Jarmain v Secretary Of State For Environment & Anor

For the purposes of Town and Country Planning Act 1990, s 171B(4)(b), “that breach” refers to the underlying physical development or other planning-control subject matter, rather than merely to the legal description placed upon it in an enforcement notice.

An authority may therefore take further enforcement action where an earlier notice purported to address the same development but inaccurately characterised the breach. The provision exists to prevent technical defects in enforcement notices defeating legitimate enforcement. It does not permit an authority to extend the statutory limitation periods indefinitely by successive notices concerning the same development.

The appellant had constructed a permanent single-storey dwelling on agricultural land in 1993, after permission for a temporary mobile home had been granted. The local planning authority first issued an enforcement notice alleging breach of the condition requiring removal of the mobile home by 31 March 1995.

That notice was withdrawn in March 1998 and replaced by a notice alleging unauthorised operational development. A planning inspector dismissed the appellant’s challenge under s 174(2)(d), but extended the compliance period under ground (g). The Deputy Judge of the Queen’s Bench Division upheld the inspector’s decision.

The central issue was whether the first notice had been enforcement action in respect of “that breach” for the purposes of s 171B(4)(b) of the Town and Country Planning Act 1990.

1. Appeal dismissed. The inspector and Deputy Judge had correctly held that the second enforcement notice concerned the same underlying breach as the first notice.

2. Section 171B(4)(b) must be interpreted in the context of the statutory scheme and its purpose. The question is whether the earlier and later notices concern the same physical development, structure, operation or activity on the land. A mistaken legal description of that subject matter does not necessarily create a different breach for the purposes of the subsection.

3. The first notice purported to enforce against the structure erected on the site. Although it described the structure as a mobile home retained in breach of a temporary-condition requirement, the development was in substance the permanent dwelling constructed without planning permission. The second notice corrected the description but addressed the same development.

4. Lord Justice Brooke regarded the 1991 reforms to Part VII of the Town and Country Planning Act 1990 as directed in significant part at preventing enforcement being defeated by technicalities. That legislative purpose supported the pragmatic interpretation adopted by the inspector and the Deputy Judge.

5. The court recognised the potential danger that s 171B(4)(b) might otherwise be used to revive enforcement after the applicable limitation period had expired. Roch LJ considered that the court should not permit such circumvention. The issue did not arise on the facts and did not justify a different construction.

6. Sedley LJ agreed with Roch and Brooke LJJ. He emphasised that the later notice had to relate to the same facts constituting the breach addressed by the first notice. The order included dismissal of the appeal, costs payable by the Legal Aid Board under s 18 of the Legal Aid Act 1988, subject to a ten-week suspension, and refusal of permission to appeal to the House of Lords.

• Court of Appeal (Civil Division): appeal from the decision of Mr Nigel Macleod QC, sitting as a Deputy Judge of the Queen’s Bench Division, dismissed. The Deputy Judge had upheld the planning inspector’s dismissal of the appellant’s ground (d) challenge and had left in place the extended twelve-month compliance period.
• Planning inspector: appeal against the second enforcement notice dismissed on grounds (a) and (d); ground (g) allowed to the extent that the period for removal was extended to twelve months.