Staffordshire County Council v Challinor & Anor

An enforcement notice which has taken effect cannot later be challenged in civil or criminal proceedings on a ground available in the statutory appeal process. This applies equally where existing use rights were previously recorded in a certificate of lawful use. Section 285(1) of the Town and Country Planning Act 1990 prevails over the conclusiveness conferred by section 191(6).

A certificate establishes conclusively that the specified use was lawful at the application date. It does not establish that the use continued until a later enforcement notice, and the certificated use may be abandoned. Existing use rights must therefore be asserted through the statutory appeal against the notice.

The County Council served an enforcement notice concerning waste-related activities on land partly covered by an earlier certificate of lawful use. The landowner appealed against the notice but deliberately did not pursue grounds based on the certificate or existing use rights. The inspector amended and upheld the notice, construed the certificate narrowly, and was not challenged in the High Court.

After continued non-compliance, the Council removed material under section 178 of the Town and Country Planning Act 1990 and sought its expenses and a permanent injunction. The deputy High Court judge held that the certificate prevailed in respect of certificated activities, refused the injunction and denied recovery because the Council could not separate its costs. The Council appealed. The central issue was whether section 285(1) prevented reliance on the certificate in proceedings founded on the effective enforcement notice.

1. Appeal allowed. Section 285(1) of the Town and Country Planning Act 1990 prevents an enforcement notice from being challenged in later civil or criminal proceedings on any ground available in an appeal under section 174. Existing use rights therefore cease to be available if they are not asserted in the prescribed appeal process. The statutory scheme makes no distinction between rights evidenced by a certificate of lawful use and other existing use rights. Section 285(1) accordingly prevails over section 191(6).
2. A certificate under section 191 conclusively establishes the lawfulness of the specified use only at the date of the application. It does not establish that the use continued until a later enforcement notice. A certificated use may also be abandoned. The certificate therefore does not remove the need to raise the issue before the inspector.
3. The inspector had construed the certificate and declined to vary the enforcement notice because he found no conflict. His decision could have been challenged under section 289 but was not. Its correctness and the competing construction subsequently adopted in the interim proceedings could not be reconsidered in these later proceedings.
4. The Council's direct action under section 178 was lawful and proportionate. It did not determine civil rights for article 6 purposes, did not infringe article 8, and was compatible with the right to peaceful enjoyment of possessions. The deputy judge's assessment of reasonably incurred expenses at £179,035.94 was upheld. Judgment was entered against both defendants as executors, limited to the value of the estate.
5. Applying South Bucks District Council v Porter [2003] 2 AC 558, the court considered all the circumstances without reopening planning policy. The prolonged, flagrant and continuing non-compliance, including breaches while an interim injunction operated, demonstrated that a permanent injunction was necessary in the public interest. An injunction was granted against the first defendant.

Hughes LJ agreed, while observing that a truly exceptional case involving an irrefutable defect and an understandable failure to appeal might be addressed through abuse-of-process jurisdiction or the civil court's discretion. Rix LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The Council's appeal was allowed. Judgment was entered for £179,035.94 against the defendants as executors, limited to the estate's value, and a permanent injunction was granted against the first defendant: [2007] EWCA Civ 864.
2. High Court, Queen's Bench Division, Technology and Construction Court: Her Honour Judge Kirkham, sitting as a deputy High Court judge, held on 23 February 2007 that activities within the certificate were outside the enforcement notice. She refused the Council's claim for expenses and its application for a permanent injunction, although she assessed recoverable expenses contingently at £179,035.94.
3. Planning appeal: An inspector appointed by the Secretary of State amended the description of the breach, dismissed the landowner's appeal and declined to vary the notice to accommodate the certificate. No appeal under section 289 of the Town and Country Planning Act 1990 followed.