The importance of giving written notice of an appeal against an enforcement notice within the prescribed time limit cannot be overstated.
The facts of R (on the application of Stern) v Horsham District Council [2013] EWHC 1460 (Admin) provide a useful reminder of the reasons why it is vital to give written notice of an appeal against an enforcement notice to the Secretary of State within the prescribed time limit.
Section 172(1) of the Town and Country Planning Act 1990 gives a discretion to a local planning authority (“LPA”) to issue an enforcement notice where it appears to it that (a) there has been a breach of planning control and (b) it is expedient to do so. Section 172(2) identifies the persons on whom copies of an enforcement notice must be served, and section 172(3) sets out the related time limits. The purpose of those time limits is to ensure that a copy the enforcement notice is served within 28 days of the date on which the enforcement notice was issued, and that the recipient of the copy has it in his hands for a least 28 days before the date specified in the enforcement notice as the date on which it is to take effect. Section 174(3) of the Act then requires that written notice of an appeal must be given before the date so specified.
These are the obvious practical consequences of failing to meet that time limit. (1) The limit is an absolute one, and no extension can be granted. It has been held that once it expires, the secretary of state has no jurisdiction to determine the appeal. The LPA might be requested to withdraw the enforcement notice, and then issue and serve another, but this can hardly be relied upon. (2) The enforcement notice immediately takes effect, and the benefit of section 175(4) – under which its effect is otherwise suspended until the final determination or withdrawal of the appeal – is lost. (3) The provisions of section 285(1) of the Act largely restrict the ability of the recipient to take other action, since they prevent the validity of the enforcement notice being questioned in any proceedings whatsoever on any of the grounds on which an appeal to the secretary of state may be brought. (4) Failure to comply with an enforcement notice that has taken effect amounts to a criminal offence punishable by a fine. The court, in determining the amount of the fine, must have regard to financial benefit accruing to the offender in consequence of the offence.
John Martin
