Section 172(1) of the Town and Country Planning Act 1990 (“the Act”), which empowers a local planning authority (LPA) to issue an enforcement notice, is clearly enacted in terms that do not envisage an enforcement notice being issued on each and every occasion when a breach of planning control occurs. A LPA “may” issue an enforcement notice, where it appears to them that there has been such a breach, provided that it also appears to them “expedient” to do so having regard to the provisions of the development plan and to any other material considerations.
It has been stated judicially that the concept of expediency in this context goes wider than the concept of material considerations of the kind engaged in the determination of an application for planning permission. It can extend also to the balance of advantage and disadvantage to the public interest, and in particular the question of whether the potential gain in going ahead with enforcement action is worth the cost and time likely to be spent.
Therefore, it follows that an inspector determining an enforcement notice appeal is not in a position to judge the implications of such issues, since these are pre-eminently within the knowledge of the LPA at the time when the decision to issue the enforcement notice is taken. The court in Matthews v Secretary of State for Communities and Local Government [2014] EWHC 1299 (Admin) applied that reasoning when it reaffirmed earlier judicial decisions to the effect that the lawfulness of a decision by a LPA that it is expedient to issue an enforcement notice may only be challenged by way of judicial review proceedings.
That the court is the proper forum for such a challenge is reflected in the fact that the seven specific grounds, on which section 174(2) of the Act provides that an appeal to the Secretary of State against an enforcement notice may be made, contain no reference to the issue of expediency.
That issue therefore falls outside the ambit of section 174; it falls within what the courts have described as a “residual” category of grounds of challenge to an enforcement notice, such as bias or bad faith. And in this respect, the court’s jurisdiction is not excluded by the provisions of section 285(1) of the Act. See, in particular, R (on the application of Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin); [2010] PLSCS 311.
John Martin is a planning law consultant
