Direct Action: Natural Justice

October 12th, 2017 by James Goudie KC

A local planning authority has power to take direct action. This is pursuant to Section 178 of the Town and Country Planning Act 1990 (“the TCPA”).  That empowers the LPA to enter land and take the steps required by an enforcement notice once the period for compliance with the notice has expired.

In R (Usher) v Forest Heath DC (2017) EWHC 2511 (Admin) the LPA’s decision to take direct action was challenged, unsuccessfully.  The grounds of challenge included that the omission of the LPA to invite representations from the Claimants as to its enforcement action, or to notify them of its decision to take direct action, was an error of law and/or so unfair as to be unlawful.

The Claimants argued that the LPA was under obligations to invite representations from them in respect of the proposed direct action and to notify them of its decision to take direct action. They based their argument on the principles of natural justice (and the DC’s Constitution).  On the natural justice argument the Claimants relied on what Lord Mustill said in Doody (1994) AC 531 at 563.

On both limbs of the argument the Claimants relied 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. They argued that these consequences place a separate effect on the individual’s rights from the effect of the enforcement notice itself. They relied on direct action being a drastic power, particularly when used for the removal of residential property. They (correctly) said that direct action does not automatically flow from the enforcement notice, and a further decision has to be taken by the LPA if they intend to take direct action.

Nathalie Lieven QC, sitting as a Deputy High Court Judge, held that the Claimants’ argument failed 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 was that the Claimants had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under Section 174 of the TCPA. The Claimants had every opportunity to make representations. They made extensive representations.  They knew that the LPA intended to take direct action if the building was not removed voluntarily.

The answer to the argument on the Constitution was 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 it is not the type of decision that falls within the DC’s Constitution as being quasi-judicial. That phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision. Nor, as a preliminary view, was the decision to take direct action the determination of a civil right which falls within ECHR Article 6. The Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to the court under Section 289 of the TCPA. There was no breach of procedural fairness.

The Claimants also argued that alternatives to direct action were not properly considered, contrary to Government Guidance, the Planning Practice Guidance (“the PPG”).

The Judge observed that 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 LPA to carry out the requisite work themselves. She did not read the PPG as suggesting that a LPA must take some other action, e.g. an injunction or a prosecution, before they decide 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 was plainly no legal obligation to seek an injunction before direct action was taken. Equally, there was no requirement to take criminal proceedings first. The suggestion that criminal proceedings are a less draconian measure than direct action was 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 LPA did not err in law in not taking any other steps before proceeding with direct action.


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