JR and challenges to enforcement action
The High Court recently examined the scope for bringing judicial review proceedings over a decision to delegate authority for taking enforcement action, and whether a decision to pursue enforcement action involves a continuing discretion. Alex Goodman assesses the ruling.
The case of Gazelle Properties Limited and SES Ltd v Bath and North East Somerset Council [2010] EWHC 3127 (Admin) is principally of interest for two points. Firstly, it is a rare example of judicial review of a decision to delegate authority for the taking of enforcement action and of the subsequent decision to issue an enforcement notice. Secondly, it was held that a decision to enforce against a breach of planning control involves the continuous exercise of a discretion throughout the currency of the enforcement action and that accordingly a failure to review the decision in the light of new and material changes of circumstance is susceptible to judicial review.
The Site
The case concerned a 3.38 hectare site within the Bath and Bristol Green Belt and close to the Cotswold Area of Outstanding Natural Beauty and the World Heritage Site of Bath. It is at present used for the recycling of waste and other uses within Use Class B2 of the Town and Country Planning (Use Classes) Order 1987. The site was historically used as Fuller’s Earth Works. It had previously been accepted on a number of occasions that a lawful B2 use pertained to the whole 3.38 hectares. Notably, the Defendant, Bath and North East Somerset Council (BANES) had in 2005 agreed in a statement of common ground prepared for an inquiry into the local plan that the whole site benefitted from a lawful B2 use. The Secretary of State and his Inspector had subsequently taken the same view. The Council had been advised by counsel at least twice that enforcement action against a B2 use was inexpedient. In March 2008 the Ombudsman for Local Administration had criticised the Council, and had imposed financial penalties on it for maladministration relating to threats of enforcement action.
October 2007 Committee Meeting
Despite this history, in October 2008, officers brought before the development control committee a proposal to enforce against the continued use of the site for B2 purposes (excluding a 1.2 hectare area which it was accepted benefitted from a lawful use). The committee delegated power to officers to take enforcement action. Gazelle Properties Limited brought the first of two claims for judicial review on the grounds, inter alia, that the committee in delegating authority for enforcement action had failed to take proper account of the planning history of the site, particularly the acceptance of the lawful B2 use.
February 2008 Committee Meeting
In February 2008 officers therefore returned the matter to committee for reconsideration and documents relating to the planning history of the site were considered in a closed session. At that meeting, a representative of SES Ltd requested to speak. SES had been set up as a special purpose vehicle to tender for the Council's waste contracts. Gazelle had entered into a formal agreement with SES, under which SES would be responsible for securing the requisite consents and commitments from the Council, whereupon SES would take a lease of the site and Gazelle would be entitled to share the profits from the waste contracts. SES’s representative Mr White had registered to speak at the meeting in order that he could apprise the committee of the state of negotiations between SES and the Council’s environmental services with regard to using the site for recycling. He wished to urge the committee not to progress any enforcement action because to do so would jeopardise the progress of the scheme for recycling on the site. However, the Chairman advised the committee that what Mr White wanted to say was not relevant to the issue before them. Mr White was not allowed to speak and the committee were told that they should disregard entirely the documents he had put forward.
The Decisions
The committee again resolved to delegate authority for taking enforcement action to the Director of Planning and Transport Development. Five days later he issued two enforcement notices under delegated authority. In his memorandum of the decision to issue the enforcement notices, the Director had recorded (notwithstanding the advice to committee that Mr. White’s comments about negotiations were irrelevant) that one of the reasons for issuing the notices was the unwillingness of the landowner to negotiate!
Statutory Appeal and Judicial Review in Tandem
Gazelle both appealed to the Secretary of State against the enforcement notices and issued a claim for judicial review. The Planning Inspectorate agreed to stay the statutory appeals until the outcome of the judicial review was known.
Interim Change of Circumstances
The substantive hearing of the claim for judicial review was not listed until December 2010 – almost two years after the notices had been issued. In the interim, there had been a significant change of circumstance in that there had been a proposal to allocate the site in the core strategy of the regional waste framework which had reached an advanced stage. The proposed allocation of the site was supported by the Council. By the time of the judicial review hearing, the Examination in Public had been heard and the Inspector’s report was expected a few months later.
The Issues
Issue 1: Jurisdiction of High Court to review a decision to issue an enforcement notice
The first issue was whether the Court had jurisdiction to hear the claim bearing in mind that there was a statutory right of appeal against the decision. Section 285 of the Town and Country Planning Act 1990 provides that "the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
The Council contended that provision precluded the challenges that had been brought. The judge, supported by weighty authority, disagreed. In Davy v Spelthorne Borough Council [1984] AC 262, the House of Lords considered whether a provision of the 1971 planning act which had been framed in similar terms ousted a right to claim damages. Lord Fraser of Tullybelton stated (at p.272 D-G): "But, in my opinion, the respondent's claim for damages is not barred by section 243(1)(a). That paragraph provides that the validity of an enforcement notice shall not be questioned in any proceedings whatsoever "on any of the grounds on which such an appeal may be brought." The words "such an appeal" are a reference back to an appeal under Part V of the Act of 1971 [analogous to Part VII of the 1990 Act], and they mean in effect the grounds specified in section 88(2) [of the 1971 Act, analogous to s.174(2) of the 1990 Act]. But section 243(1)(a) [of the 1971 Act, i.e. s.285(a)(a) of the 1990 Act] does not prohibit questioning the validity of the notice on other grounds…” (emphasis supplied)
Amplifying that principle in R v Wicks [1998] A.C. 92 Lord Hoffmann stated (at p.120): “… there remain residual grounds of challenge lying outside the grounds of appeal in section 174(2) of the Act of 1990, such as mala fides, bias or other procedural impropriety in the decision to issue the notice. I shall call these "the residual grounds". … If section 285(1) says that the notice cannot be questioned on certain grounds, it follows that it can be questioned on any other grounds. One has to ask why they were not included in the appeal procedure. The reason, as it seems to me, is obvious. Questions of whether the planning authority was motivated by mala fides or bias or whether the decision to issue the notice was based upon irrelevant or improper grounds are quite unsuitable for decision by a planning inspector …". (emphasis supplied)
Applying those principles, the judge held (at §55) that the question for the Court was whether the challenge brought fell within the “residual grounds” or was in fact a matter that could be aired at a public inquiry. The judge held that the class of “residual grounds” was not confined to bad faith or bias but encompassed the traditional grounds of judicial review. The judge held that examples of challenges that fall on the right side of the line included claims that the local authority’s consideration of expediency was vitiated by irrationality or unfairness, or that irrelevant matters had been considered, or relevant matters left out of account. Previous challenges to decisions to issue enforcement notices have been rare, but the Judge was supported in his analysis by R v Caradon DC, ex parte Knott (1999) 80 P & C.R. 154.
In the event the judge found that the four successful grounds of challenge fell on the right side of the line, but that one ground of challenge alleging that there had been an irrational assessment of the planning unit failed because in truth it raised issues which could properly be addressed on appeal and therefore the Court’s jurisdiction was excluded.
Issue 2: Whether the decision of the Council was vitiated by a failure to have regard to negotiations
The judge held that the claim succeeded on this ground. He considered that negotiations over the planning future of the site were relevant to a decision on the expediency of enforcement. Indeed he considered that the planning future of the site was relevant even if the only matters to be considered were matters bearing on the character, use and development of land. The judge had earlier noted, citing The Health & Safety Executive v. Wolverhampton City Council [2010] EWCA Civ 892 that the range of matters that were relevant to an assessment of “expediency” were potentially wider than the range of matters that would qualify as “material considerations” (thus the financial implications of a decision might be relevant to the expediency of that decision even where those implications would not be regarded as conventional “material considerations”).
In the judge’s view, evidence of a likely alternative industrial use replacing the industrial use being enforced against was a relevant matter. He therefore took the view that the advice given to the committee and adopted by it that negotiations between the Council and the landowner as to the future of the land were immaterial was wrong and the failure to consider that matter was fatal to the decision to delegate power to issue the enforcement notice.
Issue 3: Whether the delegated decision took proper account of “negotiations”
The judge held that it was not entirely clear what was meant by the memorandum of the delegated decision recording a claimed unwillingness of the developer to negotiate. The judge noted that on its face the Director’s decision seemed to be inconsistent with that of the Committee. If (as the judge found) the willingness of the developer was a material consideration, it should have been considered by the committee. It therefore seemed to the judge that the officer had in fact made the same error as the committee and had left out of account what in truth was the willingness of the claimants to negotiate over the future of the site.
Issue 4: Whether the decision of the committee was unfair and irrational
The judge citing R v Monmouth District Council ex parte Jones [1985] 53 P & C.R. 108, 115 concurred with the submission that a decision of a development control committee is subject to a requirement to consider development control matters fairly. In essence, the judge concluded that the refusal to hear Mr. White’s representations had not only led to an irrational decision, but it had also been unfair.
Issues 5 and 6: Unsuccessful Grounds
The judge found against the Claimants on two grounds. He found that the committee’s private consideration of documents relating to the planning unit caused no prejudice or unfairness. He also held that the assessment of the planning unit was not in truth a matter which was within the jurisdiction of the High Court (as set out above).
Issue 7: Necessity of considering matters arising since the decision
In the lengthy period between the issue of the enforcement notice and the hearing of the claim for judicial review, it had been proposed that the Fuller’s Earthworks site should be allocated in the Joint Waste Core Strategy. That was a change of circumstances that was material to the expediency of enforcement. The judge held it was therefore a matter which should have led the Council to reconsider its pursuit of enforcement action. The judge appears to have had some sympathy with the submission that such a continuing duty was consistent with the existence of the power in section 173A of the 1990 Act to relax or waive the requirements of an enforcement notice.
In reaching his view that there was a continuing discretion, the judge relied on a number of immigration decisions in which it has been held that there was a continuing public responsibility upon the Secretary of State for the Home Department to review decisions to pursue deportations in the light of any change of circumstance. In common with the decisions in those cases, he held that judicial review was a flexible enough process to allow the amendment of pleadings post-permission to reflect such interim changes of circumstance.
Conclusion
In appropriate cases, judicial review of decisions to take enforcement action may be an effective weapon in the armoury of a developer engaged in battle with a local authority. There is no reason in principle that challenges to decisions to take enforcement action should not be more frequently employed where enforcement decisions are defective. Local authorities will be advised to give careful written reasons for enforcement decisions and to reach such decisions in a manner consistent with the requirements of fairness.
The judge’s finding that a decision to pursue enforcement action involves a continuing discretion is also of significance to both developers and local authorities. Local planning authorities must be astute to ensure that their use of enforcement powers remains justified in the light of changes of circumstance over time. A failure to ensure that decisions are reviewed in the light of fresh matters as they emerge may impede enforcement action that would otherwise be substantively justified.
Alex Goodman is a barrister at 4-5 Gray’s Inn Square (www.4-5graysinnsquare.co.uk).
