Respondents serving enforcement notice and stop notice upon applicants – Stop notice stayed – Respondents serving second stop notice in same terms – Applicants seeking permission to apply for judicial review of respondents’ decision – Whether stop notices lawful – Whether effectively served – Whether respondents’ decision-making process flawed – Application refused
On 3 November 1999 the respondents issued an enforcement notice against the applicants, which specified the breach of planning control as the material change of use of premises to use as a restaurant/bar and the erection of extractor ducting at the rear of the property. Copies of the notice were served that day, along with a stop notice, which required discontinuance of the extractor and curtailed the opening hours. The stop notice was to take effect on 6 November. The applicants sought permission to apply for judicial review. At the hearing, the judge adjourned the application and stayed the stop notice. A number of the applicants’ challenges to the notice went to the manner in which it was served. On 10 November the respondents served a second stop notice upon the applicants, in the same terms as the first. The applicants sought permission to apply for judicial review of the respondents’ decision to serve two stop notices upon them and to challenge the notices themselves.
The applicants submitted that the first stop notice was unlawful in two respects: (i) that it was expressed to take effect in a shorter time-limit than provided for in the Town and Country Planning Act 1990 section 184(3); (ii) that the service was not effected in the way prescribed under the 1990 Act.
In respect of the second stop notice, the applicants submitted that, as the first notice had not been withdrawn, the respondents had no power to serve a second notice under section 183(1) of the Act. Finally, the applicants submitted that the respondents’ decision-making process was flawed in a number of respects in that, principally, they failed to consult the applicants, denying them an opportunity to make representations, before authorising service of the notices.
Held: The application for permission to apply for judicial review was refused.
1. The wording of section 184(3) of the Act was clear. Three days on from the 3 November was 6 November. The respondents had not made a technical error. Furthermore, section 329(1) of the Act applied to service of the notices, and, on the evidence, they had been validly served upon the applicants.
2. There was nothing in section 183(1) to limit the number of notices that the respondents could serve, or that could have effect at any one time. Under section 6 of the Interpretation Act 1978, the singular included the plural unless the contrary appeared. Section 183(7) also recognised that the respondents had the power to serve a second notice.
3. There was a clear danger that consulting the applicants would frustrate the purposes of the provisions in the Act. R v Birmingham City Council, ex parte Ferrero [1993] 1 All ER 530 considered. Furthermore, the statute provided a scheme of protection, namely, the right to appeal against an enforcement notice and to obtain compensation in certain circumstances. There was no need for that to be supplemented by the courts. Accordingly, the respondents were under no legal duty to consult. In any event, failure to consult would not have resulted in any prejudice to the applicants.
Andrew Butler (instructed by Lancasters) appeared for the applicants; Richard Harwood (instructed by the solicitor to Hounslow London Borough Council) appeared for the respondents.
Sarah Addenbrooke, barrister
