Enforcement notice served out of time is quashed

15.08 in –, a1, and, Boat Plans, c3, enforcement, is, notice, now, of, out, quashed, served, time, to

The case of R (Stern) v. Horsham District Council [2013] EWHC 1460 (Admin), in which judgment was given by Leggatt J on 1 May 2013, is a salutary reminder to LPAs and their officers of the need to ensure that statutory requirements in connection with the service of enforcement notices are strictly adhered to.

Section 172(3) of the 1990 Act provides that a copy of an enforcement notice must be served on the owner and on the occupier of the land to which it relates, and on any other person having an interest in the land (being an interest which, in the opinion of the LPA, is materially affected by the notice) not more than 28 days after the date on which the notice is issued, and not less than 28 days before the date on which it is to take effect.

In this case, two enforcement notices were issued on 6 December 2011, and specified 4 January 2012 as the date on which they were to take effect. To comply with section 172(3) the notices would need to have been served at the latest on 7 December 2011. The notices were in fact served on 9 December 2011, i.e. less than 28 days before the date specified in the notices as the date on which they were to take effect.

The claimant immediately instructed an agent to lodge an appeal under section 174, but due to some delay on the part of the claimant’s agent, and with the intervention of the Christmas and New Year holidays, the appeal did not reach the Planning Inspectorate until 4 January 2012, i.e. the day on which the enforcement notices took effect. This was a day late, as the appeal must reach the Planning Inspectorate no later than the day before the notice takes effect. The Planning Inspectorate has no power to extend time for appealing, and so there could be no appeal against these enforcement notices.

In the circumstances, the claimant sought to persuade the council to withdraw the enforcement notices and reissue them so as to give him the opportunity to appeal. However, the council refused to do so, and the claimant applied to the High Court by way of Judicial Review, seeking an order quashing the enforcement notices on the grounds that they had been served out of time (i.e. less than 28 days before they were due to take effect).

The claim for judicial review proceeded on two grounds. It sought first to challenge the validity of the enforcement notices, by reason of their late service. In the alternative, the claimant argued that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council.

The council sought to defend its position by contending that the claimant could have ensured that the appeals reached the Planning Inspectorate by 3 January. They further argued that section 174(2)(e), when read together with section 285, has the effect that the validity of the enforcement notices issued in this case could not be questioned in any proceedings whatsoever on the ground that they were not served on the claimant within the time required by section 172(3). Therefore, they claimed, the claimant could not challenge the validity of the enforcement notices on that ground in these proceedings or in any other proceedings.

Leggatt J held that, interpreted in the context of the legislative scheme as a whole, the words of section 172(3) must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be interpreted as referring only to a situation where copies of the enforcement notices were not served at all as required by section 172. On this ‘narrow’ interpretation, Ground (e) in section 174 of the 1990 Act (alleging non-service of the notice) does not cover a situation where, as happened in this case, copies of the enforcement notice were served on the persons specified in section 172(2) but not within the period specified in section 172(3). Thus the preclusive provisions of section 285, on which the council relied, did not prevent the defective service that had occurred in this case being challenged by way of judicial review.

The claimant also ran an argument under Article 6 of the ECHR (the right to a fair trial). Article 6 applies to planning determinations including the issue of enforcement notices and, in the light of the decision of the House of Lords in the case of R (Alconbury Developments Limited) v Secretary of State for Environment [2003] 2 AC 295, this brings section 3(1) of the Human Rights Act 1998 into play (which states that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."). His lordship pointed out that the interpretative obligation imposed by section 3(1) is a strong obligation. It requires that the more favourable interpretation of section 174(2)(e) must be adopted unless it is plainly impossible: see e.g. R v A (No 2) [2002] 1 AC 45. The interpretation of section 174(2)(e) that was more favourable to the claimant must accordingly be adopted in order to achieve compatibility with Article 6 of the Convention.

On the question of the exercise of the court’s discretion, one of the causes of the failure to appeal in time was the councils breach of statutory duty. That being so, the claimant had been substantially prejudiced by the councils breach of duty (as well as by the fault of his own agent). Hence, this was not a case where the Court should decline to make a quashing order.

Although, in view of his other findings, it was unnecessary for him to adjudicate on the claimant’s alternative argument (that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council), Legatt J indicated that he would also have found in favour of the claimant on that ground.

What I really don’t understand about this case is why on earth Horsham didn’t just withdraw the enforcement notices as requested. Even if they had been issued and served right at the end of the four-year period, the council would still have another four years in which to issue and serve fresh notices under the ‘second bite’ provision – section 171B(4)(b). OK, so that would give the claimant a right of appeal under section 174, which they would otherwise have lost, but so it should. A theme which runs right through the judgment of Leggatt J is the need for fairness. It would be manifestly unfair for the council to seek to take advantage of their own procedural mistake to deprive the claimant of their right of appeal.

© MARTIN H GOODALL

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The recent GPDO amendments – a last look

04.18 in –, a, amendments, Boat Plans, enforcement, gpdo, is, last, look, notice, of, out, quashed, recent, served, the, time

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. The Second Schedule to the GPDO has been substantial ovehauled and re-numbered in the 2015 GPDO.

I promised in a previous post to deal with the new PD rights for other operational development granted by the amendment to the GPDO made in May.

The amendment order allows larger extensions of industrial premises than were previously permitted under Part 8 (industrial and warehouse development). The version of Part 8 that applied before 30 May 2013 was inserted in the GPDO in 2010. Class A comprises “the erection, extension or alteration of an industrial building or a warehouse.” Paragraph A.1 set out various dimensional limitations. These included [A.1(d)] any new building having a gross floor space of more than 100 square metres. Prior to April 2010, permitted development was limited to alteration and extension of existing buildings; there were no rights to provide new buildings under Class A. I have mentioned this because the editors of the Encyclopedia of Planning Law and Practice have not yet amended the text of their commentary to reflect this change, one of several instances where the text of the Encyclopedia relating to the GPDO is woefully out of date.

After April 6 2010, under paragraph A.1(e), the gross floorspace of the original building could be extended by up to 25% or 1,000 sq metres whichever was the less, provided the site was not within a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site (“Article 1(5) land”). If it was in such an area, the size limits were 10% of the floorspace of the original building or 500 sq metres whichever was the less.

The effect of the recent amendments is that, with effect from 30 May 2013, but only for a three-year period ending on 30 May 2016, the figures mentioned above are increased, so that the size limit for a new building is now 200 sq m, provided it is not on “Article 1(5) land” or (a new provision) within a Site of Special Scientific Interest. For extensions, the limits are also doubled to 50% or 1,000 sq metres, whichever is the less, provided the site is not on “Article 1(5) land” or an SSSI. In an SSSI (which is not also “Article 1(5) land”) the absolute limit is still 1,000 sq m, but the percentage limit is reduced to 25%; and, again, the lesser figure applies. In “Article 1(5) land” the limits are 10% or 500 sq m (whichever is the less).

In respect of those developments that are larger than the previous limits, there are certain extra conditions (which do not apply to new buildings or extensions that are within the previous limits). The development must be completed before 30 May 2016, and the developer must notify the local planning authority of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include the name of the developer, the address or location of the development, a description of the development, including measurements and calculations (by reference to the new size limits) and the date of completion. Note that no prior notification is involved in this case and no prior approval is required.

Article 9 of the amending order amends Part 24 of Second Schedule the GPDO (developments by electronic communications code operators). The changes remove the need on “Article 1(5) land” for prior approval of the construction, installation or replacement of telegraph poles, cabinets or lines for fixed-line broadband services under Part 24 (paragraph A.3 ) for a 5 year period. Any developments covered by this concession must be completed before 30 May 2018.

It is easy to forget that Part 41 was added to the Second Schedule of the GPDO with effect from 6 April 2010, allowing certain extensions or alterations to office buildings. There is no reference here to “Article 1(5) land”, and the only restrictions relate to development within an SSSI. Except in an SSSI, the gross floor space of the original building can be increased by up to 50%; or 100 square metres, whichever is the less (up from 25% or 50 sq m under the 2010 rules). The same rules about notifying completion of one of these larger buildings or extensions apply here as apply to Part 8.

It is also easy to overlook Part 42 of the Second Schedule to the GPDO, another provision added in April 2010, which allows certain extensions or alterations to shops or catering, financial or professional services establishments. Again, the size limits have been increased from 25% to 50% or from 50 sq m to 100 sq m, subject to the same time limit for these larger extensions (completion before 30 May 2016) and the same requirements as to notifying the LPA of completion.

I have deliberately omitted the new permitted development rights for schools, as these are really only going to be of interest if you are directly involved in educational development. Suffice it to say that these changes represent the long-awaited delivery of the promise made way back in 2010 by our wonderful and ever so talented Education Secretary, Gussie Fink-Nottle (alias ‘Michael Gove’), to “tear up the planning laws” to allow his new ‘free’ schools to be built. It only took them 3 years to get there!

Meanwhile, our Welsh friends have also acquired a ‘round tuit’, and have finally amended the Welsh version of the GPDO to bring it more up-to-date. I have not had time yet to compare the new Schedule 2 in Wales with the version of the same schedule that now applies in England, but a very brief scan through it suggests that there are substantial similarities. The Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (SI 2013/1776) comes into effect in Wales on 30 September.

© MARTIN H GOODALL

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