Archive for January, 2011
Getting Your Ducks in a Line
One of my litigation partners is always saying that before he undertakes any litigation he needs to get his ducks in a row. A recent case about a planning enforcement notice highlights the need for this approach.
A gentleman had served on him an enforcement notice concerning some works he had undertaking. The notice required him to remove a brick outhouse and some hard standing. The man objected to the notice and commenced appeal proceedings.
He lined up two ducks being:
A He did not need planning permission
B That he wanted an oral hearing
The planning inspector shot both down and left intact the enforcement notice.
• That was appealed to the QBD where he argued that
• The Inspector had erred in law and
• That he should have varied the existing planning permission to incorporate permission for the works
This is where the ducks are clearly out of line. The man making the appeal claimed that he had commenced work earlier than he had previously stated and that in any event the decision to continue with the enforcement notice was excessive. Neither point he had not previously made.
The QBD shot down all the ducks including those that were late into the air. That resulted in the enforcement notice being upheld. Part of the reasoning was that the Planning Inspector had no obligation to seek out what were the grounds of appeal but to decide on what was presented to him.
The arguments may have been successful if the case was better presented. In other words there should have been more time spent in getting the ducks in a row.
