Town and country planning – Enforcement notice – Failure to comply – Appellant local authority charging respondent with offence of breaching enforcement notice listed on statutory register – Respondent claiming non-service of notice and genuine unawareness of its existence – Magistrates’ court acquitting respondent – Appellant appealing – Whether respondent meeting requirements of statutory disapplication in section 285(2) of Town and Country Planning Act 1990 – Appeal dismissed
The respondent owned a property at 62 Westbury Road, Barking. The appellant local authority issued an enforcement notice requiring the respondent to cease using the property as a house in multiple occupation and to remove all alterations and fixtures enabling it to be so used.
The appellant subsequently charged the respondent under section 179(2) of the Town and Country Planning Act 1990 with failing to comply with the enforcement notice. The respondent challenged the validity of the notice contending that she had not been served with it and had been genuinely unaware of its existence. The statutory defence of non-service under section 179(7) was not available because the notice was listed on the statutory register under section 188 of the 1990 Act.
Under section 285(1), the validity of an enforcement notice could not, except by way of an appeal, be questioned in proceedings on any of the grounds on which such an appeal might be brought.
However, the respondent relied on section 285(2), which disapplied that general rule to proceedings under section 179 against a person whose relevant interest in the land already existed prior to the enforcement notice if they had not been served with the notice, had not known or could not reasonably have been expected to know that the notice had been issued, and were substantially prejudiced by the failure to serve them with a copy of it.
The magistrates’ court found that the requirements of section 285(2) were met and concluded that the enforcement notice was not valid and acquitted the respondent. The appellant appealed by way of case stated.
Held: The appeal was dismissed.
(1) The statutory defence in section 179(7) addressed proceedings brought against a defendant under section 179. It applied to newcomers (persons whose relevant interest in the land had arisen after the enforcement notice) and non-newcomers (persons who had held an interest in the land since before the enforcement notice). Non-compliance with an unregistered enforcement notice was not a section 179 crime, if the defendant was unserved with it and genuinely unaware of its existence. However, it was expressly fatal to the statutory defence if the enforcement notice was registered on the section 188 register.
The statutory disapplication in section 285(2) applied to non-newcomers. The statutory disapplication involved non-service of the enforcement notice on the defendant (as a non-newcomer who was not served as statutorily-required). It also involved genuine unawareness of the enforcement notice by the defendant and substantial prejudice was required by the statutory disapplication. It was not expressly fatal to the statutory disapplication if the enforcement notice was registered on the section 188 register. There was an excusability requirement (that the defendant could not reasonably have been expected to know that the enforcement notice had been issued).
(2) Section 285(2) did not provide a freestanding set of criteria which, in and of themselves, constituted a defence to section 179 proceedings. The provisions in section 285(2) were a “gateway” to the statutory appeal grounds. If the conditions in section 285(2) were satisfied, the validity of the enforcement notice could be challenged as a defence in proceedings under section 179 by relying on the statutory grounds, set out in Part 7 of the 1990 Act, on which an appeal against the enforcement notice might have been brought. That included the ground in section 174(2)(e) (that copies of the enforcement notice had not been served as required) which provided a basis for quashing the enforcement notice under section 176(2) albeit that, by section 176(5), the failure to serve could be disregarded if no substantial prejudice had been caused by that failure. If the criminal court concluded that grounds were made out which would justify a quashing if they were dealing with a Part 7 appeal, the defendant would be acquitted.
(3) The manifest purpose of the statutory disapplication was to replicate lost appeal rights. “Validity” involved the magistrates asking whether a statutory appeal ground would justify a quashing order. Having been denied the right of appeal, the unserved and genuinely and excusably unaware defendant (now being prosecuted for non-compliance) did not have an out of time appeal to the inspector, but they did have replicated rights in the magistrates’ court. The enforcement notice was not quashed. The defendant was acquitted. But they were acquitted because, in the judgment of the criminal court, the notice would be quashed if this were an appeal. If the criminal court concluded that grounds were made out which would justify a quashing if they were dealing with a Part 7 appeal, the defendant would be acquitted: R v Greenwich London Borough Council, Ex parte Patel [1985] 2 EGLR 256, R v Collett [1993] EGCS 215; [1994] 1 WLR 475 and R v Wicks [1998] AC 92 considered.
(4) Registration was an established feature within the same statute (section 188). Parliament chose to deploy it, making registration fatal, for the statutory defence, which applied to newcomers and non-newcomers. Parliament did not make registration fatal for invoking the statutory disapplication in section 285. There was no symmetry with the statutory defence. For the statutory disapplication, the language in section 285(2)(c) was broader.
The criminal court had an evaluative question to answer, on the facts and evidence and submissions. One of the relevant features would be registration or non-registration of the enforcement notice. Another relevant feature would be those circumstances which made it reasonable to expect the individual to check the register.
A newcomer could always be expected to search the register, and the statutory defence was the only route by which a newcomer could rely on genuine unawareness of the enforcement notice. If one acquire a relevant land interest they were expected to look at a relevant register, to see how their rights and obligations were affected by what happened before they came on the scene. The non-newcomer could also rely on the statutory defence, if there had been failure to register. But they also had the additional protection of the statutory disapplication, where registration was not a complete answer.
(5) In law, if justified on the facts and in the circumstances of the individual case, it was open to the criminal court to find that a defendant “could not reasonably have been expected to know that the enforcement notice had been issued” even though the notice was contained in the register. In the present case, it could not be said that the magistrates’ evaluative judgment on section 285(2)(c)(i) was wrong, let alone unreasonable.
Nick Ham (instructed by Barking and Dagenham London Borough Council Legal Services) appeared for the appellant; Katherine Higgs (instructed by Ashtons Legal LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Barking and Dagenham London Borough Council v Aziz
