Stern, R (on the application of) v Horsham District Council

Where an enforcement notice is served outside the period required by section 172(3) of the Town and Country Planning Act 1990, the defect is not confined to an appeal under section 174. Section 174(2)(e) is to be read narrowly, so that section 285 does not prevent a court from reviewing validity on the ground of late service. This construction avoids the fundamentally unfair result that the more serious the authority’s breach, the less practical opportunity the recipient has to exercise the only statutory right of appeal. The same interpretation is reinforced by Article 6 and the interpretive duty under section 3(1) of the Human Rights Act 1998. Where late service and an agent’s negligence jointly cause the loss of the appeal opportunity, the claimant may suffer substantial prejudice warranting a quashing order.

The claimant owned and occupied land affected by two enforcement notices issued by the defendant local planning authority. The notices were issued on 6 December 2011, served on 9 December, and specified 4 January 2012 as their effective date. They therefore failed to comply with the requirement in section 172(3)(b) of the Town and Country Planning Act 1990 that service occur at least 28 days before the effective date.

The claimant’s appeals were delivered late and the planning inspectorate treated them as out of time. The claimant sought judicial review, arguing primarily that the notices were invalid because of late service. Alternatively, he challenged the council’s refusal to withdraw and reissue them. The central issue was whether section 174(2)(e), read with section 285, barred any later challenge based on late service.

1. Primary claim allowed. The two enforcement notices were quashed.
2. Section 174(2)(e) of the Town and Country Planning Act 1990 was capable of bearing both a wider and a narrower meaning. Although the wider meaning was more natural linguistically, the statutory scheme required the narrower construction. Ground (e) concerns failure to serve copies of the notice on the persons required by section 172(2), not service outside the time limit in section 172(3).
3. The statutory right of appeal is an essential opportunity to challenge both the validity and merits of an enforcement notice. Section 285 otherwise makes that opportunity effectively exclusive, while the appeal period cannot be extended. Treating late service as a defect which could be challenged only by an appeal would produce fundamentally unfair and disproportionate consequences.
4. The court’s conclusion was reinforced by Article 6. The statutory scheme must be assessed as a whole, including the planning appeal and available judicial control. If the council’s construction were adopted, the scheme would fail to provide a sufficient opportunity for a fair hearing where late service caused the loss of the appeal opportunity. Section 3(1) of the Human Rights Act 1998 therefore required adoption of the narrower interpretation, which was not plainly impossible.
5. Late service and the planning consultant’s failure to lodge the appeals in time were concurrent causes. Each factor alone would not have caused the loss of the appeal opportunity. The claimant was substantially prejudiced by the council’s breach, so a quashing order was appropriate.
6. The alternative challenge failed. The council had a discretion, rather than a duty, to withdraw and reissue the notices. Its view that the consultant’s negligence was the operative cause was wrong but was not irrational in the Wednesbury sense, and the refusal was not disproportionate.
7. The claimant was awarded his costs without apportionment.