R (Liquid Leisure Ltd) v Windsor and Maidenhead Borough Council

The claimant sought judicial review of the Council’s decision to issue a Breach of Condition Notice (BCN) under section 187A of the Town and Country Planning Act 1990 while an enforcement notice (EN) addressing substantially the same matters was the subject of an appeal. The court considered the statutory scheme for enforcement (sections 171A, 171B, 172, 174 and 175(4) TCPA 1990), the distinct role and remedies associated with a BCN, and the public sector equality duty (PSED) under section 149 of the Equality Act 2010 together with the consequences of section 31(2A) of the Senior Courts Act 1981.

The judge held that the Council lawfully exercised its wide discretion to issue a BCN as a reasonable "fallback" to prevent parts of the development acquiring immunity under the four year rule and thereby narrow issues at the pending EN appeal; Grounds 1 and 3 (irrelevant considerations/Wednesbury and abuse) failed. The reasons for issuing the BCN and their sufficiency were adequate, so Ground 2 failed. The court found a procedural PSED breach (Ground 4) because the authority had not given due regard to equality matters, but relief was refused under section 31(2A) Senior Courts Act 1981 because it was highly likely the same enforcement decision would have been reached even if the PSED had been properly considered.

Background and parties: The claimant (tenant and operator of a watersports site at Sunnymeads Lake) challenged the Council’s decision to serve a BCN on 5 October 2021 requiring compliance with Condition 2 of a 1988 planning permission. The Council had earlier issued an EN (21 December 2020) alleging an unauthorised mixed use including an aqua theme park; the claimant appealed the EN and the appeal was pending.

Nature of the claim: The claimant applied for judicial review seeking to quash the BCN on multiple grounds: (1) the BCN was issued having regard to irrelevant considerations; (2) the reasons were inadequate; (3) the decision was Wednesbury unreasonable and an abuse of power; and (4) the Council failed to comply with the PSED.

Issues framed by the court:

• Whether issuing a BCN while an EN appeal was pending (and the EN was of no effect under section 175(4) TCPA 1990) was lawful and whether the Council relied on irrelevant considerations or acted irrationally;
• Whether the BCN contained adequate reasons and took into account benefits and representations;
• Whether the PSED was engaged and, if breached, whether relief should be refused under section 31(2A) Senior Courts Act 1981.

Court’s reasoning and findings: The court accepted that local authorities have a broad discretion in enforcement choices and that a BCN is not mutually exclusive with an EN. The Council legitimately considered issuing a BCN as a timely fallback to prevent parts of operational development from acquiring immunity under the four year limit in section 171B(1) TCPA 1990 if an Inspector were to treat operational development separately from a material change of use (which otherwise attracts the ten year period under section 171B(3)). The Council’s concerns about time running and the potential loss of enforcement rights were legitimate, and the BCN’s requirements and timing were within its discretionary judgment. The court found the EN/appeal documents and third party representations had been available and that the BCN report reasonably addressed benefits; the reasons met the South Bucks standard. On PSED, the court held the duty was engaged and the Council had not shown it had given due regard; however, applying section 31(2A) Senior Courts Act 1981 the court concluded it was highly likely the same decision would have been reached and therefore refused relief despite the procedural breach.

Procedural note: permission to apply for judicial review had been granted on the papers and the EN appeal hearing was delayed, reinforcing the Council’s concern about immunity running on some elements of development.

The claim was allowed in part procedurally on Ground 4 (PSED breach found) but no relief was granted because section 31(2A) Senior Courts Act 1981 applied. Grounds 1, 2 and 3 failed and the BCN remained in place. The court held that the Council had lawfully exercised its enforcement discretion in issuing the BCN as a fallback to prevent immunity under the four-year rule and that the reasons for issuing the BCN were adequate; although the PSED was engaged and not complied with, it was highly likely the decision would have been the same and relief was refused under section 31(2A).