R (Thomas and Others) v North Northamptonshire Council
| Jurisdiction | England & Wales |
| Court | Queen's Bench Division (Administrative Court) |
| Neutral Citation | [2021] EWHC 1428 (Admin) |
| Year | 2021 |
Local government - Reorganisation - Transfer of powers - Borough council issuing enforcement notice against claimants - Claimants contending issue of notice constituting function exercisable only by county planning authority - Council’s functions and responsibilities subsequently transferred to unitary authority having both district and county planning authority powers - Statutory instrument providing that anything done by predecessor authority in relation to function exercised by successor authority taking effect as if done by successor authority - Whether unitary authority to be taken as having issued enforcement notice -
The claimants, variously the owners and occupier of a site, were served with an enforcement notice issued pursuant to section 171A(1)(a) of the Town and Country Planning Act 1990F1 by the borough council for the area in which the site was located. The notice alleged unauthorised material change of use of the site to mixed use, including the winning and working of minerals. The claimants sought judicial review of that decision, claiming that the borough council, as the district planning authority, was precluded by paragraph 11(4) of Schedule 1 to the Town and Country Planning Act 1990 from issuing an enforcement notice which included components such as winning, working, storage and sale of minerals, such matters being a county planning authority matter within paragraph 1(1)(a)–(h) of Schedule 1 to the 1990 Act, and that the issue of the enforcement notice by the borough council was therefore ultra vires. Subsequently, as a result of local government restructuring, the borough council ceased to exist and the unitary authority, which had the powers of both a district and county planning authority, was established and was substituted as the defendant to the claim. The defendant contended (1) that it, rather than the borough council, should be treated as having issued the enforcement notice, since under regulation 6(3) of the Local Government (Boundary Changes) Regulations 2018F2 anything done by a predecessor council in relation to a function that was to be exercised by a successor council had effect as if done by the successor council, and (2) that, in any event, a mixed use did not fall within any of the categories identified in paragraph 1(1)(a)–(h) of Schedule 1, even if the individual components of the mixed use viewed in isolation would do so.
On the claim for judicial review—
Held, (1) that the continuity provision in regulation 6(3) of the Local Government (Boundary Changes) Regulations 2018 did not have the effect of retrospectively making valid an act that was invalid when done; that, therefore, while the effect of regulation 6(3) was that the enforcement notice subsisted in the defendant’s name, in considering whether it had been lawfully issued the court had to focus on the functions and powers which had been passed to the defendant by the borough council that had made the enforcement notice; and that additional functions and powers which the defendant had acquired from other predecessor authorities, none of which had issued the enforcement notice, were irrelevant (post, paras 32–34).
(2) Dismissing the claim, that paragraph 11(4) of Schedule 1 to the Town and Country Planning Act 1990 applied only where the alleged breach of planning control related wholly to a county matter within paragraph 1(1)(a)–(h) of Schedule 1; and that the unauthorised development in the present case being mixed use, the borough council had had power to issue the enforcement notice (post, paras 64–66, 71, 75).
The following cases are referred to in the judgment:
Beach v Secretary of State for the Environment, Transport and the Regions
Belmont Riding Centre Ltd v First Secretary of State
East Sussex County Council v Secretary of State for Communities and Local Government
L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [
Millen v Secretary of State for the Environment [
Miller-Mead v Minister of Housing and Local Government [
R (Tewkesbury Borough Council) v Secretary of State for Housing, Communities and Local Government
Trio Thames Ltd v Secretary of State for the Environment [
No additional cases were cited in argument.
The following additional case, although not cited, was referred to in the skeleton arguments:
R v Secretary of State for the Home Department, Ex p Salem [
CLAIM for judicial review
On 1 May 2020 Kettering Borough Council issued an enforcement notice under section 171A(1)(a) of the Town and Country Planning Act 1990 against the claimants, Lyndon Thomas, Samantha Thomas and Lyndon Thomas Ltd, alleging an unauthorised material change of use of land that they owned or occupied to a mixed use, which included the winning, working, storage and sale of minerals. By a claim form dated 12 June 2020 and pursuant to permission granted by Judge David Cooke, the claimants brought a claim for judicial review against the borough council, contending that its decision to issue the enforcement notice had been ultra vires, since the borough council, as a district planning authority, was, by virtue of paragraphs 1(1)(a)–(h) and 11(4) of Schedule 1 to the Town and Country Planning Act 1990, precluded from issuing an enforcement notice in relation to mineral matters. The borough council was subsequently wound up and, on 1 April 2021, North Northamptonshire Council, as the successor authority, became the defendant to the claim. The defendant resisted the claim, contending (1) that the enforcement notice persisted in its name by virtue of regulation 6(3) of the Local Government (Boundary Changes) Regulations 2018, and, as a unitary authority having the powers of both a district and county planning authority, it had power to issue the enforcement notice, and (2) that, in any event, a mixed use did not fall within any of the categories identified in paragraph 1(1)(a)–(h) of Schedule 1 to the 1990 Act.
The facts are stated in the judgment, post paras 5–9, 37–41.
Christian Hawley (instructed by
Killian Garvey (instructed by
The court took time for consideration.
27 May 2021. STEYN J handed down the following judgment.
Introduction1 This is a claim for judicial review by which the claimants challenge the decision of the defendant of 1 May 2020 to issue an enforcement notice alleging unauthorised development on land at Birchfield Springs, Rushton Road, in Desborough, a town in Northamptonshire (“the Site”).
2 The first and second claimants, Mr and Mrs Thomas, are the registered owners of the Site, and the third claimant is the occupier. The enforcement notice was issued by Kettering Borough Council (“KBC”), and when the claim was issued on 12 June 2020, KBC was the named defendant. Since then, structural changes have taken place with the effect that KBC has ceased to exist, and a new unitary authority, North Northamptonshire Council (“NNC”), has been established, which has subsumed the functions and responsibilities of KBC, including in respect of enforcement notices. Accordingly, since 1 April 2021, the defendant to this claim has been NNC.
3 Permission was granted by Judge David Cooke, by an order sealed on 6 July 2020, limited to one ground of challenge by which the claimants allege that KBC did not have the power to issue the enforcement notice.
4 This claim gives rise to the following issues:
(i) Is the claim academic? Or, more accurately, does regulation 6(3) of the Local Government (Boundary Changes) Regulations 2018, together with the structural changes that have taken place, cure the alleged illegality? (Issue (1): The effect of the restructuring of local government.)
(ii) Was KBC, as a district planning authority, precluded by paragraph 11(4) of Schedule 1 to the Town and Country Planning Act 1990 (“the 1990 Act”) from issuing an enforcement notice that included components such as winning, working, storage and sale of minerals (which the claimants contend were reserved to the county planning authority)? (Issue (2): The ultra vires issue.)
(iii) If it is established that KBC had no power to issue the enforcement notice, given that the enforcement notice persists in the name of NNC, which indisputably has the requisite power to reissue it, does section 31(2A) of the Senior Courts Act 1981 apply and, in any event, should relief be refused? (Issue (3): Relief.)
Issue (1): The effect of the restructuring of local government The statutory provisions5 The Northamptonshire (Structural Changes) Order 2020 (SI 2020/156) (“the 2020 Order”) came into effect on 14 February 2020 (article 1). Article 3 of the 2020 Order provides:
“(1) A new non-metropolitan county and a new non-metropolitan district, each to be known as North Northamptonshire, are constituted...
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