Sanders & Anor v First Secretary Of State

A later enforcement notice is a valid “second bite” notice only where it concerns the same breach and corrects its description. A materially wider notice must be treated as fresh. For ten-year immunity, the relevant use must have begun more than ten years before the notice and continued throughout that period. An inspector may correct a notice where no injustice is caused. Operational development forming part of an unlawful use may be required to be removed.

The appellants challenged an inspector’s decision concerning an enforcement notice issued by Epping Forest District Council in respect of mixed commercial uses at land in Waltham Abbey. An earlier notice had been quashed. The later notice was upheld by the inspector, who treated it as fresh, corrected its wording, rejected accrued-right and rolling-immunity arguments, and upheld most requirements.

The issues were whether the notice was a valid second-bite notice, whether it was lawfully corrected, how the ten-year limitation and accrued-use principles applied, whether factual findings were irrational, and whether removal of fences could be required.

The court granted permission to appeal but dismissed the substantive appeal.

1. Second bite. Applying Jarmain v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 126 and Fidler v First Secretary of State of the Environment and Reigate & Banstead BC [2003] EWHC 2003 (Admin), the court held that a later notice falls within the second-bite provision only where it concerns the same actual breach and corrects a misdescription. The differing lists of uses showed that the later notice was wider in substance and had to be treated as fresh. The specific components of a mixed use must be compared.
2. Correction. The inspector had power under section 176(1) of the Town and Country Planning Act 1990 to correct the notice. The correction caused no injustice. An enforcement notice need not state the previous use.
3. Ten-year immunity. Applying Thurrock Borough Council v Secretary of State for the Environment, Transport & the Regions and Holding [2002] JPL 1278, the relevant use had to be continuous throughout the ten years immediately preceding the notice. The three-year lull, during which enforcement action could not reasonably have been taken, was fatal. The inspector’s narrower formulation concerning the commencement of section 4 of the Planning and Compensation Act 1991 was immaterial.
4. Other issues. The factual findings were reasonably open to the inspector. Fences connected with the unlawful use could be removed under Murfitt v Secretary of State for the Environment [1980] JPL 598. The First Secretary of State received costs of £7,474; no second set was awarded to the Council.

The judgment concerns an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 27 November 2003. Permission was granted, but the substantive appeal was dismissed.