R Stern v Horsham District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] EWHC 1460 (Admin) |
| Docket Number | CO/2368/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 May 2013 |
[2013] EWHC 1460 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Leggatt
CO/2368/2012
Mrs H Townsend (instructed by ODT Solicitors) appeared on behalf of the Claimant
Mr R Green (instructed by Horsham District Council) appeared on behalf of the Defendant
This claim for judicial review raises a short point as to the legal consequence of the failure of a local planning authority to serve an enforcement notice on the owner and occupier of the land to which the notice relates within the period of time prescribed by section 172(3) of the Town and Country Planning Act 1990.
The claimant is the owner and occupier, together with his wife, of a building which until recently was known as “The Barn” at Henfield in West Sussex. On 6 December 2011 the defendant council served two enforcement notices in relation to The Barn. The first alleged that there had been an unauthorised material change of use of part of the property from use for agricultural and storage purposes to residential use. The notice required the residential use to cease and various items to be removed from the land. The second notice alleged that certain alterations to the property had been made without planning permission and required certain steps to be taken to reverse the effect of those alterations. Each enforcement notice stated that it would take effect on 4 January 2012 unless an appeal was made against it beforehand.
Time for compliance with the notice was in each case specified as 6 months after the notice took effect. Section 172 of the Town and Country Planning Act 1990, which gives the local authority the power to issue an enforcement notice, states at subsections (2) and (3) as follows:
“(2) A copy of an enforcement notice shall be served—
(a)on the owner and on the occupier of the land to which it relates; and
b)on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.
3) The service of the notice shall take place—
a)not more than twenty-eight days after its date of issue; and
b)not less than twenty-eight days before the date specified in it as the date on which it is to take effect.”
As mentioned, the two enforcement notices in this case 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)(b) the notices would need to have been served at latest on 7 December 2011. In fact, it is common ground that the notices were served on 9 December 2011, which was less than 28 days before the date specified in the notices as the date on which they were to take effect.
The claimant wished to exercise his right of appeal against the enforcement notices. He instructed a planning consultant, Mr Luke Carter, to assist him. The claimant telephoned Mr Carter on the day he received the notices, Friday 9 December, and had a meeting with Mr Carter on the following Monday, 12 December 2011, to discuss the possibility of an appeal. With Christmas and the New Year holidays intervening there was not much time to prepare the appeals and lodge them with the planning inspectorate before 4 January 2012. Mr Carter has made a witness statement in which he says that he prepared notices of appeal in draft before Christmas and then finalised them in the three working days between Christmas and New Year. The first working day after the New Year holiday was 3 January 2012. On that day Mr Carter sent the notices of appeal to the planning inspectorate by Royal Mail with guaranteed next day delivery. They were duly delivered the next day, 4 January 2012. However, that was too late.
Section 174(3) of the Act states:
“(3) An appeal under this section shall be made —
(a)by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or
b)by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date; or
c)by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date.”
To comply with the requirements of section 174(3) it would therefore have been necessary for Mr Carter to have posted notices of appeal before the New Year holiday or to have sent them electronically or to have delivered them by hand on 3 January 2012. As it was, the notices of appeal were served out of time.
The planning inspectorate took the position that they had no power to extend the time for an appeal or to waive the requirements of section 174(3). Accordingly, as no appeal had been brought in time, the enforcement notices on their face took effect on 4 January 2012. Mr Carter, on behalf of the claimant, sought to persuade the council to withdraw the enforcement notices and reissue them so as to give the claimant the opportunity to appeal. However, the council refused to do so.
It is unnecessary for me to recite the whole of the correspondence in which this refusal was communicated, which starts with a letter from the council dated 16 January 2012, because it is common ground that the reasons on which the council took its final stand to refuse to withdraw and reissue the enforcement notices were set out in a letter dated 1 March 2012 in response to a letter of claim sent on behalf of the claimant under the pre-action protocol.
In that letter of 1 March 2012 the council's solicitor stated that she had had regard to a number of matters in considering whether or not the council should withdraw the notices, including the matters set out in the letter before claim. She then summarised the council's reasons for refusing to withdraw the notices in six numbered points as follows:
“1. Expediency of enforcement action. Notwithstanding what is stated in the grounds of appeal submitted on behalf of the claimant, the council remains satisfied that the breaches of planning control identified in the enforcement notices took place and that it is expedient to take action against them by way of enforcement notices.
2. Prejudice arising from late service. Had the late service of the enforcement notices prevented the claimant from appealing in time then that would have provided a strong reason to withdraw the notices. In fact, it is clear that the reason why the claimants' enforcement appeals were rejected was because you chose to send the appeal forms to the planning inspectorate by registered post on 3 January 2012 rather than send them on 2 January when you say they were ready to go or by any of the other methods of service accepted by the inspectorate such as electronically, by fax or by hand delivery. Both the covering letter sent with the enforcement notices and the appeal forms completed by you warned that any appeals had to be received by the inspectorate before the effective date of the notices but you failed to ensure this was done. There is simply no link between the late service of the notices and the failure of claimant's appeals and the allegation that the council has benefited in some way of its own breach of section 172(3) is denied.
3. Other remedies open to the claimant. Although the rejection of the claimant's appeals means that he cannot challenge the enforcement notices on the ground that planning permission should be granted for what is alleged in the notices, there are other steps he can take if he wishes to use The Barn for residential purposes and/or retain the items of development he has installed. As has already been pointed out in the correspondence he can apply for planning permission. I note you take issue with this suggesting that the enforcement notices now represent the fall back position to which you say substantial weight would be given. I am not convinced this represents a significant difference between an appeal on ground (a) and a planning application.
[The letter then goes on to elaborate on that point]
4. The ground (b) appeal. In the grounds of appeal challenging … the change of use notice, you state that area B of The Barn is being used for the storage and maintenance of agricultural machinery and equipment and area C is being used for the storage of Mr and Mrs Sterns' personal possessions in accordance with the planning permission DC10/0792. If true, then as a matter of fact there would be no contravention of the requirement in the enforcement notice to stop the residential use of those parts of The Barn, the point made in my letter of 23 January. The extent to which the enforcement notice interferes with Mr and Mrs Sterns' Convention rights would, on this basis, be much reduced.
5. Incompatibility between section 285 of the Act and the claimant's Convention rights. While it is not for the council to show that section 285 of the Act is compatible with the Convention, I believe the factual basis of your claim is wrong. You say that the claimant was prevented from appealing the two enforcement notices by the very cause of the invalidity he is now said to be unable to rely on. For the reasons given above, I do not consider that that is a fair or accurate way of putting what happened. The late service of the notices, although regrettable, had no bearing at all on the failure of the claimant's appeals.
6. The public interest. You say that the council has not...
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