This case involves a door and a ramp.  Seen above.

 

 

The door is at the side of an antiques shop in a small town in Suffolk.  The claimant lives in the house on the other side of the entrance way.  Can you see the door?  It’s that one way down the back of the building.  Yes really.  

The claimant had complained to the local authority that the owner of the antiques shop had installed double doors and a ramp in 2015, without planning permission.  She demanded that the local authority serve an enforcement notice requiring the removal of the doors and the ramp.  The pillars and the lions on the front were apparently acceptable to her though.

After investigating, the local authority decided that the replacement of the door was either not a breach or that the breach was insufficient to warrant formal action.  The authority also felt that it was not expedient to take action against the ramp. 

Not willing to let it lie, the claimant sought judicial review of the local authority’s decision not to take enforcement action. The court’s permission is required before a JR action can be commenced and the action itself can take some time to come to court and be decided.  Meanwhile the immunity clock was ticking.

Consequently, the claimant also brought a separate interim claim for a mandatory interim injunction requiring the local authority to serve an enforcement notice, in order to stop the clock.  The judgment we are reporting on here is on this claim for the interim injunction.

The main claim for judicial review had not progressed at the time this interim judgment was issued so the merits of the JR claim had not been tested.  As with all interim applications, the question for the court was therefore (a) is there a serious issue to be tried and (b), does balance of convenience favour the grant or refusal of an injunction before the merits of the main claim are heard.  But the court also noted that where, as here, the claimant was asking the court to force the council to issue a notice (as opposed to simply remitting the matter to the council to retake a flawed decision), there was a third requirement that the notice was necessary as a matter of law.  

The claimant argued that all she was asking was that the notice should be issued so that the immunity clock would be stopped pending the hearing of the merits of the main case.  Otherwise, by the time she won the main case, it would be too late for the council to issue a notice and she would have been denied her victory.  If she lost the main case, the council could withdraw the notice.

Mr Justice Lewis ruled this was not the right way of looking at the enforcement power.  He said that the claimant had first to demonstrate that it was appropriate in itself to issue the notice ie that there was a breach and that it was expedient to enforce against the breach.  Immunity was only for consideration once those steps had been satisfied.

The judge went further.  For a mandatory injunction, which effectively took the breach and expediency decisions out of the council’s hands, he suggested that the claimant needed to show not only that the council was wrong not to issue the notice but that issuing the notice was the only reasonable decision which could be reached under any circumstances.  The claimant had not satisfied this burden and the judge doubted that it could be satisfied.

The local authority’s discretion in matters of enforcement notices is wide and it had already indicated that it did not consider it was expedient to enforce.  The impact on the antique shop owner was also important; were the notice to be issued just to stop the clock, the shop owner would nevertheless have to comply with it, risking prosecution if he did not. The judge also felt that the claimant could have brought the JR claim earlier, allowing the merits of the case to be considered in good time, rather than seeking interim relief at a late stage.

The application for the interim mandatory injunction was therefore denied.

This was an unusual case.  Seeking a notice simply to stop the immunity clock, before the merits of enforcement action had been demonstrated, is a clear case of the tail wagging the dog.  And asking the court to take a council’s discretionary enforcement power out of the council’s hands was always going to be an uphill struggle.  

The main case is yet to be heard.  At that point, the reasonableness of the council’s decision on expediency will be debated.  Looking at the photo at the top of the page, we think we know the answer.