The High Court decision in Wokingham BC v Scott [2017] EWHC 294 (QB) provides a usual example of the enduring legal effect of planning enforcement notices and the limited statutory rights for legal challenge. In addition, the Court provides a summary of the statutory basis to be considered when deciding whether to grant an injunction for a breach of planning control.
The case concerned an application for an injunction brought by Wokingham Borough Council (WBC) against a number of owners and occupiers for failure to comply with an enforcement notice in the Green Belt. Two main issues arose in the case. Firstly, could the landowners/occupiers challenge the validity of the enforcement notice having failed to appeal under section 174 of the Town and Country Planning Act 1990 (TCPA). Secondly, should the Court exercise its discretion and grant the injunction for the ongoing failure to comply with the enforcement notice under section 187B of the TCPA.
Appealing Enforcement Notices
Section 172(1) of the TCPA empowers a local planning authority to issue an enforcement notice where it appears that there has been a breach of planning control and that it is expedient to do so, having regard to the development and other material considerations. There is a right to appeal to the Secretary of State pursuant to the provisions of section 174.
Importantly, any lawful rights the subject of the enforcement notice will be lost if any such rights are not raised as a ground of appeal (and ultimately successful on appeal).
In this case, the landowner lodged but subsequently withdrew a section 174 appeal against the enforcement notice on the assertion that the landowner was "brought to understand" by WBC that a lawful development certificate (LDC) could properly be pursued for some of the matters the subject of the enforcement notice. However, section 191(2) provides that a use or operation is not lawful where there is an enforcement notice and as such an LDC cannot be issued.
Noting the above, the landowner argued that outside of the section 174 appeal rights against enforcement notices there should be a separate class of cases (namely where there is an arguable defect and a reason for the failure to appeal) for which the enforcement notice may be challenged.
Walden-Smith J categorically found against the establishment of an alternative means to challenge an enforcement notice. She stated:
“Any challenge to the enforcement notice is by way of statutory appeal and thereafter by way of judicial review of the decision of the planning inspector (if appropriate). To come to any other conclusion would fundamentally undermine the statutory code created by the TCPA”.
Whilst dismissing the challenge on the legality of the enforcement notice, she continued by clarifying that the ‘special class of cases’ raised by the landowners may be relevant to the question of whether the Court should exercise its discretion in granting an injunction.
Statutory basis for an injunction
Section 187B of the TCPA provides discretionary powers to the Court to grant an injunction where ‘a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction’.
Whilst all matters will depend upon their facts, and given the infinite circumstances that may arise no single test can be derived, Walden-Smith J summarised the general basis for exercising this discretion as:
- the Court has an obligation to consider whether the granting of an injunction is a proportionate remedy in accordance with the provisions of the ECHR;
- the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control;
- the power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. For example – a) where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint; and b) a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay (although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers – but in all cases the Court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant; and
- decisions on planning merits are for the planning authorities and decisions on whether to enforce such decisions are for the Courts, taking into account all relevant considerations including those of personal hardship to the party against whom injunctive relief is sought (such as the ‘special class of cases’)
In the present case, the judge found in granting the injunction that it was both necessary and expedient to restrain the breaches of planning control. On the facts she concluded:
- the ongoing and extensive breaches of the enforcement notice give clear evidence that the Defendants, unless restrained from so doing, will continue to act contrary to planning control;
- there is a clear need for the local planning authority to be able to enforce planning control in the Green Belt in the general interest of the public;
- the degree of development, both in breach of the enforcement notice and of planning control generally, have been extensive;
- the withdrawal of the appeal of the enforcement notice was at the landowners’ discretion and no evidence of inducement from the WBC was found; and
- the planning process is now at an end and the interference with their property rights under Article 1 of the First Protocol is a proportionate one in that the above factors outweighed the harm caused to the occupiers.
Lesson: the legal right to challenge an enforcement notice is strictly limited to the s174 appeal rights and any subsequent judicial review. Landowners will lose any lawful rights the subject of an enforcement notice if they fail to appeal. The factual circumstances for the failure to appeal maybe a material consideration for the Court on an injunction application but it is likely only significant in exception cases where the failure was beyond the control of the party in contravention.
