It’s academic

In The King oao UK Land and Homes Limited and Walsall MBC [2026] EWHC 1719 the claimant operated a food court on the roof level of a disused car park, with a drive in cinema on the level below; there was some evidence of car meets taking place. Neighbours complained about evening noise and light pollution and traffic problems. The council issued a Temporary Stop Notice (TSN). Use ceased, a retrospective planning application was made and the TSN was withdrawn. The application was refused and appealed. Pending the appeal, use then restarted and the council issued an Enforcement Notice (EN) and Stop Notice (SN). The claimant appealed the EN and sought judicial review (JR) of the decision to issue the SN. 

The claimant also sought judicial review of the decision to issue the TSN. Court permission is required to bring JR. By the time that the permission hearing took place, the TSN had been withdrawn. A court refused him permission to bring the JR application on the basis that it was academic. The claimant challenged that refusal.

The claimant made a number of points in support of his case that the TSN, while now withdrawn, continued to have an effect on his operations. He also argued that there was no basis for the council to issue the TSN in the first place as it did not have evidence of a breach, particularly as the council had not waited for his response to a PCN before issuing the TSN.

The judge had little interest in these points. He emphasised that the only tests for a TSN were whether the council thought there was a breach and that it was expedient to issue. Thinking required “no particular standard of proof” and expediency was inherently a matter of discretion which the council was better equipped than a judge to decide. In this case, it was effectively common ground that there was a breach (the claimant had sought retrospective planning application after all). There was evidence of safety and amenity concerns arising from the breach which were potentially serious.

More importantly, “the claim is academic and this court does not engage in theoretical exercises”. The TSN had now been withdrawn and had no further effect. It could not have the effects the claimant argued for. Reviewing the TSN could not result in any change in the claimant’s position. JR of the TSN was therefore refused.

Judicial review of the stop notice was also refused. This was an interim relief application, to suspend the stop notice pending the outcome of the appeal against the EN. The specific objections raised by the appellant were, the judge decided, unarguable. Even if they had been arguable, the judge found that he would still refuse interim relief. His reasons were that, while the stop notice would prevent the claimant from operating his business, the compensation regime for stop notices offered relief should it turn out that the stop notice was invalid. And that there was an alternative forum to resolve the merits of the stop notice, that being the s78 appeal, which would allow the full merits of the case to be considered. There was therefore no need for the judicial review.

The case is a reminder of the low bar to issuing of a TSN and that JR will rarely be granted because, in most cases, the result would be academic. The real protection against improper use of the TSN is effectively in the fact that it is time limited. It is also a reminder that judges will rarely want to have to consider planning merits in a judicial review when there is an alternative forum, ie a planning or enforcement appeal, to do so.

Roderick Morton is a partner at Ivy Legal.