Enforcement notices — Post-1963 breaches — Introduction of 10-year limitation period — Transitional provisions — Whether substitute enforcement notices valid
Between 1963
and July 1982, and in breach of planning control, B commenced the use of parts
of their farm for, inter alia, car breaking. On January 2 1992 section
171B of the Town and Country Planning Act 1990, which introduced the 10-year
limitation period for the issue of enforcement notices, came into force subject
to transitional provisions. However, enforcement notices were issued by the
second appellant local planning authority in respect of the breaches on July 24
1992 in reliance on the transitional provisions. On July 27 1992 the
transitional period for serving enforcement notices based on breach of planning
control after 1963 ended. Because the first enforcement notices were defective,
the local planning authority issued further notices in August 1993 contending
that they were valid under section 171B(4)(b). The Secretary of State appealed
the decision of the court below, that the second notices should be quashed as
being served out of time, contending that the first notices were valid under
the transitional provisions and that the further notices were served within
four years permitted by section 171B(4)(b).
Under section
171B(4)(b) the enforcement action ‘taken or purported to be taken’ within the
previous four years must have been action, or purported action which itself was
valid under the 10-year provision in subsection (3). Accordingly the further
notices were not permitted by subsection 4(b) because the first notices were
outside the 10-year period: see p107B. A planning authority cannot rely on
article 5 of the Planning and Compensation Act 1991 (Commencement No 5 and
Transitional Provisions) Order 1991, to extend the operation of section
171B(4)(b), to serve a further notice following a defective notice served
outside the 10-year period: see p108B. The decision of the court below was
upheld: subsection 4(b) permits a local authority a ‘second bite’ in respect of
a defective enforcement notice provided any further notice is issued within
four years of the first; ‘that breach’ and ‘any breach’ in subsection (4) refer
to the same breach as the first defective enforcement notice. The effect of the
second notices is that the 10-year period would run back from the date of the
first notices: see p107F to 108 and 110.
referred to in the judgments
Appeal against
the decision of Mr Jeremy Sullivan QC
This was an
appeal brought by the Secretary of State against the decision of Mr Jeremy
Sullivan QC, sitting as a deputy judge of the High Court, which on November 22
1994 quashed two enforcement notices served on the respondents as being out of
time: see [1995] 1 PLR 32.
QC and Ian Albutt (instructed by the Treasury Solicitor) appeared for the
appellant the Secretary of State for the Environment.
Ouseley QC and Timothy Corner (instructed by Bird & Livibond, Uxbridge)
appeared for the respondent, William Boyer (Transport) Ltd.
respondents, Hounslow London Borough Council, did not appear and were not
represented.
following judgments were delivered.
EVANS LJ: The Secretary of State for the Environment appeals from the
judgment of Mr Jeremy Sullivan QC, sitting as a deputy judge on November 22
1994, who held, so far as is now relevant, that two enforcement notices nos 4
and 5 which were served on the respondents by the local planning authority
should be quashed as being out of time. They related to alleged breaches of
planning controls which, it was agreed, commenced after the end of 1963, but
before July 1982. The latter is the relevant date, for reasons which will
appear below, if the 10-year limitation period and associated provisions
introduced by the Planning and Compensation Act 1991, as amended, to the Town
and Country Planning Act 1990, apply. The former (‘after the end of the 1963’)
was the corresponding provision in the 1990 Act. So, broadly speaking, the
issue is whether the new (1991) provisions impose the new, shorter, time-limit
in the present case, so far as these two notices are concerned. The judge held
that they do.
Strictly,
however, the new provisions did undoubtedly apply, because they came into force
with effect from January 2 1992: see the Planning and Compensation Act 1991
(Commencement No 5 and Transitional Provisions) Order 1991 (SI 1991 No 2905)
article 3 (‘the 1991 order’). Sections 171A and 171B (so far as relevant) and
the amended section 172 came into force on that date, but there were
transitional provisions in article 5 of the order which are relied upon in the
present case. They read:
5.–(1) Until
July 27, 1992 …
(a) …
(b) nothing in section 171B(3) of the 1990 Act
prevents an enforcement notice which relates to a breach of planning control …
being issued where it appears to the local planning authority that the breach
occurred after the end of 1963.
(2) … the
commencement of paragraph (b) of section 171B(4) shall not permit the taking of
further enforcement action in respect of any breach of planning control where,
immediately before the commencement of that paragraph, the local planning
authority could not have issued an enforcement notice relating to that breach.
The reference
in para (2) of this article is to provisions in section 171B(4)(b), which will
be set out below, which permit the issue of a further enforcement notice within
a period of four years following an earlier notice, if the first notice proves
invalid or is withdrawn. This has the effect of extending the 10-year
limitation period in such circumstance, and it should be noted that there is
nothing in the statutory provisions which says that the four-year extension can
only operate once. In theory, at least, an indefinite extension becomes
possible, provided only that a notice is issued within the 10-year period and
at least once in every succeeding period of four years.
The
complication regarding further notices lies at the heart of the present case,
because both the notices in question were further notices issued on August 19
1993, after earlier notices which were issued on July 24 1992 (three days
before the transitional provision in article 5 ceased to have effect) were
withdrawn.
Mr Richard
Drabble QC for the Secretary of State submits that the first notices alleging
breaches which occurred after the end of 1963 were valid under the transitional
provisions because the old time-limit applied, and that the further notices
were issued within the four-year extension period permitted by section
171B(4)(b). Mr Duncan Ouseley QC, for the respondents, contends that that
subsection does not permit the extension, except in relation to breaches which
occurred within the 10-year period before the first notices were issued. So, he
submits, the cut-off date was July 24 1982, 10 years before the first notices
were issued, and if this is correct as a matter of law, then Mr Drabble accepts
that the further notices were out of time.
Legislation
Although not
directly relevant, because the question is the effect of the Act as amended,
including the transitional provisions, the terms of the original (1990) Act
should be noted. Section 172(1) provided that ‘where it appears to them [local
planning authority] (a) that there has been a breach of planning control; after
the end of 1963 … they may issue a notice requiring the breach to be remedied’,
such a notice being defined as an ‘enforcement notice’: subsection (2). Section
174(1) gave a right of appeal to the Secretary of State, the grounds for which
included ‘(c) that the breach of planning control alleged in the notice has not
taken place’, and ‘(e) … that the breach of planning control alleged by the
notice occurred before the beginning of 1964’.
It may be
observed that section 172(1)(a) was not, strictly, a limitation provision. If
there was no breach ‘after the end of 1963’ then there was no power to issue an
enforcement notice under the section. But section 174(2)(c) and (e) shows that
in substance this was regarded as a time-limit or limitation issue.
The amended
legislation reads as follows:
Section
171A
(1) For the
purposes of this Act —
(a) carrying
out development without the required planning permission;
or
(b) …
constitutes a
breach of planning control.
(2) For the
purposes of this Act —
(a) the issue
of an enforcement notice (defined in section 172);
or
(b) …
constitutes
taking enforcement action.
References to
the distinct matter of breaches of planning conditions have been omitted.
Time-limits
171B. — …
(3) In the
case of any other breach of planning control, no enforcement action may be
taken after the end of the period of ten years beginning with the date of the
breach.
(4) The
preceding subsections do not prevent —
(a) …
(b) taking further enforcement action in respect
of any breach of planning control if, during the period of four years ending
with that action being taken, the local planning authority have taken or
purported to take enforcement action in respect of that breach.
Section 172 now
reads:
Issue of
enforcement notice
172.–(1) The
local planning authority may issue a notice (in this Act referred to as an
‘enforcement notice’) where it appears to them —
(a) that
there has been a breach of planning control; …
Section 174
also has been amended. The grounds of appeal now include
(d) that, at
the date when the notice was issued, no enforcement action could be taken in
respect of any breach of planning control which may be constituted by those
matters.
These are avowedly
true limitation provisions. The breach occurs, regardless of the date when it
occurs, but no enforcement action is permitted outside the period specified in
the amended Act.
The reason for
the four-year extension for further enforcement action permitted by section
171B(4)(b), as I understand it, is that a notice issued within the 10-year
period may prove or be held to be defective, and the local planning authority
can take further action, within the four-year period, in order to avoid being
defeated on what may be technical grounds. No such safeguard was necessary
under the previous legislation, because if the breach occurred after the end of
1963 there was no time-limit for taking action in respect of it.
Discussion
Once section
171B came into force the 10-year time-limit became mandatory, subject only to
the provisions of subsection (4). These provided in subsection (4)(b) for
further enforcement action when the local planning authority have taken or
purported to take enforcement action during the preceding four years. Taking
section 171B alone, that can only mean, in my judgment, that the previous
action was within the time-limits specified in section 171B itself. If that was
not the meaning, then it would be open to the authority to issue a first notice
out of time, that is to say, more than 10 years after the alleged breach, then
withdraw it and issue a further notice relying on subsection 4(b). That cannot
be right, and so I would hold that the enforcement action ‘taken or purported
to be taken’ within the previous four years must have been action, or purported
action, which itself was valid under the 10-year provisions in subsection (3),
or which, arguably, was within the four-year extension after such a notice
given by subsection (4)(b). It is not necessary, in my judgment, to decide in
the present case whether more than one four-year extension is permitted; there
appear to be strong policy objections to permitting indefinite extensions of
that sort, of the kind which influenced the learned judge in the present case.
If that is the
correct meaning of section 171B, then the further notices in the present case
were not permitted by subsection (4)(b) because the first notices were outside
the 10-year period. So the question is whether they were validated, or
prevented from being out of time, by reason of the transitional provisions in
article 5 of the 1991 order. Article 5(1)(b) clearly validated the first
notices — nothing in section 171B(3) prevented an enforcement notice from being
issued in respect of a breach after the end of 1963. So the question arises
whether subsection (4)(b) or the terms of article 5 itself permit further
enforcement action when the original notice was valid, in the sense of not
being time barred, not under section 171B but under this part of article 5.
I would hold
not, because for the reason given above section 171B(4)(b) does not permit
further enforcement action unless the original notice was in time under the
provisions of that section.
However,
article 5 itself provides expressly for the operation of section 171B(4)(b).
The commencement of the subsection, which was on January 2 1992, ‘shall not
permit the taking of further enforcement action … where, immediately before the
commencement of that paragraph, the local planning authority could not have
issued an enforcement notice relating to that breach’. Before January 2 1992,
the authority could lawfully issue a notice in respect of breaches ‘after the
end of 1963’, as these breaches were. Clearly, there could not be further enforcement
action in respect of a pre-1964 breach. It follows, the Secretary of State
argues, that a notice which when issued was valid in respect of a post-1963
breach is permitted by article 5(2). This is supported, it seems, by article
5(3) which provides that para (2) does not apply where proceedings under a
previous notice have not been finally determined by the commencement date. This
suggests that a further notice may be issued under section 171B(4)(b) within
four years of a previous notice, when that notice was valid under
the 1990 Act in its original form.
But this
supposes also that section 171B(4)(b) does permit a further notice alleging a
breach which occurred more than 10 years before the original notice and which
therefore was outside the limitation period specified in section 171B(3). As
stated above, I do not accept that this construction of the subsection is
correct.
In my
judgment, the authority cannot rely upon article 5(2) to extend the operation
of section 171B(4)(b), for two reasons which are related to each other. First,
I am doubtful whether the 1991 order as subordinate legislation (‘commencement
and transitional provisions’) could alter the true interpretation of the
principal Act. Second, para (2) does not purport to do so. It limits the
application of the subsection (‘the commencement … shall not permit’) and it
does not provide that the subsection shall operate in circumstances where
otherwise it would not apply.
Conclusion
For these
reasons, which are not identical with those advanced by Mr Ouseley QC, for the
respondents, I would hold that the judge’s ruling was correct. His main
contention was that the combined effect of section 171B subsections (3) and
(4)(b) is to provide for a limitation period of 10 plus a maximum of four years,
a total of 14 years, and that once the section came into force no enforcement
notice, not even a further notice under subsection (4)(b), could validly refer
to a breach which occurred more than 14 years before its date. Apart from the
question whether the subsection permits more than one four-year period, which I
have considered in general terms above, this argument, in my judgment, is wrong
in principle. The limitation period is 10 years (subsection (3)) from the date
of the breach, and if the working of subsection (4)(b) is regarded in terms of
a further limitation period, then time begins to run from the date of the
original notice, and the date of the breach is no longer relevant. I would not,
therefore, regard the section as specifying one overall period from the date of
the breach.
The judge
placed emphasis on the policy objectives of the amending provisions of the 1991
Act, and like him I would regard these as supporting his conclusion that
subsection (4)(b) does not permit a further notice in the circumstances of this
case. But I would also accept Mr Drabble’s submission that this consideration
is not determinative of the correct interpretation of the statutory provisions.
Mr Drabble
submitted, finally, that the question whether the further notices were
permitted under subsection (4)(b) depends upon the validity of the original
notice. I agree. But, in my judgment, the subsection operates only when the
original notices were not time-barred under the provisions of subsection (3),
ie the 10-year limit, and in the present case they were.
I therefore
would hold that the appeal should be dismissed.
ROCH LJ: Section 174(2) of the Town and Country Planning Act 1990 sets out
the grounds on which an appeal to the Secretary of State against an enforcement
notice may be brought by a person having any interest in the land affected by
the notice. The present section 174(2)(d) reads:
An appeal may
be brought on any of the following grounds: …
(d) That, at
the date when the notice was issued, no enforcement action could be taken in
respect of any breach of planning control which may be constituted by those
matters.
This
subsection replaced section 174(2)(d) and (e) of the 1990 Act, which allowed as
a ground of appeal an alleged breach of planning control consisting of carrying
out certain commercial operations without planning permission that a period of
four years from the date of the breach of planning control to which the notice
related had elapsed at the date when the notice was issued (d); and (e):
In the case of
a notice not falling within paragraph (d), that the breach of planning control
alleged by the Notice occurred before the beginning of 1964.
The new
section 174(2) took effect from January 2 1992 — see article 3 of SI 1991 No
2905.
By section
171A of the Act, the issue of an enforcement notice (defined in section 172)
constitutes taking enforcement action.
The taking of
enforcement action on which the local planning authority rely in these cases
are the enforcement notices issued in August 1993; it being accepted that those
issued on July 24 1992 could not be relied upon by the local planning authority
for technical reasons. The respondent’s counsel accepts that by issuing those
impotent enforcement notices on July 24 1992, the local planning authority were
purporting to take enforcement action within the meaning of section 171b(4)(b)
in that they were purporting to issue enforcement notices.
I accept Mr
Ousley’s submission that the question raised by the facts of this case is by
what statutory provisions are the enforcement notices issued in August 1993
governed when the ground of appeal advanced by William Boyer Ltd, namely that
at the date when the notices were issued, no enforcement action could be taken
in respect of any breach of planning control which may be constituted by the
matters stated in the notice, has to be determined? In respect of the August
1993 enforcement notices, William Boyer Ltd could only rely on the ground of
appeal in the substituted section 174(2)(d). They did not have to rely on the
ground of appeal in the original section 174(2)(e) namely that the breach of
planning control had occurred before the beginning of 1964 because that ground
of appeal had ceased to exist.
By August
1993, section 171B was in full force. The temporary suspension of the operation
of section 171B(3) created by article 5(1)(b) of SI 1991 No 2905 between the
January 2 1992 and July 27 1992 was over. After July 27 1992, section 171B(3)
could operate to prevent an enforcement notice being issued when it appeared to
the local authority that the breach occurred after the end of 1963 if the
enforcement notice was being issued after the period of 10 years beginning with
the date of the breach.
Section 171B(4)
which is the statutory provision construction of which is in dispute in the
present case provides:
The preceding
subsections do not prevent …
(b) Taking
further enforcement action in respect of any breach of planning control if,
during the period of four years ending with that action being taken, the local
planning authority have taken or purported to take enforcement action in
respect of that breach.
The Secretary
of State contends that the effect of that provision is not only to enable the
local planning authority to issue further enforcement notices during the period
of four years from the issuing of the impotent enforcement notices, but it is
also to disapply section 171b(3)
with regard to such further enforcement action and to deprive the appellants of
their grounds of appeal under the new section 174(2)(d) and in the present
case, in reality, to confine the appellants to the ground contained in the
original section 174(2)(e).
In my
judgment, the wording of section 171B(3) makes it clear that after the
commencement of the Act no enforcement action may be taken after the end of the
period of 10 years beginning with the date of the breach. That is subject to
the extension contained in section 171B(4)(b) of four years where the local
planning authority have issued or purported to issue enforcement notices in
respect of the breach.
The
interpretation for which the Secretary of State contends is, in my judgment, at
odds with the wording of article 5 of the Planning and Compensation Act 1991
(Commencement No 5 and Transitional Provisions) Order 1991, which reads:
(1) Until
July 27, 1992 or the date on which section 10 of the 1991 Act is brought fully
into force, if later …
(b) Nothing
in section 171B(3) of the 1990 Act prevents an enforcement notice which relates
to a breach of planning control … being issued where it appears to the local
planning authority that the breach occurred after the end of 1963.
That provision
enabled a local planning authority up to July 27 1992 to issue an enforcement
notice relating to a breach of planning control which had occurred after the
end of 1963 and the issue of such a notice, albeit that the notice was
inadequate or invalid, would amount to the taking of enforcement action by the
local planning authority under section 171B(4)(b). But that is a far cry from
parliament providing that enforcement notices issued after July 27 1992 are not
subject to the time-limits contained in section 171B.
In my
judgment, the deputy judge correctly construed the various statutory provisions
and this appeal should be dismissed.
Appeal
dismissed.
