Enforcement notice - Injunction

Egan v Basildon Borough Council: Queen's Bench Division (Mr Justice Edwards-Stuart): 26 September 2011

The instant application was made by the owner of plots of land on a site in Basildon, by a member of the travelling community, on behalf of himself and other residents. It arose from the issue of a number of enforcement notices by the defendant authority between 2002 and 2004 requiring the occupiers of 53 of 54 plots on the site to take steps to rectify the breaches of planning control identified in the notices.

The application was for an injunction to restrain the authority from taking any steps under section 178 of the Town and Country Planning Act 1990 (the 1990 act) to remedy the breaches of planning control identified in the notices. No steps to comply with the notices had been taken by the residents. The authority proposed to carry out the necessary work itself. There was no dispute that the enforcement notices were valid and that all remedies that were available to the residents by way of planning control had been exhausted.

The residents’ position on the instant application was that they feared that the authority planned to move onto the site and demolish and/or remove all the hard standings and all the buildings, walls, fences and gates whether or not such extensive measures were justified by the terms of the enforcement notices. They contended that the authority had refused to explain, on a plot by plot basis, what it intended to do and that that refusal fuelled their fears that the authority would not go beyond the scope of the steps described in the notices.

The authority submitted that those objections were misconceived and that, save for six excepted plots and the associated section of road where the hard standings were to remain, it was entitled to carry out what was, in effect, a wholesale clearance of the plots on the site. The residents sought the continuation of an injunction preventing the authority from enforcing the notices, while those issues were resolved.

The issues included: (i) whether or not buildings constructed in breach of planning controls could be demolished or removed when there was no reference to their demolition or removal in the relevant enforcement notice; (ii) whether or not walls, fences and gates existing (in breach of planning control) at the time of the relevant enforcement notice could be removed if there was no reference to them in that notice; (iii) whether or not the authority could take action under section 178 of the Town and Country Planning Act 1990 (the 1990 act) in relation to matters that were the subject of 1992 enforcement notices when it had been stated that these matters had been remedied and that there had been compliance with those notices; and (iv) whether or not the ‘chalets’ or caravans on certain plots were caravans within the meaning of the relevant legislation and whether or not the relevant enforcement notices either required their removal or require cessation of their occupation for residential use.

Consideration was given to section 111(1) of the Local Government Act 1972, the Caravan Sites Act 1968 and the Caravan Sites and Control of Development Act 1990.

The court ruled: (1) An authority might do anything reasonably necessary to achieve compliance with the steps required by an enforcement notice, provided that such action was not something that could itself have been the subject of an enforcement notice (see [41] of the judgment).

Accordingly, it followed that the authority could not, when exercising its powers under section 178 of the 1990 act, demolish buildings or structures that had been erected unlawfully before the issue of the enforcement notice, which could have been, but were not, the subject of an enforcement notice (or mentioned in an enforcement notice), under the rule in relation to enabling works which existed at common law or by virtue of section 111(1) of the Local Government Act 1972.

Since the residents asserted that the buildings in question were constructed prior to the issue of the notices, it was for them to prove that in the case of each building. It was a corollary of that principle that the removal of a structure unlawfully erected subsequent to the issue of an enforcement notice was permitted if that was necessary for the carrying out of the necessary steps under section 178 of the 1990 act.

That was because such a structure could not have been mentioned in the enforcement notice (since it did not exist at the time), with the result that the authority could not exercise a statutory power to remove it. There was no reason why the authority had to issue a fresh notice if the structure had been erected in breach of planning control and with the knowledge of the existing enforcement notice (see [44] and [46] of the judgment).

(2) To the extent that walls, fences and gates were unlawfully in place at the time of the issue of the enforcement notice in breach of planning control, they could not be the subject of the steps to be taken pursuant to the current enforcement notices under the guise of enabling works (see [49] of the judgment).

(3) The statement that the 1992 notices had been complied with was an internal communication not relied upon by the residents. Further, there was no evidence that the hard surfaces or structures that there the subject of the instant enforcement notices had been those present before 1992 (see [55] of the judgment).

(4) There were triable issues as to whether the caravans on the site were within the dimensions prescribed in the Caravan Sites and Control of Development Act 1990 and the Caravan Sites Act 1968, with the result that they might not fall within the requirement in the enforcement notices to remove caravans (see [60] of the judgment). As there were triable issues, the injunction preventing the enforcement of the notices would have to be continued for a short period (see [70] of the judgment).

Marc Willers (instructed by Davies Gore Lomax LLP) for the Claimant. Reuben Taylor (instructed by Loraine Browne of Basildon Borough Council) for the authority.