A second bite of the cherry

An interesting point concerning the “second bite” provision of the Act has arisen in an appeal concerning an enforcement notice directed at the excavation of a trench at a house in Oxfordshire (DCS Number 400-019-599).

The inspector recorded that Section 171B(4)(b) of the Act provides for the taking of “further” enforcement action in respect of any breach of planning control within four years of previous enforcement action (or purported action) being taken in respect of the same breach. This is known as the “second bite” provision.

An enforcement notice had been issued by the council in December 2016 but had subsequently been withdrawn. The council claimed that the appeal notice, which was identical in its terms to the earlier notice, was issued under the “second bite” provisions of Section 171B(4)(b). The appellants disputed that it was a “second bite” notice, since the first notice was not one that had proved to be defective. The reason for its withdrawal, they said, was that it had not been properly served. As such, they argued, the first notice was a nullity and Section 171B(4)(b) would not operate so as to displace the normal four-year period for enforcement which had accrued by the time the second notice was issued.

The inspector found it unclear whether or not the council accepted that there was some defect in service but found it of little consequence as Section 171B(4)(b) engages when enforcement action is “taken”, and Section 171A(2)(a) makes clear that the point at which enforcement action is “taken” is at the “issue” of the notice, not its service. On the “nullity” point, she recorded that the courts (R (oao Lambrou) v SSCLG [2013]) have taken a liberal view as to the meaning of “purported to take enforcement action”. She reasoned that to take a more restrictive view would be to defeat the purpose of Section 171B(4) which is to provide a local planning authority with a further opportunity to enforce in cases where a notice does not run its course because of some defect or for some other reason. She determined that in the appeal case, even if the notice had been found invalid because of some failure in service, the council had nevertheless “purported” to take enforcement action in respect of the breach to which the second notice was directed when applying a liberal interpretation. The second bite provisions would still have been available, she decided.

The inspector concluded that the appeal notice was a “second bite” notice falling within the provisions of Section 171B(4)(b) and that it followed well within a period of four years from the issuing of the first notice. It was therefore not too late to take enforcement action.

There is further information about the second bite provision at section 4.5354 of DCP Online.