Section 174 of the Town and Country Planning Act 1990 (the Act) provides for an appeal to the Secretary of State against an enforcement notice on one or more of seven specific grounds. However, section 285 of the Act goes on to provide that the validity of an enforcement notice shall not – save by way of such an appeal – be questioned in any court proceedings on any of those seven grounds, subject to one limited exception.
This provision recognises the fact the seven specific grounds of appeal are more suited to decision makers on appeal than to the courts, particularly where planning merits are in issue. But what anyone served with an enforcement notice should not forget is that residual grounds of challenge falling outside those set out in section 174 may subsist, so enabling a claim for judicial review to be made. This would be so, for instance, where fraud or bias was established.
For instance, in R (on the application of Gazelle Properties Ltd) v Bath and North East Somerset Council (see PP 2011/14) the claimants had appealed to the Secretary of State against two enforcement notices. Separately, they sought judicial review of the decision by the local planning authority (LPA) contending that, in a number of respects, the LPA had erred in law – particularly in relation to the issue of expediency.
The court held that the residual category of grounds was not limited to cases of bad faith or bias. It also included the exceptional case of a decision to issue the notice being based on irrelevant or improper grounds. If matters that were relevant to the question of expediency, and beyond the reach of the statutory grounds of appeal, were ignored, or if irrelevant matters were taken into account, section 285 did not exclude the court’s jurisdiction.
However, the facts in R (on the application of Maistry) v London Borough of Hillingdon [2013] EWHC 4122 (Admin) were somewhat different. There, the claimant had failed to lodge an appeal against an enforcement notice under section 174 in time, and the LPA had refused an extension of time in one form or another. She sought judicial review not only of that refusal, but also of the LPA’s original decision to issue the enforcement notice.
The court, while noting the decision in Gazelle Properties, held that grounds on which she sought to impugn the decision to issue the enforcement notice raised only issues that she would have been able to pursue in a section 174 appeal. They were not, accordingly, within the residual grounds of challenge.
John Martin
