COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
JOHN LEIGHTON WILLIAMS QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| PETER COLIN TROTT
|- and -
|BROADLAND DISTRICT COUNCIL
Peter Harrison QC (instructed by Norfolk County Council Legal Services) for the Respondent
Hearing date : Thursday 3rd March 2011
Crown Copyright ©
Lord Justice Sullivan:
"The Appellant, whether by himself or by instructing, encouraging or permitting any other person must not:
Whether by obstruction, use of the Land or otherwise, prevent the Land being available to any person who is a resident of any of the Waterside Flats for them to use for their enjoyment in connection with their residence at the flats. For the avoidance of doubt this means they must not be obstructed from having physical access to the land for the purposes of enjoying it including (but not limited to) walking around it, sitting in it, undertake activities or games within it provided these do not amount to a nuisance to any other persons."
"2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing number 808/09 revision "B" dated April 1990 received 23rd April 1992, Drawing number 808/29 "B" dated January 1992 received 20th April 1992, and further amended by Drawing number 808/29 "C" dated January 1992 received 8th May 1992.
4. The development hereby approved shall not be carried out otherwise than in accordance with conditions 2, 3, 4, 5 and 6 of [the 1991] permission …"
"2. no development shall take place until there has been submitted to and approved by the local planning authority a scheme of landscaping (including provision for the treatment of boundaries) which shall contain indications of all existing trees and hedgerows on the land and the details of any to be retained, together with measures for their protection in the course of development;
3. all planting, seeding or turfing comprised in the approved details of landscaping shall be carried out in the first planting and seeding seasons following the occupation of the building or the completion of the development, whichever is the sooner; and any trees or plants which within a period of 5 years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the local planning authority gives written consent to any variation."
"The affected land is included in a planning permission for a 30 flat development (reference 91.2177) incorporating five conditions from an earlier permission (reference 90.0922) which permission and conditions are specifically referred to in permission 91.2177. This development is well advanced, occupation of part has occurred and contrary to the permission the land affected has been enclosed within the boundary of 3 Orchard Drive, Hellesdon, providing an extended garden area for that property and upon which a greenhouse and cold frame stands."
"It appears to the Council that the above breach of planning control has occurred within the last 10 years. Because of the enclosure of the affected land within the extended garden of 3 Orchard Drive, the development which does not have permission under 91.2177 cannot be fully executed. The resultant 30 flat development is therefore deprived of a public amenity area for its benefit. Whilst a landscaping and boundary treatment scheme, referenced 1068/O1E was recently received on the 1st February 1996 its implementation in full would not adequately address the problem. The erection of the eastern fence and planting of the beech hedge along that boundary as specified in drawing 1968/O1E will suitably separate this site from 3 Orchard Drive but there is still a need to remove the greenhouse and cold frame, and to remove the existing hedging on the southern and western boundaries to improve the amenity and visual appearance of this land within the 30 flat development. Pedestrian access into the amenity area is also currently restricted because of both the fence and hedging on the southern and western boundaries. "
"(i) Erect the eastern fence and plant the beech hedge along that eastern boundary as specified in drawing 1068/ O1E, so that the land is physically separated from the garden of 3 Orchard Drive.
(ii) Remove the existing hedge which forms the southern and western boundaries of the land, as coloured green and blue in this Notice.
(iii) Ensure that an additional pedestrian gate or walkway, wide enough for disabled wheelchair access, is erected within the southern boundary fence, coloured green in this Notice.
(iv) Remove from the land the greenhouse and cold frame, and remove any foundations, rubble and building materials associated with their removal and restore the land to lawn."
"4. The allegation contained in the notice is confusing as it appears to relate to a breach of condition or conditions, but does not specify which condition is being breached or in what way. It also seems to allege a material change of use of the land, although paragraph 1 of the notice refers only to Section 171A(1)(b) of the Act, which concerns failure to comply with any condition or limitation subject to which planning permission has been granted. I therefore sought clarification on this matter at the hearing, in order to ascertain whether the notice could be corrected without injustice."
"7. Whilst this error appears to render the notice void, it was agreed between the main parties that there was only one area of dispute; the landscape treatment of the boundary of the appeal site. Upon re-examination of the various conditions of the implemented planning permission, it was agreed that the enclosure of this area by hedging was not shown on Drawing No 808/29'C', dated January 1992, thus the outstanding issue could be discussed at the hearing if the notice were to be corrected so as to allege non-compliance with condition No 2 of [the 1992 permission], which requires the development to be carried out in accordance with this, and other, drawings. Such a course of action was preferable to your clients as it would obviate the possible issue of a new notice, if the present notice were to be quashed as void or invalid, and would allow the area of dispute between them and the Council to be resolved. I concur with this view and shall therefore correct the notice accordingly."
"Thirdly, the Council suggested that there should be a requirement to make the area available for the enjoyment of residents of the flats, thus ensuring it remains as a part of the overall development. This was not opposed by your clients."
"3. On 14 May 1992 planning permission No 91.2177 was granted for the erection of 30 flats, garages and associated works on land at the rear of 59 Low Road, Hellesdon subject to conditions including:
2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing Number 808/09 revision "B" dated April 1990 received 23rd April 1992, Drawing number 808/29 "B" dated January 1992 received 30th April 1992, and further amended by Drawing number 808/29 "C" dated January 1992 8th May 1992
This condition has not been complied with in that the land shown hatched on the attached plan has not been incorporated into the overall development site as an area to be landscaped rather it has been retained as an extended garden area to No. 3 Orchard Drive with boundary leylandii and hedging and associated post and rail fencing, on its northern, western and southern boundaries, and with the erection of a greenhouse and cold frame therein."
5.a.Within three weeks, erect a temporary close-boarded timber fence to a height of 1.8m on the eastern boundary of the site between points A and B as shown on the attached plan.
b. Within the next available planting season, plant a leylandii hedge at 0.8m centres along the eastern boundary of the site, between points A and B as shown on the attached plan, and retain that hedge, when grown, at a minimum height of 2m.
c. Within three weeks remove the greenhouse, cold frame and any associated foundations, rubble and building materials from the land and restore the affected areas to lawn.
d. Within three weeks make the site available for the enjoyment of residents of the Waterside flats."
"In accordance with Section 177(1)(b) of the amended Act I hereby discharge condition No 2 attached to the [1992 permission], dated 14 May 1992, granted by the Broadland District Council and I allow the appeal and grant planning permission on the application deemed to have been made under Section 177(5) of the amended Act, for the retention of the leylandii hedging on the western and southern boundaries of the site, between points C an D as shown on the attached plan, without complying with the said condition, but subject to the following new condition:
2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing number 808/09 revision 'B' dated April 1990 received 23rd April 1992, Drawing number 808/29 'B' dated January 1992 received 30th April 1992, and further amended by Drawing number 808/29 'C' dated January 1992 received 8th May 1992, save that the leylandii hedging on the western and southern boundaries of the land shown hatched black on the plan attached to this letter may be retained at a maximum height of 2.5m between points C and D."
The Statutory Framework:
"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part."
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
"(a) carrying out development without the required permission, or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted…"
The Appeal to the Court of Appeal
i) In concluding that there had been a breach of planning control.
ii) In concluding that the enforcement notice issued by the Respondent was not a nullity, but merely defective and therefore capable of correction by the Inspector under section 176(2) of the Act.
iii) If the notice as served was not a nullity, in concluding that the enforcement notice as corrected by the Inspector was not nullity.
iv) In the exercise of his discretion under section 187B(2) of the Act.
...i) The enforcement notice had not alleged a breach of condition 2 in the 1992 permission.
(ii) Since there had been no appeal against the enforcement notice under ground (c) in section 174(2) of the Act, the Company had accepted that a breach of planning control had occurred, even though it was far from clear what that breach might have been.
(iii) The requirements in the enforcement notice did not include a requirement that the land be made available for the enjoyment of the Waterside flats.
(iv) Requirement d. arose out of a suggestion made by the Respondent which was not opposed by the Company, during a hearing at which neither party was legally represented. In effect, it was imposed on the basis of a concession made by the Company at the hearing.
Grounds 2 and 3
"It is established law that where an enforcement notice is null and void it is of no effect and the owner or occupier need not comply with it."
The relevant passage from the judgment of Upjohn LJ at page 226 of Miller-Mead is set out in paragraph 26 of the judgment. In that passage Upjohn LJ drew a distinction between invalidity and nullity. A purported notice which was a "nullity"– so much waste paper – could simply be ignored. An enforcement notice which was merely "invalid" might be capable of correction under the power which is now to be found in section 176(1) of the Act, which provides that:
"(1) On an appeal under section 174 the Secretary of State may
(a) correct any defect, error or misdescription in the enforcement notice; or
(b) vary the terms of the enforcement notice,
if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."
(i) The differences between the statutory framework which was in force in 1960 and 1961 when the enforcement notices in that case were served, and the provisions of the 1990 Act (as amended) which were in force in 1996 when the enforcement notice was served in the present case; and more importantly
(ii) The changing approach of the Courts to issues of invalidity in the field of Administrative Law, see e.g. paras 4-056 – 4-061 of De Smith's Judicial Review; and the discussion at pp. 250-253 of Wade and Forsyth's Administrative Law, which concludes that:
"The truth is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a "nullity" and "void" but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation."
"(a) the matters which appear to the local planning authority to constitute the breach of planning control; and
(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.
(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are."
The Act recognises that what appears to the local planning authority to be the case may not be correct. When issuing an enforcement notice the local planning authority may well not be in full possession of the facts, which may emerge only during the course of an appeal against the notice, so the fact that, eg. a local planning authority alleges in an enforcement notice a breach of the wrong condition may well be an error which is capable of correction without injustice.
(i) That the decision was internally inconsistent because the Inspector had found that there was a breach of planning control on the basis of a failure to comply with condition 2, but had then, in the same decision letter discharged the very condition on which that breach was founded; and
(ii) That the requirement to make the land available for the enjoyment of the residents of the Waterside Flats did not make it clear whether they were to be permitted to enter on the land and use it as an amenity area.
Lord Justice Touslon