Waiving or varying a requirement in an enforcement notice
The Divisional Court has ruled on the power to waive or relax an enforcement notice under Section 172A. Melissa Murphy KC and Charles Streeten look at the outcome.
The Divisional Court has today given judgment in Pathfield Estates Limited v LB Haringey [2023] EWHC 1790 (Admin). This was an appeal by way of Case Stated, from the Wood Green Crown Court.
It concerned whether the local planning authority had “waived” a requirement within an enforcement notice dating from 2008. That requirement was the subject of the prosecution, brought in 2021. It was Pathfield’s contention that having accepted in letters to the mortgagee and others in 2008 that there had been compliance to the satisfaction of the local planning authority, without that requirement in the notice having been met, the local authority had waived the requirement under its section 173A powers.
Giving the leading judgment Whipple LJ (with whom Holgate J agreed) dismissed the appeal, and accepted the submission on behalf of the London Borough of Haringey that the issue of whether the requirements of the Enforcement Notice had been waived or varied was a question of fact for the Crown Court. There had been ample evidence before the Crown Court to support its conclusion that there had been no waiver, and the Crown Court’s conclusion was not irrational or perverse (see para.32). The Council also contended that the Council’s letters constituted a representation that it would take no enforcement action. Pathfield noted that this was not a finding reached by the Crown Court. But the Divisional Court accepted that submission (para.40).
Background
The appeal arose in the context of a decision by the Wood Green Crown Court to uphold a conviction for breaching an enforcement notice issued against the use of residential property in Haringey as five flats and including a requirement, amongst other things, to “restore the Property to two flats” (“Requirement 3”).
It was common ground that following service of the enforcement notice the use of the property as five flats had ceased. The Council’s officers had visited the site and agreed with the owners that it could be converted to a single dwllinghouse. The Council’s records showed, that works to remove fixtures and fittings, specifically kitchen units and an entryphone system had been carried out. Officers “agreed this is acceptable for compliance” and had closed the enforcement case on that basis, sending “closure letters” to a number of interested parties who had been served with the enforcement notice which said “I can confirm that the Enforcement Notice served as a result of the above breach of planning control has now been complied with to the satisfaction of the local planning authority. Accordingly the Council is taking no further action and is recommending that this case be closed”.
Subsequently, the Council became aware that the property was being used, this time as six (rather than five) self-contained flats, and it prosecuted Pathfield Estates for breaching Requirement 3 of the Enforcement Notice.
Pathfield was convicted in the Magistrates’ Court and that conviction was upheld in the Crown Court.
It appealed by way of case stated on two grounds, one of which was withdrawn by consent prior to the hearing of the appeal. The remaining ground argued that the Council had waived Requirement 3 of the Enforcement Notice, on the grounds that the Council had accepted that works which did not satisfy that requirement were sufficient for compliance with the notice and that, viewed objectively, that amounted to a waiver of the requirement of the notice pursuant to the power in section 173A(1)(b) of the Town and Country Planning Act.
In support of this submission, Pathfield relied on the cases of Kammins Co v Zenith Investments [1971] AC 850 and Co-operative Wholesale Society v Chester le Street District Council (1997) 73 P&CR 111 both of which concerned the test for waiver or estoppel in the context of a limitation period and provided authority for the proposition that a waiver could take place despite there being no subjective intention to waive a particular requirement.
Accepting the Council’s alternative argument, Whipple LJ held, following Wilson v Maldon DC [2021] EWHC 715 (Admin), that a local planning authority can say what it would accept as compliance with a requirement of an enforcement notice without waiving that requirement and that it is important not to elide those two things.
That being so, Pathfield Estates was left with the “bald assertion that the acceptance of a single dwelling-house as satisfactory compliance with requirement 3 in this case necessarily amounted to a waiver of that requirement”. That she held was “unsound in law and unsupported by the facts and evidence”. On that basis the appeal was dismissed.
A copy of the judgment is available here.
Melissa Murphy KC is a barrister at Francis Taylor Building and acted for the Appellant instructed by Sonn Macmillan Walker.
Charles Streeten, also of FTB, acted for the successful Respondent instructed by the London Borough of Haringey.
