Second bites at the (Planning Enforcement) cherry.

The Administrative Court (David Elvin QC sitting as a deputy judge of the High Court) has rejected the argument that an enforcement notice that was issued without proper delegated authority does not constitute "purporting to take" enforcement action for the purposes of s.171B(4)(b) of the Town and Country Planning Act 1990.

In a judgment delivered on 4th October he decided in the case of Lambrou v. Secretary of State for Communities and Local Government (CO/4693/2012) that the phrase “or purported to take” in s.171B(4)(b) should be given a broad meaning, consistent with its ordinary usage, so as to encompass the issuing of an enforcement notice that later turned out to be ultra vires.

Section 171B(4)(b) provides, so far as material: 

“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”.

In this particular case the local planning authority issued an enforcement notice in 2006 on the ground that the appellant had converted a dwelling into flats (the 2006 Notice). 

Thereafter in 2008, under delegated authority, the local planning authority issued three further enforcement notices (the 2008 Notices). The first two notices of 2008 were withdrawn before the issue of the third (the Third Notice) although all of these notices had been materially identical. 

The appellant's appeal against the the Third Notice was dismissed. It was not complied with and the appellant subsequently convicted of its breach. Thereafter he was successful in his appeal against conviction on the ground that the Third Notice was not duly authorised. 

The local planning authority withdrew the Third Notice and then issued a further notice in 2011 (the 2011 Notice). An inspector for the defendant Secretary of State upheld the 2011 Notice, on the basis that  the local planning authority was entitled to rely on any of the 2008 Notices and the 2006 Notice for the purpose of an extension of time under s.171B(4)(b). 

The appellant appealed on the basis that: 

• the authority could not rely on the 2008 Notices to obtain an extension of time under s.171B(4)(b), as they were not "purported" enforcement action given their invalidity;
• the successful appeal against his conviction precluded such a finding; and 
• the third notice had been issued without authority. 

The parties agreed that the appellant's success or failure turned on the ability of the local planning authority to rely on an extension of time under s.171B(4)(b). It therefore fell to be determined whether the inspector had been entitled to find that the local planning authority had purported to take enforcement action within the previous four years under s.171B(4)(b).

In dismissing the appeal the court held that on its proper construction, something "purported", under s.171B(4)(b), might not be actual, but might be false or invalid. Such a broad interpretation accorded with the plain intention of Parliament to include a local planning authority acting in the public interest when failing to do what it had attempted to do and it encompassed the situation where an enforcement notice was invalid. It was necessary to approach the issue under s.171B(4)(b) without technicality. A "purported" enforcement was not confined to a misdescription and there was no reason Parliament had intended to exclude a legally invalid or ineffective notice, if it had been an attempt at enforcement action by the authority.

The court took the view that on the facts, it was impossible to hold that the local planning authority had not "purported" to take enforcement action by the Third Notice or the other two notices of 2008. The inspector had been correct in his view. His conclusion that he had not been precluded from his finding due to the appellant's successful appeal against conviction had been reasonable and could not be faulted in law. Furthermore, the authorisation given to the officer in 2008 had been valid to cover all of the 2008 Notices. Accordingly, the inspector had not erred in upholding the 2011 notice.