Usher, R (On the Application Of) v Forest Heath District Council

A local planning authority may use its default powers under Town and Country Planning Act 1990 s 178 to secure compliance with an extant enforcement notice. The legislation imposes no hierarchy requiring prosecution, an injunction or other enforcement action first. Procedural fairness is context-specific. Where the landowner had a full opportunity to challenge the enforcement notice and had made extensive later representations, a further formal hearing before direct action was unnecessary. Direct action is administrative rather than quasi-judicial. A failure to publish the decision under the openness regulations will not justify quashing it where the error caused no material unfairness.

The claimants challenged the Council’s decision to demolish their dwelling by direct action under Town and Country Planning Act 1990 s 178. An enforcement notice requiring demolition had been upheld on appeal, and a later planning appeal concerning temporary retention had also failed. After the claimants proposed further applications, the Council decided to proceed with direct action unless those applications materially altered the position. The applications were refused, and demolition was scheduled for January 2017. The claim challenged procedural fairness, legitimate expectation, the deadline and absence of a soft strip, late notification, and failure to consider alternatives.

1. Claim dismissed. The enforcement notice had become immune from further challenge after the s 174 appeal was dismissed. The claimants were under a legal obligation to comply with it.
2. Procedural fairness depended on the statutory and factual context. The claimants had already been able to make representations on the legality of the development, demolition and their Article 8 rights. They had also made extensive representations through their agent after the later planning appeal. No further formal invitation or notice of a separate direct-action decision was required. Direct action was an administrative step to secure compliance, not a quasi-judicial decision.
3. The September 2015 committee resolution created no legitimate expectation that members would approve or oversee the decision. Officers retained delegated authority. The November 2016 report supplied the requested update and made the Council’s intended course sufficiently clear.
4. The timing and form of demolition were matters for the Council, subject to public-law controls. The deadline had to be assessed against the long period during which the notice had remained uncomplied with and the Council’s repeated warnings. Maintaining the deadline, including without a soft strip, was neither irrational nor disproportionate.
5. The Council accepted that it had failed to publish the decision as required by regulation 8(1) of the Openness of Local Government Bodies Regulations 2014. That breach caused no material unfairness because the claimants knew the Council’s position and had ample opportunity to make representations.
6. The Planning Practice Guidance did not require prosecution or an injunction before direct action. Section 178 imposed no hierarchy of enforcement steps. The Council had considered voluntary compliance and was entitled to proceed directly when that did not occur.

The judgment records that permission for judicial review was refused on all grounds by a Deputy High Court Judge on 15 March 2017. On oral renewal, Lang J granted permission on grounds 1–4 on 24 June 2017. The High Court then dismissed the claim.