Cobbledick, R (on the application of) v First Secretary Of State & Anor

Before taking enforcement action, a local planning authority must make sufficient enquiries to understand the nature, likely duration and harmful effects of the alleged breach. Enforcement action should be commensurate with the breach and the authority’s objective. Where informal discussion could identify a prompt voluntary remedy, failure to make basic enquiries may render the action unreasonable. A notice directed to a whole premises may be unlawful or unreasonable where the authority’s real concern is a temporary structure and the notice is unnecessary, ineffective or excessive. The costs jurisdiction concerning an appeal against an enforcement notice is distinct from compensation arising from a stop notice.

The claimant challenged the Secretary of State’s refusal to award him costs following his successful appeal against an enforcement notice issued by North Cornwall District Council. The notice concerned retail use of the claimant’s premises and a temporary timber structure erected in the forecourt. The inspector allowed the appeal on ground (c), finding no breach of planning control.

The Secretary of State had initially been minded to award costs but ultimately concluded that the Council had not acted unreasonably. The decision followed the earlier proceedings in North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions, reported at [2003] EWHC 2318 Admin and [2003] 1 P&CR 25. The central issue was whether the Council’s failure to ask about the temporary structure and its intended duration made the enforcement action unreasonable.

1. The claim succeeded and the Secretary of State’s decision dated 4 July 2003 was quashed.

2. In deciding whether enforcement action is reasonable, a local planning authority must have regard to the circumstances of the alleged breach, including the likely duration of any harm, the effect on public amenity, whether the proposed action is commensurate with the breach, and whether informal discussion could secure a voluntary remedy. The guidance in PPG 18 was material to that assessment.

3. The Council had failed to make the elementary enquiry why the temporary structure had been erected and how long it was intended to remain. Had it done so, it would have learned that the structure was intended to be removed after refurbishment, potentially by 15 August.

4. On that information, an enforcement notice taking effect in September and prohibiting retail use throughout the premises would have been wholly unnecessary, ineffective for the summer-season objective and plainly excessive. The Council’s actual concern was the temporary structure, not retail use of the premises in principle.

5. The Secretary of State wrongly separated the stop notice from the enforcement notice and failed to grapple with the essential question whether the enforcement notice itself was reasonable. The availability of a separate compensation remedy for the stop notice did not remove the claimant’s potentially valid claim for costs of the enforcement appeal.

6. The matter was quashed for reconsideration. The claimant’s judicial review costs were summarily assessed at £9,500, allowing for proportionality and the involvement of leading and junior counsel.

The judgment itself records earlier proceedings concerning the enforcement notices:

• High Court (Administrative Court) — In North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions, [2003] EWHC 2318 Admin; [2003] 1 P&CR 25, the Council’s challenge to the inspector’s decision was dismissed.
• High Court (Administrative Court) — The present judicial review quashed the Secretary of State’s later costs decision.