Enforcement notices — Notices authorised with facsimile signature — Whether enforcement notices invalid — Whether obligation on chief officer to prepare and issue notices can be discharged by subordinate staff — Costs — Whether two sets of costs — Whether Secretary of State entitled to costs
On October 29 1984 two enforcement
notices were issued by the second respondents, the Epping Forest District
Council, in relation to alleged breaches of planning control on land owned by
the appellant, Mr Fitzpatrick. Each notice bore a rubber stamp facsimile
signature of the district secretary, the second respondents’ chief officer, and
they had both been prepared and issued by a subordinate officer, who had
applied the rubber stamp facsimile signature.
The appellant contended that on the true
construction of the minutes of the appropriate committee of the second
respondents, the notices had not been (1) signed personally by the district
secretary nor (2) prepared and issued by him but by a subordinate officer, and
were accordingly invalid.
The appeal was dismissed.
1. Any document purporting to bear the
signature of the proper officer of an authority is deemed duly given, made or
issued until the contrary is proved, and signature includes a facsimile
signature: see Local Government Act 1972, section 234(2): see p 10F.
2. The administrative task of completing
the enforcement notices was quite properly delegated to a subordinate officer:
see Provident Mutual Life Assurance Association v Derby City Council
[1981] 1 WLR 173: see pp 11C-12.
Jones v Biernstein [1900] 1 QB 100
Provident Mutual Life Assurance
Association v
Derby City Council [1981] 1 WLR 173; (1981) 79 LGR 297; [1981] RA 117,
HL
Appeal against a decision of Roch J
This was an appeal against a decision of
Roch J (October 8 1987), who had dismissed an appeal under section 246 of the
Town and Country Planning Act 1971 against a decision of the Secretary of State
for the Environment, by his inspector, who had dismissed appeals by the
appellant under section 88 of the 1971 Act against two enforcement notices
issued by the second respondents, Epping Forest District Council.
The appellant appeared in person.
Solicitor) appeared for the first respondent, the Secretary of State for the
Environment.
solicitor to Epping Forest District Council) appeared for the second
respondents.
MAY LJ: I will ask Glidewell LJ to give the first
judgment in this appeal.
GLIDEWELL LJ: This is an appeal with leave
of Slade LJ against a decision of Roch J on October 8 1987 who dismissed an
appeal to him under section 246 of the Town and Country Planning Act 1971
against a decision of an inspector appointed by the Secretary of State for the
Environment who in turn had dismissed appeals by the present appellant, Mr
Fitzpatrick, under section 88 of the Town and Country Planning Act 1971 against
two enforcement notices.
The enforcement notices, both of which
were issued by the second respondents, Epping Forest District Council, on
October 29 1984, related to two uses of land then occupied by the appellant.
The document which has been referred to throughout the proceedings as
enforcement notice (A) related to the use of the land for car-boot sales on
more than 14 days in the relevant year. The second enforcement notice alleged
development of land without planning permission by the change of the use of the
land to use for the deposit of refuse or waste materials.
This is another chapter in a very long
story which has occupied not merely the Secretary of State for the Environment
but judges of the Queen’s Bench Division, the Divisional Court, and from time
to time this court since proceedings were first started as long ago as 1977. In
the present proceedings Slade LJ on January 14 1988 gave leave to appeal but
specifically limited to two points. In his affidavit seeking leave to appeal,
or supporting his application for leave to appeal, Mr Fitzpatrick has sought to
raise some 11 points. The learned lord justice concluded that a number of those
points sought to challenge directly or indirectly findings of fact made by the
inspector who determined the appeal against the enforcement notices and thus
were not valid or proper points of law. It is axiomatic that an appeal against
an inspector’s decision to the High Court and any further appeal from the High
Court to this court lie only on issues of law.
As to certain of the other points, the
learned lord justice concluded that they had no substance at all. It was for
that reason that Slade LJ restricted Mr Fitzpatrick’s right to appeal and leave
to appeal to two points which in fact he expressed as one, but in one sense
they are different aspects of the same point.
We started this morning with an
application by Mr Fitzpatrick that he should be allowed, despite Slade LJ’s
specific restriction on him, to argue all the points on which he had sought
leave. As May LJ has said earlier in arguendo, we refused to allow him to do
so. The Town and Country Planning Act 1971, section 246, under which these
proceedings started on the appeal to the High Court, specifically limits an
appeal to the Court of Appeal in subsection (4) to an appeal with leave. The
leave is granted these days normally by a single lord justice, but whether it
be by a single lord justice or by the full court matters not for this purpose.
What does matter is that when the leave is granted, if it be limited or be
granted subject to conditions limiting it to the argument of specific points
only, then that order is binding and, in my view, this court has no power to go
beyond the limitation, save perhaps if it can be shown that in some way the
lord justice or court had been misled when limiting the leave.
That brings me to the point that arises.
The enforcement notices, to which I have referred, were in common form. They
alleged that in each case it appeared to the district council that there had
been a breach of planning control after the end of 1963 on the land described
in the schedule (that is the land then occupied by Mr Fitzpatrick). The breach
of planning control in each case was the making of a material change in the use
of the land described in the
planning permission required for that development, and the notice in each case
required that the steps specified in the third schedule should be taken. Then
in the respective parts of the schedule, the notice up to that point being, as
I have said, in common form, there were references to the alleged breach of
planning control being in relation to enforcement notice (A): ‘The holding of
markets (car-boot sales) on more than the 14 days in total permitted during the
calendar year commencing June 10 1984’. Mr Fitzpatrick was required to
‘discontinue the use of the land for the holding of markets, including car-boot
sales, in excess of those permitted by article 3 of and Class IV of Schedule 1
to the Town and Country Planning General Development Order 1977’. The second
notice, enforcement notice (B), alleged the breach of planning control as ‘the
deposit of refuse or waste materials, including rubble, hardcore, bricks,
tarmac, asphalt and kerbstones’, and Mr Fitzpatrick was required to discontinue
that use and to remove all refuse or waste materials from the site.
It was common ground and it was freely
conceded by the district council that the signature which appeared on each of
those enforcement notices was a facsimile signature of the district secretary,
Mr Snelling. In other words, he had not literally written the signature himself
on either document. The documents, it was also common ground, had been prepared
by one of his officers, a Mr Lunnun, and the district secretary himself had not
been concerned with the administrative steps of completing the enforcement
notices or the material in them, nor had he personally taken the rubber stamp
and appended his signature with the fascimile of his signature. That had been
done by Mr Lunnun. The point made by Mr Fitzpatrick is that the combination of
the failure of the district secretary to deal with the enforcement notices and
the use of a facsimile signature rendered these enforcement notices invalid.
The point is in part based upon the
wording of the resolution of the council, which was (reading the resolution
relating to enforcement notice (A) first): ‘That as (the use of land in respect
of car boot sales) is considered inappropriate within the Metropolitan Green
Belt the District Secretary issue and serve an enforcement notice’. So far as
enforcement notice (B) is concerned (that is the use of the land for the
deposit of waste): ‘As this use is considered inappropriate within the
Metropolitan Green Belt the District Secretary issue and serve an enforcement
notice under Section 87 and take proceedings under Section 89 of the Town and
Country Planning Act 1971’.
As to the facsimile signature, there is a
short answer to that upon which Roch J based his judgment in part. That is
contained in section 234(2) of the Local Government Act 1972, which provides:
Any document purporting to bear the
signature of the proper officer of the authority shall be deemed, until the
contrary is proved, to have been duly given, made or issued by the authority of
the local authority.
In this subsection the word ‘signature’
includes a facsimile of a signature by whatever process reproduced.
So the Local Government Act specifically
deals with the point.
The other and slightly wider point is the
question whether, when the district secretary has been required by the
resolution to issue the enforcement notices, that task could be done legally by
a member of his staff. The learned judge held that it could. He in his judgment
said (at p 15F of the transcript):
Again there is a difficulty for Mr
Fitzpatrick in making this submission to this court for it was not an argument
raised before the inspector. Consequently there are no clear factual findings
on which this submission can be decided.
Breaking off, Slade LJ took the view, looking
again at the inspector’s decision letter, that it might be that the argument
had been raised in front of the inspector. Mr Fitzpatrick certainly so
submitted, and it was for that reason that Slade LJ was willing to grant leave
on this point. Then the judge went on (and there is a mistype in the
transcript):
Section 101(1) of the Local Government
Act 1972 permits a local authority to arrange for the discharge of any of their
functions by an officer of the authority. There is no evidence here as to the
arrangements made by the District Council for the discharge of the District
Secretary’s functions by members of his staff. It may well be that had this
point been taken before the Inspector, the District Council would have been
able to produce standing orders or other evidence to show that the preparation
and service of enforcement notices was properly performed by Mr Lunnun on
behalf of the District Secretary.
That reference by the judge was, in my
view, clearly right.
In Provident Mutual Life Assurance Association
v Derby City Council, together with another appeal, reported in [1981] 1
WLR 173 the House of Lords was concerned with a situation very similar to that
which arises in the present case. The city council, the rating authority, had
resolved that their treasurer should be the proper officer for the
administration of their financial affairs pursuant to section 151 of the Local
Government Act 1972. They also resolved under section 17 of the General Rate
Act 1967 to adopt the rating of unoccupied property in their district. In
purported compliance with the second resolution a notice was served on the
appellants, who were the owners of unoccupied new buildings in the rating
authority’s area, subjecting them to the payment of rates in respect of those properties.
The notices were photocopies of a typed form with blanks. They were signed with
the treasurer’s facsimile signature and it was common ground that the blanks
had been filled in not by the treasurer himself but by his principal rating
assistant (the dates on which the buildings were to be completed and other
material). There was also evidence that the treasurer had not seen the notices
before they were sent out.
The appellants took the same point as Mr
Fitzpatrick seeks to take here, that is to say that the notices were not valid
notices because the treasurer, being the proper officer under the first of the
resolutions to which I have referred, personally was the only person who could
serve and complete these notices. In his speech with which a majority of their
lordships agreed, Lord Roskill said at p 179B:
I would emphasise that the opening words
of section 151 are ‘Without prejudice to section 111’ and not ‘subject to
section 111′. It follows that the powers accorded by section 151 are additional
to those accorded by section 111. Thus to my mind it is clear that the
respondents’ treasurer was the officer properly appointed for the proper
administration of the respondents’ financial affairs which clearly include the
collection of rates to which the respondents become entitled by law. Equally
clearly, the performance of such duties as in consequence fall upon the
respondents’ treasurer could not possibly all be performed by him personally,
and Parliament cannot possibly have intended that this should be so. The
respondents’ treasurer required staff to carry out the financial affairs which
he is enjoined to administer. See also section 112(1) of the Act of 1972.
Those references to section 111 are
references to the provision of the Act in section 111(1):
Without prejudice to any powers
exercisable apart from this section but subject to the provisions of this Act
and any other enactment passed before or
is calculated to facilitate, or is conducive or incidental to, the discharge of
any of their functions.
Later in his speech Lord Roskill said at
p 181H:
Section 151 of the Act of 1972 empowers
local authorities to make arrangements for the proper administration of their
financial affairs. The respondents’ treasurer was, as already stated, the
respondents’ responsible officer for this purpose. For my part I am quite
unable to see why that which Mr Wells did was not done as part of the proper
administration of the respondents’ financial affairs, namely the collection of
rate revenue. Of course the filling up of blank forms previously signed with a
facsimile signature can in some cases lead to an abuse and indeed to an illegal
exercise of power. It is the clear duty of the courts to see that this method
of administration does not lead to any such abuse.
Later, he said [p 182C]:
On this part of the case the question is
not whether the respondents’ treasurer delegated power to Mr Wells. The
question is whether what Mr Wells did was authorised by the respondents’
treasurer so as to be the relevant opinion of the respondents. For the reasons
I have given, I think that it was and for those reasons I would dismiss these
appeals.
As I have said, the whole of that case
was concerned with a different subject-matter, namely rating as opposed to town
and country planning. The ratio is exactly applicable to the facts of
the present case.
For my part, therefore, I would conclude
that the council were perfectly entitled to permit arrangements to be made under
which tasks, which by resolution were imposed upon any one of their chief
officers, could properly be performed by one of his subordinates. Accordingly
the administrative task of completing these enforcement notices was quite
properly performed by Mr Lunnun on behalf of the district secretary. The
enforcement notices accordingly were in form and in substance entirely valid.
There is therefore, in my mind, nothing in either of the two aspects of the
point on which Slade LJ granted leave to appeal and I would therefore dismiss
the appeal.
CROOM-JOHNSON LJ: I agree.
MAY LJ: I also agree. In my view the decision of
this court in Jones v Biernstein [1900] 1 QB 100 is good
authority for the note on p 900 of the current edition (1988) of The Supreme
Court Practice to this effect: ‘Leave may be given on one point only and,
if so the appeal is limited to that point’. I agree that this appeal should be
dismissed for the reasons given by Glidewell LJ.
After an application for costs had been
made on behalf of the first respondent, the following discussion took place.
MR LAMMING (for the second respondents): My lord, the position of the
district council is perhaps somewhat unusual in this appeal. We did not appear
before Roch J. When the matter came before Slade LJ on the application for
leave it was the Secretary of State who decided that the district council
needed to appear to oppose the application, and counsel appeared before Slade
LJ on behalf of the second respondents. On the basis of the leave given, it was
clearly the administrative procedures within the council which were the subject
of challenge, and it was therefore thought appropriate by both the Secretary of
State and indeed the district council that the district council should be
represented before this court, particularly when matters were being put on
affidavit as to what happened within the local authority. It is for those
reasons
and accordingly would ask that we also should have our costs against the
appellant.
GLIDEWELL LJ: It is normal only to make one
order for costs, is it not?
MR LAMMING: My lord, it is, save in those cases where
there are distinct interests to be represented.
GLIDEWELL LJ: At the moment I am wondering,
merely looking back at Mr Holgate I suppose, what interest the Secretary of
State had.
MR HOLGATE: My lord, I was going to, as it were, come
clean and make the confession that I had, in any event, intended to rely very
substantially on the skeleton argument which my learned friend, Mr Lamming, had
prepared, so that your lordships might see it was for that reason I had not
prepared my own skeleton argument. Indeed it had been agreed between the
respondents that the second respondents, subject to your lordship’s view on the
matter, should go before the Secretary of State. But I respectfully agree with
what my learned friend, Mr Lamming, has said, although the usual practice is
only to order one set of costs. None the less, if there is some good reason as
to why two respondents had to appear in court two sets can be ordered. In this
particular case, the position quite simply was that the Secretary of State had
to defend the decision in the High Court and was successful there, so I would
certainly ask for that order for costs not to be disturbed. But in this
particular court the position remains that it was a decision of the Secretary
of State through one of his inspectors being challenged, and frequently one
would expect the Secretary of State to be represented in the Court of Appeal in
particular, just in case points are taken, particularly by a litigant in
person, during the course of argument on which the Secretary of State’s
assistance is required.
MAY LJ: On the issue in respect of which Slade LJ
gave leave, you really were not interested, were you? Unless the appeal went wider and then of
course you might have to be brought in. But on the appeal so limited, it was a
matter for Mr Lamming was it not, and not for you? When I say ‘you’, I mean your client.
MR HOLGATE: My lord, I do see the point and I should
not take up any more or your lordships’ time. Can I just simply say that there
is a practical distinction to be drawn between one of the points which Mr
Fitzpatrick wanted to argue, which had been taken before the inspector and
dealt with by him, and therefore I would support his reason, as opposed to a
point not taken before the inspector relating to internal procedures of perhaps
the facsimile signature upon which the Secretary of State would have been
helpful to the court and the district council represented. There is that
distinction to be drawn between the two points.
MAY LJ: We think the proper order to make is not
to disturb any orders made by Roch J below. The costs of the application for
leave before Slade LJ and of this appeal of the Epping Forest District Council
will be borne by the appellant, Mr Fitzpatrick. The Secretary of State must
bear his own costs of both the application and the appeal.
Appeal dismissed with costs to the second
respondents only. Leave to appeal refused.
