My attention has been drawn to an appeal decision in Hertfordshire in November 2015 (Ref: 3005612), where an enforcement notice was found to be a nullity because it was issued without proper authority. One of the first things that was drummed into me in my first job in local government back in 1979 (at Hertsmere Borough Council, as it happens) was that, when taking any action on behalf of the Council, officers should always ask themselves “What is my authority for doing this?” In those days, this usually meant finding the appropriate committee minute authorising the action being taken, but with the increasing use of delegated powers by officers, it is often a question nowadays of checking the Council’s scheme of delegation and ensuring that the officer who purports to have authorised a particular action, such as the service of an enforcement notice, has delegated authority to do so and that the action is taken in the name of that officer. The usual practice in most authorities to enable officers to exercise delegated powers used to be to designate the Chief Officer in the department concerned as the officer having the relevant delegated power, although other named officers may be given specific delegated powers. There is judicial authority (although I am sorry I haven’t got time to look it up at the moment) that indicates a fairly relaxed attitude on the part of the courts to the actual detail of the exercise of such delegated power. It seems that the courts do not insist that the Chief Officer should personally sign off the action concerned, provided that the action is taken in the Chief Officer’s name by someone acting on instructions within the scope of their own proper responsibilities. The notice should certainly bear the name of the Chief Officer (or other officer) to whom the relevant delegated power has actually been assigned, even if this is only a rubber stamp or a facsimile signature. There must however be an ‘audit trail’ that enables the action to be traced back to that senior officer through a line of reporting, even though that senior officer may not actually have actively instigated the action in question. The old rule - “Delegatus non potest delegare (a person with delegated power cannot sub-delegate that power) still applies, in the sense that ultimate responsibility must still rest with the officer to whom executive authority has actually been delegated under the council’s scheme of delegation. But provided another officer acting on their behalf and with their knowledge (in a general sense) is acting within the limits of their own responsibilities and reporting obligations, the courts have not been prepared to treat the resulting action as a nullity for want of authority, just because the senior officer did not personally take the formal decision themselves to initiate the action in question. Where the local planning authority went wrong in the present case was that the council’s officers got into a muddle over recording the delegation of power to issue enforcement notices to the officer by or in whose name this enforcement notice was issued and, when challenged by the appellant’s representative in the appeal, were unable to produce a written record showing that this officer had actually been given the relevant delegated power to issue the enforcement notice. A notice issued without proper authority must be ultra vires and a nullity; it cannot be an enforcement notice at all, and so there was nothing to quash. For the reasons briefly outlined above, the inspector concluded that the notice was a nullity and therefore took no further action in connection with the section 174 appeal against the purported enforcement notice. The LPA could have had a ‘second bite’ by serving another enforcement notice within 4 years, taking care this time to ensure that it would be issued under properly delegated authority, but in practice, planning permission was granted by the Inspector in a parallel section 78 appeal against the refusal of planning permission, and this no doubt resolves this particular case. © MARTIN H GOODALL
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