Service defects and enforcement ground (e)

Ground (e) of an enforcement appeal is that copies of the notice were not served as required by section 172 of the Town and Country Planning Act 1990. It is a procedural ground, and it rarely succeeds on its own, because an inspector may disregard a service failure where nobody has been substantially prejudiced by it. What it does do is force the authority to prove it served the right people at the right time, and occasionally that cannot be done.

Check service first on any notice, before looking at the merits. It takes an hour and it occasionally ends the matter.

Who the notice must be served on

Section 172 requires a copy of the enforcement notice to be served on the owner and the occupier of the land to which it relates, and on any other person having an interest in the land which, in the authority's opinion, is materially affected by the notice.

Three categories, and each is a separate question.

The owner means the freeholder, and where there is a lease of a sufficient term the leaseholder is also an owner for these purposes. On a site with a long leasehold flat above a shop, both interests exist.

The occupier means the person in actual occupation, who may be a tenant, a licensee or someone with no documented right at all. An authority that serves the registered proprietor and nobody else has often missed the occupier.

Other materially affected interests is the category authorities get wrong. A mortgagee, the holder of a registered easement, a tenant of part, and an adjoining owner with a right over the land can all fall within it, and the test is the authority's opinion rather than a fixed list. An authority that did not consider the question at all is in a weaker position than one that considered it and decided a person was not affected.

Timing requirements for service

Section 172 also sets a timetable, and the dates on the notice are the first thing to check.

Service must take place not more than 28 days after the notice is issued, and not less than 28 days before the date specified in it as the date on which it is to take effect. So three dates matter: the date of issue, the date of service on each recipient, and the effective date.

Work them out from the documents rather than from the covering letter. The issue date appears on the notice. The service date is evidenced by the method used, which under the general service provisions may be personal delivery, post to the usual or last known address, leaving it at that address, or, where a person cannot be identified after reasonable inquiry, affixing it to a conspicuous object on the land.

Two defects recur. Service on one recipient outside the 28 day window after issue, usually because an interest was discovered late. And an effective date less than 28 days after the last service, which happens when the authority serves a late recipient without moving the effective date.

Note that the appeal itself has to be made before the notice takes effect. Checking the dates therefore has a second purpose, because a notice served late may give you less time than you think, not more.

Ground (e) and the substantial prejudice test

The ground is qualified. An inspector may disregard a failure to serve a copy on a person where neither the appellant nor that person has been substantially prejudiced by the failure.

So the argument has two halves and most appellants only run the first. Establishing the service defect is the easy part, and it is provable from the authority's own file. Establishing prejudice is where the appeal is won or lost.

Prejudice means a real disadvantage, not a technical one. Examples that have force: a person who would have appealed on the merits and lost the right to do so because the notice reached them after the effective date. An appellant who could not obtain evidence from an unserved party in time. A leaseholder who would have taken steps to remedy the breach and was never told. An appellant who was served so late that the time to prepare the appeal was materially reduced.

Examples with no force: a mortgagee who was not served but has no interest in defending the use. An unserved party who has since confirmed they support the appellant. A defect cured by the authority serving a corrected notice in time.

Set out the prejudice specifically, naming the person, the step they would have taken and the consequence of not taking it. An assertion that service was defective and therefore the notice should be quashed will not succeed.

Correction of defects by an inspector

The appeal powers include a power to correct any defect, error or misdescription in the notice, or to vary its terms, where the inspector is satisfied that the correction or variation can be made without injustice to the appellant or the authority.

That power is used often and it is broad. Inspectors have corrected the description of the breach, corrected the land shown, varied the steps required, and extended the compliance period. The practical consequence is that a defective notice does not usually fall away. It gets fixed.

So the question to ask about any defect is not whether it is a defect. It is whether correcting it would cause injustice. A correction that changes the case the appellant has prepared for, after the evidence has closed, is more likely to cause injustice than one that tidies a plan reference.

The same logic applies to a decision notice read in a different context, as reading a refusal notice and turning it into a plan explains for refusals.

Nullity against invalidity

These are different things and the distinction decides where you go.

A notice is a nullity where it is so defective on its face that it is not an enforcement notice at all. The classic examples are a notice that fails to specify the steps required to remedy the breach, or fails to identify the land, or is so unclear that the recipient cannot know what is required. The leading authority remains Miller-Mead v Minister of Housing and Local Government. A nullity cannot be corrected, because there is nothing to correct, and there is also nothing to appeal, so the route is a declaration from the court rather than an appeal to the Inspectorate.

A notice is invalid where the defect depends on evidence outside the notice: the wrong people were served, the matters alleged did not occur, the time limit had expired. Those are the statutory grounds of appeal, and the Inspectorate is the place for them.

Getting this wrong is expensive in both directions. Treating a nullity as a valid notice and appealing wastes the appeal. Treating a merely invalid notice as a nullity and ignoring it means the notice takes effect and non-compliance becomes an offence.

So if a notice looks hopeless on its face, take legal advice quickly and lodge an appeal in any event where the deadline is close. An appeal can be withdrawn. A missed deadline cannot be recovered.

Checking service before relying on it

Make the checks systematically, and in writing to the authority.

1. Obtain the authority's copy of the notice, the schedule of persons served, the method of service for each, and the dates.
2. Obtain the land registry title and search for other interests: leases, charges, easements and rights of way.
3. Identify the occupier at the date of service, which may not be the current occupier.
4. Compare the three dates against the statutory windows.
5. Ask the authority in writing to confirm whom it considered materially affected and why others were excluded.
6. Contact any unserved party and establish, in writing, what they would have done had they been served.

That last step is the one that converts a technical point into a prejudice argument, and it has to be done before the appeal statement is written. Objectors and other interested parties have their own role once an appeal starts, as what objectors can do once a planning appeal starts sets out.

Practical steps on receiving a notice

Work through this sequence in the first week.

Diarise the effective date and the compliance period, and treat the appeal deadline as the effective date rather than any later date. Read the allegation and the required steps, word by word, and write down what the notice actually requires. Check service as above. Then decide which grounds to run, remembering that an application for permission for what has been built is a separate route with its own fee and that a Planning Statement supporting the merits is a different document from the grounds of appeal.

Do not start remedial work before deciding, because partial compliance can undermine a ground you intended to run. And do not ignore the notice while taking advice, because the compliance period runs regardless and non-compliance is a criminal offence.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. Enter your postcode on PlanScope to see which reports your site is likely to need.