Claimant using premises for wide variety of uses — Third-party planning authority issuing various notices in unsuccessful attempt to identify all uses — Third-party planning authority issuing further notice with wider terminology — Whether this amounting to “second-bite” notice for purposes of section 171B(4)(b) of Town and Country Planning Act 1990 — Claim allowed
The claimant owned a farm and outbuildings that were used for a variety of non-agricultural purposes. The second defendant planning authority had issued several enforcement notices in respect of the various changes of use. The claimant appealed to the first defendant’s inspector. The inspector found that the enforcement notices addressed the various changes of use in a piecemeal manner, targeting individual components of the mixed use rather than the mixed use itself, and that their vagueness meant that they could not be corrected without causing injustice, since they might have affected the interests of third parties who had not been similarly served. He therefore quashed those notices. However, after imposing some alterations and corrections, the inspector upheld a further notice that appeared, on the face of it, to deal with the same issues, on the basis that it was a valid “second bite” notice within the meaning of section 171B(4)(b) of the Town and Country Planning Act 1990.
The claimant appealed his findings on, inter alia, this issue. He argued that since the further notice was more specific in its allegations, and also included areas of land and users not identified in the earlier notices, it dealt with a fundamentally different allegation and could not be considered as a “second-bite” notice for the purposes of section 171B.
Held: The claim was allowed.
The inspector had found that the intention of the third-party planning authority had been to achieve the cessation at the site of all the unlawful uses, and that the appellant was aware that the notices had been issued with that intent. However, for the purposes of section 171B(4)(b), it was necessary to focus not on the overall broad intention behind the notices, but on the terms of the notices themselves and on the specific breaches of planning control alleged in them. Those notices had failed effectively to target the entirety of the mixed use complained of.
The further notice was wider in substance than the earlier notices and was also directed at additional facts. This disparity was demonstrated in the inspector’s finding that the earlier notices could not be corrected without causing unfairness, whereas he found himself able to correct the later notice. Clearly, on that basis, a material disparity existed and the further notice not only remedied technical defects in the earlier notices but went beyond them. As such, it fell outside the range of circumstances at which section 171 was aimed and the inspector had erred in finding that it was a valid second-bite notice.
Jonathan Clay (instructed by DMH Solicitors, of Brighton) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Vivienne Lane, barrister
