PP 2011/73

The decision in Westminster City Council v Davenport [2010] EWCA Civ 458; [2011] PLSCS 112 contains some useful reminders about the required content of an enforcement notice. It also emphasises the fact that the service of an enforcement notice by a local planning authority (LPA) is not a necessary precondition to seeking a planning injunction. Here, the LPA had served an enforcement notice on the occupier of a large 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 obtained an interim injunction restraining the occupier from committing further breaches of planning control and subsequently 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. At first instance, the court granted a permanent injunction, holding that the enforcement notice was not a nullity. It informed the occupier, fairly, what he had done wrong and how he could remedy it. Since it was valid and had not been appealed, the notice crystallised the position at that time so that the only authorised use thereafter was residential. The occupier appealed to the Court of Appeal. The appeal was dismissed. The court acknowledged that a condition attached to an earlier personal diplomatic planning permission had ceased to operate once the property was no longer used for diplomatic purposes, but held that reference to that condition in the enforcement notice did not render that notice a nullity. It complied with the requirements of section 173 of the Town and Country Planning Act 1990 in that the matters that the LPA deemed a breach of planning control were plainly stated. It also set out the activities that the occupier was to cease. However, the court also pointed out that the service of an enforcement notice is not a prerequisite to the grant of an injunction under section 187B of the Act. It went on to hold that the nature of the objections to the enforcement notice were such, and the findings of fact of the first instance judge were such, that the grant of an injunction was appropriate – and would have been appropriate even if the enforcement notice had been a nullity. John Martin is a freelance writer