On an enforcement notice appeal, the secretary of state has a power to amend the enforcement notice. Although he cannot exercise that power to turn a notice that is null into a valid enforcement notice, he may nevertheless, under section 176(1) of the Town and Country Planning Act 1990, “correct any defect, error or misdescription in the enforcement notice or vary the terms of the enforcement notice if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority”. One of the principal issues in R (on the application of Howells) v Secretary of State for Communities and Local Government [2009] EWHC 2757 (Admin) was whether this permitted an amendment to the enforcement notice plan to increase the area of the land in question.
The enforcement notice had required the appellant to: (i) cease to import, store and crush concrete, stone and inert building waste on an area of land in the open countryside; and (ii) clear the land and to reinstate it back to agricultural use. The appellant appealed to the secretary of state and, following an inquiry, the inspector dismissed the appeal albeit extending the time for compliance with the enforcement notice.
The inspector had carefully analysed the evidence on the use to which the land had been put historically and concluded that the planning unit on which the waste activities were taking place was different to that shown on the enforcement notice plan. Relying on section 176(1), he substituted an amended plan.
The appellant appealed to the High Court, under section 289 of the 1990 Act, which provides for an appeal from a decision on the part of the secretary of state on a point of law. One of the appellant’s grounds was that the inspector had exceeded his powers by adding an area of land to the enforcement notice plan.
The court pointed out that recent case law recognises the existence of a power under section 176(1) to extend the requirements of the enforcement notice. The corollary was that there is a power to enlarge the area shown on the enforcement notice plan. More particularly, it flows from the plain wording of section 176(1) that there is a power to amend the enforcement notice and the plan attached to it. The fundamental constraint is whether that can be done without injustice to either party.
The court then held that, on the facts, no injustice had arisen and so this ground failed, as did the others relied on by the appellant. The appeal was dismissed.
John Martin is a freelance writer
