Usher, R (On the Application Of) v Forest Heath District Council

This is a challenge to the decision of the Defendant Council to take direct action under s.178(1) of the Town and Country Planning Act 1990 (“the TCPA”) in order to demolish the Claimants’ dwelling house at Small Fen Farm, Chalk Farm, Brandon, Suffolk (“the property”). The property is located to the north and west of Brandon.

The property has a lengthy planning history. On 30 November 2012 the Council issued an Enforcement Notice alleging the erection of a dwelling on the site without planning permission and requiring the demolition of the dwelling. The requirements of the Notice were to “demolish the dwelling… and remove all resultant material from the site”.

The Appellants (now the Claimants) appealed under grounds (a), (b), (d) (f) and (g) of s.174 of the TCPA. They argued under grounds (b) and (d) that the dwelling had been erected some years before and that the more recent works were merely a renovation of the earlier building. The Inspector, Mr Evans, rejected these arguments on 30 June 2013 and found at paragraph 24 of his decision (“DL 24”) that an entirely new and materially larger building had been erected, and that it was only substantially completed from 2009 onwards. He also rejected the ground (a) appeal on the planning merits.

The Inspector extended the time for compliance under ground (g) to a period of 12 months, taking into account the Appellants’ family circumstances. The period for compliance therefore ended on 20 June 2014. The Inspector said at DL 55;

“Building Y - Ground (f)

55.

The refusal of planning permission is not based solely on the size of the building. A requirement simply to reduce its size would not therefore address its residential purpose. Further, as above, this is a new building not simply an enlargement of a pre-existing one. The requirement to demolish it is thus not excessive to remedy either the breach of planning control or the harm to amenity. It is not for me to prescribe what the Appellant may lawfully do, if anything, once the notice has been complied with. The Council equally have their own powers of variation of the notice under section 173A if appropriate.”

On 11 September 2014 the Claimants submitted a planning application to retain the dwelling for a temporary period of five years. The application was justified on the basis of possible changes in the planning policy context (the possibility of the area surrounding the property being allocated for housing) and the family’s personal circumstances. The personal circumstances specifically being relied upon were the medical condition of Mr Usher’s mother, Mrs Ellen Usher, whose physical and mental health had been deteriorating rapidly. The Council considered the personal circumstances of the family in considerable detail and decided to refuse the application.

The Claimants appealed this decision under s.78 TCPA. The Inspector, Mr Merrett, dismissed the appeal on 18 August 2016. He found at DL8 that the dwelling was harmful to the character and appearance of the surrounding area. He considered the personal circumstances of the family, including Mrs Ellen Usher’s medical condition, in some detail at DL14-20. He then considered the position under Article 8 of the ECHR and the proportionality balance under the Human Rights Act 1998. He found that the planning balance on the facts of the case lay in favour of dismissing the appeal. This decision was not challenged.

On 21 September 2016 a planning consultant Mr Durr wrote to the Council’s Principal Planning Officer, Mr Beighton saying that he had been instructed by the Claimants “to explore a way forward at the site”. He set out a series of proposals, turning on the argument that there were lawful uses on the site which would justify the retention of the dwelling. On 7 October Mr Beighton sent the Claimants’ agent, Mr Durr, a very detailed email setting out the Council’s position in relation to the site, and the property in particular. After reciting the Council’s understanding of the planning history at some length, Mr Beighton said as follows;

“In this light therefore, I offer the following further comments on how we expect matters in relation to the southern building (the illegal dwelling) to be taken forward. As advised, this should be taken as being entirely distinct from any ongoing discussions in relation to the northern building and any open storage since I do not accept the materially of your hypothetical fallback, not least as advised noting the ongoing and very significant visual harm arising from the southern building, as supported by both appeal Inspectors, and also, as further acknowledged by the most recent appeal Inspector, the need to ensure that public faith in the planning process is not undermined.

As I have previously advised, this matter will be presented back before Members of the Forest Heath Development Control Committee on Wednesday 2^ndNovember. You will note that the September 2015 DCC resolution required an update be provided after the 12 month moratorium on enforcement action had expired. In any event, such an update is pertinent in light of the August 2016 dismissal of your client’s latest appeal. This report will not seek Member approval for any further steps, rather it will simply provide an update to them on the latest position relating to this matter.

Notwithstanding the dismissed appeal, and notwithstanding any ongoing discussions in relation to the northern building, there remains a serious breach of planning control and your client’s continued occupation of the dwelling on site is illegal. Consideration is still being given to the possibility of prosecuting this ongoing breach. I hereby write therefore to set out the steps I expect to see occur, and over what timescales, plus set out the steps that the Authority will take, and over what timeframe, if it is not satisfied, at any stage, and at its discretion, that matters are progressing sufficiently swiftly.

Firstly, I expect to receive, within seven days from the date of this e-mail (by Friday 14^th October 2016), written confirmation that your client intends to comply with the terms of the Notice, such communication to also update the LPA on any steps they have already taken since the dismissal of the most recent appeal towards effecting compliance with the Notice.

Within one calendar month from the date of this e-mail (by Monday 7^thNovember 2016) I expect to have sight of written confirmation that quotes for the demolition of the dwelling have been sought and within two calendar months from the date of this e-mail (by Wednesday 7^th December 2016) I expect to have received written confirmation, and proof, that a contract for the demolition of the dwelling has been entered into. Any such contract should ensure demolition and site clearance in full no later than Tuesday 31st January 2017. If your clients intend to effect demolition of the property themselves then confirmation of this will be expected in writing within one calendar month (by Monday 7^th November 2016) with demolition effected no later than two calendar months from the date of this e-mail (by Wednesday 7^th December 2016).

A failure to meet any of these timescales, including any failure to confirm, within seven days, your clients’ confirmation of their intention to comply, will leave the Authority with no option other than to effect ‘direct action’ in order to ensure compliance, with a charge subsequently being placed on the property. Any failure to meet any of these timescales may also lead to the Authority instigating a prosecution against your client for their wilful failure to comply. I can confirm that the procurement process for such direct action has been completed and that the Authority intends to ensure compliance with the terms of the Notice no later than Tuesday 31^st January 2017, and possibly earlier depending on how your client responds to this e-mail and the requests, and timescales, set out in the preceding paragraph. I should also add, for the record at this stage, that investigations are ongoing in relation to other alleged breaches of planning control at this site and the Authority reserves the right to serve a further Notice or Notices without further written warning should it be considered expedient. I should also add, for the record, that the Authority will use its legal powers of entry to the site, at its discretion, when access is needed. Notice of such access might or might not be given as necessary.

I hope this response is clear, and as helpful as possible in the circumstances, and would be happy to discuss this in more detail should you require. I apologise that we have been unable to speak on the telephone. I will endeavour to follow this e-mail up with a call to make sure there is no misunderstanding from either party. I am working from home today but am in the office on Monday and would be happy to diarise a time to call if you could confirm your availability. I am pleased to note your client’s acknowledgement that the Authority has always sought to act fairly and reasonably, respecting that it is investigating a longstanding and very serious breach of planning control, and would rather work with you and your clients. However, if material steps are not taken in a timely fashion to effect compliance, then the Authority will unilaterally ensure such within its own 31^stJanuary 2017 deadline. I trust that such will not be necessary and that we can work with you and your client to ensure that the terms of the Notice are met in a timely fashion, if required, concurrent to ongoing dialogue about your client’s options in relation to the northern building. If your client needs assistance from colleagues without our Housing team about alternative accommodation then please let me know and I will ensure that contact is made with an appropriate colleague.

…

Please note that my comments are offered informally and without prejudice.”

Mr Durr responded on 10 October 2016. He put forward an argument that the site potentially had lawful uses which could mean that a replacement dwelling would itself be lawful. The argument appeared to rest on the alleged lawfulness of the Northern Building on the site, rather than directly on the Southern Building, which is the building in issue in this case and is described in the correspondence as the “Southern Building”. I should say that the detail of this argument and whether or not it was correct is not a matter I need to investigate. Mr Durr put forward a timetable for submitting a Lawful Development Certificate application, and an application for prior approval for the change of use of a storage building on the site to a residential use. He suggested that a “three/four month abeyance would [not] harm the Council’s current position…”

After some further discussion with Council officers Mr Durr emailed Mr Beighton saying, inter alia, “I suspect your aggressive timetable will not be met...” He asked for a guarantee that continued enforcement action would not be taken until the further applications were assessed.

Ms Almond, the Council’s Service Manager for Planning responded on 19 October 2016. Again this was a very long email, setting out much of the history and repeating many of the points already made. For present purposes the two most pertinent extracts are;

“As Dave [Mr Beighton] has already explained, if we receive the applications you have previously indicated you will submit, within the timeframes you have suggested you will submit them within, and if information presented within said applications causes the LPA to reappraise the position in relation to Small Fen Farm then it will do so. I give you my commitment as Planning Service Manager that this will take place, in addition to that commitment which you have already received from Dave.

…

My firm suggestion, therefore, and with respect, is that you proceed to submission of these [the 4 applications] within the timescales you have set out. However, the submission of such, or the non-submission of such, does not change the deadline that the LPA has set of 31st January 2017 for compliance in full with the terms of the Notice. I am also disappointed that your client has failed to commit to unilateral compliance with the terms of the Notice by 31st January 2017. Regrettably therefore I must continue to progress steps towards the taking of Direct Action to ensure compliance before 31st January 2017.”

Also on 19 October, Steven Wood the Defendant’s Head of Planning and Growth had considered a delegated officer report in respect of taking direction action on the properly. This report set out the background including the communications that had taken place to that date with Mr Durr. This report considered the impact on the Claimants and Mrs Ellen Usher but said at paragraph 22

“On balance, and in also assessing the impact of Direct Action upon the owners… it is considered that the correct balance between the public interest and the private interests in this matter lies in taking Direct Action to secure compliance with the terms of the Notice”.

The report also considered the further representations from Mr Durr and the intention to submit further applications. The report said at paragraph 9;

“Officers are satisfied that if Direct Action is to be taken, that sufficient time exists to carefully and reasonably consider any new information presented. If this calls for such a reassessment of any decision to take Direct Action at any stage before such action is progressed then such reassessment will be made…”

The decision was taken, pursuant to the delegated powers, to take Direct Action. It is not suggested by the Claimants that Mr Wood did not have the power to make this decision, or indeed that there is any legal error in the 19 October 2016 report.

On 2 November 2016 officers made a report to the Council’s Development Control Committee. This report stated at the front “There is no recommendation associated with this report”. It then set out the history of the matter and concluded as follows;

“17.

Opportunity has been given to the owners to present their case as to why this illegal dwelling should remain…

18.

Officers have written to the agent representing the owners and have specified clearly the steps that they expect to see happen, and over what timescales in order to secure compliance with the terms of the outstanding enforcement notice. It is hoped that the owners will comply finally with the terms of the Notice, and a final deadline of the end of January 2017 has been specified. A failure to meet any of these requirements or timeframes will lead to the Authority considering instigating a prosecution for failure to comply along with the taking of Direct Action to ensure compliance, with a charge placed on the property to enable monies to be recovered.

19.

Discussions are continuing with the site owner in relation to other planning matters arising in relation to this site… There is nothing therefore in any wider enforcement investigation or other planning matter in relation to this site that should preclude seeking compliance in full with the terms of the Notice in as reasonable a timeframe as possible.”

I do not think that any reasonable person could read this report without realising that the Council had decided to take direct action by the end of January 2017, unless the terms of the enforcement notice had been met or there was some other material change of circumstance.

On 16-19 November the applications which had been referred to by Mr Durr were made, and after some dispute over fees validated. There were four applications in total and I will refer to them below as the four applications. Mrs Ellen Usher died on 10 December 2016. On 13 December Ms Almond sent an email to Mr Durr in respect of the applications. That email said, inter alia, “...the Authority is still anticipating compliance with the terms of the enforcement notice by the previously specified deadlines.”

In early January 2017 there was an exchange of emails over whether the Council had informed a third party that the dwelling would be demolished. On 11 January Mr Wood, the Council’s Head of Planning and Growth emailed in the following terms;

“We have previously advised you that steps are being taken to ensure compliance with the terms of the Notice before the end of January 2017. This is a complicated and involved process as I am sure you can appreciate and requires a reasonable lead in time. I am in a position to confirm that all matters are ready for this Authority to effect compliance. However, as I note Dave and Rachel have stated previously, if the outcome of the consideration of the four applications requires a reassessment of the decision to effect unilateral compliance with the terms of the Notice then, yet again, you have my assurances that such a reassessment will be made. Otherwise, as we have consistently and repeatedly stated, we expect compliance before the end of January 2017.

This matter relates to an important and long standing breach of planning control, with great local interest. The Council has a duty to keep all interested parties informed of progress. This is entirely reasonable. The deadline for compliance with the terms of the Notice that we had set was included within the publically available November 2016 DC Committee report so is already in the public domain.”

On 12 January the prior approval applications were refused. There was a further exchange of emails about this decision. On 16 January Mr Durr emailed with the suggestion that the Applicants would be happy to alter the existing dwelling by reducing the roofline, and plans were attached.

On 20 January the lawful development certificate applications were refused. So by this date all four applications had been refused.

On 23 January 2017 Mr Beighton emailed Mr Durr in the following terms;

“…. Please also be aware therefore that, in light of these refusals, the Authority is still seeking to secure compliance with the terms of the outstanding enforcement notice relating to the southern building within the previously stipulated deadlines of the end of January 2017. Steps have been taken to line up demolition contractors on the possibility that consideration of these applications would not materially alter the planning context, and on the basis that voluntary compliance would not be forthcoming. As a consequence, direct action to effect compliance will commence if still necessary at 08:30 on Monday 30^th January 2017. It is anticipated that these works will take three days to complete and your client’s co-operation in this matter would be welcomed. A charge will then be placed on the property to ensure that the LPA can recover its costs. Please note that contractors will use the Authority’s legal power under s178 to access land and enter buildings at the site to secure compliance so please take this communication as notice of such.

No further written warning will be given but please remind your client again that these works will not include a soft strip of the property and that they should ensure that any fixtures and fittings they wish to retain are removed from the property before demolition commences on Monday 30^th January 2017.” [underlining in original]

On 27 January 2017 the present claim was issued under the Urgent Applications procedure. Holman J granted a temporary injunction until 30 January. Robin Purchas QC (sitting as a Deputy High Court Judge) approved a consent order which continued the injunction pending determination of permission. On 15 March Neil Cameron QC (sitting as a Deputy High Court Judge) extended time for bringing the claim but refused permission on all grounds for judicial review.

On 24 June 2017 after an oral renewal hearing, Lang J granted permission on grounds 1-4. Ground 5 is no longer being pursued.

The power to take direction action is contained in s.178 TCPA, which states as relevant;

178.

— Execution and cost of works required by enforcement notice.

(1)

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may—

(a)

enter the land and take the steps; and

(b)

recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.

(2)

Where a copy of an enforcement notice has been served in respect of any breach of planning control [...]—

(a)

any expenses incurred by the owner or occupier of any land for the purpose of complying with the notice, and

(b)

any sums paid by the owner of any land under subsection (1) in respect of expenses incurred by the local planning authority in taking steps required by such a notice to be taken,

shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed.

….

(5)

Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local planning authority under subsection (1).

(6)

Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

The Claimants advance the following grounds;

Mr Westaway on behalf of the Claimants argues that the Defendant was under a legal obligation to invite representations from the Claimants in respect of the proposed direct action and to notify them of the decision to take direct action in October 2016. He bases this argument on the principles of natural justice and on the terms of the Defendant’s Constitution.

He argues that the Council had taken the decision to pursue direct action on 19 October 2016 but the report behind that delegated decision was not produced to the Claimants’ solicitors until shortly before the Claim was issued. The Claimants therefore had no opportunity to comment upon the decision to take direct action.

On the natural justice argument he relies on R (Doody) v SSHD 1994 AC 531 and the speech of Lord Mustill at 563, which refers to the right of life sentence prisoners to make representations on the minimum term of imprisonment which should be set in their cases. At page 560 D-G Lord Mustill set the following principles;

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

In respect of the Defendant’s Constitution Mr Westaway relies on the following two articles;

Art.12.2.1(c) sets out the principle that:

“in the case of ‘quasi-judicial’ decisions (e.g. a decision as to whether or not to grant a licence) a fair hearing conducted in accordance with the rules of natural justice should be afforded to the person who is the subject of the decision”

Art.12.8.1 states that:

“... an officer acting ... in a quasi-judicial manner or determining/considering (other than for the purposes of giving advice) the civil rights and obligations or the criminal responsibility of any person will follow a proper procedure which accords with the requirements of natural justice and the right to a fair trial contained within Article 6 of the European Convention of Human Rights”

On both limbs of the argument Mr Westaway relies on the serious consequences of direct action in particular the entry onto the Claimants’ land; the power of recovery of costs; the power to place a charge on the land and finally the potential criminal liability. He argues that these consequences place a separate effect on the individual’s rights from the effect of the enforcement notice itself. He relies on the comment in R (O’Brien) v Basildon DC [2006] EWHC 1346 (Admin) that direct action under s.178 is a drastic power, particularly when used for the removal of residential property. He correctly says that direct action does not automatically flow from the enforcement notice, and a further decision has to be taken by the local planning authority if they intend to take direct action. He refers me to the fact that the 2013 Inspector expressly noted that any further steps were for the Council at DL 55.

He argues that the Claimants were not notified that the decision to take direct action had been made until just before the date when the work was to start, they were not told that there was to be no soft strip until 23 January and they were not told the cost of the direct action until 16 February. Mr Westaway argues that the process was not open and transparent and that what was required was that the Defendant set out the options for further action and then asked the Claimants for their representations.

In my view the Claimants’ argument fails both on the law and on the facts. In Doody Lord Mustill was very careful to set out that the requirements of procedural fairness are highly context specific. On the facts of Doody the prisoners in question had had no opportunity to make representations on their future period of detention. The same point is made in De Smith at 7-004 that the extent of rights vary.

The critical distinction from Doody is that the Ushers had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under s.174 TCPA. They took up that right before the enforcement Inspector, and advanced their case about the legality of the development and the impact that demolition would have on their Article 8 rights. They did not challenge the Inspector’s decision and therefore under the TCPA the enforcement notice was then immune from further challenge. This procedural history, and the fact of the requirements in an extant enforcement notice, are critical parts of the context of what further procedural rights the Claimants had. They had then submitted a further planning application which had again been appealed and they had put forward their representations to the second Inspector.

In any event the Claimants had then, after the refusal of the planning appeal in August 2016, had every opportunity to make representations on how the requirements of the enforcement notice should be met. Mr Westaway’s submissions sometimes came close to suggesting that there was a choice as to whether those requirements should be met, and the Claimants had a right to make further representations on that issue. However, the scheme of the TCPA is that once an s.174 appeal has been dismissed and the requirements of the enforcement notice come into effect there is a legal liability on the landowner to meet its terms, subject to criminal sanction. It was therefore not just open to the Claimants at all times after 20 June 2014 to meet the requirements of the notice, they were under a legal obligation to do so, which they chose not to meet. The Council had granted a moratorium on further enforcement action until September 2016, in the light of the further application, but the legal obligation remained plainly on the Claimants.

From September 2016 onwards the Claimants through Mr Durr, made extensive representations on why further action should not be taken. At the start of his submissions Mr Westaway seemed to suggest either that Mr Durr did not have authority to act on behalf of the Claimants in respect of direct action, or that the Claimants were not fully aware of the email correspondence and discussions that had been held. He did however accept that the Claimants had had sight of all the emails save that of 11 January 2017. He also accepted that there was no evidence as to the scope of Mr Durr’s authority not extending to the proposed direction action and no evidence to support any submission that Mr Durr was acting outside his authority. Reading the emails from Mr Durr I find it impossible to support the distinction between Mr Durr representing the Claimants on the 4 further applications, and on direct action. In my view it is clear that Mr Durr was seeking to delay or avoid the requirements of the enforcement notice being brought into effect, by whatever means he thought might succeed. Mr Durr was plainly dealing with compliance issues and there is no evidence he was not authorised to do so. Therefore I take all communications between Mr Durr and the Defendant as being within the Claimants’ knowledge, and within their authority.

The Defendant informed Mr Durr in the clearest possible terms on a number of occasions that they intended to take direct action if the building was not removed voluntarily. Further they informed him that this would take place at the end of January. He was informed about the Development Control Committee meeting on 2 November, when the update report was presented. Although it appears that this was not a meeting when members of the public could make an oral presentation it was entirely open to the Claimants to make representations in writing to the committee members. Mr Westaway argues that this meeting took place after the decision to take direct action was made by Mr Wood on 19 October under delegated powers and that in any event the Committee was not asked to make a decision, but were only updated about the decision that had already been made. However this ignores the fact that Mr Durr had made extensive representations before the 19 October, and that it was open to him to make written representations to members to ask them to intervene, if he had wished to do so.

The answer to the argument on the Constitution is in my view essentially the same. A decision to take direct action is not a quasi-judicial decision, it is the administrative step to achieve compliance with the enforcement notice. That does not mean it carries no procedural protection within the rules of procedural fairness, but in my view it is not the type of decision that falls within the two Articles of the Defendant’s Constitution as being quasi-judicial. As is clear from the example given that phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision.

Equally, as a preliminary view I do not think that the decision to take direct action is the determination of a civil right which falls within Article 6. Mr Westaway submitted that the decision fell within Article 6 without citing any of the extensive case law on the meaning of “determination of a civil right”, or advancing the argument beyond mere assertion. There does not appear to be any case law on this question, and I do not think it is appropriate to decide the issue without full argument. On the facts of the case it does not seem to me I need to decide as a matter of law whether article 6 is engaged. Firstly, the Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to this court under s.289 TCPA. Secondly, and in any event, the Claimants through Mr Durr made extensive representations which is all that Mr Westaway seemed to argue was required in this case.

For these reasons I do not think there was any breach of procedural fairness, and Ground 4(ii) fails.

Mr Westaway argues that the Claimants had a legitimate expectation arising from the Development Control Committee meeting of 2 September 2015 that an accurate update report would go before the Committee, providing Committee members with the opportunity of oversight before a decision on direct action was taken. I accept that in principle a representation does not always have to be made to an individual personally for a legitimate expectation to arise. However, in my view the September 2015 resolution did not give rise to the legitimate expectation being advanced. Members asked for an update report when the moratorium expired, but they did not suggest that the delegated authority be withdrawn. Under the Council’s scheme of delegation the authority was with the officers and the members noted the decision, but they did not make it. The members received an update report on 2 November 2016 precisely as they requested. That report summarised the correspondence and perfectly appropriately did not set it out in full. On any fair reading of that report it was clear that the Council intended to proceed with direct action unless there was some material change.

The criticisms that Mr Westaway makes of the report do not amount to errors of law. Firstly, the report was one for noting, there was no breach of any legitimate expectation that it was made after the delegated decision of 19 October. Secondly, it was clear that the Council intended to proceed with direct action. Thirdly it did not mislead members about whether a decision had been made. It was clear that there was a “final deadline” of the end of January 2017 and that direct action would proceed at that date.

This ground therefore also fails.

The Claimants’ argument is that the maintenance of a 31 January 2017 deadline for direct action with no “soft strip” was unreasonable and disproportionate. Mr Westaway argues that the Defendant stuck rigidly to its deadline and had inadequate regard to the fact and time of the determination of the 4 new applications and of the changed personal circumstances of the Claimants for example, in respect of death of Mrs Ellen Usher. He says the unreasonableness of the deadline is exacerbated by the fact that the demolition did not involve a soft strip, so the Claimants would not be able to salvage many parts of the property.

There can be no dispute that the timing of any direct action and its form are matters for the Council and this Court should be slow to intervene. The period of time between the determination of the last of the four applications (20 January for the lawful development certificate decision) and the deadline of 31 January was very short. However, that has to be seen in the context of an enforcement notice which had been in effect since June 2014; a period of 5 months from the dismissal of the planning appeal; and the Defendant being very clear about the end of January deadline.

The Defendant’s emails, some of which are set out above, explained clearly that the Defendant will reconsider the direct action if that is the logical consequence of the determination of the four applications. In my view they are equally clear that the mere fact of the applications, and the time it would inevitably take to determine them, does not in and of itself mean that the deadline of 31 January would be changed.

Although I have great sympathy with the Claimants over Mrs Ellen Usher’s death on 10 December 2016 coming so soon before the deadline for the direct action, and the pressure this placed them under, I am afraid that they were very much the authors of their own misfortune. There had been a long period in which they could have taken steps to comply with the enforcement notice. They could have, at least, set out a definite timetable for compliance after Mrs Ellen Usher’s death, including letting a contract for demolition. However, they chose to take no steps to comply with the enforcement notice and the Council was not prepared to extend the deadline. I do not find this refusal to extend the deadline was either irrational or disproportionate.

The Claimants argue that they were not notified of the decision to take direct action until 26 January 2017. This argument relates to the role of Mr Durr and his understanding of the position. Mr Westaway argued that Mr Durr did not appreciate that the Council had made up its mind to take direct action in October 2016. He submitted that the Defendant had closed its mind to revealing this decision and that was unfair because the Claimants did not properly understand what was happening and therefore could not make representations on direct action.

The Defendant accepts that it was in breach of regulation 8(1) of the Openness of Local Government Body Regulations 2014 because it did not publish the relevant decision or its reasons on its website at the time the decision was made. However, for the same reasons as those set out below I do not think this gives a good ground to quash the decision. The Claimants were fully aware of the Council’s position and had ample opportunity to make representations upon it. Therefore the error under the 2014 Regulations had no material impact on the fairness of the process, as is explained below.

I do not think this argument is sustainable on a proper reading of the correspondence. Mr Westaway accepted that the Claimants saw the relevant emails. Read fairly and as a course of correspondence those emails are quite clear about the Defendant’s position. The Defendant had made a decision in October 2016 to proceed with direct action at the end of January. However, it was clearly stated that that decision was open to review, and one of the grounds for such a review was if the determination of the four applications led to a material change in circumstances. It was entirely open to the Claimants and Mr Durr to decide not to take the risk of direct action, not to proceed with the applications and instead take steps to comply with the enforcement notice. They chose not to take that course but instead proceed with the applications and take the risk that if they were refused there would then be a very short time before the deadline of the end of January.

To the degree that Mr Westaway was advancing an argument that the Defendant was under a duty to inform the Claimants personally of the date that direct action would be taken, I do not accept that submission. Mr Durr had acted as the Claimants’ agent since September 2016 and it was wholly appropriate for communications to go through that agent. Indeed there are circumstances where communication direct with the landowner could have led the planning authority to be criticised.

Equally, there is no obligation either in the TCPA, or of procedural fairness to serve a formal notice in whatever form of direct action. The Defendant’s position was entirely clear and properly communicated.

The Claimants argue that alternatives to direct action were not properly considered, contrary to Government Guidance. The Guidance in question is the Planning Practice Guidance;

“The local planning authority has powers to enter enforcement notice land and carry out the requirements of the notice themselves (section 178 of the Town and Country Planning Act 1990). It is an offence to wilfully obstruct anyone who is exercising those powers on the local planning authority’s behalf.

These default powers should be used when other methods have failed to persuade the owner or occupier of land to carry out, to the local planning authority’s satisfaction, any steps required by an enforcement notice” (Paragraph: 023 Reference ID: 17b-023-20140306) (underlining added).

Mr Westaway relies on the passage in Tapecrown Ltd v First Secretary of State 2006 EWCA Civ 1744 that “enforcement procedure is intended to be remedial rather than punitive”. He argues that the Defendant did not allow other alternatives to be tested because they had treated direct action as a first resort.

The first resort for compliance with an enforcement notice is for the landowner him or herself to comply with the notice. The Claimants had chosen not to do that, despite being given very clear extended deadlines by the Defendant to carry out the requisite work themselves. I do not read the PPG as suggesting that a local planning authority must take some other action, e.g. an injunction under s.187B TCPA or a prosecution, before they decided to take direct action. If the PPG had said this it would not accord with the TCPA itself which requires no hierarchy or priority of further enforcement steps. There is plainly no legal obligation to seek an injunction before direct action is taken. Equally, there is no requirement to take criminal proceedings first, and Mr Westaway’s suggestion that criminal proceedings are a less draconian measure than direct action is a surprising one. Criminal proceedings in the enforcement context can only be a way of persuading the landowner to comply with the notice, not an alternative to doing so. Therefore it may well be more effective for the local planning authority to proceed to direct action rather than take criminal proceedings.

The Defendant did consider the alternative of the Claimants complying with the enforcement notice and therefore direct action being unnecessary but as set out above they failed to commit to carrying out that work. They also referred to possible prosecution in the report of 2 November. I do not think the Council erred in law in not taking any other steps before proceeding with direct action.

For these reasons I dismiss the claim.