by Martin Edwards
It would be surprising if the recent decision of the Court of Appeal in Regina v Kuxhaus [8] 2 PLR 59 was greeted with anything but concern by planning authorities, as it has weakened their ability to take effective action against breaches of planning control and left the planning system open to possible abuse.
It should be stressed at the outset that the decision was arrived at with reluctance, and the implications were not lost on the court. So what was this crucial point of law and how has it adversely affected the planning system?
As is often the case, the point at issue was simple — when is an appeal against an enforcement notice finally determined? Is it when the Secretary of State issues his decision letter, or when any subsequent challenge in the courts is finally concluded? The previous authorities favoured the former interpretation: the Court of Appeal has now ruled in favour of the latter.
In this article it is not intended to provide a detailed description of the legislative framework that governs the enforcement of planning control: there are numerous text books that cover this topic amply.
When a breach of planning control has taken place — such as the carrying out of development without planning permission or the failure to comply with a condition on a planning permission — then if the planning authority considers it expedient to do so it may serve an enforcement notice pursuant to section 87 of the Town and Country Planning Act 1971 requiring the recipient to remedy the breach. The notice will specify the remedial steps required and the period in which they should be completed. Failure to comply with the notice is a criminal offence by virtue of section 89. A right of appeal to the Secretary of State for the Environment against the notice is provided by section 88 on one or more of the eight grounds contained in section 88(2). The appeal must be received by the DOE before the date on which the notice states that it takes effect and, in so doing, the provisions of section 88(10) apply:
(10) Where an appeal is brought under this section, the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal.
It is the interpretation that should be given to this subsection that was at issue in Regina v Kuxhaus. While an appeal has been made and not determined or withdrawn, the planning authority is powerless to prevent the breach continuing and, conversely, the appellant is free to continue with his activities. Thus an appellant may well gain from a longer appeal process.
The first decision
The question of when an enforcement notice is finally determined was first considered by Bridge J in the course of his judgment in Garland v Westminster (City) London Borough Council (1970) 21 P&CR 555 when he said:
As it seems to me, without wishing to resolve any other arguments which may arise as to the precise time at which an appeal under section 46 should be considered as having been finally determined, this time must at the latest be the time when an appeal, whether to the minister or from the minister to this court or from this court to the Court of Appeal, has been dismissed and the time for appealing further has expired without such further appeal having been instituted. One thing which Parliament clearly must have contemplated in introducing such a provision is that the time of the coming into operation of an enforcement notice should be capable of being determined with certainty, and it is inconceivable that Parliament should have intended the ascertainment of that time to depend on anything so uncertain and inscrutable as the subjective intention of the unsuccessful party to the proceedings.
(Section 46 of the Town and Country Planning Act 1962 was the predecessor of section 88. The Garland case went only as far as the Divisional Court on this particular point of law although Mr Garland had previously appealed the Secretary of State’s determination as far as the Court of Appeal.)
As a result of this obiter dictum it was generally accepted that “final determination” referred not only to the appeal to the Secretary of State but also to any subsequent appeal to the High Court etc. A note to this effect was included in the commentary in the Encyclopedia of Planning Law and Practice but that situation was changed by the decision of the Divisional Court in Dover District Council v McKeen [5] 2 EGLR 191.
A different view?
In the Dover case an enforcement notice was served on the occupiers of a former goods yard that was being used for welding, forging and steel-fabrication without planning permission. The occupiers appealed to the Secretary of State and, following a local inquiry, the inspector appointed dismissed the appeal, although the period for compliance was extended from one month to nine months.
The planning authority took the view that the compliance period expired nine months after the date of the decision letter and a few days after this occurred the planning authority carried out a site inspection and found that the unauthorised activities were continuing. Accordingly, a summons was issued alleging breaches of the enforcement notice and a failure to comply with it. When the summons came before the magistrates, the appellants argued that the compliance period had not expired on the date specified in the summons as the period of 28 days allowed by RSC Ord 55 r 4(4) should automatically be added to the nine months to allow for the appellants’ right of appeal against the Secretary of State’s decision as provided in section 246 of the Act, irrespective of whether they had actually appealed or not. That argument, supported by Bridge J’s obiter in Garland, found favour with the magistrates and the summons was dismissed on a submission of “no case to answer”.
The planning authority appealed to the Divisional Court. The appeal was allowed. In the leading judgment given by Stephen Brown LJ the court considered that the then generally accepted view, as reflected in the commentary in the Encyclopedia of Planning Law and Practice, was based on a mistaken reading of the ratio of Garland and that there must be, as Bridge J had said in Garland, certainty as to the time of the coming into operation of an enforcement notice. The court held that section 88(10) applied only to an appeal to the Secretary of State as the opening words “Where an appeal is brought under this section” were words of limitation and referred only to an appeal under that section. An appeal under section 246 was a completely separate and different right of appeal.
This interpretation was considered and approved some six months later by the Court of Appeal in London Parachuting Ltd and Rectory Farm (Pampisford) Ltd v Secretary of State for the Environment and South Cambridgeshire District Council (1985) 52 P&CR 376. Consequently, once the compliance period had expired, criminal proceedings could have been commenced. However, the court in that case held that if an appeal had been made under section 246 the appellant could make an interlocutory application under RSC Ord 55, r 3(3), staying any criminal proceedings on the enforcement notice until that appeal had been determined.
The final determination?
Less than two years after these cases the question was again considered by the Court of Appeal in Regina v Kuxhaus, reported in [8] 2 PLR 59 in the context of appeals against convictions and fines imposed by the Crown Court after guilty pleas had been entered once legal submissions had failed.
The history behind the appeals is interesting in itself, as it shows the length of time the appeal process can take and how it can work to the appellant’s benefit. The appeals concerned land which had planning permission for an egg-packing business and the servicing of vehicles used in the business. The business failed. A number of different businesses in the motor trade then used the land without planning permission.
In October 1979 enforcement notices were served requiring the cessation of these uses. The appellants appealed to the Secretary of State and thus the effect of the notices was suspended pending the “final determination of the appeal”. Following a local inquiry in March 1981 the appeals were dismissed and the notices upheld by the Secretary of State in January 1982.
The appellants then successfully appealed on a point of law to the High Court under section 246 and the appeals were remitted to the Secretary of State for rehearing and redetermination. In the second decision letter, in February 1985, the appeals were again dismissed and the notices upheld. That decision too was appealed and in July 1985 the appellants successfully asked the judge for leave to appeal to the Court of Appeal.
On August 6 1985 notice of appeal was given and also informations were served on the appellants alleging breaches of the enforcement notices between March and August 1985. The appellants did not dispute the facts, but maintained that the appeal had not been finally determined as there was still an appeal to the Court of Appeal in existence. In November 1985 that appeal was dismissed and leave to appeal to the House of Lords was refused. In December the appellants petitioned the House for leave, which was dismissed on January 30 1986. The appellants submitted that it was on that date when the appeal was “finally determined” under section 88.
In the decision of the court given by Mr Justice Henry the Dover and London Parachuting cases were considered and, while the court was tempted to follow the “sensible” results of those cases, it held that the words of the statute did not allow them to do this. It was accepted that the opening words of section 88(10) were words of limitation relating to the “final determination” of section 88 appeals but the court held that they could not follow the previous decisions that an appeal under section 246 was an entirely separate appeal from one under section 88. This was because the High Court could not set aside or vary the Secretary of State’s decision (see RSC Ord 94, r 12(5)) but only remit it for a “rehearing and redetermination” of the section 88 appeal. The section 246 appeal was therefore only one stage in the section 88 appeal process.
In coming to its decision, with “reluctance”, the court also expressed a preference for the law to be as it was held to be in the Dover and London Parachuting cases. However, the planning authority involved in this case is understood to have decided, after taking leading counsel’s opinion, not to pursue the appeal to the House of Lords and, therefore, unless Parliament intervenes, this decision is likely to be with us for some time.
Conclusion
The importance of this decision is not purely academic. Planning authorities now face the prospect that some serious breaches of planning control will continue for a number of years while the appellants exhaust every avenue of appeal. There may be instances where the breach is of limited duration that will be finished long before the appeal process. Of course, the planning authority could serve a stop notice under section 90, but this would carry with it the risk of a possibly substantial claim for compensation if the related enforcement notice was not upheld by the Secretary of State such as to make this a rather unattractive option except in the most blatant and clearly unacceptable breaches of planning control.
On the other hand, it could be argued that, as the failure to comply with an enforcement notice is a criminal offence, it is undesirable for someone to be convicted if, following a successful High Court challenge, the Secretary of State redetermines his decision and decides in the appellant’s favour by refusing to uphold the notice, although the chances of that happening are probably remote. In any event an appellant would be able to make an interlocutory application to stay a prosecution if a High Court challenge was being mounted. As the law now stands the appellant is in a far stronger position than the planning authority and the public interest it represents and it remains to be seen if Parliament will grapple with that problem.