The ability to challenge an unlawful decision can be contentious, particularly where the challenge arises at a relatively late stage. In the enforcement context this includes questioning the validity of notices when they are being enforced or the planning conditions which underlie the enforcement action. The circumstances in which a public authority’s decisions can or have to be challenged can be usefully summarised:

  1. Government must act in accordance with law
  2. Unless excluded by legislation, a person with sufficient interest in the matter is able to challenge the lawfulness of a government decision
  3. As a general rule, a decision will be treated as valid unless and until it is set aside by a Court of competent jurisdiction. Once it is set aside it will be treated as never having had legal effect
  4. If legislation provides a mechanism to challenge the decision in the Administrative Court of the High Court then it should be used (a statutory application or appeal), otherwise a challenge may be brought by judicial review. The relevant procedural requirements have to be followed, not least in the timing of the proceedings, subject to the Court’s ability to disapply the requirement
  5. In judicial review the Court has a discretion whether to set aside the unlawful decision, although it will normally do so;
  6. The ability to challenge a decision except by applying to the Administrative Court is limited;
  7. A decision or document is a nullity if it is so defective on its face that it is not the type of decision that its maker would have wished it to be. For example, an enforcement notice issued against a claimed breach of planning control would be a nullity if, correctly interpreted, it failed to identify the land, set out the steps which had to be taken or the activity required to cease, or say by when this had to be done. A document is a nullity if on its face it fails to include an element (or contains conflicting material) which means that it cannot be given effect.
  8. A person may defend themselves in any civil or criminal proceedings by establishing that the public law decision which is the basis of the allegation against them is unlawful, unless statue provides that the point cannot be raised In Boddington v DPP1 the House of Lords affirmed the principle that a defendant in criminal proceedings can rely on the unlawfulness of a public law decision which has not been quashed by the Administrative Court as a defence in criminal proceedings. The unlawfulness of an act can be raised as a defence in civil proceedings.2 For example the validity of a breach of condition notice can be challenged in defence to a prosecution.3 However because of the legislative regime, the validity of a planning enforcement notice cannot be challenged in criminal proceedings except in limited circumstances.4
  9. The bringing of a challenge by an ordinary claim is likely to be an abuse of process if there is no private law cause of action alleged and it may be appropriate to transfer to public law proceedings if a private law claim relies on public law illegality. In Trim v North Dorset District Council5 it was held to be an abuse of process to seek a declaration in ordinary proceedings that a breach of condition notice had been served out of time. The Courts have often been prepared to entertain civil claims that acting on an allegedly unlawful public law decision would give rise to a trespass claim, albeit with dicta that the claim should have been brought, and an injunction sought, in judicial review.
  10. Landowners have been able to contend before local planning authorities, Ministers and Inspectors that conditions on earlier planning permissions are unlawful. This again is a collateral challenge reflecting the principle that a person should not be subject to an unlawful decision. In Tarmac Heavy Building Materials UK Ltd v Secretary of State for the Environment, Transport and the Regions the High Court ruled in an enforcement notice appeal that a condition imposed 47 years earlier was invalid.6
  11. It is questionable whether a public authority or third party should be able to raise the unlawfulness of a decision in proceedings other than by way of judicial review or statutory application to the High Court. The scenario would be that a public authority grants a consent and then brings proceedings against the person acting in reliance upon it, saying that the consent was unlawful. The doctrine of ultra vires provides that if a decision is quashed then it had no effect – so if development takes place under a planning permission which is subsequently quashed then that development was without planning permission and can be enforced against. However the Administrative Court only acts if person with standing brings proceedings in time (or with an extension of time) and it exercises a discretion to quash. Any other court or body dealing with an allegedly unlawful decision does not have these procedural controls nor any discretion as to how it deals with illegality. If a public authority wishes to enforce on the basis that its decision was unlawful then it might be thought that an Administrative Court challenge would have to be brought first, unless the decision was a nullity on its face. In White v South Derbyshire District Council7 the Divisional Court quashed convictions for operating a caravan site without a site licence which had been obtained on the basis that there had been no power to grant the site licence nine years previously. The authority should have arranged for judicial review proceedings to be brought if it wished to challenge the licence. However in Fenland District Council v Reuben Rose (Properties) Limited8 a local planning authority had granted listed building consent without referring the application to the Secretary of State. Four years later the council raised the validity of the consent and then took almost a year to assert that it was invalid. The developer said it had implemented the consent and more works would be carried out.The Court of Appeal held that the Council could obtain an injunction in County Court proceedingsas there was no valid consent and so a criminal offence would be committed. The decision seems to bypass the protections of judicial review. Any challenger to the decision five years after its grant would have to deal with the immense delay in bringing proceedings and establish why the decision should be quashed. That would have been a difficult task. Those issues were bypassed by finding that the County Court could treat the consent as invalid. The Council could have arranged for judicial review of its own decision and for an interim injunction to be sought to hold the line in the meantime.