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Cite as: [2013] EWHC 1460 (Admin), [2013] PTSR 1502

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Neutral Citation Number: [2013] EWHC 1460 (Admin)
Case No. CO/2368/2012


Royal Courts of Justice
London WC2A 2LL
1 May 2013

B e f o r e :




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Mrs H Townsend (instructed by ODT Solicitors) appeared on behalf of the Claimant

Mr R Green (instructed by Horsham District Council) appeared on behalf of the Defendant



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  1. MR JUSTICE LEGGATT: This claim for judicial review raises a short point as to the legal consequence of the failure of a local planning authority to serve an enforcement notice on the owner and occupier of the land to which the notice relates within the period of time prescribed by section 172(3) of the Town and Country Planning Act 1990.
  2. The claimant is the owner and occupier, together with his wife, of a building which until recently was known as "The Barn" at Henfield in West Sussex. On 6 December 2011 the defendant council served two enforcement notices in relation to The Barn. The first alleged that there had been an unauthorised material change of use of part of the property from use for agricultural and storage purposes to residential use. The notice required the residential use to cease and various items to be removed from the land. The second notice alleged that certain alterations to the property had been made without planning permission and required certain steps to be taken to reverse the effect of those alterations. Each enforcement notice stated that it would take effect on 4 January 2012 unless an appeal was made against it beforehand.
  3. Time for compliance with the notice was in each case specified as 6 months after the notice took effect. Section 172 of the Town and Country Planning Act 1990, which gives the local authority the power to issue an enforcement notice, states at subsections (2) and (3) as follows:
  4. "(2) A copy of an enforcement notice shall be served—
    (a)on the owner and on the occupier of the land to which it relates; and
    b)on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice.
    3) The service of the notice shall take place—
    a)not more than twenty-eight days after its date of issue; and
    b)not less than twenty-eight days before the date specified in it as the date on which it is to take effect."
  5. As mentioned, the two enforcement notices in this case 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)(b) the notices would need to have been served at latest on 7 December 2011. In fact, it is common ground that the notices were served on 9 December 2011, which was less than 28 days before the date specified in the notices as the date on which they were to take effect.
  6. The claimant wished to exercise his right of appeal against the enforcement notices. He instructed a planning consultant, Mr Luke Carter, to assist him. The claimant telephoned Mr Carter on the day he received the notices, Friday 9 December, and had a meeting with Mr Carter on the following Monday, 12 December 2011, to discuss the possibility of an appeal. With Christmas and the New Year holidays intervening there was not much time to prepare the appeals and lodge them with the planning inspectorate before 4 January 2012. Mr Carter has made a witness statement in which he says that he prepared notices of appeal in draft before Christmas and then finalised them in the three working days between Christmas and New Year. The first working day after the New Year holiday was 3 January 2012. On that day Mr Carter sent the notices of appeal to the planning inspectorate by Royal Mail with guaranteed next day delivery. They were duly delivered the next day, 4 January 2012. However, that was too late.
  7. Section 174(3) of the Act states:
  8. "(3) An appeal under this section shall be made —
    (a)by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or
    b)by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date; or
    c)by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date."

    To comply with the requirements of section 174(3) it would therefore have been necessary for Mr Carter to have posted notices of appeal before the New Year holiday or to have sent them electronically or to have delivered them by hand on 3 January 2012. As it was, the notices of appeal were served out of time.

  9. The planning inspectorate took the position that they had no power to extend the time for an appeal or to waive the requirements of section 174(3). Accordingly, as no appeal had been brought in time, the enforcement notices on their face took effect on 4 January 2012. Mr Carter, on behalf of the claimant, sought to persuade the council to withdraw the enforcement notices and reissue them so as to give the claimant the opportunity to appeal. However, the council refused to do so.
  10. It is unnecessary for me to recite the whole of the correspondence in which this refusal was communicated, which starts with a letter from the council dated 16 January 2012, because it is common ground that the reasons on which the council took its final stand to refuse to withdraw and reissue the enforcement notices were set out in a letter dated 1 March 2012 in response to a letter of claim sent on behalf of the claimant under the pre-action protocol.
  11. In that letter of 1 March 2012 the council's solicitor stated that she had had regard to a number of matters in considering whether or not the council should withdraw the notices, including the matters set out in the letter before claim. She then summarised the council's reasons for refusing to withdraw the notices in six numbered points as follows:
  12. "1. Expediency of enforcement action. Notwithstanding what is stated in the grounds of appeal submitted on behalf of the claimant, the council remains satisfied that the breaches of planning control identified in the enforcement notices took place and that it is expedient to take action against them by way of enforcement notices.
    2. Prejudice arising from late service. Had the late service of the enforcement notices prevented the claimant from appealing in time then that would have provided a strong reason to withdraw the notices. In fact, it is clear that the reason why the claimants' enforcement appeals were rejected was because you chose to send the appeal forms to the planning inspectorate by registered post on 3 January 2012 rather than send them on 2 January when you say they were ready to go or by any of the other methods of service accepted by the inspectorate such as electronically, by fax or by hand delivery. Both the covering letter sent with the enforcement notices and the appeal forms completed by you warned that any appeals had to be received by the inspectorate before the effective date of the notices but you failed to ensure this was done. There is simply no link between the late service of the notices and the failure of claimant's appeals and the allegation that the council has benefited in some way of its own breach of section 172(3) is denied.

    3. Other remedies open to the claimant. Although the rejection of the claimant's appeals means that he cannot challenge the enforcement notices on the ground that planning permission should be granted for what is alleged in the notices, there are other steps he can take if he wishes to use The Barn for residential purposes and/or retain the items of development he has installed. As has already been pointed out in the correspondence he can apply for planning permission. I note you take issue with this suggesting that the enforcement notices now represent the fall back position to which you say substantial weight would be given. I am not convinced this represents a significant difference between an appeal on ground (a) and a planning application.

    [The letter then goes on to elaborate on that point]

    4. The ground (b) appeal. In the grounds of appeal challenging … the change of use notice, you state that area B of The Barn is being used for the storage and maintenance of agricultural machinery and equipment and area C is being used for the storage of Mr and Mrs Sterns' personal possessions in accordance with the planning permission DC10/0792. If true, then as a matter of fact there would be no contravention of the requirement in the enforcement notice to stop the residential use of those parts of The Barn, the point made in my letter of 23 January. The extent to which the enforcement notice interferes with Mr and Mrs Sterns' Convention rights would, on this basis, be much reduced.
    5. Incompatibility between section 285 of the Act and the claimant's Convention rights. While it is not for the council to show that section 285 of the Act is compatible with the Convention, I believe the factual basis of your claim is wrong. You say that the claimant was prevented from appealing the two enforcement notices by the very cause of the invalidity he is now said to be unable to rely on. For the reasons given above, I do not consider that that is a fair or accurate way of putting what happened. The late service of the notices, although regrettable, had no bearing at all on the failure of the claimant's appeals.
    6. The public interest. You say that the council has not 'recognised the public interest in the appeal by which means the merit of the enforcement action is independently assessed.' As the Act provides a right of appeal against enforcement notices, I wholeheartedly agree that the opportunity to challenge enforcement notices is an aspect of the public interest. But the Act also lays down a time limit within which an enforcement appeal must be made which the Courts have construed strictly. Finality in the enforcement process is also an important aspect of the public interest as is the best use of the council's finite resources. You will be aware of the extensive history of this matter and the steps taken by the council to investigate the breaches of planning control which were set out in the delegated authority report of 16 November 2011… In the circumstances, I do not consider that the public interest requires that the claimant be given a second opportunity to challenge the council's enforcement action. In Convention terms, I do not consider that the interference with Mr and Mrs Sterns rights under Article 8 and Article 1 of the first protocol would be disproportionate."
  13. The letter concluded by saying:
  14. "I accept that the claimant has been prejudiced to an extent by the rejection of his appeals but I do not consider that the council is responsible for this. The council will not withdraw the enforcement notices."
  15. Against that background, the claimant has brought this claim for judicial review seeking to challenge, in the first place, the validity of the enforcement notices. In the alternative, the claimant argues that, if the enforcement notices are 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.
  16. Permission to proceed with the claim was given by Dobbs J on 16 August 2012.
  17. The claimant's primary case

  18. The first ground of challenge is therefore that the enforcement notices are invalid because they were not served in compliance with section 172(3) of the 1990 Act. The council's response to this is in substance that such a challenge could only be raised by way of an appeal against the enforcement notices. Since no appeal was brought in time, the claimant has no right to challenge the validity of the notices by these proceedings for judicial review.
  19. The council's argument is founded on sections 174 and 285 of the 1990 Act. Section 285(1) states:
  20. "(1)... 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."
  21. There is one exception to that provision provided for in subsection (2), which states:
  22. "(2) Subsection (1) shall not apply to proceedings brought under section 179 ... against a person who—
    (a)has held an interest in the land since before the enforcement notice was issued under that Part;
    b)did not have a copy of the enforcement notice served on him under that Part; and
    c)satisfies the court—
    i)that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and
    ii)that his interests have been substantially prejudiced by the failure to serve him with a copy of it."

    Section 179 which is referred to in subsection (2) is a section of the Act which makes failure to comply with an enforcement notice a criminal offence.

  23. Section 174(2) of the Act specifies grounds on which an appeal may be brought. They are:
  24. "(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
    (b) that those matters have not occurred;
    (c)that those matters (if they occurred) do not constitute a breach of planning control;
    (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
    (e) that copies of the enforcement notice were not served as required by section 172;
    (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
    (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

  25. Of these grounds, it is ground (e) on which the issue in the present case turns. The council's case is 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 cannot 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, it is said, the claimant cannot in these proceedings or any other proceedings challenge the validity of the enforcement notices on that ground.
  26. The Claimant's Submissions

  27. Counsel for the claimant, Miss Townsend, takes issue with this interpretation of section 174(2)(e). She submits that the language of that provision ("copies of the enforcement notice were not served as required by section 172") is capable of being interpreted as referring only to a situation where copies of the enforcement notice were not served at all as required by section 172. On this interpretation, which I shall call "the narrow interpretation", ground (e) 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).
  28. Miss Townsend accepts that the language of ground (e) is also capable of being interpreted more widely as including a failure to serve enforcement notices within the time required by section 172(3) but she submits that the narrow interpretation is to be preferred for three main reasons.
  29. First, it is submitted that if the statutory language were given the wider interpretation for which the council contends, this would lead to grossly unfair results. It would mean that even if a notice was issued the day before it was to take effect, leaving in practice no possibility of appealing against it in time, its validity could not be questioned in any later proceedings. The unfairness of that result is underlined by the consequences which follow when an enforcement notice takes effect if it is not successfully or cannot be challenged. In particular, if a notice is not complied with before the end of the period specified in it for compliance, the owner of the land is guilty of a criminal offence and is liable to prosecution under section 179 of the Act. In addition, a local planning authority can apply to the Court for an injunction to enforce compliance. In any such proceedings, whether criminal proceedings or civil proceedings for an injunction, the owner of the land cannot raise as a defence any matter which could have been raised as a ground of appeal if an appeal had been brought. That is the effect of section 285. Thus, if the opportunity to appeal is lost as a result of short service of an enforcement notice by the local authority in breach of the 28-day requirement, the result is not only that, if the council's interpretation is right, the owner of the land cannot question the validity of the notice on the ground of short service in any later proceedings but that he cannot raise any objection to the notice which could in principle have formed the ground of appeal. That is a draconian consequence and Miss Townsend submits that, where there is another available interpretation, the statute should not be construed as having that effect.
  30. Second, Miss Townsend relies on the legislative history of the relevant provisions. In the Town and Country Planning Act 1972 as originally enacted a clear distinction was drawn between the requirement as to timing of service of an enforcement notice and the requirement as to service of the notice on particular persons. Thus, the relevant ground of appeal set out in section 88(2)(e) of the 1971 Act (the predecessor to what is now section 174(2)(e) of the 1990 Act) applied where "the enforcement notice was not served as required by section 87(4) of this Act". Section 87(4) stated:
  31. "An enforcement notice shall 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 that land, being an interest which in the opinion of the authority is materially affected by the notice."

    Section 87(4) did not specify a time within which the notice has to be served. That was provided for by section 87(8) but noncompliance with section 87(8) was not a ground of appeal.

  32. The 1971 Act was amended by the Local Government and Planning (Amendment) Act 1981, which substituted new sections 87 and 88 in the 1971 Act. As substituted, section 87(5) now stated:
  33. "A copy of an enforcement notice shall be served not later than 28 days after the date of its issue and not later than 28 days before the date specified in the notice as the date on which it is to take effect -
    (a) on the owner and on the occupier of the land to which it relates; and
    (b) on any other person having an interest in that land, being an interest which in the opinion of the authority is materially effected by the notice."

    The ground of appeal set out in what, as substituted, became section 88(2)(f) cross-referred to this provision.

  34. Miss Townsend submits that it was not the intention of the amendment to authorise or require a point about the timing of service of an enforcement notice to be raised on an appeal. The mischief at which the amendments were aimed was a position where an enforcement notice could take effect on different dates in relation to different people served with the notice.
  35. The third main argument advanced on the claimant's behalf is that the narrow interpretation of section 174(2)(e) is required to achieve compliance with the European Convention on Human Rights, in particular Article 6 which entitles the landowner to a fair hearing in the determination of his rights and obligations. Miss Townsend submits that it is essential to compliance with Article 6 that there is a fair opportunity to appeal against an enforcement notice. That would not be the case if ground (e) were given the wider interpretation for which the council contends.
  36. The Council's Submissions

  37. On behalf of the council, Mr Green argues in summary as follows. He submits that the language of section 174(2)(e) is clear and not susceptible of any real ambiguity. On its natural meaning it encompasses a failure to serve an enforcement notice either on any of the persons required by section 172(2) or within the time required by section 172(3). The correctness of this interpretation, he submits, is confirmed by cases in which the statute (or its predecessor) has been treated as having this meaning. Mr Green relies in particular on Porritt v Secretary of State for Environment (1988) JPL 414 and Dyer v Secretary of State for Environment and Purbeck DC (1996) JPL 740.
  38. In Porritt three enforcement notices were served requiring unauthorised buildings to be demolished and unauthorised uses to cease. One notice was served 27 days before the date specified in the notice as the date on which it was going to take effect. (As I have mentioned, section 87(5) of the 1971 Act required enforcement notices to be served "not later than 28 days before the date specified in the notice as the date on which it is to take effect".) Appeals were lodged against all three notices and in the case of the enforcement notice that had not been served as required the appeal was brought on the ground that "copies of the notice had not been served as required by section 87(5)".
  39. The inspector rejected this ground of appeal on the basis that it should be disregarded as it had caused no prejudice. On an application to the High Court, it was argued that the requirement as to time was mandatory and because it was not strictly observed the notice should be remitted to the Secretary of State with a view to its being quashed. The judge, Mr Pill QC (as he then was) sitting as a Deputy Judge of the High Court, rejected that contention. He held that the Secretary of State had a discretion when considering an appeal based on late service of an enforcement notice and was entitled to take the view in that case that the notice should not be quashed as the late service had caused no prejudice. As Mr Green has pointed out, it appears to have been assumed by everyone in this case that an objection based on late service of an enforcement notice fell within the predecessor provision to what is now section 174(2)(e) of the 1990 Act.
  40. In the case of Dyer, the local planning authority issued two enforcement notices in respect of land which were to take effect on 24 January 1994. Mr Dyer claimed that he did not receive the notices until 19 January 1994 and in consequence did not have the time or the opportunity to take legal or professional advice. He appealed against the notices to a planning inspector on a number of grounds which included the late service of the notices. On the appeal, the inspector found that the notices were properly served and that in any event Mr Dyer had not been prejudiced.
  41. On a further appeal to the High Court the Secretary of State conceded that the notices were served late but the judge, Sir Graham Eyre QC sitting as a Deputy High Court Judge, upheld the inspector's decision on the basis that on the facts it was apparent that any disadvantage which Mr Dyer may have suffered was due to his not taking legal advice after the service of the notices and before the hearing of the planning appeal. Accordingly, the late service had not caused him any prejudice. Again, as Mr Green has pointed out, it seems to have been assumed throughout in this case that a challenge to the validity of an enforcement notice based on failure to serve it within the time prescribed by section 172(3) falls within ground (e).
  42. Next, in relation to the legislative history Mr Green submits that the clear effect of the 1981 Act was to change the law so as to bring within what is now ground (e) an objection to the validity of an enforcement notice based on late service. Thus, the fact that the position was different under the 1971 Act as it originally stood does not help the claimant.
  43. Mr Green further argues that when one looks at the overall scheme of the 1990 Act it is not unreasonable or unfair that the Act should require any point based on late service to be raised by way of an appeal to the planning inspector. Mr Green observes that section 285 of the Act does not preclude judicial review based on a claim that the planning authority has been guilty of bias or bad faith or other procedural impropriety: see R v Wicks [1998] AC 92 at 120B. So there would potentially be a remedy if, for example, the planning authority had deliberately served the notice late in order to frustrate or reduce the opportunity for an appeal.
  44. Mr Green also submitted that, even if late service were to result in a person not bringing an appeal in time - which he did not accept was the position in this case - there are other ways in which courts can give protection against any resulting unfairness. For example, it could be argued that in such circumstances a prosecution for failure to comply with the enforcement notice was an abuse of process; or a court could decline to grant an injunction which is a discretionary remedy to enforce the notice. The owner of the land could also challenge by way of judicial review the refusal by the local authority to withdraw the notice and might well succeed if late service of the notice had caused substantial prejudice. Mr Green also pointed out that the existence of a valid enforcement notice does not preclude planning permission from being granted in relation to a development carried out before the notice was issued; and where such planning permission is granted, then by virtue of section 180 of the Act the enforcement notice will cease to have effect so far as inconsistent with the permission.
  45. Mr Green submitted that, looking at the scheme of the Act in the round, section 174(2)(e) as interpreted by the council does not produce any substantial unfairness or none which cannot be mitigated by the courts in an appropriate case.
  46. In further support of that submission Mr Green relied on the case of Goodall v Peak District National Park Authority [2008] 1 WLR 2705. In that case a local authority served an enforcement notice which stated that it would take effect 37 days later - a longer period therefore than the minimum 28 day requirement. However, the owner of the property was out of the country when the notice was served and did not return and become aware of the notice until after it had taken effect. The owner was then prosecuted and convicted in the Magistrates' Court for failing to comply with the notice. The Crown Court dismissed his appeal. On an appeal to the High Court by way of case stated the owner argued that the prosecution was unlawful because the action of the planning authority had deprived him of his right under Article 6 of the Convention to a fair hearing. The High Court rejected that argument, holding that what had deprived the owner of a hearing to determine the extent of his rights under the planning legislation was not the prosecution brought by the planning authority but a combination of section 174(3) of the 1990 Act, which required an appeal to be made before the date when the enforcement notice takes effect, and the owner's own failure to lodge an appeal. Keene LJ also considered whether, although not argued, section 174(3) should be interpreted in such a way as to allow an appeal to be brought late, if the person wishing to appeal was ignorant of the enforcement notice until the time for appeal had passed. Keene LJ expressed the view that no such argument would have been available.
  47. Finally, Mr Green referred to Staffordshire County Council v Challinor [2008] 1 P & CR 10, a decision of the Court of Appeal in which Hughes LJ discussed the possibility that section 285 of the 1990 Act might bring about an apparently unjust result. At paragraphs 75 and 78 of the judgment Hughes LJ stated:
  48. "75. It is certainly possible to envisage rare cases in which this law may work some injustice. They will be confined to those in which both: (a) there is a defect in the Enforcement Notice which can irrefutably be established; and (b) the landowner had an understandable reason for omitting to pursue a section 174 appeal. The coincidence of those factors will, I think, be rare. But it is not entirely unknown for administrative errors to lead to the issue of an enforcement notice when there is an existing planning permission, or Certificate of Lawful Use, and the chance of such error is no doubt increased if there are two different authorities concerned in the case. It is no doubt possible that a landowner might be absent abroad, ill, illiterate or simply may wrongly think that his CLU provides an answer and he need take no advice and do nothing. There is, we are told, no power even in an exceptional case to extend time for bringing a section 174 appeal. So in such a case, rare as it may be, the landowner could perhaps find himself with a cast iron defence to a prosecution under an enforcement notice, which he is prevented by section 285 from advancing.
    78. ... If such a case were to arise, then the courts do, as it seems to me, have limited capacity to address it. Firstly, so long as the court retains the rarely exercised but important power to stay a prosecution on the grounds that it is an abuse of the process of the court ... the criminal court has available the means of preventing the gross injustice of a conviction. Secondly, the civil court plainly retains a discretion whether or not to grant an injunction if one is sought, and it might be very relevant if the scenario were that envisaged. Whether, if direct action had also followed without the error being appreciated, there would exist any defence to a claim for expenses incurred, for example on the basis that they were not reasonably incurred (s 178(1)(b)) is a question which can safely be left for the day it happens, improbable as it plainly is."

  49. These dicta, Mr Green submitted, reinforce his contention that if section 174 and section 285 in combination may work some injustice, including in a case where there is late service of an enforcement notice, there are nevertheless ways in which the courts can provide some redress.
  50. Discussion

  51. Having considered these submissions I would make three initial observations. I accept first of all that the interpretation of section 174(2)(e) contended for by the council is the more natural meaning of the words used. The words "copies of the enforcement notice were not served as required by section 172" would more naturally be used by someone whose intention was to include within the scope of this ground of appeal a breach of section 172(3) as well as a breach of section 172(2). I do not consider, however, that that is the only possible meaning of the words. I accept that the statutory language is capable of being construed more narrowly to refer only to a situation where a copy of the notice has not been served at all, as required by section 172, and not to a situation where there was service but it did not take place within the time required by section 172.
  52. Second, I do not consider that the legislative history assists in establishing the correct interpretation. I think it clear that the 1971 Act as originally enacted had the effect in this regard which Miss Townsend submits is the effect now of the 1981 Act. It may well be the case that the impetus for the amendments made by the 1981 Act to sections 87 and 88 of the 1971 Act was, as Miss Townsend says, a desire to ensure that there is only one date on which an enforcement notice takes effect. But whether the amendments also had the effect of enlarging the scope of what is now ground (e) depends on the proper interpretation of the amended provisions which are similar, though not identical, to those that replaced them in the 1990 Act. It begs the question, in my view, to assume that it was not Parliament's intention to bring objections based on late service within the scope of what is now ground (e).
  53. Third, I also do not consider that the authorities cited by Mr Green are of assistance in deciding the issue raised in the present case. In Porritt and in Dyer an appeal was in each case brought within the time prescribed by the statute notwithstanding the late service of the enforcement notice. So the question did not arise of whether section 174(2)(e) and section 285 of the 1990 Act or their predecessor provisions have the effect of precluding any challenge based on late service in circumstances where an appeal is not brought in time allegedly as a consequence of the late service. The most that can be said about these cases is that it was assumed, without being argued or decided, that the point taken about late service of the enforcement notice fell within the scope of the appeal. In each case it was in any event held that the inspector had been entitled to conclude that the enforcement notice was valid as the late service of the notice had caused no prejudice. At most, therefore, the way in which those cases were argued may be said to confirm that the more natural interpretation of section 174(2)(e) is, as I have already concluded, the wider interpretation of that provision. But the cases are not authority on the point.
  54. I approach the issue raised in this case, therefore, as a question of statutory interpretation to which the answer is not provided by authority nor by the legislative history. I acknowledge the force of the argument based on the natural meaning of the words used in section 174(2)(e). Nevertheless I have come to the conclusion that, interpreted in the context of the legislative scheme as a whole, the words of that provision must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be given the narrower meaning which I think they are also capable of bearing.
  55. The following points lead me to that conclusion. First, an enforcement notice is a strong thing in that failure to comply with it leads to very serious consequences. In particular, non-compliance is a criminal offence.
  56. Second, the defences available to a criminal prosecution or other action taken pursuant to the notice are extremely limited. Apart from any argument that a prosecution is an abuse of process, which necessarily could apply only in a very rare case, the only defences are those provided by section 179(7) and section 285(2). Those provisions apply as I construe them only where, among other conditions that must be met, the person charged was not served with the enforcement notice at all and was not aware of the existence of the notice before it took effect.
  57. Third, particularly against that background, the right of appeal against an enforcement notice is an important and indeed essential part of the statutory scheme because it gives the owner of the land or other interested party an opportunity to be heard and to object to the validity of the notice before it is enforced.
  58. Fourth, that right of appeal is all the more important and essential because by reason of section 285 it provides the only opportunity to challenge the validity of an enforcement notice on any of the grounds specified in section 174 and there is in relation to those grounds no recourse to the Courts.
  59. Fifth, the time within which an appeal must be brought is determined by sections 172(3) and 174(3). The effect of those provisions is that, where the notice is served on the latest permissible date, the period within which an appeal must be brought is only 28 days and there is no provision for extending this period in any circumstances and however strong or reasonable is the case for being allowed more time.
  60. Sixth, it would be a very significant further restriction on what is already a tightly circumscribed right of appeal if the only means of challenging the validity of a notice which is served late, thereby reducing below 28 days the time within which an appeal may be brought, is by bringing an appeal. The worse the breach of the service requirement on this interpretation, the harder it is to exercise the only remedy available for the breach. That seems to me fundamentally unfair and illogical.
  61. In an extreme case it would mean that if the local authority, through inadvertence and not through any bad faith, neglects to serve an enforcement notice until the day before the date on which it is to take effect, the owner of the property would have only the day of receipt in which to lodge an appeal. If he did not, then (a) he could not challenge the validity of the notice on the ground of late service in any other proceedings including judicial review proceedings, (b) he could not challenge in any other proceedings the validity of the notice on any of the other grounds specified in section 174(2) such as that matters alleged in the notice did not occur or if they occur did not constitute a breach of planning control, and (c) none of those matters could be relied on as a defence to a criminal prosecution based on non-compliance with the notice. Those are draconian consequences and it is wholly unreasonable that the owner of the land effected by the notice should have those consequences imposed upon him by the local authority's failure (even if careless rather than deliberate) to comply with its statutory obligation – a failure for which the landowner is, on any view, not responsible and over which he has no control. Since the statute is capable of being interpreted in a way which avoids that unreasonable result, in my view it should be so interpreted.
  62. I do not think that any of the matters relied on by the council as mitigating the position, such as the possibility of arguing that a prosecution is an abuse of process or seeking to persuade the local authority to withdraw and re-issue the notice, provides any protection which comes close to being an adequate substitute for the loss of the opportunity to appeal. The case of Goodall and the observations of Hughes LJ in Challinor on which Mr Green relied were addressing arguments that the law may cause unfairness even when the requirements of the Act, including the requirements for service, have all been complied with by the local planning authority. They were not addressing a case of the present kind where the statutory requirements have not been complied with.
  63. It seemed to me in the course of argument that a point in favour of the council's interpretation is that the scheme may be said to work unfairly even on the narrower interpretation of section 174(2)(e) for which the claimant argues. On the narrower interpretation and on any view, the right of appeal is lost if a copy of the enforcement notice is not served on the owner of the land at all; and section 285 then takes effect to impose most if not all of the draconian consequences which I have mentioned. There are, however, the limited protections potentially available in such a case which are provided by section 282(2) and section 179(7). Those protections are never available in a case of late service. While I see force in the argument that the narrow interpretation of section 174(2)(e) may have the result that the landowner is better protected in the case of late service because validity of the notice can be challenged in court than in a case of non-service, which seems illogical, I think the better approach is that the statute should not be interpreted as involving greater unfairness than is inevitably inherent in it.
  64. I also think that section 175(5) of the Act is significant. This states:
  65. "Where any person has appealed to the Secretary of State against an enforcement notice, no person shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed."

    This provision is significant because it means, as I read it, that even on the narrow interpretation of section 174(2)(e), where a person does appeal against an enforcement notice in time on any ground, he cannot afterwards take any objection to the validity of the notice in any other proceedings on the basis that the notice was not served on him within the time required by section 172(3). That means that, where there is late service, a person cannot keep an objection based on that ground up his sleeve while pursuing an appeal and then take the point in proceedings for judicial review or other proceedings if the appeal fails. In practice, therefore, an objection based on late service can only be taken where, as in this case, the consequence is said to have been to have caused the landowner to lose the opportunity to appeal.

  66. I asked Mr Green what function section 175(5) serves if he is right about the meaning of section 174(2)(e) - since it would appear in that case that section 175(5) would add nothing to the result already achieved by section 285. His answer was that section 175(5) is wider in scope than section 285 and still has some purpose because, in theory at least, someone could argue that a notice was not duly served for some other reason than that it is invalid on a ground on which an appeal can be brought. However, Mr Green was not able to give any example of what such a reason might be if his interpretation of section 174(2)(e) is correct and I have not been able to think of one. When trying to make sense of the scheme as a whole, I accordingly consider that section 175(5) fits better with the narrow interpretation of section 174(2)(e) and reinforces the conclusion that ground (e) does not apply to an argument of the kind which the claimant seeks to make in this case that an enforcement notice is invalid because it was not served on the person concerned in compliance with section 172(3).
  67. Article 6 ECHR

  68. I have reached this conclusion on ordinary principles of statutory interpretation but I consider that it is also powerfully reinforced by consideration of Article 6 of the Convention. The argument based on Article 6 was not developed by Miss Townsend as fully as would have been helpful. In particular, I was not taken to any relevant authorities. I therefore approach the matter based solely on my general understanding of the relevant law.
  69. Article 6(1) states:
  70. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
  71. Mr Green did not dispute that 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, it is clear that it does. In applying Article 6 to the present case, it is I think necessary to consider the whole scheme of the legislation relevant to enforcement notices, including both the right of appeal to a planning inspector for which the Act provides and the extent of judicial control over actions of the local authority and the decision of the planning inspector. One must look to see whether the scheme as a whole provides sufficient opportunities for an owner of land whose rights are affected to have a hearing in the determination of those rights which is sufficient in order for there to be compliance with Article 6.
  72. The analysis of the present issue in terms of Article 6 runs very much in parallel, as I see it, with the analysis I have already outlined when looking at the issue in terms of ordinary principles of statutory interpretation. I assume, and the contrary was not suggested, that the scheme of the Act as a whole complies with Article 6 notwithstanding that it may work some injustice in a case where the local authority serves an enforcement notice in accordance with the requirements of the Act. But for similar reasons to those I have already indicated, the scheme would in my view not comply with Article 6 if in a case where the local authority did not serve the enforcement notice within the time required by the Act, thereby causing a recipient of the notice to issue an appeal out of time, the only means available to the land owner for challenging the validity of the notice would be to have brought an appeal in time.
  73. There is one important difference between the analysis based on Article 6 and that based on ordinary principles of statutory interpretation. When one reaches the conclusion, as I have, that the statutory scheme would contravene Article 6 if section 174(2)(e) had the meaning for which the council contends, section 3(1) of the Human Rights Act 1998 comes into play. That states:
  74. "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."

  75. The interpretive obligation imposed by section 3(1) is a strong obligation. It requires that even if, contrary to my view, what I have called the narrow interpretation of section 174(2)(e) is not the most reasonable or even a reasonable interpretation applying ordinary principles of statutory construction, it must nevertheless be adopted unless it is plainly impossible: see eg R v A (No 2) [2002] 1 AC 45. The narrow interpretation of section 174(2)(e) is certainly not an impossible one. It must accordingly be adopted in order to achieve compatibility with Article 6 of the Convention.
  76. Conclusion on Interpretation

  77. For those reasons I conclude that section 285 of the Act does not prevent the claimant from challenging in these proceedings the validity of the two enforcement notices on the ground that the notices were not, as is admitted, served within the time required by section 172(3) of the Act.
  78. The Legal Consequence

  79. On behalf of the council, Mr Green did not concede that it follows from that conclusion that the notices should be quashed. He argued that late service did not, on the facts of this case, cause prejudice to the claimant because the claimant still could and would have appealed in time had it not been for the fault of his agent, Mr Carter, in failing to ensure that the notices of appeal were lodged with the planning inspectorate before 4 January 2012.
  80. Mr Green emphasised that on Mr Carter's own evidence the notices of appeal were ready to go out on 2 January. He also pointed out that the letter from the council which enclosed the enforcement notices, the notices themselves and the forms on which the appeals were made all drew attention to the need to ensure that the notices of appeal reached the planning inspectorate before 4 January 2012. There was therefore no excuse for Mr Carter, particularly as a professional planning consultant, not to be aware of that fact and to have had it in mind. Furthermore, there were various means available, such as submitting the appeals electronically, which would readily have enabled the appeals to be brought in time. The failure to do so, Mr Green submitted, was caused not by the council's late service of the enforcement notices but by the fault of the claimant's agent in not appealing within the time stated in the notices.
  81. I accept that the failure to appeal in time was caused by the fault of Mr Carter. I do not accept, however, that the failure to appeal in time was not caused by the council's breach of its statutory obligation. This case is one where on the facts there were in my view two causes of the failure to appeal which operated concurrently. Neither factor on its own would have led to the claimant losing the opportunity to appeal. It was the combination of the two which had that result.
  82. Thus, it is clear that had Mr Carter done his job properly the appeals would have been brought in time notwithstanding the late service of the necessary notices. But it is also clear from Mr Carter's evidence, which I see no reason to reject and which indeed has not been contested, that the appeals would have been brought in time if the council had complied with its statutory duty in serving the enforcement notices. The council could in principle have complied with that duty in either of two ways. Serving the notices as it did on 9 December 2011, it could have specified as the date when the notices would take effect a date at least 28 days later - that is, on or after 6 January 2012. It is plain that, had such a date been specified, the appeals would have been in time. Alternatively, the council could have served the notices earlier than it did on 6 or 7 December while leaving the date when they would take effect as 4 January.
  83. Mr Carter's evidence of what would most likely have happened in that event is set out at paragraphs 9 and 10 of his witness statement as follows:
  84. "(9) Had the enforcement notices arrived with Mr Stern on 6 December 2011, it is reasonable to assume that Mr Stern would have contacted me on the same day and I would have advised him to meet with me at his earliest convenience either later that day or the following day, 7 December. My diary confirms I was available for meetings on either of these days.
    (10) The effect of meeting Mr Stern on 6 or 7 December would have been that the appeal documents would have been prepared and submitted earlier than they were. As Christmas is a busy time of year, it is impossible to say whether this would with have been before Christmas or between Christmas and the New Year. In any event, the appeals would have been submitted to the inspectorate before the New Year holiday which fell on 31 December to 2 January inclusive."

    The same result on the basis of this evidence is likely to have occurred if the notices had been served on the claimant on 7 December 2011.

  85. In these circumstances, I consider the proper analysis to be that there were two concurrent causes of the failure to appeal in time, one of which was the council's breach of statutory duty. That being so, the claimant has been substantially prejudiced by the council's breach of duty as well as by the fault of his own agent. Hence, this is not a case where the Court should decline to make a quashing order notwithstanding that the council acted unlawfully because the effect of the illegality was immaterial or inconsequential. Nor do I see any other reason why the Court ought not to grant that remedy.
  86. The Claimant's Alternative Case

  87. In the light of that conclusion, I can deal quite briefly with the claimant's alternative case that the council's refusal to withdraw and re-issue the enforcement notices was unlawful. For this purpose it is necessary to assume I am wrong in my view of how the statute is to be interpreted and that the validity of the notices cannot be challenged by way of judicial review. Miss Townsend made four arguments in support of the claimant's alternative case. I have not found any of those arguments persuasive.
  88. First, she submitted that in refusing to withdraw and re-issue the notices the council was taking advantage of its own unlawful conduct and frustrating the policy of the Act and was thereby acting unlawfully. However, Miss Townsend did not suggest and could not reasonably have suggested that the Act imposes a duty on a local authority which serves a notice later than the time required by the Act to withdraw and re-issue the notice. It is a matter of discretion. There is no obligation to exercise the discretion in a way that is said to be required, not by the terms of the Act, but by the policy underlying it. Unless the exercise of discretion can be impugned on established administrative law principles it cannot be said to have been unlawful.
  89. The second argument advanced by Miss Townsend was that the council made an error of law in supposing and putting forward as one of its reasons for refusing to withdraw the notices the proposition that the claimant would not be exposed to criminal liability as a result of the notices if it was correct that, as stated in his notices of appeal, there has had as a matter of fact been no breach of planning control by the claimant. However, at least in the position which the council finally adopted in its letter of 1 March 2012 I do not think that there was any error in this regard. The only point being made by the council, which was of limited materiality, was that if there was no residential use of The Barn, as the claimant asserted, then the obligation imposed by the notice to stop the residential use of The Barn would not be breached and there was nothing on which it would bite. So far as it went, which was not very far, that point seems to me to have been accurate.
  90. The third argument made was that the letter of 1 March 2012 relied, as an important part of its reasoning, on an assertion which was untenable, namely that (to quote the letter):
  91. "There is simply no link between the late service of the notices and the failure of the claimants' appeals."
  92. Again:
  93. "The late service of the notices although regrettable had no bearing at all on the failure of claimants' appeals."

    Those statements, Miss Townsend submitted, were unsustainable and made the council's position unreasonable in a Wednesbury sense.

  94. I also reject that submission. The council's position as set out in the letter was in substance the same as the argument advanced on its behalf by Mr Green. It was that, although there had been late service of the notices, the operative cause of the failure of the appeals was Mr Carter's fault in not lodging the appeals in time. When it was said that there was "simply no link" between the council's error and the failure of the appeals and that the one "had no bearing at all" on the other, this was I think just a graphic way - perhaps an over-graphic way - of making the contention that Mr Carter's negligence broke the chain of causation between the council's error and the failure of the appeals. I have rejected that contention as I do not think it is the correct analysis of the facts. But although I think the council's view was wrong, I do not feel able to say that it was irrational. I therefore do not consider that the adoption of this view made the council's exercise of its discretion unlawful.
  95. Finally, Miss Townsend submitted that the refusal to withdraw the notices caused interference with the claimant's Convention rights, in particular his right to peaceful enjoyment of his property under Article 1 of protocol 1 and his right to respect for his home under Article 8. Such interference could only be justified if it was in accordance with law and proportionate, which Miss Townsend submitted it was not.
  96. This argument was even more scantily developed than the argument based on Article 8 made in relation to the issue of interpretation. At any rate without more support for it than was offered, I cannot accept it. I have already concluded that the decision of the council to refuse to withdraw the notices was lawful as a matter of domestic law. Nor, given the view which the council took of the matter as set out in its letter of 1 March 2012, can its decision in my view be said to be disproportionate to the legitimate planning objectives which it was seeking to achieve.
  97. Accordingly, if I had not accepted the claimant's argument on the question of interpretation, I would not have found in the claimant's favour on the alternative ground that the council acted unlawfully in refusing to withdraw the notices. That, if anything, only serves to illustrate that it would not be satisfactory or provide any reasonable protection if the only remedy for a failure to serve a notice in accordance with section 172(3) which has caused or contributed to the failure to appeal in time was left in the hands of the authority which committed the breach of statutory duty and depended on the authority exercising its discretion to withdraw and reissue the notice.
  98. On the conclusion which I have reached on the claimant's primary case, however, these further arguments do not arise. As I indicated earlier, the result of my decision is that the two enforcement notices will be quashed.
  99. MISS TOWNSEND: My Lord, I am very much obliged for the speed with which judgment was given and just one point on it. Very close to the end I believe reference was made to Article -- my submissions on Article 8 in relation to interpretation. May I just note that I believe that was a reference to Article 6.

    MR JUSTICE LEGGATT: It was Article 8 in your skeleton argument at paragraph 47.

    MISS TOWNSEND: Then, I will leave that.

    MR JUSTICE LEGGATT: I think I was reasonable to take it on the basis of your written submission.

    MISS TOWNSEND: Maybe I misunderstood the point.

    My Lord, I rise to make an application for the claimant's costs. A summary schedule has been served and I have one that is updated for today.

    MR JUSTICE LEGGATT: Shall we deal with the principle first and then we will consider the costs?

    MISS TOWNSEND: Certainly.

    MR JUSTICE LEGGATT: If it arises.

    MISS TOWNSEND: I do make my application.

    MR GREEN: My Lord, I accept that in relation to the primary ground the claimant is entitled to its costs but a fair amount of time was spent both before and at the hearing on the secondary grounds and, in my submission, an issue based approach to costs would be appropriate in this case.

    MR JUSTICE LEGGATT: Miss Townsend?

    MISS TOWNSEND: Your Lordship may want to have open at this point CPR 44.3 which sets out some of the principles that concern the court's discretion when it comes to matters of costs. I do not agree that obviously that that approach should be taken and one of the points I pray in aid is that having raised the point of interpretation it was entirely reasonable to also seek to attack the decision of the council. I do not accept while some time has been spent on that second issue, I do not accept that the amount was disproportionate to the quality of the issue as it were my Lord.

    The point I take your Lordship to is 44.3.5B, "whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue." I do say that although not successful on it, it was a perfectly reasonable point to make and it would be very difficult indeed to apportion costs in case and it should not happen. But when a claimant has been successful, as my client has been, generally costs follow the event in their entirety and so they should here.

    MR JUSTICE LEGGATT: Yes, I think in this case the claimant should be awarded his costs without apportionment. He has succeeded and on the basis of my conclusions, the case arose because of the defendant's breach of statutory duty and I do not think in those circumstances it would be just to reduce the costs recovered by the claimant because he also sought to challenge, albeit unsuccessfully, the defendant's refusal to take steps to remedy the consequences of its breach of duty.

    MISS TOWNSEND: I am obliged for that my Lord.

    As to the amount, your Lordship would expect my learned friend and I have to have discussed the summary schedule. Unfortunately, his instructing solicitor was delayed by the train this morning and we have not had that opportunity but I know he wants to take some points on it and therefore perhaps the most efficient way forward is for me to hand up the updated schedule which reflects the need to attend this morning and for him to make his points rather than for me to anticipate that.

    The sum claimed my Lord is a total of £19,530.80. It is set out in the summary schedule. (Same Handed.) I hope that a copy has been received by the court but no doubt your Lordship has not...

    MR JUSTICE LEGGATT: It has not been received by me, no, not until now.

    MISS TOWNSEND: I will --

    MR JUSTICE LEGGATT: Mr Green, are you in a position to deal with this in a minute? If you want a minute or two.

    MR GREEN: Yes. There are not many points I want to raise on it. Is now a convenient time?

    MR JUSTICE LEGGATT: Yes, I think that is what Miss Townsend is proposing.

    MR GREEN: Principally in relation to the hours claimed for both attendance at hearing, that is for the hearing yesterday and hours travel and waiting. Your Lordship will see in relation to the hearing yesterday 8 hours is claimed for attendance at hearing and 4 hours travel and waiting, making a 12-hour day.

    MR JUSTICE LEGGATT: Where am I looking?

    MR GREEN: On the second page of the claimants' statement.

    MR JUSTICE LEGGATT: "Attendance at hearing", the typed entries are in relation to yesterday's hearing. Yes?

    MR GREEN: It is said there was attendance at hearing of 8 hours and 4 hours travel and waiting time and in my submission --

    MR JUSTICE LEGGATT: A 12-hour day.

    MR GREEN: That is not in fact what happened. There should be some reduction, in my submission, to reflect the number of hours actually spent at the hearing?

    MR JUSTICE LEGGATT: The hearing was not 8 hours, that is for certain, it was probably...

    MR GREEN: About six I am told, what my learned friend suggests.

    MR JUSTICE LEGGATT: If you include lunch, yes.

    MR GREEN: So far as waiting is concerned, there is also an issue taken with the rate that the full rate of charge for £230 and I am told by those who know better than I do about these things, usually half the standard rate is charged for travel and waiting.

    MR JUSTICE LEGGATT: That seems appropriate, that is my limited experience too. We will mention all your points first and then I will ask Miss Townsend to say any comments on that.

    MR GREEN: Those are the two points I make.

    MR JUSTICE LEGGATT: Would you quibble with that?

    MISS TOWNSEND: Yes. I do not have the benefit of my instructing solicitor behind me but I do not take issue with either point.

    MR JUSTICE LEGGATT: You do not?


    MR JUSTICE LEGGATT: What is the basis for the claim for 4 hours then for today?

    MISS TOWNSEND: The 4 hours, the 4 hours travelling and waiting is the length of time that it takes to get to and from the court of course but I do not object to or want to take time contesting the idea that travelling and waiting is charged at an hour rate.

    MR JUSTICE LEGGATT: You claimed for today; is that right, for 4 hours for your solicitor?

    MISS TOWNSEND: Today, no, I do not believe for today.

    MR JUSTICE LEGGATT: I have not followed the -- it was 2 hours, sorry.

    MISS TOWNSEND: The 4 hours is travelling is the same unfortunately however long and it is --

    MR JUSTICE LEGGATT: I understand that. I see that is travelling and so today --

    MISS TOWNSEND: Is 2 hours.

    MR JUSTICE LEGGATT: You are saying you will --

    MISS TOWNSEND: The only reduction I think my learned friend is contending for is I will take 3 hours off attendance at hearing at £230 and turn that to be reduced by £690 and if the hours spent travelling are cut in half, we have at present a total of £350. That comes down to £175. In round figures that is under £865 -- if we reduce the total sum claimed from £19,530.80 by £865 we are around about the £18,600.

    MR JUSTICE LEGGATT: I do not hold you to doing the arithmetic instantly but in principle you can calculate the figure between you I think.

    MISS TOWNSEND: And submit it by email.

    MR JUSTICE LEGGATT: To the Associate.

    MR GREEN: Yes.

    MR JUSTICE LEGGATT: To draw up the order.

    MISS TOWNSEND: Yes, that covers everything I think on our side. Thank you my Lord.

    MR JUSTICE LEGGATT: Is there anything else?

    MR GREEN: No.

    MR JUSTICE LEGGATT: Obviously I do not know how the litigation has been funded as between the claimant and Mr Carter and it is not for me to ask, but in the light of the findings which I have made, I think it obvious what the position ought to be in that regard.


    MR JUSTICE LEGGATT: Thank you both.

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