Town and Country Planning Act 1971 — Application for judicial review rejected by Glidewell J and the Court of Appeal — Appellant owner sought to prohibit planning authority from demolishing a shed under the powers given by section 91 of the Act to carry out works where an owner failed to comply with an enforcement notice — Essential issue was whether the enforcement notice was a complete nullity because it had not been served on the appellant as required by section 87(4) — Notice had in fact been served on appellant’s sister-in-law who ran a self-service shop in a property adjoining the appellant’s house and who had erected the shed in the appellant’s garden — Appellant resided in the USA and travelled widely in pursuance of business interests — The sister-in-law did not appeal against the enforcement notice and took no steps to remove the shed — Eventually the planning authority decided to take action under section 91 and gave notice of intention to enter and demolish the shed — Appellant, having by this time heard of the proceedings, applied for judicial review to prevent the proposed demolition — It was submitted on his behalf that the enforcement notice was a nullity because it was not served on him and that it was contrary to natural justice that he should be penalised without having been notified of the complaint or being given an opportunity to be heard — The Scottish case of McDaid v Clydebank District Council, which raised a similar point, was cited in support as well as the classic natural justice decisions of Cooper v Wandsworth Board of Works, Ridge v Baldwin and Anisminic v Foreign Compensation Commission — Held, however, that provisions such as sections 88(1)(e), 88(4) and 243(2) showed that failure to serve an enforcement notice did not render the notice a nullity — Once this was established, it was clear that the Secretary of State was the sole forum to determine challenges to the validity of the notice on any of the grounds in section 88(1)(b) to (e) — Section 243, subject to exceptions not here relevant, ousted the jurisdiction of the courts in this respect — This was the will of Parliament — McDaid’s case could probably be distinguished on the ground that the planning authority knew the identity of the owner, but, if it was indistinguishable, the court would decline to follow it — Appeal dismissed
This was an
appeal by Natwarbhai Maganbhai Patel, owner of a house at 56 Shrewsbury Lane,
London SE18, from a decision of Glidewell J (as he then was) rejecting the
appellant’s application for judicial review by which he sought to challenge the
proposed action of the respondents, the London Borough of Greenwich, in
carrying out works to demolish a structure in the garden of the appellant’s
house. The appellant sought an order of prohibition and a declaration that the
respondents were not entitled to proceed with the works.
Martin Collins
QC and Nicholas Leviseur (instructed by B Dave & Co) appeared on behalf of
the appellant; Nicholas Nardecchia (instructed by A A Child, solicitor to the
London Borough of Greenwich) represented the respondent council.
Giving the
first judgment at the invitation of the Master of the Rolls, NEILL LJ said:
This is an appeal by Mr N M Patel against the order of Glidewell J (as he then
was) made on August 19 1983 rejecting Mr Patel’s application for judicial
review.
By his
application Mr Patel sought:
(a) an order of prohibition
to prohibit the respondents, the London Borough of Greenwich (the council),
from acting on their decision to carry out certain works of demolition at 56
Shrewsbury Lane, London SE18, and
(b) a declaration that the
council were not entitled to carry out the proposed demolition.
The case
raises a question of some general importance relating to enforcement notices
and the powers of planning authorities under section 91 of the Town and Country
Planning Act 1971 (the 1971 Act).
The relevant
facts can be stated quite shortly. 56 Shrewsbury Lane is a corner property on
the junction of Shrewsbury Lane and Foxcroft Road. The property adjoins 2
Foxcroft Road, at which address the applicant’s sister-in-law, Mrs S M Patel,
has for a number of years carried on a small self-service business now known as
Shooters Hill Stores.
The applicant
bought 56 Shrewsbury Lane in 1976 as a long-term investment. He himself has at
all material times been resident in the United States of America, though he has
business interests in India and East Africa which involve a certain amount of
travelling. He has never occupied 56 Shrewsbury Lane but has allowed his
sister-in-law to use the premises for the purposes of her retail shop. In
return for this use the applicant receives what he has described in an
affidavit as ‘a fee’ which amounted in the year 1982-83 to £3,000. There is no
evidence, however, as to the precise terms on which Mrs S M Patel occupies 56
Shrewsbury Lane and no tenancy agreement or other document has been produced.
In June 1979 a
shed was erected in the garden of 56 Shrewsbury Lane at a point near the
boundary with 2 Foxcroft Road. It was erected by Mrs S M Patel without planning
permission and, it seems, without the knowledge of the applicant.
On September
11 1979, about three months after the shed had been erected, a Mr Bhambra,
acting as the agent of Mrs S M Patel, submitted an application for planning
permission. The address of the proposed development was stated in the
application to be at ‘2 Foxcroft (rear of) 56 Shrewsbury Lane’. The proposed
development was described as ‘erection of single-storey store for adjoining
shop’. It was further stated that Mrs S M Patel ‘also owns joining No 56
Shrewsbury Lane, SE18.’ This
application, which, despite its wording, was treated as an application to
retain the existing building, was refused on December 19 1979.
Mrs Patel then
appealed to the Secretary of State. In the form dated March 5 1980, which was
submitted for the purpose of the appeal, it was stated that ‘No 56 Shrewsbury
Lane belongs to the same owner as 2 Foxcroft Road . . .’.
On January 20
1981 the appeal was dismissed. In the decision letter the inspector wrote:
The appeal
premises
. . . occupy
a substantial proportion of the space at the rear of no 56. I appreciate that
you own that property though you do not live there, but ownership can change
and I must take account of that possibility. In my opinion the space remaining
at the rear of no 56 would be inadequate to
and consequently retention of the appeal premises would mean the likelihood of
no 56 continuing in use as family accommodation being seriously diminished, and
although the appeal premises would be useful to you as day time living
accommodation I do not find that to be a consideration sufficiently compelling
to override the strong planning objections set out above.
Meanwhile, on
April 10 1980 an enforcement notice had been served. It was addressed to and
served on Mrs Patel ‘as a person owning . . . the house and former garden land
known as 56 Shrewsbury Lane’. By the notice the council required Mrs Patel to
remove ‘the single-storey storage building which adjoins the retail shop on the
said land’. This requirement was expressed to be made in pursuance of powers
contained in section 87 of the 1971 Act. The notice took effect on May 21 1980
and required the building to be removed within three months, that is, by August
21 1980.
There was no
appeal against the enforcement notice, but Mrs Patel took no steps to remove
the shed. The council waited until the appeal against the refusal of planning
permission was determined in January 1981 and then brought a prosecution in the
magistrates’ court under section 89(1) of the 1971 Act.
To this
prosecution, however, Mrs Patel had a complete defence; she was not the owner
of 56 Shrewsbury Lane and accordingly the prosecution failed. But as a consequence
of this prosecution the council discovered the existence of the present
applicant. They also decided to serve on Mrs Patel a notice under section 284
of the 1971 Act requiring her to state in writing the nature of her interest in
the property and the name and address of any other person known to her as
having an interest therein.
Once again Mrs
Patel ignored the statutory notice and on July 21 1982 she was fined £100 for
her failure to comply with the section 284 notice and costs were awarded
against her.
The council
then decided to take action under section 91 of the 1971 Act. On September 27
1982 the solicitor to the council wrote to Mrs S M Patel in these terms:
Please take
notice that under the powers of s91 of the above Act, the Council’s contractors,
Messrs Gorst & Co, will be entering your land on Monday, November 22 in
order to take the steps required by the Enforcement Notice dated April 10 1980,
namely to remove the single storage building adjoining the retail shop on the
land . . . .
A copy of this
letter was sent to the solicitors who by then had been instructed by Mrs Patel.
It was at
about this stage that, according to his affidavit, the applicant first heard of
the enforcement proceedings. On November 13 1982 the applicant, giving his
‘present address’ as 56 Shrewsbury Lane, executed a power of attorney
appointing his brother, Mr M M Patel (Mrs S M Patel’s husband), to be his
attorney. On November 26 1982 a writ was issued against the council claiming a
declaration and an injunction, but the proceedings by writ were superseded by
the application for judicial review which was instituted on May 11 1983 and
with which this court is presently concerned.
I shall return
later to consider in more detail the arguments advanced by counsel on behalf of
the applicant. At this stage it is sufficient to record that the essence of the
submissions is that the enforcement notice is a nullity because it was not
served on the applicant and that therefore the council are not entitled to take
action under section 91.
I turn next to
the relevant legislation. It is necessary to examine the enforcement provisions
in Part V of the 1971 Act in a little detail. Some of the relevant sections and
subsections have been renumbered as a result of the enactment of the Local Government
and Planning (Amendment) Act 1981, but I propose to refer to the 1971 Act in
its unamended form.
The scheme for
the enforcement of planning control contained in the 1971 Act can be considered
in two stages.
The first
stage concerns the service by the planning authority of an enforcement notice
requiring steps to be taken to remedy the breach of the control. A person
affected by such a notice has certain rights of appeal.
The second
stage is concerned with the steps which can be taken by the planning authority
if an enforcement notice, which has not been overturned on appeal, is not
complied with. At this stage it is open to the planning authority to seek to
enforce the notice either by criminal proceedings under section 89 of the 1971
Act or by taking action under section 91.
The provisions
relating to an enforcement notice are contained in section 87 of the 1971 Act,
which (excluding subsections (5) and (9) which have no relevance in this case)
are in these terms:
87(1) Where it
appears to the local planning authority that there has been a breach of
planning control after the end of 1963, then, subject to any directions given
by the Secretary of State and to the following provisions of this section, the
authority, if they consider it expedient to do so having regard to the
provisions of the development plan and to any other material considerations,
may serve a notice under this section (in this Act referred to as an
‘enforcement notice’) requiring the breach to be remedied.
(2) There is a breach of planning control if
development has been carried out, whether before or after the commencement of
this Act, without the grant of planning permission required in that behalf in
accordance with Part III of the Act of 1962 or Part III of this Act, or if any
conditions or limitations subject to which planning permission was granted have
not been complied with.
(3) Where an enforcement notice relates to a
breach of planning control consisting in —
(a) the carrying out without planning permission
of building, engineering, mining or other operations in, on, over or under
land; or
(b) the failure to comply with any condition or
limitation which relates to the carrying out of such operations and subject to
which planning permission was granted for the development of that land; or
(c) the making without planning permission of a
change of use of any building to use as a single dwelling-house,
it may be
served only within the period of four years from the date of the breach.
(4) An enforcement notice shall be served on the
owner and on the occupier of the land to which it relates and on any other
person having an interest in that land, being an interest which in the opinion
of the authority is materially affected by the notice.
(5) . . .
(6) An enforcement notice shall specify —
(a) the matters alleged to constitute a breach
of planning control;
(b) the steps required by the authority to be
taken in order to remedy the breach, that is to say steps for the purpose of
restoring the land to its condition before the development took place or
(according to the particular circumstances of the breach) of securing
compliance with the conditions or limitations subject to which planning
permission was granted; and
(c) the period for compliance with the notice,
that is to say the period (beginning with the date when the notice takes
effect) within which those steps are required to be taken.
(7) The steps which may be required by an
enforcement notice to be taken include the demolition or alteration of any
buildings or works, the discontinuance of any use of land, or the carrying out
on land of any building or other operations.
(8) Subject to section 88 of this Act, an enforcement
notice shall take effect at the end of such period, not being less than
twenty-eight days after the service of the notice, as may be specified in the
notice.
Subsection (4)
is of particular importance in the present case.
Section 88 of
the 1971 Act gives a right to appeal against the enforcement notice on certain
grounds. I should set out parts of the section:
88(1) A
person on whom an enforcement notice is served, or any other person having an
interest in the land, may, at any time within the period specified in the
notice as the period at the end of which it is to take effect, appeal to the
Secretary of State against the notice on any of the following grounds —
(a) that planning permission ought to be granted
for the development to which the notice relates or, as the case may be, that a
condition or limitation alleged in the enforcement notice not to have been
complied with ought to be discharged;
(b) that the matters alleged in the notice do
not constitute a breach of planning control;
(c) in the case of a notice which, by virtue of
section 87(3) of this Act, may be served only within the period of four years
from the date of the breach of planning control to which the notice relates,
that that period has elapsed at the date of service;
(d) in the case of a notice not falling within
paragraph (c) of this subsection, that the breach of planning control alleged
by the notice occurred before the beginning of 1964;
(e) that the enforcement notice was not served
as required by section 87(4) of this Act;
(f) that the steps required by the notice to be
taken exceed what is necessary to remedy any breach of planning control;
(g) that the specified period for compliance
with the notice falls short of what should reasonably be allowed.
(2) An appeal under this section shall be made by
notice in writing to the Secretary of State, which shall indicate the grounds
of the appeal and state the facts on which it is based; and on any such appeal
the Secretary of State shall, if either the appellant or the local planning
authority so desire, afford to each of them an opportunity of appearing before,
and being heard by, a person appointed by the Secretary of State for the
purpose.
(3) Where an appeal is brought under this
section, the enforcement notice shall be of no effect pending the final
determination or the withdrawal of the appeal.
(4) On an appeal under this section —
(a) the Secretary of State may correct any
informality, defect or error in the enforcement notice if he is satisfied that
the informality, defect or error is not material;
(b) in a case where it would otherwise be a
ground for determining the appeal in favour of the appellant that a person
required by section 87(4) of this Act to be served with the notice was not
served, the Secretary of State may disregard that fact if neither the appellant
nor that person has been substantially prejudiced by the failure to serve him.
In the present
case ground (e) in section 88(1) and the provisions of section 88(4)(b) are of
particular importance.
The second stage
is reached if and when there is a failure to comply with an enforcement notice
after the time for compliance has passed and any relevant appeal has been
disposed of. One method of enforcement at this stage is by way of criminal
proceedings.
The provisions
relating to penalties for non-compliance with an enforcement notice are
contained in section 89 of the 1971 Act. This section provides as follows:
89(1) Subject to the provisions of this section,
where an enforcement notice has been served on the person who, at the time when
the notice was served on him, was the owner of the land to which it relates,
then, if any steps required by the notice to be taken (other than the
discontinuance of a use of land) have not been taken within the period allowed
for compliance with the notice, that person shall be liable on summary
conviction to a fine not exceeding £400 or on conviction on indictment to a
fine.
(2) If a person against whom proceedings are
brought under subsection (1) of this section has, at some time before the end
of the period allowed for compliance with the notice, ceased to be the owner of
the land, he shall, upon information duly laid by him, and on giving to the
prosecution not less than three clear days’ notice of his intention, be
entitled to have the person who then became the owner of the land (in this
section referred to as ‘the subsequent owner’) brought before the court in the
proceedings.
(3) If, after it has been proved that any steps
required by the enforcement notice have not been taken within the period
allowed for compliance with the notice, the original defendant proves that the
failure to take those steps were attributable, in whole or in part, to the
default of the subsequent owner —
(a) the subsequent owner may be convicted of the
offence; and
(b) the original defendant, if he further proves
that he took all reasonable steps to secure compliance with the enforcement
notice, shall be acquitted of the offence.
(4) If, after a person has been convicted under
the preceding provisions of this section, he does not as soon as practicable do
everything in his power to secure compliance with the enforcement notice, he
shall be guilty of a further offence and liable —
(a) on summary conviction to a fine not
exceeding £50 for each day following his first conviction on which any of the
requirements of the enforcement notice (other than the discontinuance of the
use of land) remain unfulfilled; or
(b) on conviction on indictment to a fine.
(5) Where, by virtue of an enforcement notice, a
use of land is required to be discontinued, or any conditions or limitations
are required to be complied with in respect of a use of land or in respect of
the carrying out of operations thereon, then if any person uses the land or
causes or permits it to be used, or carries out those operations or causes or
permits them to be carried out, in contravention of the notice, he shall be
guilty of an offence, and shall be liable on summary conviction to a fine not
exceeding £400, or on conviction on indictment to a fine; and if the use is
continued after the conviction he shall be guilty of a further offence and
liable on summary conviction to a fine not exceeding £50 for each day on which
the use is so continued, or on conviction on indictment to a fine.
(6) Any reference in this section to the period
allowed for compliance with an enforcement notice is a reference to the period
specified in the notice for compliance therewith or such extended period as the
local planning authority may allow for compliance with the notice.
In the present
case the proceedings which were brought against Mrs Patel following the
dismissal of the planning appeal were brought under section 89(1). To this
prosecution, as I have already mentioned, she had a complete defence because at
the time when the enforcement notice was served on her she was not the owner of
the land to which the notice related. Nor of course could the applicant have
been made amenable to criminal proceedings under section 89(1) because, though
the owner of the land at the material time, he had not been served with the
enforcement notice. In my judgment this protection from criminal prosecution is
of importance. Furthermore, it is right to draw attention to the protection
against a prosecution under section 89(5) of the 1971 Act which is afforded in
appropriate circumstances by section 243(2).
I shall set
out the relevant provisions of section 243 later in my judgment.
I come now to
section 91 of the 1971 Act, which is the section on which the council claimed
to rely when they wrote the letter of September 27 1982. Section 91 (so far as
it is material) is in these terms:
91(1) If,
within the period specified in an enforcement notice for compliance therewith,
or within such extended period as the local planning authority may allow, any
steps required by the notice to be taken (other than the discontinuance of a
use of land) have not been taken, the local planning authority may enter the
land and take those steps, and may recover from the person who is then the
owner of the land any expenses reasonably incurred by them in doing so.
(2) Any expenses incurred by the owner or
occupier of any land for the purpose of complying with an enforcement notice
served in respect of any breach of planning control (as defined in section
87(2) of this Act) and any sums paid by the owner of any land under subsection
(1) of this section in respect of expenses incurred by the local planning
authority in taking steps required by such a notice to be taken, shall be
deemed to be incurred or paid for the use and at the request of the person by
whom the breach of planning control was committed.
It is to be
observed that there is no provision in section 91(1) which makes service of the
enforcement notice on the owner a prerequisite for the recovery of expenses by
the planning authority. It is further to be observed that by section 91(2) the
owner is given certain rights against the person who committed the breach of
planning control in respect of any sums which he has to pay to the planning
authority under section 91(1).
On the other
hand, it is quite plain that any rights conferred on a planning authority by
section 91(1) are dependent on the existence of a valid enforcement notice. In
the present case it is contended on behalf of the applicant that the
enforcement notice dated April 10 1980 was a nullity. On behalf of the council,
on the other hand, it is contended that the enforcement notice is valid and
enforceable and reliance is placed in particular on section 243. I should
therefore set out the terms of section 243(1) and at the same time draw
attention to the provisions of section 243(2) which provide protection from
prosecution under section 89(5) to a person on whom the enforcement notice was not
served and who can satisfy the requirements set out in section 243(2)(c).
The two
relevant subsections of section 243 are as follows:
(1) Subject to the provisions of this section —
(a) the validity of an enforcement notice shall
not, except by way of an appeal under Part V of this Act, be questioned in any
proceedings whatsoever on any of the grounds specified in section 88(1)(b) to
(e) of this Act; and
(b) . . .
(2) Subsection (1)(a) of this section shall not
apply to proceedings brought under section 89(5) of this Act against a person
who —
(a) has held an interest in the land since
before the enforcement notice was served under Part V of this Act; and
(b) did not have the enforcement notice served
on him thereunder; and
(c) satisfies the court that —
(i) he did not know and could not reasonably
have been expected to know that the enforcement notice had been served; and
(ii) his interests have been substantially
prejudiced by the failure to serve him.
I can come now
to consider in more detail the arguments addressed to the court on behalf of
the appellant.
Mr Collins
advanced a number of submissions, which I can summarise as follows:
(1) That it is a fundamental principle of English
law that no man is to be deprived of his property without having an opportunity
to be heard, this being a principle which is quite independent of any statutory
provision requiring notice.
(2) That any departure from this principle
renders any decision or any administrative action based on such a decision not
only unlawful but also a nullity.
(3) That accordingly the enforcement notice in
this case which was not served on the appellant was a nullity or at any rate
rendered any decision or action to enforce the enforcement notice against the
appellant a nullity.
(4) That as the enforcement notice and any
attempt to enforce it against the appellant was a nullity the council could not
rely on section 243 of the 1971 Act.
(5) That as a matter of construction of section
243 Parliament cannot have intended the section to deprive a subject of his
right to resort to the courts to complain that he had not been served when that
absence of service was likely to render nugatory his right of appeal to the
Secretary of State. Mr
was lost on May 21 1980.
(6) That this court should follow the dicta of
the First Division of the Court of Session in McDaid v Clydebank DC
[1984] JPL 579 and hold that as the appellant had not been served with the
enforcement notice he was still able to challenge the validity of the notice by
proceedings in the courts. The decision in the McDaid case was brought
to the attention of the court and indeed of Mr Collins through the industry of
Mr Nardecchia, who appeared on behalf of the council.
The general
principle on which Mr Collins relied is not in doubt. It can be traced through Cooper
v Wandsworth Board of Works (1863) 14 CBNS 180 to Ridge v Baldwin
[1964] AC 40 a hundred years later: no man is to be deprived of his property
without his having an opportunity of being heard. Moreover it is necessary to
bear in mind that a court is entitled to investigate whether a decision is a
nullity notwithstanding a statutory provision that the decision ‘shall not be
called in question in any court of law’: see Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147.
In the present
case, however, the enforcement notice contained the information specified in
section 87(6) of the 1971 Act. To that extent the notice complied with the Act.
The defect lay in the service of the notice; it was not served on the owner as
required by section 87(4). The question then arises: does this defect in
service render the notice a nullity either because a statutory requirement as
to service has not been observed or because to treat the notice as valid would
offend the general principle to which Mr Collins drew our attention.
In my judgment
the answer to this question is to be found in the 1971 Act itself and in the
decisions which are binding on this court in which the 1971 Act and its
precursors have been considered.
One can start
by looking to see whether a failure to comply with section 87(4) is dealt with
expressly or impliedly in other parts of the Act. One finds at once that there
are at least three relevant provisions:
(a) Section 88(1)(e), which gives a right to
appeal to the Secretary of State on the ground ‘that the enforcement notice was
not served as required by section 87(4) of this Act’.
(b) Section 88(4), which empowers the Secretary
of State to disregard the fact that a person required by section 87(4) to be
served with a notice was not served ‘if neither the appellant nor that person
has been substantially prejudiced by the failure to serve him’.
(c) Section 243(2), which gives a person charged
under section 89(5) but who has not been served with an enforcement notice the
right to question its validity on any of the grounds specified in section
88(1)(b) to (e) provided he satisfies the court of the matters specified in
section 243(2)(c). And it is to be observed that a person who has not been
served is not entitled to rely on section 243(2) so as to challenge the
validity of an enforcement notice in criminal proceedings under section 89(5)
if he cannot prove that ‘his interests have been substantially prejudiced by
the failure to serve him’.
In the light
of these provisions, it seems to me to be impossible to contend that a failure
to serve an enforcement notice in accordance with section 87(4) renders the
notice a nullity. The general principle invoked by Mr Collins has to yield to
the will of Parliament. Indeed Mr Collins was constrained to concede the
difficulty of arguing that the notice in this case was a nullity for all
purposes and even as against Mrs S M Patel.
I am conscious
of the fact that in coming to this conclusion I am at variance with the views
expressed by Lord Cameron in McDaid’s case. But in that case the
district council were aware of the identity of the owner and the case can be
distinguished on the facts from those which are presently before this court. If
and in so far as the decision in McDaid’s case, however, is authority
for the proposition that the failure to serve a notice in accordance with
section 87(4) renders the notice a nullity, I must with the utmost respect
decline to follow it. As was recognised by the House of Lords in Davy v
Spelthorne Borough Council [1984] AC 262, the 1971 Act entrusts certain
matters to the Secretary of State to the exclusion of the courts.
Once it is
decided that the enforcement notice is not a nullity stricto sensu, the
case for the appellant falls to the ground. The Act stipulates that the
Secretary of State is to be the forum for deciding all challenges to the
validity of an enforcement notice on any of the grounds contained in section
88(1)(b) to (e). Section 243 (subject to subsection (2)) ousts the jurisdiction
of the courts to determine such challenges. There may of course be cases where
the validity of an enforcement notice is challenged on some ground other than
those contained in the relevant paragraphs of section 88(1). In such cases
section 243 has no application, as Lord Fraser of Tullybelton pointed out in Davy
v Spelthorne BC, where he said at p 272:
If, for
example, the respondent had alleged that the enforcement notice had been
vitiated by fraud, because one of the appellants’ officers had been bribed to
issue it, or had been served without the appellants’ authority, he would indeed
have been questioning its validity, but not on any of the grounds on which an
appeal may be brought under Part V.
In my
judgment, therefore, the learned judge was right to reject the appellant’s
claim for judicial review.
Before I part
with the case, however, I think I should add a few words about the
discretionary power contained in section 91. In my view there may be cases
where an owner (or other person interested) who has not been served and who has
not appealed is in a position to place facts before the planning authority
which tend to show, for example, ‘that the matters alleged in the notice do not
constitute a breach of planning control’ (cf section 88(1)(b)). In that
event, it seems to me that there is a duty on the planning authority to
investigate those facts before it takes action under section 91 and that if the
planning authority unreasonably refuses to carry out such an investigation the
court would be entitled to review not the original enforcement notice but the
decision to enter the land and take steps under section 91.
This point
does not arise in the instant case, where the challenge has been to the
enforcement notice and not to the exercise of any later discretion, but it is
important to underline that not only does the Act itself contain the safeguards
to which I have drawn attention but in an appropriate case the court may be
able to intervene to review on Wednesbury principles a decision to take
action under section 91.
For the
reasons which I have endeavoured to outline I would dismiss this appeal.
SIR JOHN MEGAW
agreed that the appeal should be dismissed for the reasons given by Neill LJ
and the Master of the Rolls. He added: Further, even if the correct view were
that the decision of the local authority is susceptible of challenge by way of
judicial review, there is another ground on which, in my opinion, the appeal
should fail.
As was
emphasised by Lord Hailsham of St Marylebone LC in London & Clydeside
Estates Ltd v Aberdeen DC [1980] 1 WLR 182 at p 190, this
supervisory jurisdiction is ‘inherently discretionary’. The discretion falls to
be exercised even if the act or omission which gives rise to the judicial
review is a breach of what is sometimes described as a ‘mandatory’ statutory
provision. That a decision which is in breach of a ‘mandatory’ provision
(however defined) is not necessarily to be declared invalid or to be struck
down by the court on judicial review is established by the speech of Lord Keith
of Kinkel in the Clydeside case at p 202, where he referred with
approval to the decision of this court in Brayhead (Ascot) Ltd v Berkshire
CC [1964] 2 QB 303. Lord Keith’s speech was concurred in by Lord
Wilberforce and Lord Russell, and his opinion on this point is thus binding
authority.
No doubt if
the breach of a ‘mandatory’ provision had resulted, or could fairly be expected
possibly to result, in some real, as distinct from some remote or fanciful,
loss or prejudice to the applicant, the court would normally and readily
exercise the discretion in the applicant’s favour. Moreover, even if no real
loss or prejudice to the applicant had occurred or was to be anticipated, it
would still in some cases be right for the court to exercise its discretion to
nullify the decision under review. That would be so where the decision had been
made in conscious disregard of a ‘mandatory’ provision. It might be so also if there
had been carelessness on the part of the administrative body in failing to give
effect to the statutory requirements.
In the present
case I see no reason to suppose that any real prejudice has resulted to the
applicant or that the local authority were either contumelious or careless.
As to
prejudice, an appeal was presented by the applicant’s sister-in-law, Mrs Patel.
It was heard and dismissed. The applicant says that he would have wished to
have had the appeal argued either by himself or by solicitors or counsel of his
choice. He puts forward no hint of any point of fact or argument of law which
was overlooked or inadequately argued in the appeal which was heard. He puts
forward no basis for any suggestion that argument of the appeal by him or by a
legal representative chosen by him could conceivably have produced a different
result.
As far as the
local authority is concerned, there is no suggestion of
hold that the authority failed to show due diligence. It had no reason to
suspect that the appellant’s sister-in-law was inaccurate in her assertion that
she was the sole owner.
As Glidewell J
said, this case shows a conspicuous lack of merit. Even if it were to be held
to be susceptible to judicial review, in the proper exercise of the court’s
discretion the decision of the London Borough of Greenwich should not be
disturbed.
Also agreeing,
SIR JOHN DONALDSON MR said: While accepting the supreme authority of
Parliament, I would hope and expect that the courts would be extremely
reluctant to accept that a planning authority could ever be the sole judge of
whether or not it was exceeding its powers. Accordingly, I was concerned when
it appeared that a landowner might find that he had lost his right of appeal to
the Secretary of State against an enforcement notice before he knew that there
was anything to appeal against and yet be denied any right to be heard by the
courts. If this was indeed the case, a situation could arise in which a local
authority, in reliance upon an enforcement notice which should never have been
issued, could demolish a building for which no planning permission was required
or even one which had been built in accordance with an express permission.
I am quite satisfied
that that is not the position. The combined effect of sections 89(5) and 243(2)
of the Act is that someone who held an interest in land at the date of the
issue of the enforcement notice, but who has never had an opportunity of
appealing against it and would be prejudiced if action were taken under it, can
challenge the notice if any criminal liability is sought to be imposed upon him
in reliance upon that notice. Criminal liability apart, an enforcement notice
should not adversely affect him unless and until the local planning authority
seeks to take action under section 91. He then has two protections. He has
rights against the person by whom the breach of planning control was committed
(section 91(2)) and he has a right of recourse to the courts by application for
judicial review, if the local planning authority has not given appropriate
consideration and effect to any representations which he has made concerning
matters which he had no opportunity of raising by way of appeal to the
Secretary of State.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
