Enforcement Notice served after 10 years - Public forum - Planning Advisory Service (PAS)

s.171B sets out the time limits for enforcement action. The following might be seen as exceptions: 1 Where the use has materially intensified during the period - so something that may have been ancillary at the relevant 10 year date, may at some point since, have become a primary use(i.e a MCOU has occurred within the 10 year period). Not relevant if it were a primary use at the 10 year date and has since intensified to an even bigger primary use. 2 (Maybe) where there has been a deliberate concealment - see the Beasley and Welwyn Hatfield case (the barn that was a house) where the supreme court made a judgment. The Localism Act has something to say about concealed breaches too, but the relevant provision is yet to be commenced. Dean

The burden of proof is on the appellant. Even if a use was commenced over 10 years before enforcement, there may have been a period of interruption to the breach that enables enforcement to take place. BUT, an LPA relying on this argument, or the ones referred to above by Dean, would need to have strong grounds for believing that they could prove that the 10 year period had not made enforcement impossible. A ground (d) appeal will normally mean an inquiry, which can be expensive. If the LPA can be shown to have acted despite being in posession of evidence indicating that a ground (d) appeal would be successful then they would be likely to get costs awarded against them. Ah, the joys of assessing the expediency of proceeding!

Gentlemen - thank you for your replies. There has been no intensification of activity; the use in question has remained the same for over 10 years. The LPA was aware of this prior to the issue of an EN. In fact the EN was issued whilst a second application for a LDC was being prepared, the first application having been refused. The LPA advised at the time they would hold the EN in abeyance until determination of the new LDC application. The LDC was then refused because the LPA said there was a valid EN in force. The time to appeal against the EN expired whilst the new LDC application was being prepared. Discussions with both the LPA and the Planning Inspectorate determined that a new application for LDC was the best route, with the PI stating that they preferred that an appellant should work with the LPA to try to determine a solution before going to appeal. My view is that an application for LDC was not necessary even though the LPA said that it must be applied for. The use is established and enforcement action is not permitted after the ten years since the use commenced, and so the use is immune from enforcement action. I hold that the EN cannot be enforced, and therefore the best action for the applicant is to do nothing but to continue his enjoyment of the property as he has done for the last 10+ years. An EN on paper exists, but it has no value in law. It is null. The LPA, however, appears to intend to uphold it's position. The LPA have stated in the past that they could not withdraw the EN. Most especially it is better for the property owner/user not to have a LDC as this can be employed by the LPA to limit the use on the property. It is not compulsory or a requirement in law to apply for a LDC. I believe it is possible that the LPA may have misrepresented the law in this instance. I would very much welcome your further views and observations. Many thanks. JJ

Apologies for not mentioning in the reply just posted - There is substantial evidence to prove the use for 10+ years with sworn statements from both the applicant and several others, plus dated photographic evidence. JJ

Jeremy. If I'm undestanding this the background is that (a) a first LDC was refused and not appealed, that (b) an enforcement notice was served but not appealed and that (c) a second LDC was refused. What I'm not sure about is why PINS are now involved? I also don't see how you can argue that the EN has no value in law. It was served, was not appealed against and has now come into effect. Unless the Council withdraw it, which they can do at any time, if its requirements are not complied with an offence is being committed. So far as I can see, the only way forward has to be a futher LDC application with the "substantial evidence" being submitted. If the Council are persuaded this time that the use is lawful they can withdraw the EN and issue the LDC. Hindsight is a wonderful thing ... but in this instance the EN should have been appealed against. Even if the appeal was then held in abeyance pending a further LDC submission, at least it would not have come into force. That fact that it is now in force prevents the issuing of an LDC.

The EN was served outside the 10 year limit. The Act specifically states that enforcement action may not be taken aoutside this limit, therefore the EN has no value in law. How can a notice served contrary to the stated limits of validity and enforceability be valid? The EN therefore has no value in law - that is my view. Please explain how it is valid and how it can be in force. PINS? I am not acquainted with your abbreviation. Are you refering to Planning Inspectorate? The LPA were aware of the actvity on the land for 10+ years as a result of a number of discussions prior to the application of the first LDC, and so prior to the issue of the EN. We were encouraged and convinced by the LPA that we should apply for a new LDC and were told that the EN would be held in abeyance whilst that application was made. We Were very much encouraged to take the new LDC route on the basis that this would be working with the LPA in the eyes of the Planning Inspectorate. I have had to pick up on this after a mess left by a firm of solicitors. I am not a planning professional but have property expertise in other areas. We were ultimately advised by the LPA that they would normally have issued the new LDC on the basis of the evidence produced, but for the existence of the EN. The LDC was therefore refused. I asked the LPA to withdraw the EN which they said they could not, were not able to, do. Your further comments would be welcome. JJ

Jeremy. One has to assume that, contrary to your opinion, the LPA considered that the use had not become lawful at the time the EN was served ... otherwise they would not have served it! A Ground (d) appeal against the EN would have decided the issue one way or the other ... but no appeal was lodged and the EN has now come into force. If it is not withdrawn, or complied with, an offence will be committed. S173A of the Act gives the LPA the ability to vary or withdraw an enforcement notice whether or not it has come into effect. PINS is the Planning Inspectorate ... why are they involved? If as you have said the LPA are now persuaded on the basis of the evidence that the use is lawful they CAN withdraw the EN allowing a LDC to be issued. What reason have they given for saying that they cannot withdraw the EN? The LPA do have discretion when it comes to prosecuting an offence, and presumably they wouldn't if they are now convinced of the lawfulness of the use. It would be better however if the EN is withdrawn from the Register. Mike

Mike - Thank you for your reply. Can you, and anyone else, please explain how an EN can be valid if served after more than ten years have expired since the commencement of the use. As I have read and understood the legislation, an actvity or use that has been ongoing for more than ten years may not have enforcement action taken against it. Enforcement action is specifically barred after the ten years has passed. I understand the clause which says that it becomes immune from enforcement action if there is no valid EN already in force. No EN was issued at any time within the 10 year period and so there was no valid EN in force at the time that the ten year period passed. PINS are not involved. They were consulted at the time that the EN was issued but before it came into force. Our concern was the time limit for appeal against an EN whilst there is no time limit for an appeal against refusal of LDC. PINS advised that they would prefer an appellant to have taken all steps possible to reach agreement with the LPA prior to making an appeal and that a new application for a LDC was therefore best. It was at this time that the LPA were asked to hold the EN in abeyance until determination of the new LDC application and they agreed. Just prior to the date of determination of the new LDC application I was contacted by the PO and advised that he would under normal circumstances wish to approve the LDC, perhaps with one or two limitations, but the existence of the EN prevented him from doing so. The PO denied previous knowledge of the EN but I discussed thuis with him when asking for it to be held in abeyance and the actions of the enforcement officer were discussed with him in face to face meetings. I am so far left with the opinion, subject to what other writers say on this forum, and others to be heard from, that the use is established and lawful in accordance with the Act, having been in operation for more than ten years prior to the issue of the EN, and that the LPA may not take enforcement action against the applicant. If my understanding is correct, and I believe it may be worth testing, this situation is better for the applicant than having a LDC which will have restrictions placed on the certificate. Without the LDC the owner will have a greater freedom to enjoy his land. There is also the potential for him to enjoy the land to a higher capacity whilst still remaining within the legal definitions of what is on the land and the use thereof. Some may look upon this as 'creeping development', but I believe it to be good for the applicant in in his best interests. I understand that there is no legal requirement to have or apply for a LDC, but there are benefits in having one; such as when the land is sold or when passing the land on to heirs. The overriding question remains - is an EN notice served after the expiry of ten years since a use commenced a legally valid EN? JJ

I am aware than an opportunity exists to appeal against the refusal of the LDC, particularly on the grounds that the EN was not valid at the time it was issued, but I favour the 'status quo' route in doing without the LDC. JJ

Jeremy. Provided that the EN was properly authorised and served it is valid, and becuse no appeal was lodged, is in force. Council's do sometimes make mistakes with respect to immunity (and I am a former LPA Enforcement Officer) ... that is why there is a right to challenge their decison to issue the EN under Ground (d). I suppose if the Council chose to prosecute for non-compliance you could attempt to argue in Court that the EN was not valid ... although I'm not sure how far you would get given that the proper opportunity to challenge it on immunity grounds was missed. You didn't say why the Council would not withdraw it? Is it better for your client to have an LDC with limitations ... as opposed to an EN on the Planning Register?

I'm still at a loss to understand how the EN is valid. Please explain how this is - being as it was served after 10 years etc.. JJ

A particular legal point is that you cannot appeal against an instrument in law if that instrument itself is not valid. There is a previous instance with this LPA on a property nearby where an EN was declared as invalid by the inspector and I believe he stated that he could not uphold the appeal as the EN was invalid, so he simply struck it out. This particular En was declared invalid as a result of being poorly worded and therefore not clear. The activity on the nearby property was similar in part to the case that I refer to , but had no established and constant use over a period of 10+years. JJ

Jeremy. That's very true. If a notice that has been served is appealed it can be quashed on the basis that it is so badly worded that it cannot be corrected by the Inspector. That is completely different to your circumstances because no appeal was lodged. If you want to attach a copy of the EN to a post it might help?

Mike I am concerned that it might appear to others that this is a private discussion between you and me, but I thank you for your contributions so far and please do continue to reply. The law states and makes clear (and I cannot quote individual sections off the top of my head) that enforcement action may not be taken after 10 years has expired. This is an instruction, not an option. Thus any notice, whether it is a planning EN or other notice regarding an entirely different matter (oranges or rhubarb) that is issued which is prohibited in law is plainly invalid. So how is it that an EN issued after 10+ years has expired can be deemed to be a) legal, and b) legally served? Let us say a police officer issues me with a ticket for a road traffic offence that was repealed several years ago. The fact that he has issued the ticket does not make it legal and legally served. Similarly, I may have a bundle of white fivers. They say £5 on their face, but they have no legal worth whatsoever. As it happens they are of interest to note collectors and have a value in that sense. I hold that the service of a notice served out of time does not make that notice legal and enforceable. Also in my view an appeal against such a notice is irrelevant because in law the appellant is appealing against null. Am I missing something? Have I got something wrong? Have I misinterpreted the clear wording of the Act? Or am I simply stupid? It remains an option to appeal against the refusal of LDC on the grounds that the EN was and is invalid as it was served out of time. Or leave things as they are and wait for the LPA to take further enforcement action. I shall also write to the EO in question (as I understand this is now being handed back from planning to enforcement) requesting that the EN is cancelled/withdrawn and struck form the regsister. I'm sorry. I have said I cannot quote individual sections off the top of my head, and I'm in a bit of a rush right now (see typos), but what is a section D / ground D appeal. Have I already covered it? I'll have to take some time to re-read the legislation and note individual sections. As regards my request for the withdrawal of the EN, the PO said they couldn't do that - they were unable to do that. I feel that though there is over 10 years continuous use, and that can be proved, the LPA just don't want it there! I would finally add that I was initially recruited simply to put together the application - the paperwork. The applican't solicitor was sorting out the witness statements, and should have advised the applicant more fully. The statements had a myriad of mistakes and i put together a series of corrective documents, but finally I advised the applicant to stop ans start all over again with a fresh application. The appricant preferred to continue as was and this contributed to the failure and refusal of the first LDC. The applicant then asked me to sort out the appeal, which after the advice I have previously outlined, we asked to be held in abeyance in favour of a fresh application for a LDC. When is was made clear that the LDC would be refused because of the existence of the EN, I carried out my own investigation of the law and procedures. As stated previously, I am a retired professional with a good deal of property experience, but no specialistation in planning law. Looking back on my previous experience and knowledge, I cannot see how the EN can be enforced in a court of law. JJ

Hi Jeremy, It would appear you are quite right in your assertion that an enforcement notice can not be taken out once the ten year time limit has been exceeded. Unfortunately, if the LPA still wish to pursue their claims, then it is off to jolly old court we must go. Whether that can still be done via PINS and a regular enforcement appeal I don't know without precise details. I suspect with the info provided that may not be possible. My own perspective is that if an LPA does something beyond the realms of statute, you would be entitled to take them to criminal court under either some kind of harrassment charge or maybe under the Human Rights Act - ARTICLE 8 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. We often forget that there is law outside of planning law whcih can be useful sometimes.

Dear Jeremy, I have been following this through a link that send me stuff called Feed My Inbox. You obviously have a case here but the difficulty is going to come as to where your case is heard. You have missed the opportunity to appeal and you are now in danger of your client going to court for failing to comply with an enforcement notice. I that forum you will argue that the notice was invalid from the beginning and therefore there can be no offence of failing to comply with it. You will need a planning barrister to make this case effectively and, if you lose, your client has a criminal conviction. I would suggest a meeting with you and your client, preferably supported by a lawyer skilled in planning law, and the LPA enforcement officer and lawyer to explain all the circumstances and try and sort the matter out. At present you appear to be embarking on a high risk strategy. Yours Les

Yes, this is a very high risk strategy for all concerned You can't just ignore what is a legal process and believe the problem will go away, ignorance of the law is no defence. First thing to do now is ask someone to mediate, emotions and predilections make for a horrid brew, I should know form my experience of dealing with the Snowdonia National Park Authority's planners and one or two of the members. If you have got under the skin of the planners you need someone independent to take a look at the whole thing, if you can afford the best professional representation (subjective) then get it sorted now, if not then you need to find someone who will do the research and talk to them like the humans beings that they are, well some of them that is.

Leslie - Thank you for your submission. Please explain how the strategy may be a risky route. Please explain how action which is prohibited by law (in this case enforcement action) can suddenly become lawful simply by the issue of a document (an EN). Enforcement action is prohibited after the time limit of 10 years. This is not a matter for interpretation - it is clearly stated in the law. It is difficult to see how a planning lawyer or a specialist planning barrister would differ with this view as the legislation is not open to interpretation. But please, have I missed something? Is there a modification to this tucked away in some later legislation? Has this been repealed or updated somehow? We are planning to discuss the matter further with the EO, but first I have to request that the EN is withdrawn and struck from the register on the basis that it was served outside the specified time limit. I think perhaps one of the problems that LPAs have is that they have a suite of legislation available to them to play with and they blithely issue demands without carefully considering and fully understanding what the legislation actually says, and do not consider the possible consequences; both to the individual and to the LPA. Imagine that I am your superior officer, and I require you to take enforcement action against a landowner who has been using his land in breach for over 10 years. Would you be comfortable? It just so happens that you also have some knowledge of this land having had discussions with the landowner regarding planning permission and have actually visited the land. Also during discussions regarding applying for a LDC it has been stressed to you again that the use has been ongoing for more than 10 years. Would you be comfortable? So would you be comfortable to go ahead with enforcement action? Would you 'try it on'? Opinions also from all please. JJ

Dodger, Thank you for your thoughts. Myself and the applicant have briefly discussed legal action against the LPA and possibly individual officers. A complaint to the chief executive may be first in the course of action. First we feel that we should discuss the matter with the LPA and see how we go. I also had wondered about human rights issues, so thank you for pointing out those considerations. All thoughts welcome from all subscribers. JJ

Evan - Thank you. Interestingly, I have this morning being considering that this could be handed over to a firm of solicitors with a specialist planning department. Is it better perhaps to discuss the matter with the LPA and ask then to withdraw the EN and strike it from the regsiter? Also the opportunity to appeal against the refusal of LDC on the grounds that the EN was served out of time? I was thinking we do the above first before bringing in the solicitor. But commence discussions with the solicitor so we are ready if all fails. JJ

This discussion raises a complex area of planning law on matters which are well rehearsed by the courts. I would urge you do seek professional planning law advice on it immediately, which may include an exploration of the possible means of retrieving the error (more on that below). It is not possible to rely upon matters of evidence retrospectively in the manner described, and subject to what I say below the notice is legally valid and can be enforced at any time. Indeed, as others have pointed out, the client ought to be advised that failure to comply with the terms of the notice now risks criminal prosecution. You appear to dispute the validity of the notice by raising matters of factual evidence, which are normally decided on appeal. Unfortunately there are only very limited legal circumstances in which the notice could be treated as a nullity, or “void”. The ability to raise nullity as a defence to prosecution is also extremely restricted. On the facts, and whatever previous representations were made by the authority and PINS, it would be a mistake not to proceed by way of statutory appeal (section 174) when confronted by such circumstances. You say that the authority were “aware” of the facts and might have accepted the evidence - the only possible glimmer of hope is the residual right of challenge on application for judicial review if it can be shown that issuing the notice was simply inexpedient, for example if it fails the test of Wednesbury reasonableness. However, in any event, absent an issue based upon the EIA Directive such application would need to be made ‘promptly’ and within 3 months. An extension of time for issuing a JR might still be a possibility, depending on the facts. The Ombudsman could provide some light relief if it can be shown that the advice you received was simply bad, however there is nothing else in law which can be done to prevent the authority from enforcing the terms of the notice in order to correct the planning breach. Again, depending on the facts you might be able to demonstrate how a prosecution would not be in the public interest. However, any attempt made now to sort this out via an LDC application or appeal would in my view represent an unlawful collateral challenge to the notice, and therefore doomed to failure. I can be contacted privately if you wish to enlist help with this matter.

Jeremy, Further to the sage advice above, it is worth reading s.285 of the Act which says (in part): "The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought". Ie. If an appeal is not made, the EN cannot afterwards be challenged on any of the grounds upon which such an appeal could have been made. Which includes ground (d)-- that it was too late to take enforcement action at the time the notice was served.

Thank you. I note your comments. So what appears to be the case is that an action that is prohibited in law can be carried out and in so doing be considered to be within the law simply by the act of carrying out that action. With the law stating that enforcement action may not be taken after 10 years, the carrying out of enforcement action is unlawful. Thus the issuing of an EN after 10 years is unlawful within the act before any other consideration, appeal or whatever or s289. Thus the EN is not an EN; it is not an entity, it is a nothing. Is it possible to challenge something that is prohibited by law in the first place? Making an appeal against an EN issued out of time takes the assumption that that EN is already valid even though the service of it is prohibited and therefore cancelled by the law. Do we not look at what is the intention of the law? In stating that enforcement action may not be taken after 10 years the intention is clear that enforcement action is prohibited. I would say that the s285 validity argument is clearly intended to concentrate any arguments on the content and wording of an EN which rightly so should be argued in an appeal environment. Perhaps 'valid' and 'validity' are not the appropriate words to use in the case of an EN served after 10 years, as an EN served after 10 years may not in law be served or executed and so an EN served after 10 years is not in fact an EN. I believe the above is a reasonable argument. Your thoughts? My duty here is to the applicant. I made initial enquiries with a solicitor over the Christmas period, and following a further enquiry today am awaiting developments. Subject to the agreement of the applicant, the full set of papers may soon be handed over to a specialist planning solicitor. In the meantime, I have written to the LPA in the hope that some understanding may be achieved. I continue to welcome your observations. JJ

Jeremy. I hate to be blunt but (and notwithstanding all of the advice that has been givcen by myself and others) ... you are still missing the point. Provided that the LPA believe that there has been a breach of planning control, and that they also believe that it has not become immune by virtue of the passage of time, they may (provided that it is considered to be expedient) serve an Enforcement Notice. If the notice is properly authorised and served then it is valid in law. If the person that the EN has been served upon however disagrees with the LPA ... then they have the right to lodge an appeal and argue the case. Because this was not done at the appropriate time however the EN cannot now be challenged ... and not complying with it's requirements is a criminal offence. Moving things on, provided that you can now adduce sufficient evidence to persuade the LPA that use is lawful (and immune from enforcement action) you should be able to get the EN withdrawn so that a further LDC can be submitted and approved. I can be also contacted privately if you wish to enlist my formal help with respect to this matter! Mike

Thank you Mike - I have indeed taken on board the point in question. But I do feel that perhaps others are not taking on board the point in law that I am trying to emphasise and examine. So just because the LPA think that the breach is within 10 years they may issue notices willy nilly? That does not seem to be the intent behind the law as far as I can see. Please point me to where I can see that for myself. It did appear to me that, as it is emcbument upon the applicant to show 10+ years use, it is also encumbent on the LPA to determine that the use has been for less than 10 years prior to issuing the EN. Isn't that in the RTPI guidance notes somewhere? I can accept that from time to time the law does some amazing things. I can also accept that I am wrong from time to time - maybe even more often than that! But what I find surprising is the fact that we seem to have professionals who are happy to accept a truly strange anomaly and not want to question it but simply accept it as it is. So the situation is that the law says that something is prohibited in law and therefore unlawful, but if you go ahead and do it anyway and there is no challenge submitted within a definitively prescribed fashion then that is fine and tickety-boo! Do you not think that is something worth trying to sort out, objecting to, shouting about, perhaps even taking a test case? Does anyone think anymore? JJ

Section 172(1) of the 1990 Act makes it clear ... it states that the local planning authority MAY issue a notice (in this Act referred to as an “enforcement notice”) where it APPEARS TO THEM that (a) that there has been a breach of planning control, and (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. Having worked as both an Enforcement Officer and a Consultant I see no anomoly because Section 174 peovides the necessary counter to this provision, i.e. a person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. An appeal may be brought on any of 7 defined grounds including ground (d) ... which is 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 (i.e. it had become lawful by virtue of the passage of time). Mike

Hello Jeremy, I don't think it's so much a case as no one thinking anymore but one of where life is dictated by the rules in a book and implemented by those who are generally trying to cover their own agenda of liability. At best, it is to make issues go away and if there is no success with that, try and pass it off for some one else to have to deal with the predicament and take any subsequent fall out. Such is society today. However, I do equally feel, there are those out there who will fight against such injustices where they arise. Invariably this means tackling problems, such as the incidence you have highlighted, in a original manner and using where one can find it, alternative legislation and procedures. Hence why I mentioned the Human Rights which is full of such legislation to protect the ordinary man on the street from most such injustices. Others here who are much practised in planning law and regulation will view each case under the normal known procedure. The team for the defence will also play on the same lines for as some one noted above, it all comes to 'well rehearsed matters'. So yes, I feel you are right to take a stance and look at this annomally from a fresh perspective. But I would still listen to voices of experience as well before making a new path. Examining the case of O.J. Simpson and the manner in which it proceeded is very enlightening (not the matter of the particular crime) as that demonstrates how badly written and enforced legislation can be levelled (whether O.J.S. was guilty or not). I can not be contacted privately sadly and my charges aren't considered impressive enough :)

Geltelemen and Ladies, My head is about to burst. It is in fact a Cert of Lawful Use (CLEUD) that we applied for. Is there anything different regarding a CLEUD as compared to a LDC? Thank you. JJ

Please ignore my post above. A sudden case of brain failure I feel. Apologies. JJ

Strange. I have come across a reference to "Change an existing use certificate to a Lawful Development Certificate". Perhaps that is what caused my confusion. JJ

A recent High court case has re-considered the legal position in a similar case to this one: R (Altunkaynak) v Northamptonshire Magistrates' Court and another [2012] EWHC 174 (Admin). The judgment spells out that even in a case where there were cast-iron grounds of appeal against the enforcement notice, there was no defence to a subsequent prosecution action if in fact the notice was not appealed and there was no understandable reason for the defendant having failed to do so. There was no ‘understandable’ reason in a case where the defendant had relied upon the advice of his architect in deciding to submit a lawful development certificate application rather than appeal the notice.

Ben, Thank you for drawing our attention to this very interesting case. I do have a client in a similar position who took the advice of the LPA that it would be sorted out and therefore did not seek professional advice and appeal. I also know of a case where a LPA sought and gained an injunction against unauthorised development but did nothing to seek compliance with the injunction for a significant time. They then received advice from Counsel that the Court would be unlikely to enforce the injunction, which still sits on the development.

Thank you for posting those comments. Most interesting. The LPA failed in its duty of care to advise the applicant correctly re the EN and new application for LDC. The development had become lawful a year previous to the EN. The EO had previous knowledge of the site and the activity on the site having spoken to the applicant on several occassions re planning permission.The applicant was guided by the LPA and PINS to make a new application for LDC on the basis that it was better to work with the LPA and come to an agreement with the LPA rather than appeal the EN. The LPA did not indicate at any time that the time limit on the EN could be extended or that the EN could be withdrawn. A request had been made earlier for the EN to be "stopped or held in abeyance". At the time of refusal of the LDC a request was made to wthdraw the EN and the LPA said the LPA did not have the pwoer to withdraw the EN. I cannot comment further at this juncture as we are hoping to discuss the matter with the LPA,. Any further comments will be read with interest. JJ

Leslie - it would be interesting to hear how your case pans out. In theory there might be a greater prospect of success if the client did not seek professional advice of his own, at least when arguing this before the Magistrates, rather than the High court. I assume that these issues are likely to be played out in the course of prosecution proceedings? JJ - Have you appealed the refusal of the LDC refusal?

Have not appealed the refusal as yet. Time limit - 6 months or no time limit? A contributor above thought an appeal might be an "...unlawful collateral challenge.." Awaiting further developments concerning a recent strategy. JJ

Jeremy Your initial post seemed so straightforward! Coming back to the thread a few weeks later it just goes to show how much can lie beneath the surface.In a sense, that underlies the problem you have had with some of the advice given. The LPA has issued a notice. It is entitled to if it believes a breach of planning control has taken place and that they are able to proceed, which they presumably did, having refused the first CLEUD. They may well be wrong on either or both counts, but that needs to be demonstrated on appeal. You state that "The LPA failed in its duty of care to advise the applicant correctly re the EN and new application for LDC". An enforcement notice needs to contain information about how it can be contested i.e. details of the appeal procedure. A demonstrable failure to include this may make prosecution difficult and/or form the basis for a complaint, which could end up with the ombudsman, of maladministration resulting in a material loss. If however the notice contained this information then the responsibility to follow the appeal process lies with your client. You say that you find it incomprehensible how the enforcement notice can be valid when it was served too late, but unless that claim is tested on appeal that remains only your view. I have been involved in cases where evidence relating to the passage of time has been put before a public inquiry on oath or by statutory declaration but has then been shown to be false. The appeal process exists so that claims such as those you make on behalf of your client can be tested and independently adjudicated. Once you haven't appealed then, as Scott pointed out above, s285 doesn't really give you anywhere else to go. The case Ben quoted makes clear that the courts will not uphold assertions, however well supported, in the absence of the prescribed procedures having been followed. I think you've now reached the point of having gone beyond the issue of the notice itself - what is now relevant is your client's failure to comply with it. If they don't do so then they comit an offence. A further CLEUD would appear to be precluded as the period prior to the application would contain a period subject to a live enforcement notice, which can't count towards the required period. All you seem to have left open to you is a planning application. If the LPA felt it expedient to issue the Enforcement Notice then they are perhaps unlikely to approve an application, but it looks like that's the only route left open to your client.

... or request that the LPA withdraw the Notice (which they can do), thus opening the door to a further CLEUD.

Time limit for appeal against LDC refusal - 6 months or no time limit? JJ

There is no time limit for the appeal against a refusal of an LDC.

As Les rightly says, there is no time limit with respect to an appeal against the refusal of an LDC. Whilst an appeal against the 2nd LDC refusal couldn't be entertained (becuse of the fact that an EN is in place) ... I wonder if PINS would accept at this late stage an appeal against the refusal of the 1st? If that were successful then the EN would become 'otiose'. Just a thought!

An interesting thought Mr Hyde. Is it quite definitive that an appeal against the 2nd LDC refusal could not be permitted? I had seen a reference to time limit of 6 months for appeal against LDC refusal having understood there to be no time limit - can this be confirmed please. Thanks gentlemen. JJ

http://www.planningportal.gov.uk/planning/appeals/guidance/timelimits details the time limits for submitting various types of appeal. LDC appeals have no time limit. As this is from the planning inspectorate, I would go with that.

Gentlemen -

Initial analysis would suggest that there has been a sudden 'dump' of emails notifying me of new submissions to this thread, when in fact it appears to be a dump of all that was said up to 03.2012 or thereabouts - excepting my contributions. Why this shoud be happening just now when we are progressing quite pleasantly with the LPA cannot be guessed. Has someone hijacked the thread? Or could it be simply a computer 'burp'?

JJ