Enforcement Notice Appeal Success

Walton & Co have successfully appealed (with an award of full costs) against an enforcement notice issued by Leeds City Council on the grounds of the enforcement notice being a nullity.

Walton & Co have recently acted on behalf of Marsh Investments Wakefield Limited and Searchagain Limited in appeal against an enforcement notice issued on 14 November 2019 by Leeds City Council.

The breach of planning control as alleged in the notice was “without planning permission, the material change of use of the land to a mixed use as a café building and land where commercial/industrial uses are taking place and the erection of storage containers, portable cabins, caravans, a canopy structure, outdoor storage and boundary fencing and gates”, with 23 steps to comply with the Notice set out within.

The Appeal Site

The Appeal Site is a mixed-use site on open land. Upon acquisition of the Appeal Site and over an extended period, various uses were instituted including a car wash, coach storage and scaffolding storage (together with operational development). It was agreed between the parties that the Appeal Site constituted a single planning unit in a mixed use – several primary uses where one use is not ancillary to another.

The Appeal

The Appellants and the Council were asked prior to and during the Inquiry to respond to the Inspector’s concerns as to the clarity and the precision of the notice – in particular, considering the question of nullity.

During legal submissions, John Barrett (Kings Chambers) for the Appellants argued that the Notice did not satisfy the requirements set out in sections 173(1)(a) and 173(2) of the Town and Country Planning Act 1990 – namely, that it did not tell the Appellants “the matters which appear to the local planning authority to constitute the breach of planning control”, and that it did not “enable any person on whom a copy [it] was served to know what [the matters constituting a breach of planning control were”.

The Council argued that in construing the intention of the Notice the recipient must take a common-sense approach, and that in doing so one would deduce that those commercial/industrial uses referred to are those which are taking place on the Appeal Site at the time the Notice was served. Overall, the Council argued that it can be deduced that the “mixed use” the Notice sought to attach comprises the uses with are both required to cease, and those which are unlawful but against which the Council effectively elected to underenforce.

“So much waste paper”

In the case of Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, it was held in this case that the notice was a nullity, and was “so much waste paper”. stated by Upjohn LJ that where an enforcement notice “upon its true construction […] was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission … or again, that he could not tell with reasonable certainty what steps he had to take to remedy alleged breaches. The notice would be bad on its face and a nullity…”.

Furthermore, the case of Oates v Secretary of State for Communities and Local Government [2017] EWHC 2716 (Admin) set out relevant principles to be applied when considering the matter of nullity. These are:

1.     If an enforcement notice does not comply with section 173(1), (3) or (4) of the TCPA 1990 (“Statutory Requirements”), then it is a nullity and cannot be saved by the curative powers in section 176(1) of the TCPA 1990;

2.     It was is not sufficient for the notice to contain simply a section which purports to set out the remedial steps. The relevant part must inform the recipient with reasonable certainty what the breach of planning control is and what must be done to remedy it;

3.     It follows that the fact that there may be some degree of uncertainty or other defect in the relevant section does not mean that there is, without more, non-compliance with the Statutory Requirements;

4.     A decision by the Inspector as to whether a claimed defect in the notice renders it a nullity or not should be accorded very considerable weight; at least to a significant extent, it is a matter of planning judgment which should not be lightly interfered with;

5.     A consideration of whether a defect renders the notice a nullity must be viewed in context and in particular the importance or otherwise of that part of the notice which contains it, whether it is inextricably bound up with the remainder of the relevant section of the notice or not, and whether, in its absence, the enforcement notice would otherwise be valid’ accordingly, it would be open to an Inspector to conclude that while one part of the relevant section of the notice was too uncertain could not stand, it was immaterial in the sense that the notice did not require it in the first place. In such a case, the inspector could conclude that taken as a whole, the notice did comply with the Statutory Requirements, and then simply delete the offending part; and

6.     Both the inspector and the court should approach the exercise above in a way which is not unduly technical or formalistic.

The Inspector’s Decision

In this case, the Inspector considered the Notice as-drafted to be a nullity for a number of reasons. The decision in full can be found here.

The Inspector reasoned that neither the requirements nor the reasons in this case told the recipient with reasonable certainty what all of the uses are which comprise the mixed use to which a material change of use has said to have taken place. Furthermore, the Notice did not tell us which of those uses required to cease were primary uses, or ancillary activities associated with the mixed use which formed part of the mixed use or have facilitated the alleged breach respectively.

As such, the recipient would not have been able to tell with reasonable certainty what uses comprised the alleged mixed use which appeared to the Council to have taken place on the land. That being said, while the allegation with respect to operational development was not of itself ambiguous and uncertain, that aspect of the breach was bound up with the remainder of that particular section of the Notice.

Overall, the alleged breach of planning control is of crucial importance in the construction of the Notice – in particular since the deemed planning application made under the ground (a) appeal derives directly from the allegation.

Crucially, without an alleged breach of planning control, a notice is not a notice – therefore, the defects in the alleged breach are such that their removal would render the Notice in non-compliance with section 173(2) of the TCPA 1990.

Points to Note

This case is a useful reminder to councils of the importance of drafting enforcement notices in a manner which is clear, precise and in accordance with the statutory requirements, so that the recipient and any other person reviewing the notice would be able to understand from its four corners what it is that the council alleges to be a breach of planning control.

In particularly complex cases where a number of breaches are alleged, such as in this case, it is of crucial importance that councils consider carefully the way in which the notice is to be drafted. One must have regard to the facts of the matter, and the site history, in each case.

Ultimately, while cases of nullity are rare and a finding of such will ultimately be a question of planning judgment, it is clear that in specific circumstances such a verdict will be reached, and that costs consequences may flow from this as a result.

Conversely, should a landowner be served with an enforcement notice and the decision is made to appeal against the same, the initial question that should be asked, therefore, is whether or not the notice as-drafted is indeed compliant, or whether it could be argued that such a notice is defective.

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