Research and guidance
Boundaries and adverse possession
Adverse possession
Adverse possession and Pye v Graham
Land Registration Act 2002
Consent
Acknowledgement of title
Estoppel
Human rights
Miscellaneous
Criminal offence
Boundary agreements
Deeds, plans and boundary features
Experts
Party walls
Presumptions
T-marks
Trees and hedges
Business lease renewal
Does the Act apply?
Contracting out
Surrender
Section 25 notices
Counternotice
Section 26 requests
Ground (b)
Ground (c)
Ground (f)
Ground (g)
Rent
New lease terms
Easements on renewal
Compensation
Procedure
Insolvency of landlord
Registration of claim
Reform of Part II
Commonhold
Co-ownership and estoppel
Co-ownership disputes - Stack v Dowden
Proprietary estoppel
Yeomans Row v Cobbe
Yeomans and s2 of 1989 Act
Assurance and reliance - Thorner
Laches and estoppel
Satisfying the equity
Equitable accounting
Pallant v Morgan
Partnership
Trusts of Land etc Act 1996
Easements
Abandonment
Construing rights of way
Extinguisment
Gardens
Extent of grant
Illegality
Implied and s62
Increasing the burden
Parking
Prescription
Profits a prendre
Repair to right of way
Registration of easements
Right to light
Excluding the right
Injunction?
Damages
Substantial interference
Landlord and tenant (general)
Assignment
Break clauses
Notices
Material compliance and breaches
Miscellaneous
Consents
Tenant's request
Landlord's response
Reasonable refusal
Conditions
Alterations
Underletting
Construction of lease terms
Discrimination
Disclaimer
Disrepair
Breach
Schedules and notices
Damages and s18 cap
Distress
Estoppel
Forfeiture
Rent claims
Other cases
Section 146 notices
Waiver
Registration gap
Court procedure
Relief
Law reform
Goods left on the premises
Indemnity
Insolvency
L & T (Covenants) Act 1995
Licences
Management regulations
Merger
Nuisance
Notices - service
Pre-emption clause
Rent
Rent review
Construction
Presumption of reality
Time of essence
Rent review notices
Arbitration
Rent suspension
Restraint of trade
Service charges and insurance (general)
Set-off
Subletting, sharing possession or occupation
Surrender by operation of law
Surrender and re-grant
Tenancy at will
Uncertain term
Unlawful eviction
Long leases
Acquisition orders
Enfranchisement
House?
Forms
Qualifications
Notices
Miscellaneous
Enfranchisement proceedings
Terms of the transfer
Valuation (Sportelli)
Valuation (other points)
Forfeiture restrictions
Ground rent
Management
Right to manage
Manager under 1987 Act
Part 1 of the 1954 Act
Right of first refusal
Developers beware
Service and administration charges and insurance
Construction of the lease
Statutory control - reasonableness
Service charge demands
Administration charges
Summary of leaseholder's rights
Insurance
Managing agents
Reserve funds
The 18-month rule
Consultation of tenants
Compromise of service charge dispute
Legal costs
Variation of lease terms
Mortgages
Bank all monies charge
Charging orders
Civil Recovery Order
Consumer Credit Act 1974
Consumer Credit Act 2006
Clog on the equity of redemeption
Facility agreement
Forgery
Interest
Limitation and shortfall
Marshalling
Misrepresentation and affirmation
Money claim
Mortgage indemnity policies
Enforcement
Mortgage possession
Costs
Mortgage arrears protocol
Time to sell
Miscellaneous
Tenants of mortgagees
Enforcement
Priorities
Proving the loan
Regulation
Sale
Effect of sale on possession
Duties on sale
Orders for sale
Sale and leaseback
Solicitor's negligence
Subrogation
Terms
Undue influence
Unfair contract terms
Nuisance and trespass
Abating the nuisance
Damages - account of profits
Damages - human rights
Defects in neighbouring property
Defences
Fire
Noise
Self-help
Trees
Trespass
Water
Planning
Appeals procedure
Change of use
Compensation
Compulsory purchase
Conditions
Development
Development plans
Environmental
Enforcement
Enforcement notices
Deceit
Deemed permission
Estoppel
User for 4 or 10 years
Stop notices
Children
General permitted development
Human rights
Judicial review
Lawful development certificates
Material considerations
Neighbourhood planning
Permission
Policy consultation
National policy
Property litigation and ADR
Automatic stay
Business leases
Compromise
Costs
Damages in lieu of injunction
Declaration
Expert evidence
Harassment by proceedings
Land Registry Adjudicator
Upper Tribunal (Lands Chamber)
LVT's and Residential Property Tribunal
Mediation
Party wall awards
Possession claims
Protection from Eviction Act
Trespassers
Bankruptcy
Disability discrimination defences
Human Rights Act defences
Weaver
Procedure
Orders for possession
Costs
Warrants
Suspending warrants
Setting aside
Tomlin orders
Unilateral notices
Property transactions
Commercial lease code
Contaminated land
Contract
Deeds
Deposits
EPCs in Commercial Properties
Execution
Failure to complete
Guarantees and indemnities
Land registration
Local government
Misrepresentation and answers to enquiries
Money laundering
Notice to complete
Options
Overage
Planning obligations
Perpetuities
Positive covenants
Rectification
Rent charges
Searches and enquiries
Solicitors
Title
Undertakings
Unjust enrichment
Vendor's lien
Writing - s2 of 1989 Act
Public access to land
Commons
Right to roam
Town and village greens
The main cases
Cancellation of registration
Inhabitants of locality
User as of right
Residential tenancies
Anti-social behaviour
Asbo or injunction
Family Intervention Tenancies
Injunctions under 1996 Act
Possession orders
Committal
Assured tenancies
Assured shortholds
Section 20 Notices
Section 21 Notices
Boats
Housing disrepair claims
Liability
Damages for disrepair
Costs in disrepair cases
Homeless persons
Human rights
Introductory tenancies
Licences - Bruton Tenancies
Mobile homes and caravans
Neighbouring Noises
Proceeds of crime
Reform
Rent Act 1977
Rent books
Right to buy
Secure tenancies
Tenant's notice to quit
Tolerated trespassers
Unfair contract terms
Unlawful eviction
Restrictive covenants
Benefit of covenants
Burden
Competition
Consent to development
Enforcing covenants
Interpretation
Modification and discharge
Variation under s610 of 1985 Act
Monthly Update
Boundaries and adverse possession.
Business lease renewal.
Co-ownership and estoppel.
Easements.
Landlord and tenant (general).
Long leases.
Mortgages.
Nuisance and trespass.
Planning.
Property litigation and ADR.
Property transactions.
Public access to land.
Residential tenancies.
Restrictive covenants.
Free summaries
Property Mediation
Property Mediators
Alan Langleben
Beverly-Ann Rogers
David Blackburn
David Small
Gary Webber
Jacky Lewis
Jacqui Joyce
Jeremy Manuel
Jonathan Arkush
John de Waal
Louisa Weinstein
Marc Beaumont
Mark Hacking
Mark Summerfield
Martin Banham-Hall
Martyn Liberson
Paul Randolph
Simon Williams
Stephen Shaw
Stephanie Tozer
Timothy Russ
Tactics and strategy at mediation
Training
Conferences and courses
In-house courses
Advocacy
Boundaries and rights of way
Business lease renewals
Commercial Leases
Co-ownership
Drafting
Covenants
Dilapidation claims
Easements
Housing disrepair.
Insolvency
Managing Leases
Misrepresentation and answers to enquiries
Mixed Use Properties
Mortgages
Overage
Remedies in property disputes
Residential leases
Restrictive covenants
Sale Contracts
Section 2 of the 1989 Act
Twenty Topical Traps
Unreasonable refusal to consent
Information
Contact
Barristers
Solicitors
Experts
Books
Boundaries and party walls.
Commonhold.
Commercial leases.
Commons and village greens.
Conveyancing and property development.
Disrepair.
Easements.
Environment.
Farms
Housing
Long leases.
Mediation.
Mortgage.
Nuisance.
Residential tenancies.
Restrictive covenants.
Service charges.
SDLT and VAT
Links
Cases and articles
Civil procedure
Contaminated land
Housing forms
Land Registration
Law reform
Neighbour and boundary disputes
Organisations
Professional associations
Publishers on-line
Residential landlord and tenant
Scotland
Statutes and SI's
Join HERE
Members Login
Download update
My Details
My Invoices
My Subscriptions
Instructions
Home Page
>
Research and guidance
>
Planning
>
Enforcement
>
Enforcement notices
Home Page
Contact
Editorial Team
Section Contents
Enforcement notices
Deceit
Deemed permission
Estoppel
User for 4 or 10 years
Stop notices
Children
Print Version
Current page
Enforcement notices
This page deals with two matters relating to enforcement notices; the question of what matters should be considered by the inspector after a successful challenge in the court to an appeal decision; and a point on lawful use certificates.
Appeal
Re-hearing on appeal - limitation of matters to be considered
R (On the application of Perrett) v Secretary of State for Communities and Local Government
[2009] EWCA Civ 1365
Summary
This case demonstrates that when a successful challenge is made under s289 to an appeal decision in respect of an enforcement notice, and the matter is remitted for re-hearing and determination, the re-hearing can be limited to issues necessary to comply with the opinion of the court.
Facts
Mr Perrett had succeeded in a challenge under s289 of the Town and Country Planning Act 1990 against a decision of an inspector appointed by the Secretary of State dismissing his appeal against the issue of enforcement notices in respect of the change of use of outbuildings at his farm.
The appeal had been made pursuant to grounds (a) and (d) of s174 (2) of the 1990 Act. The Secretary of State had consented to judgment on the single ground that the inspector had dealt with ground (a) unlawfully and therefore the appeals were remitted to an inspector for reconsideration.
Following various arguments being raised regarding the scope of the re-hearing the inspector appointed to redetermine the appeal decided that it was appropriate only to reconsider the appeal in respect of ground (a) – on the basis that the flaw in the earlier decision making had only been in respect of that ground. Although he acknowledged that the decision had to be taken “de novo” he considered that there was no need to reopen unchallenged grounds and so limited the scope of the inquiry to a rehearing of the appeal on ground (a). The claimant brought judicial review proceedings contending that it was necessary for the inspector to hold a full re-hearing on all the issues.
The High Court held that it was not in the public interest to permit unchallenged findings to be reopened because of an error of law in relation to a discrete aspect of the decision-making. Mr Perrett appealed.
Decision
The Court of Appeal upheld the High Court’s decision on essentially the same reasoning holding that there was a distinction between a decision that was set aside and one that was remitted. Enforcement appeals result in remittal of the decision and not a quashing and hence it was open to the inspector to undertake a rehearing that was sufficient to remedy the error identified by the court.
The Court of Appeal explained and applied the decision in
Newbury DC v Secretary of State for the Environment
(1988) 55 P & CR 100 QBD which held that there was no inflexible rule as to how the matter had to be reheard. The Secretary of State was not restricted as a matter of law to correcting the error identified by the court, nor required as a matter of law to consider the case afresh. It was a matter for the Secretary of State’s discretion. Richards LJ at para 31:
"When a matter is remitted to the Secretary of State under section 289, there is no obligation on the Secretary of State to consider the whole of the enforcement notice appeal de novo. The inspector's decision to exclude ground (d) from the scope of the inquiry cannot therefore be successfully impugned on the ground of inconsistency with such an obligation."
Comment
The previous challenge before the High Court against the original inspector’s decision had succeeded following the consent to judgment by the Secretary of State on ground (a). The Secretary of State had not consented on ground (d) and hence the inspector was able to contend that this matter did not require rehearing. This decision as upheld by the Court of Appeal will sound a note of caution to appellants challenging enforcement decisions under s289 of the 1990 Act to consider carefully the terms of any consent order offered by the Secretary of State to ensure that it will not subsequently limit the rehearing of the appeal.
Lawful use certificates
Staffordshire County Council v Challinor
[2007] EWCA Civ 864.
The Court of Appeal held that an enforcement notice which had become effective after an unsuccessful appeal, or the time for appealing had expired, superseded lawful use rights even if they were the subject of a certificate of lawful use. The judge in the High Court had erred in law in deciding that the prohibition in s.285(1) of the Town and Country Planning Act 1990 on challenging an enforcement notice other than through the appeal provisions in s174 of the 1990 Act did not override the conclusive nature of the certificate of lawful use, and that activities within the scope of the certificate were not in breach of the enforcement notice. The certificate did not establish that the use had continued up to the date of the enforcement notice subsequently issued and if the certificate was not relied on as a ground of appeal against the enforcement notice, the latter superseded it.
The Court of Appeal stated that it was an oversimplification and a misinterpretation of the authorities to contend that an enforcement notice could not take away lawful use rights. Therefore, while an enforcement notice would be interpreted so as not to interfere with permitted development rights or with rights to use land for a purpose ancillary to a principal use which was itself not being enforced against, there was no general right to assert existing use rights at a time when the enforcement notice had come into effect after an unsuccessful appeal or in the absence of an appeal. It did not make any difference that existing rights had been the subject of a certificate, which only certified that the use was lawful at a particular point in time. The Court considered that a certified use could be abandoned and the decision in
M&M (Land) Ltd v Secretary of State for Communities and Local Government
[2007] EWHC 489 (Admin) was approved.
Back to top
If you have found this page useful, you may be interested in the following:
Options
Free Summaries
£nil
Full Membership
From £207 + VAT (1 year)