The proceedings in Cash v Wokingham Borough Council [2014] EWHC 3784 (Admin) might at best be described as misconceived in their form. They were brought, incorrectly, under CPR Part 8 when they should have been brought under CPR Part 54. Even if treated as brought under CPR Part 54, they were brought significantly out of time, with no explanation for the delay. They did, however, raise a useful practical point.
The claimant sought to challenge in those proceedings an enforcement notice issued by the local planning authority requiring him to remove from his land 22 caravan hard standings – with associated utilities and services – that he had constructed without planning permission. His principal contention was that the fact that the works required by the enforcement notice could only be carried out with the consent of a third party or by reference to other legislation – here the Habitats Regulations – rendered the enforcement notice a nullity.
The court rejected that contention, citing the decision of the Court of Appeal in South Hams District Council [1996] 3 PLR 38. There, the works required by the enforcement notice needed listed building consent. The appellant sought to argue that this rendered the enforcement notice a nullity. The appeal court judges held that the apparent conflict between the system of control of development and the system relating to the listing of buildings did not render the enforcement notice a nullity.
In Cash, the judge acknowledged that the terms of the enforcement notice were clear, and its requirements were not ambiguous. Furthermore, it was not invalid on its face. Any third party consent that was essential to enable a person to comply with an enforcement notice was no more or less than an aspect of complying with the enforcement notice.
She went on to point out, in addition, that the requirement for third party consent would be a relevant factor under section 179(3) of the Town and Country Planning Act 1990. This provides where the owner of the relevant land is in breach of an enforcement notice, it is a defence to any prosecution to show “that he did everything he could be expected to do to secure compliance with the notice”. Such a defence would no doubt be available to the claimant, had he applied for a derogation under the Habitats Regulations and failed to obtain one.
John Martin is a planning law consultant
