LIQUID LEISURE LIMITED (R on the application of) v ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD

A local planning authority has a wide discretion to choose appropriate enforcement action. An enforcement notice and a breach of condition notice may be issued in parallel, including where the latter operates as a fallback to avoid statutory immunity and narrow issues on an outstanding appeal.

The authority need not determine enforcement action as if deciding a planning application, although its decision must remain rational, proportionate and adequately reasoned. The public sector equality duty applies to the decision to issue a breach of condition notice. However, relief may be refused under section 31(2A)(a) of the Senior Courts Act 1981 where it is highly likely that the same decision would have been made.

The claimant operated a water-sports facility under a 1988 planning permission. The defendant local planning authority issued an enforcement notice alleging an unauthorised mixed use and associated operational development. The claimant appealed, and that appeal remained pending.

While the appeal was pending, the authority issued a breach of condition notice under section 187A of the Town and Country Planning Act 1990, concerning substantially overlapping operational development. The claimant sought judicial review on grounds including irrelevant considerations, irrationality, inadequate reasons and failure to comply with the public sector equality duty.

The central issues were whether the authority could issue the notice while the enforcement appeal was pending, whether its reasons and consideration of benefits were adequate, and whether any failure to comply with the equality duty required relief.

1. Disposition. The claim succeeded on Ground 4 because the Council had failed to have due regard to the public sector equality duty. Relief was refused under section 31(2A)(a) of the Senior Courts Act 1981. Grounds 1, 2 and 3 failed, and the claim was otherwise dismissed.
2. A local planning authority has a wide discretion over enforcement action. The statutory scheme does not make an enforcement notice and a breach of condition notice mutually exclusive. The Council was entitled to issue the latter as secondary or fallback action while the enforcement appeal was pending.
3. The fallback notice was rational and proportionate. The Council was entitled to protect against the possibility that operational development would be subject to the four-year limitation period rather than the ten-year period applicable to the alleged change of use or breach of condition. Issuing the notice could also narrow the issues at the appeal and avoid immunity arising while the appeal was delayed.
4. The Council was not required to tailor the breach of condition notice to eliminate overlap with the enforcement notice. Nor was it required to use the statutory “second bite” procedure. The cited authorities supported the conclusion that further enforcement had to concern the same breach, and that a material-change-of-use notice could not simply be widened to include operational development.
5. The decision was not to be assessed as if it were a planning application requiring a conventional planning balance between benefits and harm. The appeal documents and third-party representations were available to the Council, and it was reasonable to infer that they had been considered. The reasons met the standard in South Bucks DC v Porter (No. 2).
6. The public sector equality duty under section 149 of the Equality Act 2010 was engaged. Information before the Council indicated that disabled persons and older persons might use the facilities, but there was no evidence that the Council had considered the duty. The duty was continuing, and later evidence reinforced the need for consideration.
7. Following Gathercole, the court applied section 31(2A)(a) of the Senior Courts Act 1981. It was highly likely that proper consideration of the equality duty would not have altered the decision to issue the notice, because the lawful water-based use would remain and the Council regarded the unauthorised development as unacceptable.

First-instance judicial review claim. The judgment does not state any prior appellate decision in the same proceedings.