Direct Action and Natural Justice

The recent case of R (Usher) v Forest Heath DC explored the relationship between decisions to take direct action and requirements of natural justice.

In the case, the Claimants argued that the LPA was under obligations to invite representations from them in respect of proposed direct action and to notify them of its decision to take direct action basing their argument on the principles of natural justice (and the DC’s Constitution) relying upon the serious consequences that would arise, in particular the entry onto the Claimants’ land; the power of recovery of costs; the power to place a charge on the land and finally the potential criminal liability. 

Nathalie Lieven QC, sitting as a Deputy High Court Judge, held that the Claimants’ arguments failed both on the law and on the facts.

The Claimants had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under Section 174 of the TCPA. They had had every opportunity to make representations and indeed had done so. They knew that the LPA intended to take direct action if the building was not removed voluntarily. A decision to take direct action is not a quasi-judicial decision; it is an administrative step to achieve compliance with an enforcement notice. That does not mean that it carries no procedural protection within the rules of procedural fairness, but it is not the type of decision that falls within the Constitution as being ‘quasi-judicial’. That phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision. Nor, as a preliminary view, was the decision to take direct action the determination of a civil right which falls within ECHR Article 6. The Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to the court under Section 289 of the TCPA. There was no breach of procedural fairness.

The Claimants also argued that alternatives to direct action were not properly considered by the LPA, contrary to Government Guidance, the Planning Practice Guidance (“the PPG”).

The Judge observed that the first resort for compliance with an enforcement notice is for the landowner him or herself to comply with the notice. The Claimants had chosen not to do that, despite being given very clear extended deadlines by the LPA to carry out the requisite work themselves. 

She did not read the PPG as suggesting that a LPA must take some other action, e.g. an injunction or a prosecution, before they decide to take direct action. If the PPG had said this, it would not accord with the Act itsel,f which requires no hierarchy or priority of further enforcement steps. There was no legal obligation to seek an injunction before direct action was taken. Equally, there was no requirement to take criminal proceedings first. Criminal proceedings in the enforcement context could only be a way of persuading the landowner to comply with the notice, not an alternative to doing so. Therefore, it may well be more effective for the local planning authority to proceed to direct action rather than take criminal proceedings.