Thomas & Ors, R (On the Application Of) v North Northamptonshire Council

A local-government continuity provision preserves the legal effect of acts done by a predecessor authority after reorganisation. It does not retrospectively validate an act that was unlawful when done. The presumption against retrospectivity applies to secondary legislation and is especially strong where retrospective validation would affect property rights, expose a person to criminal consequences, or alter ongoing litigation.

In a two-tier planning authority, the district planning authority may issue an enforcement notice concerning a mixed use. The restriction in paragraph 11(4) of Schedule 1 to the Town and Country Planning Act 1990 applies only where the alleged breach relates wholly to a specified county matter. Components of a single mixed use cannot be separated for that purpose.

The claimants sought judicial review of an enforcement notice issued by Kettering Borough Council concerning alleged unauthorised mixed development at their site. The notice included mineral, waste, residential, business and other components.

During the proceedings, Kettering Borough Council was abolished and its functions transferred to North Northamptonshire Council under the Northamptonshire (Structural Changes) Order 2020 and the Local Government (Boundary Changes) Regulations 2018. The issues were whether the claim had become academic or the unlawfulness had been retrospectively cured; whether the district council lacked power under paragraph 11(4) of Schedule 1 to the Town and Country Planning Act 1990; and, if necessary, whether relief should be refused.

1. The claim was not academic. The enforcement notice remained in force and continued to affect the claimants. The successor council’s power to remake it did not make the question of the existing notice’s legality academic.
2. Regulation 6(3) did not retrospectively validate the notice. The provision ensured continuity following reorganisation. It caused the notice to subsist in the successor council’s name, but required legality to be assessed by reference to the powers and functions of the predecessor authority that issued it. The presumption against retrospectivity applied to secondary legislation. It was particularly strong because enforcement notices affect property rights, may lead to criminal proceedings, and retrospective validation could change the outcome of litigation depending on when it was heard.
3. The district council had power to issue the notice. Paragraph 11(1)(b) of Schedule 1 ordinarily allocated enforcement functions to the district planning authority, subject to paragraphs 11(2) to (4). Paragraph 11(4) removed that power only where the alleged breach related wholly to a county matter within paragraph 1(1)(a) to (h). The development here was a single mixed use. Although some components would have been county matters viewed in isolation, the mixed use was not itself a county matter within paragraph 1. Paragraph 11(4) was therefore inapplicable.
4. The reasoning in R (East Sussex County Council) v Secretary of State for Communities and Local Government [2009] EWHC 3841 (Admin) was correct on the central point that a mixed use could not be decoupled for enforcement purposes. Separate notices would create risks of under-enforcement and deemed planning permission under section 173(11), and would be confusing and potentially unfair. The court did not need to decide whether a joint notice would be lawful.
5. The sole ground of challenge failed. The claim for judicial review was dismissed. The issue of relief under section 31(2A) of the Senior Courts Act 1981 therefore did not arise.