Enforcement notices issued by district and county councils – Inspector hearing county matter amending district notice – Amendment failing to specify steps to be taken to remedy alleged breach – Whether amended notice a nullity – Whether planning permission to be deemed from operation of section 173(11) of Town and Country Planning Act 1990
The defendant, V, owned a 5.3 acre site at Homelands, 71 Copthorne Road, Felbridge on which he operated a waste transfer and skip hire business. Enforcement notices were issued by the plaintiffs, Tandridge District Council, in 1990 and 1991. The inspector, by a decision letter dated May 7 1992, rejected V’s appeal against the 1991 notice requiring him: (1) to refrain from using the land for the “commercial storage and/or parking of motor vehicles” (commercial storage); and (2) to remove all motor vehicles from the land. In April 1993 Surrey County Council served on V an enforcement notice alleging a breach of planning law in relation to the disposal of waste on the land (a county matter) and set out the action required to remedy the breaches. V appealed. A second inspector amended the county notice to include the same allegation as the district notice, namely commercial storage, but failed to specify any steps to remedy the breach.
On May 15 1995, in injunction proceedings against V brought by both Tandridge and the county council, V gave an undertaking to remove the motor vehicles. In June 1997 he applied to have the undertaking discharged and sought a declaration on the grounds that, since no steps had been specified in the amended notice, section 173(11) of the Town and Country Planning Act 1990 operated to grant planning permission. The question arose, inter alia , whether the failure of the amended notice to require V to remedy any breaches of planning control in respect of commercial storage operated under section 173(11) of the Act to grant planning permission. Tandridge argued, inter alia, that: (1) the second inspector, hearing an appeal in relation to a county matter had no power to vary the 1991 notice to include commercial storage, a district matter; (2) the amendment to the county notice by the second inspector was a nullity because it did not specify the steps to be taken; and (3) as a matter of statutory construction, the legislation required that, before section 173(11) operated so as to grant planning permission, the previous subsections of section 173 must be, and had not been, complied with.
Held The defendant’s application was refused.
1.The court could consider whether the amendment was a nullity, but could not consider questions of invalidity since those questions could only be raised in accordance with the appeal procedures laid down by the Act: see Miller-Mead v Minister of Housing and Local Government [1963] 1 All ER 459. The relevant question was not whether the notice, as amended, was a nullity, but whether the amendment itself was a nullity. Since the inspector’s amendment failed to specify any steps to remedy the breach of planning control, the amendment to the notice was defective on its face and therefore a nullity and of no effect.
2. Section 173 set out the three main elements to be satisfied, namely particulars of breach of planning control, steps to be taken to remedy those breaches and the date by which the notice was to take effect. Since the 1991 notice did not set out the steps to be taken to remedy the breach, one of the essential preconditions had not been complied with, and section 173(11) did not operate to grant planning permission.
David Mole QC (instructed by the solicitor to Tandridge District Council) appeared for the plaintiffs; Robin Barratt QC and Peter Village (instructed by Courts & Co) appeared for the defendant.
