This question has arisen as a result of a case where WEA Planning was instructed to challenge a Enforcement Notice issued by a London authority.  

It is fundamental that an enforcement notice issued by a Local Planning Authority must state the alleged breach of planning control and which paragraph of Section 171A(1) the Town and Country Planning Act (1990; as amended) (the ‘TCPA’) the alleged breach falls under:

171A Expressions used in connection with enforcement.

(1) For the purposes of this Act—

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control.

This will be either paragraph (a) or paragraph (b) of Section 171A(1) of the TCPA. However, in a recent enforcement notice dealt with by WEA Planning, the local planning authority had alleged breaches under both paragraphs (a) and (b) i.e. that the breaches involved development without planning permission, as well as failure to comply with conditions of a planning permission. The case involved a residential development which had been granted permission, albeit with some aspects of the scheme not built entirely in accordance with the permission.

The drafting of the enforcement notice raised question regarding its validity and whether it complied with the legislation. 

Section 173(1)(b) of the TCPA states that an enforcement notice shall state the paragraph of Section 171A(1) within which, in the opinion of the authority, the breach falls (emphasis added). 

However, the notice alleged development without permission (section 171A(1) paragraph (a)) and a failure to comply with conditions (section 171A(1) paragraph (b)).

The enforcement notice was appealed by WEA Planning on behalf of our client and following a Case Management Conference ahead of the inquiry, the Planning Inspectorate gave their preliminary conclusion that the notice did not comply with TCPA Section 173(1)(b) as it alleged breaches under both Section 171A(1)(a) and 171 A(1)(b) and the notice is therefore a nullity.

The Local Planning Authority therefore withdrew the enforcement notice.

Further to the non-compliance with the legislation, this case also raised concerns in relation to the Pilkington principle. If the appeal inspector were to grant permission by allowing the Ground (A) appeal, what exactly would that permission be for? Would it result in the relevant condition of the existing permission being discharged, or the grant of an entirely new permission for the site as built. The way the enforcement notice was drafted created a risk that allowing the appeal could result in inconsistent permissions i.e. a situation of having discharged or varied conditions which were not compatible with the parent permission.

The “Miller-Mead test” is a well-established test for the validity of an enforcement notice which essentially asks “does the notice tell [the person on whom it is served] fairly what he has done wrong and what he must do to remedy it?”

The test will likely be failed when an enforcement notice does not specify a single type of breach, i.e. either Section 171A(1)(a) or 171 A(1)(b). In issuing an enforcement notice, it is the local planning authority’s duty to reach a view on which limbs of this sub-section the breach falls within. 

Hypothetically it may be possible for an enforcement notice to specify multiple breaches of planning control and clearly indicate which specific breaches correspond to each part, and thereby satisfy the Miller-Mead test despite alleging breaches under both parts of Section 171A(1). 

However, in this case, the alleged breaches related to overlapping parts of the same site. Therefore an enforcement notice alleging breaches under both limbs would offend the Pilkington principle.

Please note this blog post is the opinion of the authors and not legal advice or opinion.