Council serving enforcement notices – Recipient challenging validity – Inspector refusing to hear or consider evidence as to whether notices exceeding steps necessary to remedy injury to amenity – Inspector refusing to amend requirements contained in enforcement notices – Whether inspector erring – Sections 173(4)(a) and (b), 174(2)(f), and 176(1)(b) of the Town and Country Planning Act 1990
In 1989 the second appellant council granted planning permission to the respondent for the development of a golf course, clubhouse and environmental reserve. In 1997 three enforcement notices were issued in relation to material imported onto the site. All three notices required the cessation of the deposit of waste material, the removal of all waste material and the preparation and seeding of the land upon which waste materials had been deposited. Time limits were specified for compliance with each stage. The respondent appealed against the enforcement notices under section 174(2)(f) of the Town and Country Planning Act 1990, contending that the steps required by the notices exceeded what was necessary to remedy any breach of planning control, or any injury to amenity, caused by any such breach. The inspector dismissed the appeal, and the respondent again appealed.
The judge refused the first ground of the appeal, namely that the inspector had erred in refusing to hear evidence or argument on behalf of the respondent, to the effect that the steps required by the notices exceeded what was necessary to remedy any injury to amenity caused by any breach of planning control. However, the judge found in favour of the respondent on the second ground, finding that the inspector had erred in law by holding that, in spite of his powers under section 176(1)(b) of the Act, he was not entitled to consider varying the notices. The Secretary of State appealed, and the respondent cross-appealed.
The respondent submitted that the word “or” at the end of section 173(4)(a) was not fully disjunctive. Thus, when (as in the instant case) an appeal was brought on the ground of section 174(2)(f), it was open to an appellant to contend that the steps required by the notice exceeded what was necessary to remedy any injury to amenity caused by the breach; section 173(4)(b). Alternatively, it was submitted that, when it could be ascertained by reading the enforcement notice as a whole, including the reasons for issuing the notice, one of the purposes that the local planning authority sought to achieve when specifying the steps they required to be taken was that set out in section 173(4)(b). Thus, an appellant who relied upon ground (f) had to be entitled to argue that the steps required to be taken exceeded what would be necessary to remedy any injury to amenity, and to adduce evidence directed to general planning consideration of that kind.
Held: The appeal was allowed and the cross-appeal dismissed.
1. The word “or” at the end of section 173(4)(a) was not fully disjunctive. When exercising their powers under section 173(3) and (4), a local planning authority could require restoration of the land to the condition it was in prior to the breach, and, in the instant case, this was the action chosen by the council. They had confined themselves to the purposes specified in section 173(4)(a), even though it was clear from the notices that their reasons for issuing them included general planning and amenity considerations. Where, as here, an appellant chose not to pursue his appeal under section 174(2)(a), he could not introduce general planning considerations or arguments in relation to amenity under section 174(2)(f). This was because, under the latter section, the inspector would be concerned only with whether the steps required by the notice or the activities required by the notice to cease, exceeded what was necessary to remedy the breach. Accordingly, the judge had been correct in upholding the inspector’s finding on the first ground.
2. The question that arose under the second ground was whether the inspector had taken too narrow a view of his power, under section 176(1)(b), to vary the terms of the enforcement notices. Although, section 176(1) gave to the Secretary of State, and thus to an inspector, a wide power to vary the terms of an enforcement notice, it was a generously expressed slip-rule, and not a power that could properly be used to attack the substance of an enforcement notice. Accordingly, a notice requiring the recipient to return the land to the condition it was in prior to the breach could not, by reliance upon section 176(1)(b), be turned into a notice that required something less. Thus, the judge had been wrong to find that the inspector had erred in holding that he was not entitled to consider varying the notices.
Alice Robinson (instructed by the Treasury Solicitor) appeared for the first appellant; Harriet Murray (instructed by the solicitor to Oxford County Council) appeared for the second appellants; Alun Alesbury (instructed by Morgan Cole, of Oxford) appeared for the respondent.
Thomas Elliott, barrister
