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When will a defect on an enforcement notice render it a nullity?

DATE: 13 Nov 2017

Where there is a defect or error on an enforcement notice, the next question is whether the enforcement notice is a nullity. The division between an “invalid” enforcement notice, and therefore subject to correction by an Inspector, and one which is a “nullity” has been canvassed in several cases, but HHJ Waksman brings some clarity to the distinction in Oates v Secretary of State for Communities and Local Government [2017] EWHC 2716 (Admin).

The Claimant had carried out conversion works to some former chicken sheds. These benefitted from permitted use rights for residential use. The Council had issued an enforcement notice, stating the breach of planning control was “the erection of 3 new buildings” and the Claimant was required to demolish these buildings.

The Claimant had appealed the notice to the Inspector, who came to the conclusion that despite it being a conversion, there were in effect three new buildings. Entirely separately, the enforcement notice had a requirement that, after demolition, the Claimant “Make good the land underneath the 3 former buildings”. The Inspector found this was vague and removed it.

The two main arguments put by the Claimant were that:

  1.  The Inspector should have protected any existing buildings under the Mansi doctrine
  2.  Having found one requirement was vague, the enforcement notice was a nullity.

As to the protection of the buildings, the judge found (applying dicta in Hibbitt v SSCLG [2016] EWHC 2853) that a conversion could be so significant that it resulted in a new building – and whether that had occurred was a matter of planning judgment for the Inspector.

As to the point on nullity, the judge held that where an enforcement notice has been found to be uncertain, then it is a decision for the Inspector as to whether that uncertainty or defect renders the notice a nullity and that decision should be accorded very considerable weight. In the present case, the Inspector had found that the vague requirement was immaterial and lawfully deleted it.

Therefore the Court dismissed the claim and refused permission to appeal.

A link to the judgment is here.

Leon Glenister appeared for the Secretary of State.