Time ticks away

Martin Goodall looks at the lessons to be learned by local authorities from a case where an enforcement notice served out of time was quashed.

The case of R (Stern) v. Horsham District Council [2013] EWHC 1460 (Admin), in which judgment was given by Leggatt J on 1 May 2013, is a salutary reminder to LPAs and their officers of the need to ensure that statutory requirements in connection with the service of enforcement notices are strictly adhered to.

Section 172(3) of the 1990 Act provides that a copy of an enforcement notice must be served on the owner and on the occupier of the land to which it relates, and on any other person having an interest in the land (being an interest which, in the opinion of the LPA, is materially affected by the notice) not more than 28 days after the date on which the notice is issued, and not less than 28 days before the date on which it is to take effect.

In this case, two enforcement notices 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) the notices would need to have been served at the latest on 7 December 2011. The notices were in fact served on 9 December 2011, i.e. less than 28 days before the date specified in the notices as the date on which they were to take effect.

The claimant immediately instructed an agent to lodge an appeal under section 174, but due to some delay on the part of the claimant’s agent, and with the intervention of the Christmas and New Year holidays, the appeal did not reach the Planning Inspectorate until 4 January 2012, i.e. the day on which the enforcement notices took effect. This was a day late, as the appeal must reach the Planning Inspectorate no later than the day before the notice takes effect. The Planning Inspectorate has no power to extend time for appealing, and so there could be no appeal against these enforcement notices.

In the circumstances, the claimant sought to persuade the council to withdraw the enforcement notices and reissue them so as to give him the opportunity to appeal. However, the council refused to do so, and the claimant applied to the High Court by way of judicial review, seeking an order quashing the enforcement notices on the grounds that they had been served out of time (i.e. less than 28 days before they were due to take effect).

The claim for judicial review proceeded on two grounds. It sought first to challenge the validity of the enforcement notices, by reason of their late service. In the alternative, the claimant argued that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council.

The council sought to defend its position by contending that the claimant could have ensured that the appeals reached the Planning Inspectorate by 3 January. They further argued that section 174(2)(e), when read together with section 285, has the effect that the validity of the enforcement notices issued in this case could not be questioned in any proceedings whatsoever on the ground that they were not served on the claimant within the time required by section 172(3). Therefore, they claimed, the claimant could not challenge the validity of the enforcement notices on that ground in these proceedings or in any other proceedings.

Leggatt J held that, interpreted in the context of the legislative scheme as a whole, the words of section 172(3) must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be interpreted as referring only to a situation where copies of the enforcement notices were not served at all as required by section 172. On this ‘narrow’ interpretation, Ground (e) in section 174 of the 1990 Act (alleging non-service of the notice) does not cover a situation where, as happened in this case, copies of the enforcement notice were served on the persons specified in section 172(2) but not within the period specified in section 172(3). Thus the preclusive provisions of section 285, on which the council relied, did not prevent the defective service that had occurred in this case being challenged by way of judicial review.

The claimant also ran an argument under Article 6 of the ECHR (the right to a fair trial). Article 6 applies to planning determinations including the issue of enforcement notices and, in the light of the decision of the House of Lords in the case of R (Alconbury Developments Limited) v Secretary of State for Environment [2003] 2 AC 295, this brings section 3(1) of the Human Rights Act 1998 into play (which states that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."). His lordship pointed out that the interpretative obligation imposed by section 3(1) is a strong obligation. It requires that the more favourable interpretation of section 174(2)(e) must be adopted unless it is plainly impossible: see e.g. R v A (No 2) [2002] 1 AC 45. The interpretation of section 174(2)(e) that was more favourable to the claimant must accordingly be adopted in order to achieve compatibility with Article 6 of the Convention.

On the question of the exercise of the court’s discretion, one of the causes of the failure to appeal in time was the council's breach of statutory duty. That being so, the claimant had been substantially prejudiced by the council's breach of duty (as well as by the fault of his own agent). Hence, this was not a case where the Court should decline to make a quashing order.

Although, in view of his other findings, it was unnecessary for him to adjudicate on the claimant’s alternative argument (that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council), Legatt J indicated that he would also have found in favour of the claimant on that ground.

What I really don’t understand about this case is why on earth Horsham didn’t just withdraw the enforcement notices as requested. Even if they had been issued and served right at the end of the four-year period, the council would still have another four years in which to issue and serve fresh notices under the ‘second bite’ provision – section 171B(4)(b). OK, so that would give the claimant a right of appeal under section 174, which they would otherwise have lost, but so it should. A theme which runs right through the judgment of Leggatt J is the need for fairness. It would be manifestly unfair for the council to seek to take advantage of their own procedural mistake to deprive the claimant of their right of appeal.

Martin Goodall is a specialist planning lawyer who is a member of the Law Society's planning panel. He is a consultant solicitor with Keystone Law of 53, Davies Street, London W1K 5JH. His regular planning blog can be found here.