On opening the envelope

An inspector has declared an enforcement notice directed at hedgerow removal and the erection of fences at a gypsy site in Sussex to be a nullity after finding that, on ‘opening the envelope’ on first receipt of the notice, the appellants would not have known with reasonable certainty what they had to do to comply (DCS Number 200-010-923).

The requirements of the notice, the inspector recorded, included ‘(iii) to submit details of species of hedgerow to be used to reinstate the hedgerow for approval by the Council; (iv) replant the hedgerow, as approved by the Council, within the first planting season following approval of details and (v) if within 5 years from the date of planting, any hedgerow is removed, uprooted, destroyed or dies, or in the opinion of the Council seriously damaged or defected, another hedgerow of the same species and size as originally planted shall be planted at the same place’ (inspector’s emphasis). He pointed out that all these requirements involved approval of details by the council or, in relation to requirement (v), a subjective judgement on the part of the council as to what might constitute ‘seriously damaged or defected’. 

The problem, the inspector explained, was that the appellants could not know, on first receipt of the notice, what details might be approved by the council, and therefore what they had to do to comply. Further, there was no mechanism through which the appellants could challenge any failure on the part of the council to agree the details submitted, or should the appellants consider the subjective judgements made by the council to be unreasonable or impossible to achieve.

In coming to his decision the inspector helpfully set out the legal background to the subject, including the court cases of Kaur v SSE & Greenwich LBC [1989] and Payne v NAW & Caerphilly CBC [2006]. We would refer you to his decision for further details of those cases.

The modern approach to the question of nullity, the inspector continued, is to be found in the judgment of Oates v SoCLG and Canterbury [2017], which drew extensively upon the preceding case law. A number of principles emerge from this judgment, he said, including that the test in Miller-Mead v MHL [1963] 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. He considered that the judgment in Oates also indicates that a degree of uncertainty does not necessarily render a notice 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. 

Having regard to the judgments in both Kaur and Payne, it seemed to the inspector that the notice suffered from the same defect identified in those cases insofar as its requirements were dependent upon outcomes from the local planning authority over which the appellants had no control and could not anticipate. In his view, this went beyond the realms of a degree of uncertainty contemplated in Oates.

The inspector concluded that when read as a whole the notice did not comply with statute, specifically section 173 of the Act, or with the Regulations. Consequently, the found the notice to be a nullity. 

There is more on enforcement notice requirements at section 4.536 of DCP Online.