Cash v Wokingham Borough Council

A challenge to an enforcement notice on residual public-law grounds must be brought by judicial review, promptly and within the applicable time limit. An ordinary Part 8 claim cannot be used to circumvent those protections.

An enforcement notice is not invalid merely because compliance may require consent under another statutory regime. If a necessary consent cannot be obtained despite proper attempts, that circumstance may support a defence under section 179(3) of the Town and Country Planning Act 1990. Such a defence assumes the notice is valid and does not challenge its validity.

The claimant sought declarations that two enforcement notices issued by Wokingham Borough Council in 2009 and 2010 were nullities. The notices required removal of hardstandings, utilities, caravans and fencing from a mobile-home site near the Thames Basin Heaths Special Protection Area.

The claim was issued under Part 8 rather than Part 54. The claimant accepted that it should have been brought by judicial review, that it was substantially out of time, and that he had no explanation for the delay. He argued that compliance might engage the Conservation of Habitats and Species Regulations 2010 and Article 8 rights.

The central issues were whether the claim was an abuse of process and, alternatively, whether the possible need for third-party consent made the enforcement notices nullities.

1. Procedure and delay. The Part 8 claim was an abuse of process. Any residual public-law challenge to the enforcement notices had to be brought by judicial review under Part 54, promptly and within three months unless an extension was justified. No explanation for the substantial delay was given. Permission to apply for judicial review was therefore refused.
2. Third-party consent. Applying South Hams District Council v Halsey [1996] JPL 761, the need to obtain consent under another legislative scheme is an aspect of complying with an enforcement notice. It does not make the notice invalid, whether the requirement for consent is express or implied.
3. Section 179(3) defence. If a necessary consent cannot be obtained despite proper attempts, that may provide a defence under section 179(3) of the Town and Country Planning Act 1990. The magistrates’ inquiry would concern what the defendant had done to secure compliance. It would assume that the enforcement notice was valid and would not amount to a challenge to its validity. The claimant’s reliance on R v Wicks [1998] AC 92 was rejected.
4. Habitats Regulations. On the evidence, it was not remotely likely that compliance with the notices would be likely to have a significant effect on the Thames Basin Heaths Special Protection Area. The claimant accepted that there was no objective evidence of adverse environmental effects. The Habitats Regulations required a purposive interpretation and could not properly be used to prevent measures which remedied the environmental consequences of an unlawful development.
5. Article 8. The assumed Article 8 rights of caravan occupants were qualified. Any interference would be lawful and manifestly proportionate to the legitimate aim of controlling development near the protected area. Those rights did not justify granting the declarations.
6. Orders. The claim was dismissed. Permission to apply for judicial review and permission to appeal were refused. The claimant was ordered to pay the defendant’s costs of £18,013.20, with an indemnity basis indicated if necessary.

The judgment describes earlier statutory appeals and High Court proceedings concerning the enforcement notices. The section 288 application and section 289 appeals were dismissed by the High Court on 22 October 2012 in Cash v Secretary of State for Communities and Local Government and Wokingham Borough Council [2012] EWHC 2908 (Admin); permission to appeal was refused by the Court of Appeal on 12 December 2013. The present claim was dismissed by the Administrative Court.