Planning Law and Enforcement Notices

Partner Karen Jones, in our leading Planning & Environmental Law team, discusses non-compliance with an Enforcement Notice.

Non-compliance with an Enforcement Notice is a criminal offence once it has become extant. By this we mean that the Enforcement Notice has come into effect (ie. the date for compliance has passed) and you fail to comply with the Notice. If you fail to comply with the terms of an Enforcement Notice and a Local Planning Authority (“LPA”) take steps to prosecute you for this breach, you could incur a significant fine. 

There are limited defences to non-compliance which can be considered by the Court and these have been strictly interpreted. These defences are found in Section 179 of the Town and Country Planning Act 1990 (“the Act”) and are:

• That you did everything you could be expected to do to secure compliance with the Enforcement Notice; or
• You were not served with a copy of the Enforcement Notice and the Enforcement Notice was not contained in the Local Authority’s register of Enforcement Notices

Section 285 of the Act provides that the validity of an Enforcement Notice can only be questioned at Appeal and therefore not in Court proceedings.  However, this subsection does not apply to those who:

• held an interest in the enforced land prior to the enforcement action
• did not have a copy of the Enforcement Notice served on them; and
• did not know and could not reasonably have been expected to know that the Enforcement Notice had been issued; and
• where their interests have been substantially prejudiced by the failure to serve the notice.

The above section can therefore be argued in any defence to a prosecution brought by the LPA.

London Borough of Newham v Khalis Miah and Waltham Forest Magistrates Court [2016] EWHC 1043 (Admin)

It was under these provisions that a property owner, Mr Miah, sought to challenge a prosecution for non-compliance with an Enforcement Notice at the Magistrates Court. 

Mr Miah owned a property in Plaistow which he had sub-divided into two properties and rented out separately. This sub-division did not have planning permission and the LPA issued an Enforcement Notice requiring the flats to be returned to one property. The Enforcement Notice was served at the property’s address, on the occupants of the flats and on the Mortgagee. The Enforcement Notice was not appealed and once in force it was not complied with. The LPA made the decision to prosecute for non-compliance.  

At the Magistrates Court Mr Miah sought to rely on Section 285 of the Act and was successful initially on two grounds. The ground of interest, is the finding that the Enforcement Notice was not properly served on him.

Section 329(1) of the Act provides that service will be sufficient if the Enforcement Notice is left at or sent via registered or recorded post to the persons “usual or last known place of abode”.  The prosecution argued that this had been accorded with, the LPA had checked the proprietorship register on the property’s title held at the Land Registry in the normal manner and this had shown the property to be Mr Miah’s address.

Mr Miah argued that, whilst he had lived at this property for a period of time and he had paid the property’s council tax during periods where there were no tenants residing at the property, he did in fact live elsewhere. Mr Miah further explained that he did not know that he needed to update the Land Registry with his change of address.

The Magistrates found that the Council as a whole was bringing the prosecution and therefore given that the Finance Department had Mr Miah’s home address on record this should have been where the Enforcement Notice was served. Notwithstanding that the Planning Department did not have this same knowledge.

Following the decision of the Magistrates, the Council appealed the decision to seek clarification on, among other things, the interpretation of “usual or last place of abode” given the potentially significant implications of the Magistrates’ decision.   

Usual or last place of abode

In the High Court Mr Miah argued that he should not be prejudiced by the Council’s systems not allowing for cross-communication of his current address. The finance department had Mr Miah’s usual address on file. He argued that this address should have been communicated to the Planning Department. 

Mr Justice Cranston considered the statutory framework and disagreed with this argument. It was clear from the Act that it was the Local PlanningAuthority’s knowledge which is relevant, not the Local Authority’s knowledge as a whole. The Planning Department should not “be expected to trawl through the records of the Council” to retrieve information as to the property owner’s address. As such service had been properly effected by serving the Enforcement Notice on the address shown at the Land Registry.

The key messages that this case has confirmed are:

1. If you are served with an Enforcement Notice do not ignore it. Seek legal advice as soon as possible. It is extremely difficult to challenge an Enforcement Notice once in force unless there has been a clear procedural error by the Council/LPA.
2. If you own more than one property ensure that the property’s title at the Land Registry reflects your actual address or include a forwarding address for any correspondence.  

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.