Claimants fail in legal challenge over whether now-defunct council had lawful authority to issue enforcement notice

The former Kettering Borough Council had the power to issue an enforcement notice even though some of the matters involved concerned the powers of the former Northamptonshire County Council, the High Court has found.

Mrs Justice Steyn said its successor North Northamptonshire Council could not have retrospectively issued the notice had Kettering lacked this power, but given the notice was valid it had become responsible for the case having taken over Kettering’s functions.

Northamptonshire was abolished following financial problems and the issue of a section 114 notice. In April it and its districts were replaced by two new unitary councils, North Northamptonshire and West Northamptonshire.

Lyndon and Samantha Thomas challenged Kettering’s issue of the enforcement notice alleging unauthorised development on land at Desborough connected with the working, storage and sale of minerals.

They argued that minerals planning and at the time been a county responsibility and so outside Kettering’s powers.

But in Thomas & Ors, R (On the Application Of) v North Northamptonshire Council [2021] EWHC 1428 (Admin) Steyn J said that the case was not academic, as North Northamptonshire had argued, as legislation is not intended to have retrospective effect and that this applied to secondary legislation as well as primary legislation.

She said the enforcement notice “subsists in NNC's name, but in considering whether it was lawfully issued, the court must focus on the functions and powers that have been passed to NNC by the predecessor authority that made the enforcement notice…additional functions and powers that NNC has acquired from other predecessor authorities, none of which issued the enforcement notice, are irrelevant”.

The judge said parts of the matters covered by the notice had fallen under the powers of the former Northamptonshire County Council “but they should not be viewed in isolation, the use was a mixed use which was not a county matter”.

She explained: “If two separate enforcement notices could be read together so as to avoid s.173(11) [of the Town and Country Planning Act 1990] the effect of the district and county planning authorities having to act in this way would be unsatisfactory, confusing and potentially unfair.

“There would be a right of appeal against each enforcement notice, with separate fees due.”

She added: “The practical difficulties caused by an interpretation of paragraph 11 of Schedule 1 which precludes either a district or a county planning authority from taking enforcement action in respect of a mixed use on a single planning unit are manifest.”

Dismissing the Thomas’s case she said Kettering had had the power to issue the notice and it was now North Northamptonshire’s responsibility.

Mark Smulian