Defective service of an enforcement notice does not, as a general matter, render the notice a nullity but it is a ground upon which an appeal lies to the Secretary of State under section 174 of the Town and Country Planning Act 1990. Even then, failure to effect service properly does not automatically require an appeal to be allowed. This is because section 176(5) provides that where defective service would have been a ground for allowing an appeal, the Secretary of State may disregard the defect if the person in question has not been substantially prejudiced by the failure to serve him.
In Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) the appellant appealed to the High Court under section 289 of the Act against the decision of an inspector upholding two enforcement notices. The notices essentially alleged breaches of planning control by the change of the use of open land to use as a site for stationing mobile homes for human habitation. These had been let on six-month leases. One of the appellant’s grounds of appeal to the High Court was that the inspector’s approach to the service of the second of the two notices was flawed. On the evidence given, while the appellant had been properly served there was doubt as to whether the occupiers of the mobile homes had also been properly served.
The court found that the occupiers of the mobile homes had not been properly served with copies of the second enforcement notice. The judge then went on to consider whether the inspector had been entitled to conclude at the inquiry, as he did, that no substantial prejudice had been caused. He ruled that the inspector had been so entitled. There was ample evidence before him that no substantial prejudice had been suffered.
The appellant himself had acknowledged that all of the occupiers were aware that enforcement notices had been issued. The inquiry had been advertised as required by law. All of the occupiers who had wanted to attend had done so on the first day. Five were witnesses for the appellant, and the remainder were recognised by the inspector as interested parties and permitted to make representations. Finally, no occupier had come forward to complain, either directly or through the appellant, that he or she had suffered any prejudice by reason of the failure to serve the second enforcement notice effectively.
John Martin
