and Country Planning Act 1990 provides that the owner of the land to which the notice relates becomes guilty of a criminal offence. (The section also creates a separate offence for those that control the land.)
Additionally, and without prejudice to the issue of criminal liability, section 178 entitles the local planning authority (LPA) to take direct action. It may, in such circumstances, enter onto the land and take the steps required by the notice in default of the owner or the occupier. It can recover the cost of so doing from the owner. The facts of Challinor v Staffordshire County Council [2011] EWCA Civ 90; [2011] PLSCS 48 provide a reminder of the breadth of this power of recovery.
Here, the appellant, in a second set of proceedings, claimed damages from the LPA in respect of direct action that it had taken to secure compliance with an earlier enforcement notice relating to the removal of waste plant and machinery from the appellant’s land. (In the first set of proceedings, the LPA had – on appeal – recovered the cost of the direct action.) The appellant now argued that the LPA had taken items from the land that it was not entitled to remove and had not obtained a proper price for them. The Court of Appeal held that the claim amounted to an abuse of process because the appellant ought to have brought the claim in the earlier proceedings.
The LPA had taken advantage of the fact that, by virtue of the Town and Country Planning General Regulations 1992, section 276 of the Public Health Act 1936 applied in such a case. The section enables the LPA to sell materials that it removed in its direct action. The regulations also provide that the expenses that the LPA incurred in doing so are, until recovered, a charge that is binding on successive owners of the land to which the enforcement notice relates.
A party served with a valid enforcement notice should be advised of the effectiveness of this summary remedy.
John Martin is a freelance writer
