Good news, bad news

A north Devon council which issued an enforcement notice alleging “the material change of use of the land involving the erection of a building for residential use entailing human habitation” was given some good news and bad news by the inspector determining the subsequent appeal (DCS Number 400-028-602). The inspector found that the council had conflated the operational development with the material change of use but nevertheless declined to rule that the notice was a nullity. He did rule that it was invalid, though. 

In finding that the notice was not a nullity the inspector explained that the modern approach to the question of nullity is to be found in the judgment of the High Court in Oates v SoCLG and Canterbury [2017], which drew extensively upon the preceding case law on the subject. A number of principles emerge from this judgment, he stated, including that the test in relation to nullity is best understood not as one of ‘hopeless ambiguity’ but rather as a failure to tell the recipient with ‘reasonable certainty’ what the breach of planning control is and what must be done to remedy it. The judgment in Oates also indicates that a degree of uncertainty does not necessarily render it non-compliant with statute, and that the notice should be read as a whole. Overall, the judgment in Oates indicates that the question of nullity should not be approached in a way which is unduly technical or formalistic. 

Looking at the notice before him in the round, the inspector was satisfied that it contained all the essential components set out at Section 173 of the 1990 Act. By reading the alleged breach of planning control and the steps required to comply with the notice in conjunction, together with the reasons for issuing the notice, he considered that it was reasonably certain that the notice was purporting to attack a material change of use of the land and/or of a building on the land. He acknowledged that the notice contained some significant errors across the piece. However, when read as a whole and adopting the principle advocated in Oates that the question should not be approached in a way which is unduly technical or formalistic, he would not go so far as to say that the notice was a nullity. 

To find out why the inspector decided the notice was invalid, take a look at (DCS Number 400-028-602), particularly if you are an enforcement specialist. The decision is very instructive and a model of clarity.

The importance of framing the correct allegation in an enforcement notice is explained at section 4.533 of DCP Online.