Egan v Basildon Borough Council

A local planning authority exercising direct-action powers under Town and Country Planning Act 1990, section 178, may carry out works reasonably necessary to secure compliance with an enforcement notice. That incidental power does not permit the authority to demolish or remove a fixed building, wall, fence or gate which was unlawfully present when the notice was issued, where the structure could itself have been the subject of an enforcement notice but was omitted. The enforcement notice must be construed strictly because failure to comply is a criminal offence. A structure erected unlawfully after the notice may be removed if this is necessary to carry out the specified works. The court also held that an internal assertion of prior compliance did not prevent later enforcement where the statutory notices remained extant and no relevant assurance had been given to the landowners.

The claimant, representing residents of Dale Farm, sought an injunction restraining Basildon Borough Council from taking direct enforcement action under section 178 of the Town and Country Planning Act 1990. Enforcement notices issued between 2002 and 2004 required, among other matters, the removal of hard standings, caravans and portable structures. The residents argued that the Council proposed unlawfully to demolish buildings and remove fixed walls, fences and gates not identified in the notices, and disputed whether certain twin-unit structures were caravans within section 13 of the Caravan Sites Act 1968.

The application followed earlier litigation concerning the site, including the Court of Appeal’s decision in R (on the application of McCarthy) v Basildon District Council, [2009] EWCA Civ 13. That decision concerned the validity of the Council’s earlier resolution, not the precise works proposed under the current notices. The central issues were the scope of incidental enforcement powers and the factual questions requiring trial.

1. Scope of incidental powers. The rule reflected in section 111(1) of the Local Government Act 1972 permits a local authority to do what is reasonably necessary, conducive or incidental to carrying out its statutory function. Applied to section 178 of the Town and Country Planning Act 1990, this permits enabling works necessary to achieve compliance with the enforcement notice.
2. That power is limited. The authority may not use enabling works as a substitute for an enforcement notice in order to demolish or remove a fixed building, wall, fence or gate which was unlawfully present when the notice was issued and could itself have been the subject of enforcement proceedings. Such a structure is not transformed into a lawful object of direct action merely because it obstructs the works. The notices must be construed strictly because breach is a criminal offence.
3. A structure erected unlawfully after the enforcement notice may be removed if its removal is necessary to carry out the specified works. The authority need not issue a fresh notice for that later structure. The judge recognised a possible exception where the authority undertakes to reinstate a structure after temporary removal, so that the occupier suffers no permanent prejudice.
4. The Council could not rely on section 181 of the 1990 Act to remove the disputed structures. It was not acting under the 1992 notices, the required 28-day notice had not been given, and there was no evidence that the structures were reinstatements of buildings removed pursuant to those notices. The Council’s internal statement that compliance with the 1992 notices had been achieved did not prevent reliance on notices which remained extant by statute.
5. Triable issues remained concerning the construction dates and structural attachment of buildings, walls, fences and gates, and whether certain twin-unit structures exceeded the dimensions in section 13 of the 1968 Act. The residents bore the burden of proving those facts. The injunction was to continue as necessary pending a speedy trial of the identified issues and further directions.

The judgment records earlier litigation concerning the site but is a first-instance decision on the current enforcement action.

• Court of Appeal: In R (on the application of McCarthy) v Basildon District Council, [2009] EWCA Civ 13, the Court of Appeal upheld the validity of the enforcement notices and the Council’s earlier decision. The present judgment distinguished that decision because it did not determine what action should be taken or when.