Nullity arguments and the appeal process

Those opposing an enforcement notice sometimes question  its validity and argue that it a nullity.  This raises a set of unusual problems and it is questionable whether the Planning Inspectorate proceeds by tired conventional wisdoms rather than coming to grips with the matter.

This article questions both the legal basis for an award of costs in cases where the validity of an enforcement notice is in issue and asks why the Planning Inspectorate allows any appeal to go to as far as a public inquiry before deciding whether it had the jurisdiction to entertain the appeal at all. 

There are a number of reported inspectors’ decisions which raise the points which are of concern, but it will suffice to refer to one case by way of illustration. In APP/D3315/C/15/3141203 (Land at Walford Cross Units, Walford Cross, Taunton, Somerset TA2 8QP), the Inspector held that an enforcement notice was a nullity. She then went on to make an award of costs against the council on grounds of unreasonable behaviour.

To put it another way, why an Inspector would allow the parties to spend time and accrue expense knowing that, if he finds the notice to be a nullity, all of that time and expense will have been abortive.

The Planning Inspectorate’s power to make a costs award
At the outset, it is worth examining the Inspectorate’s purported powers for making costs awards in this situation. Unfortunately, this simple exercise seems to render the surprising result that the Inspectorate does not know.

It is a fundamental tenet of English law that the powers of executive departments of government are limited to those given to then by statute. The Executive does not have an inherent or prerogative power to impose any form of financial burden on a member of the public, save as provided by Parliament. It follows that a planning inspector cannot make any award of costs against a party to a public inquiry unless he can, if asked, point to the statute which gives him that asserted authority. If he cannot readily cite his authority to do so, then the inspector should not be making such an award. It should follow that the burden of proving his statutory authority, if challenged, must fall on the said inspector because it is he who is asserting that he is vested with that authority.

Thus, with a conventional ‘Section 78’ planning appeal, the statutory power to make an award of costs against a party in a resultant appeal comes from Section 250 of the Local Government Act 1972.

Unfortunately, this does not flow when one has regard to the award of costs against local planning authorities in enforcement inquiries where inspectors decline jurisdiction on the ground that enforcement notices are nullities. It is difficult to divine any statutory basis for the award of costs in such a case.

In APP/L3625/C/14/2220172 & 2220173 (Land at Petridgewood Equestrian Centre, Woodhatch Road, Redhill, Surrey, RH1 5JJ), the Inspector stated:

“9. In circumstances where a notice is of no legal effect, it cannot be the subject of an appeal to the Secretary of State. Accordingly, I shall take no further action in relation to these appeals. . . . “

In APP/H2835/C/08/2081355 (Land situated at the ground floor of 18 Silver Street, Wellingborough NN8 1AY), the Inspector stated:

“7. For the reasons given above I conclude that the appeal should succeed. Since the notice is a nullity it is of no worth as a document and no appeal can be founded on it. . .”

In a letter dated 30 March 2006 in respect of appeals by Bleaklow Industries Limited and MMC Mineral Processing Ltd. Site at Hassop Venue, Hassop, Bakewell, DE45 1NS (APP/M9496/C/05/2000734 APP/M9496/C/05/2000744 ), PINS stated:

“Given that the conclusion that the notice is a nullity means that, in the Secretary of State's view, there is no notice, the Authority are requested to ensure that any record of its existence is removed from the enforcement register kept under section 188.”

If one adopts the atavistic approach to the notion of ‘nullity’ deployed by the Inspectorate, then this reasoning seems to be correct. In Macfoy v United Africa Co. Ltd (1963) 3 All ER 1169 @ 1172 I), Lord Denning stated (inter alia):

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.” 

If one transposes, then, if an enforcement notice is incurably bad, then every appeal proceeding which is founded on it is, also, incurably bad. It should follow that, on their reasoning, PINS does not, then, have the ability to make an award of costs in respect of an appeal which, as a matter of law, does not exist. As such, it is difficult to understand the jurisdictional basis for such awards.
PINS appear to rely on Sections 174 and 322 and Schedule 6 of the Town and Country Planning Act 1990 and section 250(5) the Local Government Act 1972, but they do not appear to cover the point.
Section 174(2) provides that an appeal may be brought on any of the following grounds –

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.

It will be noted that none of the grounds of appeal in section 174(2) relates to an allegation of nullity. Presumably on the basis that it is not possible to mount an appeal against something that is a nullity and, therefore, of no legal effect.

In Rhymney Valley D.C. v. Secretary of State for the Environment [1985] J.P.L 27, Nolan J. held an enforcement notice to be a nullity. An action had been initiated under section 246 of the Town and Country Planning Act 1971; however, he concluded that this was not the appropriate mode of proceeding for a challenge based on the allegation of nullity. Accordingly, he altered the proceedings to judicial review and then ‘quashed’ (sic) the notice. As the then case-editor, Michael Purdue commented, presumably on the ground that, if the notice was a nullity, then there was no notice upon which to base a section 246 appeal.

Section 250 of the 1972 Act provides:

[250(5)] “The Minister causing an inquiry to be held under this section may make orders as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order”

The provision relates to costs “at the inquiry”, whereas the effect of an inspector declining jurisdiction is that there is no ‘inquiry’ and, furthermore, the inspector is making it clear that PINS has no jurisdiction to hold an inquiry.

Section 322 of the 1990 Act provides for cases where inquiries do not take place. It is not clear whether this provision is directly relevant to the case where a purported inquiry is convened and then aborted on the basis of absence of jurisdiction. Be that as it may, Section 322(4) refers to an “appeal” whilst, if an enforcement is a nullity, then it is not possible to mount an appeal ie because one cannot appeal against nothing. S322(1)(a) refers to “any proceedings” which require the Secretary of State to give any person a right of appearance, but, likewise, if an enforcement is a nullity, then it is not possible to have “any proceedings” and it is not possible for any person to seek rights of audience in something that does not exist.

Schedule 6 of the 1990 does not refer to costs awards at all.

The Case for Case Management
English Administrative Law has been bedevilled by its attempts to match the theoretical position of acts or instruments which are said to be ‘null and void’ or ‘void abinitio’ with their status outside the walls of the Royal Courts of Justice. So far as enforcement notices are concerned, many recite the obiter dicta of Upjohn J. in Miller v Mead that if a purported enforcement notice is a ‘nullity’ then it is just “so much waste paper”. This metaphor is of little help to a lay person who is the recipient of a document from his local council which has all the appearance of being just what it purports to be. That is, it would be a brave recipient who (even if he had the report for Miller Mead readily to hand) would put a purported enforcement notice into the shredder.

The reality is that the recipient of the purported notice will be unaware of Upohn J.’s advice and, if troubled by it, will appeal the notice. Nor would it make much difference if he is represented by a professional, because no professional adviser with a proper eye to his indemnity insurance will risk ignoring an appeal in favour of throwing the notice into the bin. That adviser will do what advisors usually do, and file an appeal whilst, at the same time, raising the question of nullity. It then falls to the Planning Inspectorate to decide whether or not to accept jurisdiction in respect of the appeal. If the Inspectorate concludes that the notice is a nullity, then it will decline jurisdiction.

This sounds like a perfectly linear approach; however, this is not the case in practice. One could reasonably expect that the Inspectorate would deal with the matter of nullity at the outset of the appeal process; that is to say, as a preliminary issue. In fact, the Inspectorate’s practice is to allow the process to allow defer the decision to the Inspector at the public inquiry. Thus, the parties are put in the position of having to bear the (often considerable) costs of going to an inquiry, only to have to pack their bags and go home if the Inspector then concludes that the notice is a nullity. The Inspectorate will not see itself as at fault and may decide to pass the costs of the abortive inquiry on to the unfortunate local planning authority. The reality is that the Inspectorate has failed to exercise the most basic of case management practice in dealing with the appeal, to the cost of appellants and, often, the local planning authority and any third parties who attended the inquiry. In doing so, the Inspectorate has diminished public confidence in the planning system (albeit the planning authority will, of course, get the blame) and added to the discomfort felt by the appellants and interested parties. Doubtless the planning authority will then issue a ‘second bite’ notice and the cycle will start again.

Those who are acquainted with civil and criminal litigation will know that the modern approach is to require that the courts and the parties practice case management techniques from the inception of a case to its conclusion. This approach is aimed at making the processes more efficient, reducing costs and settling preliminary issues early on.

The obvious answer is, of course, that assertions of ‘nullity’ should be dealt with as preliminary matters long before the inquiry or hearing and before the parties have invested too much time, trouble and expense in the venture. There is no reason why this matter cannot be dealt with by way of written submissions at the beginning of the appeal process.

The ‘pro-active’ approach
All of this suggests that the local planning authority which is faced with an argument that its enforcement notice is a ‘nullity’ should take the matter up with PINS at the earliest opportunity and press for a determination of the point as a preliminary matter.

If faced with an application for an award of costs, then tell the Inspector, flatly, that he does not have the jurisdiction and give him a copy of this article.

If your authority has paid money under such a purported 'award', then ask PINS to refund it !

The Inspectorate were provided with a draft of this article and declined to comment  substantively, but noted (in short) that the article is critical of the Planning Inspectorate and procedures currently adopted by it, and that that Inspectors must following statutory  guidelines until or unless these are amended by an Act of Parliament. I am still wondering about the purported ‘statutory guidelines’ invoked in this Delphic response.


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