ENFORCEMENT NOTICES: LIMITS ON INSPECTORS' JURISDICTION ON APPEAL

Britannia Assets (UK) Ltd v Secretary of State for Communities and Local Government and Medway Council [2011] EWHC 1908 (Admin)

Britannia Assets appealed under section 289 of the Town and Country Planning Act 1990 (‘TCPA') against a decision by the Secretary of State's planning inspector to uphold enforcement notices issued in respect of their unauthorised use of the site of a former oil storage depot as an industrial estate. 

Among the numerous grounds of challenge were claims that the notices should have been quashed because of a failure by the Council to have regard to all material considerations when issuing them; and that the inspector should when determining the application under s.174(2)(a) TCPA for planning permission for the development mentioned in the notice have considered whether the effect of the works required to remove the unauthorised development on nearby EU nature conservation sites would be worse than permitting the unauthorised development. 

Wyn Williams J applied the House of Lords' decision in R v Wicks [1998] A.C. 92, holding that while the Secretary of State could quash notices for being nullities (on their face not compliant with the TCPA), he had no jurisdiction to entertain challenges to the validity of enforcement notices on residual grounds which did not fall within the enumerated grounds of appeal in section 174(2) TCPA.  Any other challenges must be brought by way of an application for judicial review within the time limit for that procedure. 

Wyn Williams J also held that it was not appropriate to consider the consequences of compliance with the notices when determining an application to permit the unauthorised use, as that application was for the current use to continue and not for the removal works. 

The learned judge also found in favour of the Secretary of State on all other grounds of challenge.

Hereward Phillpot appeared on behalf of the Secretary of State.