Section 285(1) of the Town and Country Planning Act 1990 prevents the validity of an enforcement notice being questioned, other than by means of an enforcement notice appeal, in any proceedings whatsoever on any of the grounds on which an enforcement notice appeal may be brought. This, of course, includes proceedings in a criminal court. The widely accepted reasoning in that context for such a provision is this. The planning merits of an enforcement notice are generally regarded as unsuitable for determination by such a court. Moreover, there is usually a need for the validity of the notice to be conclusively determined at an early stage to enable planning control to be effective.
By virtue of section 179 of the Act, failure to comply with an enforcement notice is a criminal offence. In practice, this means that if an enforcement notice (1) has been issued by a local planning authority; (2) on its face complies with the requirements of the Act; and (3) has not been quashed as a result of an enforcement notice appeal, the landowner is under a duty to comply with it. The issue for the criminal court is simply whether the landowner has complied.
In Kirklees Metropolitan District Council v Angus Heron Ltd [2011] EWHC 2393 (Admin), the local planning authority (LPA) had issued two enforcement notices against the landowner alleging material change of use of the land. Neither raised any issue of formal validity. Both were the subject of an appeal. One of those appeals was withdrawn. The inspector rejected the second.
The landowner was charged under section 179 of the Act, and was acquitted in the magistrates’ court. At the request of the LPA, the magistrates stated a case for the High Court. This demonstrated that the magistrates had made no findings as to whether or not there had been compliance with the enforcement notices. Rather, they had sought to go behind the enforcement notices and, in particular, question conclusions reached by the inspector.
The High Court quashed the decision of the magistrates and remitted the case to them for further determination in light of the judge’s ruling. The effect of section 285, insofar as it was relevant to the case, meant that they could not do that. They were bound to accept the terms of the enforcement notices. They had proceeded on the wrong footing in law – they had the wrong focus and did not ask themselves the right factual questions.
John Martin is a freelance writer
