Injunction in aid of enforcement notices — Claimant council seeking relief under section 187B of Town and Country Planning Act 1990 — Defendant contending that notice invalidly directed to established use — Whether such objection capable of being raised in proceedings brought under section 187B — Claim allowed
The claimant council, acting under section 187B of the Town and Country Planning Act 1990, as amended, sought High Court injunctions in aid of six enforcement notices relating to an expired permission, granted in 1952, to carry out quarrying operations on different parts of former agricultural land in Little Marlow. Since the grant, the land had been put to various other uses, notably tipping, landfill and concrete crushing, some with, and some without, permission. The notices largely related to the defendant’s alleged failure to comply with conditions attached to the grant, requiring the eventual removal of equipment and waste material and the restoration of the various sites.
The first defendant challenged all the notices on the ground that they lacked the degree of clarity required for injunctive relief. A further objection was levelled at notice no 4, which required, inter alia, the removal of certain buildings. The first defendant pointed to the fact that, in 1999, an inspector had allowed an appeal against an earlier enforcement notice directed at the use of those buildings as a workshop unrelated to any permitted use, and had so decided upon the basis that the limitation periods laid down by section 171B of the 1990 Act had expired. The first defendant went on to contend, relying upon Mansi v Elstree Rural District Council (1964) 189 EG 341, that notice no 4 was invalid because it purported to prevent an established use.
Held: All the notices were valid.
1. The Mansi-based objection could not be raised in the present proceedings. It was an objection that could be raised, if at all, only by way of an appeal to the Secretary of State under and within the time limits prescribed by section 174 of the 1990 Act: see section 285(1) of the Act and the distinction between invalidity and nullity drawn in Miller-Mead v Minister of Housing and Local Government (1963) 185 EG 835. Notice no 4 was not bad on its face, and therefore could not be treated as a nullity. It was an unappealed notice that had been caught by section 285(1), and, accordingly, one that had to be obeyed: see generally R v Wicks [1997] 2 PLR 97. Nor could the court entertain Mansi-based objections in the exercise of its otherwise wide discretion whether or not to grant injunctive relief under section 187B, it being clear that such proceedings could not be used as an opportunity to reargue the planning merits of the case: see R v Basildon District Council, ex parte Clarke [1995] JPL 866.
2. No contrary conclusion could be drawn from South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549; [2002] 1 All ER 425, which raised issues of human rights.
3. On the materials before the court (including site plans), none of the notices could be held bad for want of clarity, there being no evidence that a skilled surveyor would have difficulty in complying with the notified requirements.
Benedict Sefi and Stephen Morgan (instructed by the solicitor to Buckingham County Council) appeared for the claimants; Keith Lindblom QC and David Park (instructed by Lawrence Graham) appeared for the first defendant.
Alan Cooklin, barrister
