We have a case where we served an enforcement notice on a 'brick wall and piers exceeding 1m in height' on the front boundary of a property. The notice required the wall to be reduced to 1m in height, and compliance was achieved. Subsequently, a wooden fence was erected on top of the (reduced) wall, so that the combined wall/fence was once again at the same height as previously. Obviously the notice is still in force because of s.181 of the Act. But the notice refers to a 'brick wall and piers', not the combined brick and wooden structure which we now have. My question is; can our extant notice be used to prosecute against the breach as reinstated, or do we need to issue a second notice to take into account that the development description is no longer entirely accurate? The wording of 181(3) gives me hope. It says "...the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply...". I wonder if this disclaimer is meant to simply take care of possible grammatical inconsistencies arising from the fact that it is the reinstated development in question rather than the original development. Or perhaps it is meant to go further and include situations such as this, where the development as reinstated may not exactly match the description on the notice. Can anyone advise?
