If the tests in section 285 of the Town and Country Planning Act 1990 are met, the validity of a planning enforcement notice can be challenged as a defence to prosecution for breach under section 179.
The Administrative Court has considered this issue on an appeal by way of a case stated in London Borough of Barking and Dagenham v Aziz [2024] EWHC 1212 (Admin).
A local authority can issue an enforcement notice where there has been a breach of planning control. The notice must be served on the land owner, occupier and any other person with a material interest in the land within 28 days of issue and not less than 28 days before it takes effect (section 172).
Service can be made by personal delivery; leaving it at the person’s last known abode or address; or sending it by registered or recorded delivery service (section 39). Failure to serve the enforcement notice is a statutory ground of appeal but it can be disregarded if the appellant has not been substantially prejudiced by the failure to serve.
Failure to comply with an enforcement notice constitutes a breach of the notice punishable by fine on conviction (section 179). However, there is a statutory defence for non-compliance with an unregistered enforcement notice if the defendant was not served with it and was genuinely unaware of its existence. Registration of the notice is fatal to the statutory defence.
An enforcement notice is not valid where it is not served, and the court is satisfied that the defendant did not know and could not reasonably know that it had been issued and their interests have been substantially prejudiced by the failure to serve (section 285).
On 9 April 2019, the local authority issued an enforcement notice requiring Zannat Ara Aziz, the owner of 62 Westbury Road, Barking, to cease using the property as a house in multiple occupation and to remove all alterations and fixtures enabling it to be so used, by 9 August 2019.
Subsequently it prosecuted Aziz for breach of the enforcement notice. The magistrates decided both that the notice was registered and that the enforcement notice was invalid because the tests in section 285 were satisfied. Consequently, there was no breach on which to base a prosecution. Aziz was acquitted.
The Administrative Court dismissed the local authority’s appeal. While registration of the notice was fatal to the statutory defence, it was still open to the court to find that Aziz could not reasonably have been expected to know that the enforcement notice had been issued under section 285. Where the section 285 tests are met, the validity of the enforcement notice can be challenged.
Louise Clark is a property law consultant and mediator
