18 February, 2010
Whenever any legal document such as an enforcement notice is to be served upon an individual or organisation, it is vital that the terms used are as clear as possible. They should be drafted in a manner which means that there is no chance of any misinterpretation arising.
Should a notice (or indeed any other document) be unclear and ambiguous, it can lead to problems for the party seeking to rely upon it. An example of this can be found in the February 2010 case of Williams v Herefordshire Council which was heard in the High Court.
The Council (H) has served an enforcement notice on land owned by the wife of the appellant (W). The notice required that two mobile homes, together with a covered walkway, be removed from the land and that the associated site works should also be taken away. The notice also said that the land was to be returned to its former agricultural state. W and his wife lived in the mobile homes at the time that the notice was served.
The requirements of the notice were partially complied with: the covered walkway and some of the site works were removed, but W and his wife continued to live in the remaining mobile home. Charges were then brought against W's wife for breaching the Town and Country Planning Act 1990 by failing to remove all of the mobile homes and the site works. W was also charged with failing to comply with the notice by continuing to use the mobile homes and site works.
The magistrates' court convicted both W and his wife. In the case against W, it was found that whilst there had been no express obligation in the notice to cease using the remaining mobile home for accommodation, it was an implied requirement and that by continuing to live there, W had not ceased an unlawful activity.
W appealed against the magistrates' court's decision and the question posed for the High Court to determine was whether the enforcement notice required an activity (i.e. living in the mobile home) to cease. W argued that the notice was not a 'desist' enforcement notice and that it had to be clear and enable a person to whom it applied to be able to tell from it what was required of them. W argued that the magistrates' court had erred in implying the desist requirement into the notice.
The High Court's Decision
The High Court allowed W's appeal. It held that there were two types of enforcement notice: 'do' enforcement notices (where an individual has to take positive action) and a 'desist' enforcement notice (where an individual had to cease a particular activity).
It was held that an enforcement notice had be to unambiguous and set out clearly what was required from an individual in order to comply with it. In relation to the notice served on W and his wife, the court took the view that whilst anyone reading it could be in no doubt that the mobile homes had to be removed, there was no specific obligation to stop using them for accommodation. Therefore, it was not for the magistrates' court to imply this obligation into the notice. The fact that W knew that his use of the mobile home was in breach of planning control was irrelevant.
This case shows the importance of having clear and precise terms in legal documents. If there is any potential for different understandings to be reached, or for certain issues to be implied into documents, then it can prove to be problematic in later proceedings. Precision is the key in such situations.