Since 1981 Council's have been required to maintain an enforcement and stop notice register. The register is expected to record the 'validity' of all activities related to any enforcement action undertaken by a Council. The register was created following disquiet about Council's prosecuting notices through the Courts that were identified as not being issued and served. The government identified when the requirement was introduced that the register was to be used in relation to legal and conveyancing issues related to enforcement. The conveyancing issue would relate to the fact that an enforcement notice could only be registered as a Local Land Charge if it was identified as being both issued and served by a Council in its register. Similarly a notice should only be enforceable through either a direct action or a prosecution through the Courts if it is identified in the register as not having been issued or served.
Effectively, a notice identified as not being issued or served by a Council is a nullity.. and the register or any notice claimed by a Council would identify when a Council first identified that there had been a breach of planning control. There is a system of dual jurisdiction for appeals and enforcement.
s179 Town and Country Planning Act ('TCPA') enables a Council to prosecute a notice that has not been issued or served through the Court whilst s178 TCPA enables a Council to take a direct action. s285 TCPA identifies that the validity of an enforcement notice can only be questioned through an appeal under Part VII TCPA. Part VII TCPA includes provisions for appeal to the Secretary of State against an enforcement notice and also a right of appeal against refusal or non-determination of a Certificate of Lawfulness Appeal.
If a notice is identified as not having been issued or served in the register.. then the Local Planning Authority should grant a Certificate of Lawfulness ? if they should fail to do so and copies of the register were provided to the Secretary of State under an appeal under s195 the Secretary of State should grant a Certificate of Lawfulness ? The Secretary of State told the Council's as planning authorities that they must maintain the register?
If the Secretary of State was to take the view on an appeal under s195 that the register was not conclusive.. would that be maladministration by PINS (acting as the Sec of State) seeking to support maladministration by a Local Planning Authority. the injustice would be straightforward as there could well have been criminal proceedings (or direct action) by a Council on a notice different to that contained in its register ?
The Courts role appears to be limited to claims for Judicial Review on issue of a notice under s172, appeal against a prosecution under s179, and award of an injunction under s187(B) based on assurances by Council solicitors (Officers of the Court)..
The role of the Secretary of State under a s195 appears to be much wider ?
Appeal against an enforcement notice can only be through an appeal under s174 TCPA.. or through a claim for judicial review..
However, if the Council register that they neither issued or served a notice in the register the Council told the Local Planning Authority they must maintain to prove a notices validity is there actually an enforcement notice for the purpose of a s195 appeal to the Secretary of State ?
