As is well known, the private citizen cannot initiate enforcement action where a breach of planning control exists. Local planning authorities have the primary responsibility for doing so. Moreover, the power to issue an enforcement notice is entirely discretionary. Section 172(1) of the Town and Country Planning Act 1990 provides that an authority may issue an enforcement notice where it appears to the authority that (a) there has been a breach of planning control: and (b) it is expedient to do so. Even in the case of a flagrant breach, the authority has the option of taking no action. Consequently, a decision not to issue an enforcement notice will in most instances withstand a third-party challenge in the courts.
In Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin), such a challenge did succeed, and a mandatory order was granted against the authority obliging it to take enforcement action. However, the facts of the case were special. A factory, amounting to an EIA development, had been constructed without planning permission and an assessment. It was about to acquire immunity from enforcement action. The judge stated that it would be a betrayal by the authority of its responsibilities – and a disgrace – if enforcement action were not taken promptly.
In contrast, the facts of a more recent case R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 3320 (Admin); [2009] PLSCS 348 were somewhat less extreme. There, the operator of a waste-processing site that had the benefit of both planning permission and a waste management licence obtained planning permission to extend the site. That permission was quashed as a result of the failure by the authority to adopt a screening opinion, but the operator nevertheless continued to use the extended site.
An objector, in judicial review proceedings, sought, inter alia, a mandatory order requiring the authority to take enforcement action. The court refused to make such an order, stating that it would be inappropriate to do so in these particular circumstances.: Ardagh distinguished. There was no evidence that the development was an EIA one, in the absence of a valid screening opinion to that effect, and the court was not in a position to hold that it was. The delay in adopting a valid screening opinion was not of itself justification for making a mandatory order. There was no reason to suppose that the authority would not soon issue a screening opinion and then decide whether planning permission should be granted.
John Martin is a freelance writer
