Partner Karen Jones, in our Planning & Environmental Law team, explains Enforcement Notices and the variations and corrections that can be made.
We have previously prepared a number of blog articles in relation to Enforcement Notices, links to which can be found at the bottom of this page.
Under Section 176(1) of the Town and Country Planning Act 1990 the Secretary of State (and by extension his Inspectors) may on appeal:
“a) Correct any defect, error or misdescription in the Enforcement Notice; or
- b) Vary the terms of the enforcement notice
if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority”
A recent appeal decision demonstrates the need for careful drafting of allegations and requirements for compliance within an Enforcement Notice.
The Appeal Decision: APP/G0908/C/20/3260841
The Inspector explained that neither the Appellant nor the Local Planning Authority had raised questions over the wording of the Enforcement Notice but confirmed that “As a legal document, it is important that the enforcement notice is legible on its face, without needing to infer or imply its meaning” and that he had a duty to consider any defects in the drafting.
The breach of planning control alleged in the relevant notice was “the development has not being build [sic] in accordance with the approved details on planning application 2/2010/0633” and the requirement of the Enforcement Notice was set out as “to part-demolish and alter the building to result in the gable being the approved separation distance to Brookside House, Water Street, Wigton as specified in planning permission 2/2010/0633.”
In the opinion of the Inspector the allegation of the breach did not explain what development had been carried out in breach of the permission. He considered that it was unclear as to whether the Enforcement Notice was directed towards the construction of the building as a whole or only part of the building. The plan for the Enforcement Notice surrounded the entire property whereas the requirement of the Enforcement Notice was directed at one part of the development.
The Inspector therefore found that “were [he] to correct the notice so it refers to the erection of the building as a whole, that would potentially broaden the scope of the notice, which would result in injustice to the appellant. In contrast, correcting the notice to refer to just part of the building could result in injustice to the Council since the intention may have been to target the building in its entirety.”
The Inspector then turned to the requirements of the Enforcement Notice and considered that the reference to an “approved separation distance” was not specific and resulted in uncertainty over what the Appellant needed to do in order to comply with the Enforcement Notice. He further considered that if the requirements could be achieved it would have ramifications for the rest of the development in terms of layout, internal space and external appearance. The Inspector concluded that should the requirements be complied with as originally drafted the remainder of the development would be permitted under an unconditional planning permission which would “result in injustice to the Council”. That part of the Enforcement Notice was therefore confirmed as needing variation.
The Inspector considered the variations that could potentially be made but determined that they were likely to leave the Appellant in a worse position than if they did not appeal the Enforcement Notice and thus cause injustice.
In light of the above issues the Inspector concluded that the Enforcement Notice did not provide sufficient clarity in terms of the breach of planning control or the steps required to comply with the Enforcement Notice. It did not therefore comply with the requirements under Section 173 of the 1990 Act which specifies what an Enforcement Notice must do. The Inspector did not consider that he could vary the Enforcement Notice as to do so would cause injustice to both the Council and the Appellant. He therefore quashed the Enforcement Notice and did not consider the additional grounds of appeal put forward.
Commentary
The Appeal Decision is a stark reminder to Local Planning Authorities to carefully consider alleged breaches of planning control and to ensure that Enforcement Notices are drafted as carefully and precisely as possible both in respect of the description of the breach and the steps needed to comply. Further, it is important that if an Enforcement Notice is received that legal advice is sought not only in respect of the possible Grounds of Appeal but the actual content of the Notice to consider whether the validity of the notice can be challenged as well.
We are regularly instructed to act for clients in respect of Enforcement Appeals and recent errors in drafting include vague alleged breaches of planning control, conflicting time periods for compliance and unclear steps for compliance. Inaccurate or vague Enforcement Notices are therefore not as uncommon as perhaps might be expected.
You may also find our earlier blog articles on Enforcement Notices helpful: 'Enforcement Appeal and Costs', 'Breach of Planning Control - Enforcement Notices Explained', 'Planning Law and Enforcement Notices', 'Non Compliance With an Enforcement Notice – the Implications' and 'Planning Law - Enforcement Prosecution and Recent Examples of Fines'.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
