Hargrave House Ltd and Chaim Reiner v Highbury Corner Magistrates Court & Anor

“Repair” in a planning enforcement notice is context specific. Where the notice requires remediation of a breach affecting an entire building elevation, repair may require extensive works, including demolition and rebuilding of the affected walls with matching materials. The fact that such works might ordinarily constitute development requiring planning permission does not prevent them being required as part of compliance with the notice. An enforcement notice carrying criminal consequences must be sufficiently clear, but clarity is assessed in context. A later expert report explaining the extent of works already foreshadowed by the notice does not make the notice insufficiently specific.

The claimants challenged the refusal of a District Judge to state a case concerning their convictions for failing to comply with a planning enforcement notice. The notice required removal of render from the elevations of a property in a conservation area and repair of any resulting damage to the facing fabric with materials matching the existing fabric.

The claimants argued that “repair” could not encompass demolition and rebuilding of the front and rear walls, and that the notice was insufficiently clear given the criminal sanction for non-compliance. They also relied on the statutory defence that they had done everything reasonably expected to secure compliance. Permission for judicial review was granted on the principal issues of construction and specificity.

1. The claim was dismissed. The District Judge made no error of law in construing “repair” in the enforcement notice as capable of encompassing the rebuilding of the two affected walls, if necessary.
2. The word “repair” has no special definition in the Town and Country Planning Act 1990. Its meaning is context specific. In an enforcement notice issued to remedy a breach of planning control, the relevant repair is the work needed to make good the activity that caused the breach. Since the unauthorised render covered the whole of the front and rear elevations, repair could extend to those entire elevations.
3. The statutory scheme did not prevent repair from involving works which might otherwise amount to demolition and rebuilding. Section 173(5) permits an enforcement notice to require building or other operations, and the planning authority’s evidence indicated that the necessary rebuilding would not require separate planning permission in the circumstances.
4. The notice was sufficiently clear for the purposes of a criminal enactment. It expressly required damage caused by removal of the render to be repaired with materials matching the existing fabric. The later expert report revealed no matter beyond what the notice had foreshadowed.
5. The decision was not undermined by Street v Essex County Council (1965) 193 EG 537. That authority treated the distinction between maintenance and reconstruction as a matter of fact and degree. On the present facts, rebuilding two external walls to remedy the identified breach was within the scope of repair.
6. The claimants’ arguments concerning the statutory defence and the breadth of the notice did not establish that compliance was impossible or that the notice lacked specificity. The enforcement notice remained operative and the claim was dismissed.

1. High Court (Administrative Court): Permission for judicial review was granted on limited grounds, but the claim challenging the District Judge’s refusal to state a case and his construction of the enforcement notice was dismissed.
2. Magistrates’ Court: District Judge Rimmer convicted the claimants after rejecting the statutory defence under section 179(3) of the Town and Country Planning Act 1990. He refused to state a case, concluding that the proposed questions were misconceived.
3. High Court permission decisions: The initial application was refused by Deputy High Court Judge Elizabeth Cooke on 2 October 2017. An oral renewal before Deputy High Court Judge Alexandra Marks CBE on 25 October 2017 resulted in permission on proposed grounds 1 and 4.