Davenport v The City of Westminster

An enforcement notice is not a nullity merely because it inaccurately identifies the legal basis of a planning restriction. The decisive question is whether it complies with the notice requirements in Town & Country Planning Act 1990, section 173 by clearly identifying the unlawful activities and the steps required to stop them.

A condition attached to a personal planning permission cannot itself extinguish a pre-existing lawful use or create a permanent restriction on the land unless it is a valid condition. Nevertheless, a plainly drafted notice may be effective where it accurately conveys the permitted use and required remedy. An injunction under section 187B may restrain an actual breach of planning control whether or not an enforcement notice is a precondition.

The appellant occupied a large property which had historically been in residential use. A 1960 planning permission had authorised its personal diplomatic use by the Commissioner of Sierra Leone and Gambia. In 2006 Westminster served an enforcement notice alleging commercial and non-residential use, requiring such use to cease, and referring to a condition in the 1960 permission.

Eady J granted an injunction under section 187B of the Town & Country Planning Act 1990: [2010] EWHC 2016 (QB). His factual finding that the activities were commercial and not ancillary to residential use was not challenged. The appeal concerned whether the condition had ceased to operate, whether the resulting defect made the enforcement notice a nullity, whether existing-use rights could be raised outside the statutory appeal process, and whether the injunction could stand.

1. Appeal dismissed. Pill LJ, with whom Hooper LJ and Munby LJ agreed, held that the injunction was properly granted.

2. The 1960 permission was personal to the diplomatic Commissioner and did not enure for the benefit of the land. Its condition did not itself create a permanent restriction following the end of the diplomatic use. A condition could not lawfully defeat a pre-existing lawful use, since it would not fairly and reasonably relate to the development permitted: [1981] AC 578. The point did not, however, invalidate the enforcement notice.

3. The notice met the requirements of section 173 of the Town & Country Planning Act 1990. It clearly stated the alleged breach, namely commercial and other non-residential use, and the required remedy, namely stopping that use. The reference to a condition which no longer operated as a planning condition was erroneous, but it did not prevent the recipient from knowing what was alleged or what had to be done. The notice was therefore not a nullity under the approach in [1963] 2 QB 196.

4. Munby LJ further held that a defect correctible under section 176, including an erroneous reference to the wrong limb of section 171A(1), cannot make a notice a nullity. The statutory scheme is directed to substance rather than technicality, while still requiring careful drafting. Even assuming the nullity doctrine remains available, it is confined to rare defects too serious to be corrected without injustice.

5. An injunction under section 187B does not depend upon a valid enforcement notice having first been served. The established and persistent breach of planning control justified injunctive relief in any event. The appellant had also failed to pursue the statutory appeal route under section 174; section 285 precluded a later challenge by asserting broader existing-use rights.

• Court of Appeal (Civil Division): appeal dismissed; the injunction restraining commercial and non-residential use was upheld: [2011] EWCA Civ 458.
• High Court (Queen's Bench Division): Eady J granted an injunction under section 187B of the Town & Country Planning Act 1990: [2010] EWHC 2016 (QB).