Construction — Whether enforcement notice could be issued outside 10-year limitation period — Local planning authority not having served an enforcement notice within that period — Inspector finding for local planning authority — Application to quash granted
The case concerned six enforcement notices relating to identified areas used, among others things, for car breaking and storage of commercial vehicles on St Alban’s Farm, Hounslow, Middlesex. The notices were dated July 24 1992 and referred to a change of use without planning permission. Those notices related to sites 1, 2, 3 and 6; enforcement notices in respect of areas 4 and 5 were also issued. The notices were withdrawn as being seriously defective. Other areas on the same site were used for industrial undertakings, but were not the subject of enforcement proceedings. It was common ground that the areas to which the change of use related had been so used after 1963, but before 1982.
In August 1993, the local planning authority purported to substitute their withdrawn notices in relation to areas 4 and 5 with replacement notices. Under section 171B(3) of the Town and Country Planning Act 1990 (inserted by section 4 of the Planning and Compensation Act 1991), “… no enforcement action may be taken before the end of the period of 10 years beginning with the date of the breach” (the 10-year limitation period). While that section was brought into force on January 2 1992, it was subject to a transitional provision to the effect that, until July 27 1992, it did not prevent an enforcement notice being issued in relation to a breach occurring after the end of 1963. Under section 171B(4), a local authority were not prevented from “taking further enforcement action in respect of any breach … if during the period of 4 years ending with that action, the local planning authority have taken … enforcement action in respect of that breach”. The inspector found that the notices related to the same land and the same activities and were issued within four years of the previous ones, therefore complying with the statutory provisions. It was accepted that if the argument of the applicants succeeded in relation to notices 4 and 5, the other uses would be lawful in that they would be immune from enforcement proceedings. The applicants argued, inter alia, that the construction of the inspector allowed a local planning authority to issue a notice outside the 10-year limitation period, even after July 27 1992, where they had never served an enforcement notice within the 10-year limitation period.
Held Judgment for the applicants.
1. The purpose of the transitional provision was to give local planning authorities some time to set their house in order after the enactment of section 171B.
2. According to the local planning authority’s argument, the first enforcement notice related to a breach of planning control after 1963. They then took further action in respect of the same breach. Moreover, the second enforcement notice was served within four years of the first one.
3. However, the applicants’ argument was to be preferred. To hold otherwise would allow the local planning authority to act long after the cut-off date provided by the legislation, ie after July 27 1992 and they could then issue a succession of enforcement notices. The court was not driven to accept such an interpretation.
Duncan Ouseley QC and Paul Stinchcombe (instructed by Bird & Lovibond, of Uxbridge) appeared for the applicants; Ian Albutt (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the local planning authority, Hounslow London Borough Council, did not appear and were not represented.
