AC-2024-LON-002192 - [2025] EWHC 2815 (Admin)

The argument raised pursuant to ground (e) was solely about the occupiers of the site. The appellant was duly served and there were no other persons with an interest in the Land. While the Council had served some occupiers by sending them a notice, that was not the position in respect of all occupiers. In respect of those occupiers who were not served by sending them a notice, the Council relied on the affixing of the Enforcement Notice to the entrance gates as due service on them pursuant to s.329(2) of the 1990 Act. The Inspector held that such occupiers were duly served in that manner.

The appellant contends that in order to meet the requirements of the second alternative given in s.329(2)(b)(ii) the Council was required to affix the Enforcement Notice to an object on that part of the Land which is the “premises” of the occupier. For example, MJL Contracts Ltd has rented yard space within the Land identified in their tenancy agreement as “Plot W12”. The appellant contends that MJL Contracts Ltd were not served with the Enforcement Notice because it was not affixed to an object on Plot W12. It was affixed to an object on the Land rather than “the premises” of the occupier.

The same argument was raised before the Inspector. He rejected it saying:

“I assume he is arguing the Council should have entered the site and fixed a notice outside every compound. Setting aside the fact the appellant would have been unlikely to give permission for the Council to enter the site unless required to do so by law, in my view that is not what is required. The premises are the appeal site which is a single planning unit. Within it are numerous compounds but they do not comprise individual ‘premises’ in terms of the Act. It is quite normal for an enforcement notice to be fixed to the gates of a large site in mixed use so this argument has no weight.”

The appellant contends that the Inspector’s reliance upon the planning unit was misplaced as that is a judge-made concept for determining whether a material change of use has taken place. It is immaterial to whether the Enforcement Notice was served. He submits that it is plain that the occupiers’ compounds (or yards), which they rent, are their individual premises. They have no right to occupy the access track or any other part of the Land.

In response to the Inspector’s allusion to the difficulties of entering, the appellant asserted that the Council had a right of entry, with or without a warrant, whether or not the appellant gave permission to enter. Further, this is an issue of statutory construction, so what is normally done is of no consequence. That which is normal is not necessarily lawful.

The appellant characterises the Secretary of State’s case as being that the notice could be affixed anywhere on any object within the Land, even by the gantry in the south-west corner of the Land, by the pond or on a tree half-way down the access track, and submits that cannot be due service. The purpose of the service provisions is to ensure that those required to be served become aware of the notice. The appellant submits that if it is affixed on a gate a considerable distance from the plot the occupier rents, that purpose will not be effectively served.

The Secretary of State submits that the Inspector was entitled as a matter of planning judgment to find that the “premises” for the purpose of s.329(2) were the whole appeal site. For the purposes of s.329, there is no definition in the 1990 Act of the term “premises”. What may amount to “premises” can vary in different contexts, indicating that planning judgment is required. The planning unit is central in working out the land to which an enforcement notice may relate and so, the Secretary of State submits, the premises for the purposes of service of an enforcement notice under s.329 are likely to be the land to which the enforcement notice relates. However, the Secretary of State contends that there is a need for a measure of flexibility, and it is not necessary to go as far as to say that the premises must mean the whole of the land to which the notice relates.

The Secretary of State relies on Gregory and Rawlins v Secretary of State for the Environment (1989) 60 P & CR 413 in support of his submission, while acknowledging that the case is not directly on all fours with this one. I consider that authority below.

The Secretary of State contends that applying the approach for which the appellant contends would frustrate the ability of local planning authorities to enforce against a site such as this one, with its complex and ever-changing subdivision into numerous units of occupation, and be contrary to the purpose of the statutory provision.