Egan v Basildon Borough Council [2011] EWHC 2416 (QB) (26 September 2011)

Egan v Basildon Borough Council [2011] EWHC 2416 (QB) (26 September 2011)

The Council cannot, under section 178 or its incidental powers, demolish or remove buildings, walls, fences, or gates that were unlawfully present at the time of the enforcement notice but not specified in it. Such actions require a new enforcement notice. Structures unlawfully erected after the notice may be removed if necessary for compliance. The onus of proof regarding the date and status of structures lies with the residents.

Citation
[2011] EWHC 2416
Parties
Claimant: Mr Patrick Egan; Defendant: Basildon Borough Council
Jurisdiction
England and Wales
Judgment Date
26 September 2011
Procedural Posture
Application for Injunction (planning Enforcement) / Interim Application Judgment
Outcome
Interim injunction continued; further hearing ordered to determine triable issues of fact.
Legal Topics
Enforcement Notices, Section 178 Town and Country Planning Act 1990, Section 111 Local Government Act 1972, Caravan Sites Act 1968, Judicial Review, Minority Rights
Administrative Law Planning Law Local Government Law Enforcement Notices Section 178 Town and Country Planning Act 1990 Section 111 Local Government Act 1972 Caravan Sites Act 1968 Judicial Review +1 more

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Parties

Mr Patrick Egan

Claimant

Basildon Borough Council

Defendant

Procedural Posture

Application for Injunction (planning Enforcement) / Interim Application Judgment

Legal Issues

  1. 1 Whether the Council can demolish or remove buildings, walls, fences, and gates not specified in enforcement notices under section 178 of the Town and Country Planning Act 1990.
  2. 2 Whether the Council can take action under section 178 in relation to matters previously subject to 1992 enforcement notices.
  3. 3 Whether certain structures ('chalets') are caravans within the meaning of the Caravan Sites Act 1968 and enforcement notices.

Ratio Decidendi

The Council cannot, under section 178 or its incidental powers, demolish or remove buildings, walls, fences, or gates that were unlawfully present at the time of the enforcement notice but not specified in it. Such actions require a new enforcement notice. Structures unlawfully erected after the notice may be removed if necessary for compliance. The onus of proof regarding the date and status of structures lies with the residents.

Court Disposition

Interim injunction continued; further hearing ordered to determine triable issues of fact.

Orders

  • Further hearing to determine the date and status of structures the Council proposes to remove or demolish.
  • Directions to be given for a speedy trial of triable issues.