In determining an appeal against an enforcement notice directed at the conversion of a terrace house in southeast London to two flats (DCS Number 400-024-950), an inspector has explained how a notice might constitute a nullity.
The appellants claimed that the notice which had been served was a nullity because, in addition to requiring that the use as two flats should cease, it required the removal of the kitchens. There was, however, no requirement for the property to revert to a single family dwelling. They argued that the notice was fundamentally flawed.
The inspector explained that, where there has been a change of the lawful use of a single dwelling, a requirement simply to cease the unlawful use is sufficient. Indeed, he continued, an enforcement notice cannot require a former use to be resumed (Lipson v SSE ). If a requirement to cease the unlawful use of land or building is complied with, the previous lawful use may resume by virtue of section 57(4) of the Act.
The inspector went on to explain that an enforcement notice can be a nullity (just a piece of waste paper), if for instance, it is missing some vital element and so is defective on its face, (R v Wicks ). Also, in South Hams DC v Halsey ) it was held that nullities should be confined to the situation where there is a patent defect on the face of the enforcement notice. That was not the situation before him. The complaint amounted to concern about the possible effects of compliance with the requirements but the enforcement notice did not lack any vital element. The description of the breach of planning control in the notice was clear, he ruled, and the notice was not a nullity.
Further information on this subject can be found at section 4.533 of DCP Online.