Sarodia v Redbridge

An enforcement notice is a nullity where, on its face, it is so ambiguous or internally inconsistent that the recipient cannot know with reasonable certainty what breach is alleged or what steps are required. The distinction is between a notice that is bad on its face, which is a nullity, and a notice that appears valid but is shown by extraneous facts to be defective, which is merely invalid and may be quashed or corrected through the statutory appeal process. A power to correct defects cannot save fundamental errors requiring extensive amendment or causing injustice. The statutory reference to remedying a breach wholly or partly permits under-enforcement; it does not validate an incoherent notice.

The appellant appealed by way of case stated against a preliminary ruling of District Judge Susan Holdham at Barkingside Magistrates’ Court. The respondent had issued an enforcement notice under the Town and Country Planning Act 1990 concerning unauthorised extensions and other works at the appellant’s home.

The notice alleged several breaches in paragraph 3 but required different and inconsistent remedial steps in paragraph 5, including removal of a non-existent two-storey side extension and no remedial step concerning a single-storey side extension. The District Judge held that the notice was not a nullity and that any error could be corrected on appeal. The High Court considered whether the correct nullity test had been applied and whether irrelevant or omitted matters had affected the decision.

1. Appeal allowed; conviction quashed. The certified questions were answered in the negative. The enforcement notice was a nullity.
2. The governing distinction, drawn from Miller-Mead v Minister of Housing and Local Government [1962] 2 QB, is between invalidity and nullity. A notice which appears compliant on its face but is shown by evidence to be legally unfounded may be challenged through the statutory appeal provisions. A notice which is defective on its face is a nullity.
3. Applying Upjohn LJ’s formulation in Miller-Mead v Minister of Housing and Local Government, an enforcement notice is a nullity where it is hopelessly ambiguous or uncertain, so that the recipient cannot tell with reasonable certainty either what breach is alleged or what steps must be taken to remedy it. The present notice was internally inconsistent in material respects. It required removal of a non-existent extension, omitted the single-storey side extension, and required removal of the single-storey rear extension without explaining why the more intrusive two-storey rear extension was not addressed.
4. R v Peter Wickes (Court of Appeal, Criminal Division, 11 April 1995, unreported) confirms that nullity may be raised in enforcement proceedings where the defect is apparent from the document itself. Section 285 of the Town and Country Planning Act 1990 does not prevent a challenge to a true nullity.
5. The power under section 176 of the Town and Country Planning Act 1990 could not save the notice. The necessary amendments were extensive and could not have been made without injustice, because the appellant would not have known in advance what case he had to meet or what evidence to prepare. The appellant was not required to appeal a notice which was defective on its face merely to test how it might later be amended.
6. The words “wholly or partly” in section 173(3) qualify the statutory purposes, not the steps required to remedy the breach. They recognise proper under-enforcement but do not validate this notice, since paragraph 4 stated without qualification that all matters in paragraph 3 constituted breaches.
7. The requirement concerning the non-existent extension could not properly be treated as an excessive requirement under section 174(2)(f). Something which does not exist is not rendered “excessive” by that provision.
8. Costs were ordered from central funds under section 16(5) of the Prosecution of Offences Act 1985. The costs below were reduced to £11,500 including VAT, and High Court costs were fixed at £9,000 including VAT.

• High Court (Administrative Court): appeal by way of case stated allowed; the enforcement notice was declared a nullity and the conviction, fine and costs order were quashed.
• Barkingside Magistrates’ Court: District Judge Susan Holdham held that the enforcement notice was not a nullity and that any error could be remedied or quashed on appeal.