Town and country planning – Development – Planning control – Claimant owning and occupying barn – Defendant local planning authority issuing enforcement notices in relation to barn outside statutory time limit – Claimant seeking to appeal and engaging planning consultant – Consultant serving appeal notices out of time – Defendants refusing to withdraw notices and issue fresh notices enabling claimant to appeal – Claimant challenging validity of notices by seeking judicial review – Whether defendants issuing notices validly – Whether appeal provisions relating to enforcement notice requiring wide or narrow interpretation – Application granted
On 6 December 2011, the defendant local authority served two enforcement notices in respect of a barn owned and occupied by the claimant and his wife. The first notice alleged an unauthorised material change of use from agricultural and storage to residential and required the residential use to cease. The second notice required steps to be taken to reverse the effect of certain alterations made without planning permission. Each notice was to take effect on 4 January 2012 (the specified date) in the absence of any appeal.
In order to comply section 172(3)(b) of the Town and Country Planning Act 1990, the notices had to be served by 7 December 2011. However, they had not been served until 9 December, which was less than 28 days from the specified date. The claimant sought to appeal against the notices and instructed a planning consultant who finalised the relevant documentation before the start of 2012. The first working day after the holiday was 3 January 2012, when he sent the appeal notices with guaranteed next day delivery. The appeal notices were delivered on 4 January. To have complied with the requirements of section 174(3) of the 1990 Act, the consultant should have posted the appeal notices before the holiday, or sent them electronically or delivered them by hand on 3 January. Thus the appeal notices were served out of time.
The planning inspectorate took the view that it had no power to extend the time to appeal or to waive section 174(3). Accordingly, the notices, on the face of it, had taken effect on 4 January. The claimant argued that the defendants should withdraw the notices and re-issue fresh notices in order to give him an opportunity to appeal. The defendants accepted that the claimant had been prejudiced by the rejection of its appeal notices, but did not consider that they were responsible. The claimant sought judicial review of the enforcement notices.
The claimant contended, inter alia, that the notices were not valid as they had not been served in compliance with section 172(3) of the 1990 Act. Alternatively, the defendants had acted unlawfully in refusing to withdraw them and re-issue fresh notices when the fact that the notices had not been served in accordance with section 172(3)(b) had been drawn to their attention. The defendants argued that the effect of section 174(2)(e) of the 1990 Act, read together with section 285, was that the validity of an enforcement notice, once issued, could not be questioned on the ground that it had not been served on the claimant as required by section 172(3).
Held: The application was granted.
(1) On a proper interpretation, the words of section 174(2)(e), in the context of the legislative scheme as a whole, had to be given a narrower meaning. Although the wider interpretation put forward by the defendants was the more natural meaning, the words used were capable of being construed more narrowly as relating to where an enforcement notice had not been served at all rather than to where it had not been served in time. The statutory scheme might be said to be unfair even on the narrow interpretation, as the right of appeal would be lost if an enforcement notice was not served at all. However, sections 285(2) and 179(7) of the 1990 Act provided limited protections which were never available in the case of late service.
The scheme of the relevant legislation would fail to comply with article 6 of the European Convention on Human Rights where an enforcement notice had not been served in time causing the recipient to issue his appeal out of time, where the only means of challenging the validity of the notice would be to appeal in time. Since the narrower interpretation was not impossible, it had to be adopted in order to achieve compatibility with article 6.
(2) An enforcement notice was a strong measure since failure to comply with it would lead to serious consequences. The defences available in a criminal prosecution or other action taken as a result of an enforcement notice were extremely limited and, apart from abuse of process, applied only where a person charged had not been served with an enforcement notice at all and had not been aware of its existence before it had taken effect. The right to appeal against an enforcement notice was a central part of the statutory scheme and gave an owner an opportunity to be heard and to object to the validity of the notice before its enforcement. The wider interpretation would be a very significant further restriction on an already tightly circumscribed right of appeal. Since it was possible to interpret the provisions in such a way as to avoid an unreasonable result, they ought to be so interpreted.
(3) Section 285 of the 1990 Act did not prevent the claimant from challenging the validity of the notices on the ground that the notices had not been served within the time required by s 172(3). Two causes had operated concurrently, namely the actions of the consultant in sending the appeal notices and the breach by the authority of s 172(3)(b) of the 1990 Act, the combination of which had resulted in the appeal notices being served out of time. The claimant had been substantially prejudiced by the authority’s breach of duty and the notices should be quashed.
Harriet Townsend (instructed by ODT Solicitors, of Brighton) appeared for the claimant; Robin Green (instructed by Horsham District Council) appeared for the defendants.
Eileen O’Grady, barrister
R (on the application of Stern) v Horsham District Council
Town and country planning – Development – Planning control – Claimant owning and occupying barn – Defendant local planning authority issuing enforcement notices in relation to barn outside statutory time limit – Claimant seeking to appeal and engaging planning consultant – Consultant serving appeal notices out of time – Defendants refusing to withdraw notices and issue fresh notices enabling claimant to appeal – Claimant challenging validity of notices by seeking judicial review – Whether defendants issuing notices validly – Whether appeal provisions relating to enforcement notice requiring wide or narrow interpretation – Application granted On 6 December 2011, the defendant local authority served two enforcement notices in respect of a barn owned and occupied by the claimant and his wife. The first notice alleged an unauthorised material change of use from agricultural and storage to residential and required the residential use to cease. The second notice required steps to be taken to reverse the effect of certain alterations made without planning permission. Each notice was to take effect on 4 January 2012 (the specified date) in the absence of any appeal. In order to comply section 172(3)(b) of the Town and Country Planning Act 1990, the notices had to be served by 7 December 2011. However, they had not been served until 9 December, which was less than 28 days from the specified date. The claimant sought to appeal against the notices and instructed a planning consultant who finalised the relevant documentation before the start of 2012. The first working day after the holiday was 3 January 2012, when he sent the appeal notices with guaranteed next day delivery. The appeal notices were delivered on 4 January. To have complied with the requirements of section 174(3) of the 1990 Act, the consultant should have posted the appeal notices before the holiday, or sent them electronically or delivered them by hand on 3 January. Thus the appeal notices were served out of time. The planning inspectorate took the view that it had no power to extend the time to appeal or to waive section 174(3). Accordingly, the notices, on the face of it, had taken effect on 4 January. The claimant argued that the defendants should withdraw the notices and re-issue fresh notices in order to give him an opportunity to appeal. The defendants accepted that the claimant had been prejudiced by the rejection of its appeal notices, but did not consider that they were responsible. The claimant sought judicial review of the enforcement notices.The claimant contended, inter alia, that the notices were not valid as they had not been served in compliance with section 172(3) of the 1990 Act. Alternatively, the defendants had acted unlawfully in refusing to withdraw them and re-issue fresh notices when the fact that the notices had not been served in accordance with section 172(3)(b) had been drawn to their attention. The defendants argued that the effect of section 174(2)(e) of the 1990 Act, read together with section 285, was that the validity of an enforcement notice, once issued, could not be questioned on the ground that it had not been served on the claimant as required by section 172(3).Held: The application was granted.(1) On a proper interpretation, the words of section 174(2)(e), in the context of the legislative scheme as a whole, had to be given a narrower meaning. Although the wider interpretation put forward by the defendants was the more natural meaning, the words used were capable of being construed more narrowly as relating to where an enforcement notice had not been served at all rather than to where it had not been served in time. The statutory scheme might be said to be unfair even on the narrow interpretation, as the right of appeal would be lost if an enforcement notice was not served at all. However, sections 285(2) and 179(7) of the 1990 Act provided limited protections which were never available in the case of late service.The scheme of the relevant legislation would fail to comply with article 6 of the European Convention on Human Rights where an enforcement notice had not been served in time causing the recipient to issue his appeal out of time, where the only means of challenging the validity of the notice would be to appeal in time. Since the narrower interpretation was not impossible, it had to be adopted in order to achieve compatibility with article 6. (2) An enforcement notice was a strong measure since failure to comply with it would lead to serious consequences. The defences available in a criminal prosecution or other action taken as a result of an enforcement notice were extremely limited and, apart from abuse of process, applied only where a person charged had not been served with an enforcement notice at all and had not been aware of its existence before it had taken effect. The right to appeal against an enforcement notice was a central part of the statutory scheme and gave an owner an opportunity to be heard and to object to the validity of the notice before its enforcement. The wider interpretation would be a very significant further restriction on an already tightly circumscribed right of appeal. Since it was possible to interpret the provisions in such a way as to avoid an unreasonable result, they ought to be so interpreted.(3) Section 285 of the 1990 Act did not prevent the claimant from challenging the validity of the notices on the ground that the notices had not been served within the time required by s 172(3). Two causes had operated concurrently, namely the actions of the consultant in sending the appeal notices and the breach by the authority of s 172(3)(b) of the 1990 Act, the combination of which had resulted in the appeal notices being served out of time. The claimant had been substantially prejudiced by the authority’s breach of duty and the notices should be quashed.Harriet Townsend (instructed by ODT Solicitors, of Brighton) appeared for the claimant; Robin Green (instructed by Horsham District Council) appeared for the defendants.Eileen O’Grady, barrister
