Collins v Secretary of State for Communities and Local Government & Anor

An enforcement notice must identify the breach of planning control with sufficient particularity for the recipient to understand the conduct alleged and the steps required to remedy it. Technical concepts from EU waste law cannot substitute for a clear description of the alleged activity. Temporary deposit of waste for incorporation into an access road is materially different from tipping waste as a final disposal activity. If an enforcement notice is materially inaccurate and cannot be amended without injustice, it should be quashed. The availability of planning permission for related unauthorised development does not remove prejudice caused by leaving an inaccurate notice in force.

The appellant challenged an inspector’s decision on an appeal under section 289(1) of the Town and Country Planning Act 1990. The inspector dismissed the appeal against an enforcement notice alleging the importation and disposal of waste, but allowed the appeal against a second notice alleging construction of a vehicular access for waste disposal.

The appellant accepted that the imported rubble was waste, but contended that it had been brought temporarily for construction of an access road to facilitate forestry operations. The central issue was whether the first notice validly alleged disposal of waste when the material was intended for recovery into the road.

1. Appeal allowed and matter remitted. The inspector had adequately explained her reasoning and had considered whether the material had been disposed of. The reasoning therefore satisfied the requirements identified in South Bucks District Council v Porter (No 2) [2004] UKHL 33.
2. The inspector was entitled to distinguish the two notices. The finding that the access was constructed for forestry purposes did not prevent a finding that waste had been deposited during its construction. However, the first notice alleged disposal by tipping or getting rid of waste in the quarry, whereas the evidence showed temporary deposit for use in constructing the road.
3. An enforcement notice is construed within its statutory context. Under sections 172(1) and 173(1)(a) and (2) of the Town and Country Planning Act 1990, the breach and requirements must be sufficiently clear to the recipient. The recipient cannot be assumed to possess expert knowledge of EU waste law. The notice must identify the activity alleged to constitute the breach with some degree of particularity.
4. The inspector materially misdirected herself by treating the notice as valid on the basis that unrecovered waste was necessarily disposed of, without addressing the form of disposal actually alleged. A temporary deposit pending recovery into a road may, in some circumstances, amount to disposal under the Directive, but that was not the activity alleged in this notice.
5. Following Miller-Mead v Minister of Housing and Local Government [1963] QB 196, an overbroad notice is not necessarily a nullity if it can be amended without injustice. But, where the notice remains materially inaccurate and no fair amendment is made, it should be quashed, as explained in R (on the application of) Essex County Council v Secretary of State for Communities and Local Government and others [2009] EWHC 3841 (Admin).
6. There was prejudice in leaving the notice in force, including the risk of criminal liability under requirements unrelated to the breach actually alleged. The issue of any amendment, planning application or variation of requirements was remitted to the Secretary of State.

• Planning inspector: Appeals against two enforcement notices were heard. The appeal against the first notice was dismissed, while the appeal against the second was allowed.
• High Court (Administrative Court): Permission having been granted by HHJ Sycamore, the appeal under section 289(1) of the Town and Country Planning Act 1990 was allowed. The matter was remitted to the Secretary of State for further consideration.