Egan v Basildon Borough Council

Egan v Basildon Borough Council

The Council cannot, under section 178 or its incidental powers, demolish or remove buildings, walls, fences, or gates that were unlawfully present before the enforcement notice and not mentioned in it; such action requires a specific enforcement notice. However, structures unlawfully erected after the notice may be removed if necessary for compliance. There are triable issues as to the date and nature of certain structures, and the onus of proof lies on the residents.

Parties
Claimant: Patrick Egan; Defendant: Basildon Borough Council
Jurisdiction
England and Wales
Judgment Date
26 September 2011
Procedural Posture
Civil Injunction Application / Interlocutory Judgment on Interim Injunction
Outcome
Interim injunction continued; further hearing ordered to determine triable issues.
Legal Topics
Enforcement Notices, Section 178 Town and Country Planning Act 1990, Local Authority Powers, Planning Control, Judicial Review
Planning Law Administrative Law Enforcement Notices Section 178 Town and Country Planning Act 1990 Local Authority Powers Planning Control Judicial Review

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Parties

Patrick Egan

Claimant

Basildon Borough Council

Defendant

Procedural Posture

Civil Injunction Application / Interlocutory Judgment on Interim Injunction

Legal Issues

  1. 1 Whether the Council can demolish or remove buildings, walls, fences, and gates not mentioned 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 addressed by 1992 enforcement notices
  3. 3 Whether certain structures 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 before the enforcement notice and not mentioned in it; such action requires a specific enforcement notice. However, structures unlawfully erected after the notice may be removed if necessary for compliance. There are triable issues as to the date and nature of certain structures, and the onus of proof lies on the residents.

Court Disposition

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

Orders

  • Further hearing to determine facts regarding date and nature of structures to be removed or demolished.
  • Directions to be given for speedy trial of triable issues.