James Turner v Secretary of State for Levelling Up, Housing and Communities & Anor

Permission to appeal an enforcement notice decision should be granted where a proposed ground raises an arguable and important question of law. The proper construction of Town and Country Planning Act 1990, section 174(2)(b), is that an appellant must show that the alleged breach did not occur at all, subject to the statutory time limits. The breach need not still be occurring when the enforcement notice is issued. That interpretation reflects the wording of sections 172 and 174 and the remedial purpose of the enforcement regime, which may require restoration of land or prevention of recurrence.

The applicant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal against an inspector’s dismissal of his appeal against an enforcement notice concerning a large mixed-use site. The proposed grounds concerned service of the notice on occupiers, substantial prejudice caused by any failure of service, the construction of the ground (b) appeal ground, and costs.

The application was heard with Paton v Secretary of State for Levelling Up, Housing and Communities, which raised the same issue concerning ground (b). The central questions were whether the service issue and prejudice issue were arguable, and whether ground (b) is confined to breaches continuing when the notice is issued.

1. Permission. Permission to appeal was granted on grounds 1 and 2, and consequently on ground 4 insofar as it depended on those grounds. Permission was refused on ground 3.
2. Service on occupiers. The court considered it arguable that the inspector had failed to distinguish between “land” and “premises” when deciding that affixing the enforcement notice to the site gates served occupiers of separate rented compounds. It was also arguable that the inspector had applied sections 329(2) and (3) without resolving whether those provisions apply to enforcement notices at all. The issue was important and required fuller consideration at an appeal hearing.
3. Substantial prejudice. The inspector had dealt too briefly with whether occupiers were substantially prejudiced by non-service. Occupiers might have brought their own appeals or advanced different grounds. Letters notifying them after the 2021 notice did not give them a proper opportunity to appeal. Cash was distinguishable on its facts, as was the Waltham Forest appeal decision.
4. Ground (b). Section 174(2)(b) is expressed in the past tense. It requires the appellant to establish that the alleged breach did not occur at all, subject to the enforcement time limits. It does not require the breach to remain ongoing when the enforcement notice is issued. This follows from sections 172(1)(a), 171(b), 173(4) and the contrasting wording of ground (d), which expressly identifies the date of issue.
5. The enforcement regime is remedial rather than punitive. It may address a completed breach by requiring restoration or measures preventing recurrence. Limiting ground (b) to ongoing breaches would frustrate that statutory purpose. The issue was also academic on the facts because the inspector had found that the alleged activities remained ongoing in 2021.

The judgment itself records the inspector’s decision of 31 May 2024, which dismissed the applicant’s enforcement notice appeal. The High Court granted permission to appeal on grounds 1, 2 and consequentially 4, but refused permission on ground 3.