The court considered the power of the Secretary of state to vary or amend an enforcement notice under the Act.
Held: He could amend a notice which was otherwise invalid but not one which was upon its face a nullity. Lord Denning MR said: ‘He can correct errors so long as having regard to the merits of the case the correction can be made without injustice.’
Upjohn LJ drew the distinction between planning enforcement notices which were a nullity and those which were invalid. The distinction was to be drawn by reference to whether or not the correction did indeed go to a matter of substance and cause, or potentially cause, injustice: ‘Now, what happens if a notice does not comply exactly with those sections? As a matter of common sense, if it does not specify the steps to be taken to remedy the alleged breach of planning permission or the alleged failure to comply with the conditions with proper and sufficient particularity, the notice will not be operative. So, too, if subsection (3) is not complied with. Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a). The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that the failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity.’
Judges:
Upjohn LJ, Lord Denning MR
Citations:
[1963] 2 QB 196
Statutes:
Health and Safety at Work Act 1974, Town and Country Planning (Scotland) Act 1972 169
Jurisdiction:
England and Wales
Cited by:
Cited – Simms v Secretary of State for Environment, Broxtowe Borough Council Admn 18-Mar-1997
The applicants appealed an enforcement notice, with regard to a change of use, to use land for a multiplicity of businesses. The inspector had suggested he would correct by amendment an error in the notice. The section provided that an amendment . .
Cited – BT Fleet Ltd v McKenna Admn 17-Mar-2005
The company appealed a notice requiring them to avoid th eneed for its employees to carry out manual handling operations.
Held: The notice was inadequate, and the magistrates had been wrong to try to improve it by adding to it. The inspector . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 02 June 2022; Ref: scu.180934
