Committal proceedings — Prosecution — Failure to comply with enforcement notices — Whether no case to answer — Subsequent planning permission — Whether planning permission for retention of buildings — Whether enforcement notice ceases to have effect in respect of parts of buildings
The second
respondent, Mr George Knight, is the owner of Brook Farm, Prior Leaze Lane,
Hambrook. In the summer of 1986 he erected on the land a two-storey brick
building without planning permission. On July 24 1986 the applicant local
planning authority, Chichester District Council, issued an enforcement notice
in respect of the building. Mr Knight then erected an extension to the first
building, and in April 1987 the council issued a second enforcement notice
relating to the extension. Mr Knight’s appeals against both notices were
allowed on grounds (g) and (h) of section 88(2) of the Town and
Country Planning Act 1971 and dismissed on grounds (a) and (b).
In effect the notices were varied to require the demolition of the first floor
and the external staircase of the first building, and the demolition of the
first-floor balcony and external staircase of the extension. Mr Knight did not
comply with the notices but submitted two planning applications relating to the
building. One was for a single-storey feed store and conversion of existing
staircases to wcs and offices, which was granted in February 1988, and the
second was for the conversion of the building to a dwelling, which was refused
in March 1988. Compliance with the enforcement notices should have taken place
by December 1987.
On July 8 1988
the council instituted proceedings, for breach of the enforcement notices,
before the Chichester Justices. The justices decided that there was no case to
answer in law and refused to commit Mr Knight for trial. The council sought
judicial review of that decision, contending that the grant of planning
permission in February 1988 did not have the effect of rendering void the
enforcement notices.
1. By section
290 of the 1971 Act a building is defined as including ‘any part of a
building’. Parliament did not provide, where planning permission is granted for
the retention on land to which an enforcement notice relates after the service
of the notice, that that enforcement notice shall cease to have effect
altogether: see p 40C. The purpose of section 92(1) of the 1971 Act is that
where planning permission is granted for the retention of buildings an
enforcement notice relating to those buildings ceases to have effect. In the
present case the parts of the buildings on the land without planning permission
initially may be retained to the extent that they are within the description
used in the planning application which was granted in February 1988. There is
no need to demolish the original building constructed without planning
permission in its entirety and then rebuild a new building, much of which would
coincide with the original building: see p 40H.
It is unwise
for magistrates to stop committal proceedings for a reason which turns upon the
correct interpretation of a section in legislation, unless it is abundantly
clear that the interpretation advanced on behalf of the defendant is correct
and that advanced by the prosecution is wrong: see p 41B.
2. There had
not been any undue delay by the applicants in seeking leave for judicial review
despite making the application only some eight days before the expiration of
the three-month period. A local authority have to be careful with public funds
and need the authority of the appropriate committees. See p 41B.
referred to in the judgments
Application
for judicial review
This was an
application for judicial review of a decision of the Chichester Justices that
upon hearing summonses for the committal of the second respondent for trial
there was no case to answer on information laid by the applicants, Chichester
District Council.
(instructed by Sharpe Pritchard) appeared for the applicants, Chichester
District Council.
(instructed by Charles Hill, of Chichester) appeared for the second respondent,
Mr George Knight.
respondents, the Chichester Justices, did not appear and were not represented.
following judgments were delivered.
ROCH J: This is an application by the Chichester District Council for an
order quashing a decision of the Chichester Justices made on November 30 1988.
That decision was made during proceedings to commit Mr George Knight for trial
in respect of two summonses issued on information laid by the Chichester
District Council, as the local planning authority, for failure by Mr Knight to
comply with enforcement notices concerning unauthorised development on land.
The decision of the justices was not to commit Mr Knight to the crown court.
The reason for
the justices’ decision is contained in an affidavit sworn by
terms:
Upon hearing
the Solicitors for the Applicant and the defendant, the Bench were advised and
verily believe that as a matter of law, for the reasons stated, there was no
case for the defendant to answer.
The reasons
stated were that the grant of a planning permission on February 16 1988,
subsequent to the enforcement notices on which the local planning authority
were relying, had the effect of rendering void the enforcement notices by
virtue of the wording of section 92(1) of the Town and Country Planning Act
1971. In para 8 Mrs Dobson states:
The Bench
found that the planning permission granted on 16th February, 1988 terminated
the Enforcement Notices which thereby ceased to have effect from the aforesaid
date.
The facts are
these. Mr Knight owns a property known as Brook Farm, Prior Leaze Lane,
Hambrook. It is a property of some 12 acres. It was bought by Mr Knight in
February or March 1986. When Mr Knight bought it there was already on the land
a steel-framed, asbestos-clad building measuring some 20m by 30m.
In the summer
of 1986 Mr Knight erected on the land a brick building. That building is shown
in a photograph taken on October 29 1986 by an employee of the local planning
authority, Mr Holmes. It was a two-storey brick building with a pitched roof.
On July 24
1986 the local planning authority issued an enforcement notice in respect of
that building. The requirements of the notice were ‘the demolition of the
building down to ground level’. The period given for the carrying out of that
demolition was two months from August 28 1988. That notice was served on Mr
Knight on July 25 1986. Mr Knight appealed against that notice to the Secretary
of State for the Environment.
Prior to the
appeal being heard Mr Knight constructed an extension to that building. That
was also constructed in brick. It was a single-storey building but had a roof
and parapet and a staircase leading to that roof and parapet, which made the
roof suitable as a balcony. The building and its extension are illustrated in
photographs taken on February 11 1987 by Mr Holmes, although when those
photographs were taken the single-floor extension was not yet complete.
The building
and its extension are also illustrated in a plan which is dated September 1987 and
is entitled ‘Survey of existing Feed Store with staff rooms over’.
The applicants
issued a second enforcement notice dated April 6 1987 in respect of that
extension. That notice was served on Mr Knight on either April 7 or April 9
1987. The requirements were that the extension be demolished to ground level
and the period of time given was two months from May 11 1987.
Mr Knight
appealed against that notice.
The appeals
against both those notices, and against a third notice relating to a caravan,
which is of no relevance to this case, were heard together by an inspector,
appointed by the Secretary of State, at a local inquiry held on June 18 1987.
The inspector’s decision letter is dated August 26 1987. The appeal was mounted
on the grounds set out in section 88(2) of the 1971 Act, namely grounds (a),
(b), (g) and (h). Originally, ground (c) was
included in the grounds of appeal but that ground was withdrawn at the hearing
of the appeal.
The appeal
failed on grounds (a) and (b) but succeeded on grounds (g)
and (h). The upshot was that the inspector varied the enforcement
notices in these
amended so that in schedule 3 the steps required to be taken became:
The
demolition of the first floor and the external staircase of the building, and
the construction of a new flat roof and any necessary making good to the
resultant single storey building in accordance with a scheme which shall have
been submitted to and approved by the local planning authority, or in the
absence of such approval within 8 weeks, as may be determined by the Secretary
of State for the Environment.
In addition a
new schedule 4 was substituted:
Period of time
within which the steps are required to be taken:
i. The demolition of
the first floor and external staircase: 4 months.
ii. The submission of
the scheme of roofing and making good: 2 months.
iii. The
completion of the roofing and making good: 4 months, or two months from the
date of approval of the scheme whichever is the longer.
With regard to
the notice in respect of the brick building extension and alterations were
these amendments. Schedule 3 — steps required to be taken:
The
demolition of the external staircase and removal of the balcony roof and the
re-roofing of the building to integrate it with the Notice A building in
accordance with a scheme which shall have been submitted to and approved by the
local planning authority, or, in the absence of such approval within 8 weeks,
as may be determined by the Secretary of State for the Environment.
Schedule 4:
Period of time
in which the steps are required to be taken:
i. The demolition of
the external staircase and the removal of the balcony roof: 4 months.
ii. The submission of
the scheme of roofing and making good: 2 months.
iii. The
completion of the roofing and making good: 4 months, or two months from the
date of approval of the scheme whichever is the longer.
Mr Knight did
not comply with the enforcement notices as amended but submitted two planning
applications to the local planning authority. The first planning application
was reference SB/172/87 and was for a single-storey feed store and conversion
of existing external staircases to wcs and office. That planning application
was granted by the applicants on February 16 1988. The buildings for which
permission was given are shown in a plan dated September 1987 and entitled
‘Removal of First Floor and conversion of External Staircases’.
The second
planning application was reference SB/174/87 and was for the ‘building’ to be
converted to a dwelling. That application was refused on March 7 1988.
A few weeks
earlier, on February 3 1988, Mr Knight had refused to confirm that his planning
application SB/172/87 was to be taken as a submission of the schemes required
by the inspector in the inspector’s amendments to the enforcement notices.
The compliance
with the enforcement notices as amended by the inspector should have taken
place by December 26 1987. Thus, on any view of the matter, between that date
and February 16 1988 Mr Knight was in breach of those enforcement notices.
However, Mr Kelly, on behalf of the applicants, has told this court that the
applicants do not seek to rely upon that period of time. The applicants rely on
the state of affairs which was still on the land when they instituted criminal
proceedings against Mr Knight on July 8 1988 for failure to comply with the
enforcement notices. Mr Knight elected for trial by
At the end of the local planning authority’s evidence the magistrates dismissed
the proceedings and refused to commit Mr Knight to the crown court.
Two issues are
raised by this application: first, the correct interpretation of section 92(1)
of the Town and Country Planning Act 1971 and, second, whether this application
should be refused by this court on the grounds of delay on the part of the
local planning authority.
Section 92(1)
so far as it is material to this case provides:
If, after the
service of [a copy of] an enforcement notice, planning permission is granted
for the retention on land of buildings . . . to which the enforcement notice
relates, the enforcement notice shall cease to have effect in so far as it
requires steps to be taken for the demolition or alteration of those buildings
. . .
Two matters
have to be observed in construing this section. First, the definition of
building includes ‘any part of a building’: see section 290 of the Act. Second,
Parliament did not provide, where planning permission is granted for the
retention on land of buildings to which an enforcement notice relates after the
service of the enforcement notice, that that enforcement notice shall cease to
have effect altogether.
Thus,
Parliament intended that parts of buildings, and not merely entire buildings,
should be affected by enforcement notices and by section 92(1), and Parliament
did not intend that the subsequent grant of planning permission for buildings,
or a building, or parts of a building, to which an enforcement notice related
should have the effect of completely nullifying the enforcement notice.
What, then, is
the effect of section 92(1)? Enforcement
notices cease to have effect in so far as they require steps to be taken for
the demolition or alteration of those buildings. What is meant by the phrase
‘those buildings’; to which ‘buildings’ does the phrase refer?
Mr Newton, on
behalf of Mr Knight at one time submitted that the words referred to the
buildings identified in schedule 2 of the enforcement notices; that is to say,
in the case of the first enforcement notice, to the ‘brick building’ and, in
the second enforcement notice, to ‘single storey brick built extension to an
existing (unauthorised) building’. In my judgment, that cannot be a correct
construction of section 92(1). ‘Those buildings’ must refer to the ‘building’
for the retention of which planning permission has been granted subsequent to
the service of the enforcement notice.
The
magistrates should have looked at the ‘buildings’ for which planning permission
was granted on February 16 1988; namely the buildings described in the
application SB/172/87, and the plan which is stamped with that reference and
the date of October 1 1987, by the applicants. To the extent of those buildings
the enforcement notice was to cease to have effect. The parts of the buildings
which were already on the land without permission which are detailed in those
documents are to be retained. Nothing shown on those plans which is already in
existence at Brook Farm, Prior Leaze Lane, Hambrook, has to be demolished or
altered. To that extent the enforcement notices cease to have effect.
This result,
in my opinion, not only gives the section its ordinary and natural meaning but
also accords with common sense. There is no need to demolish the original
building constructed without planning permission in its entirety and then
rebuild a new building, much of which would coincide with the original
building. The building constructed by Mr Knight has to be altered, and parts
removed, so that it becomes the building permitted by the planning
consent which has been granted since the service of the enforcement notice.
If Mr Knight’s
case were correct, the local planning authority would have to issue fresh
enforcement notices and then go through the process of further appeals to the
Secretary of State, probably involving a public inquiry, and then, if
necessary, bring a fresh prosecution.
I would order
that the case go back to the magistrates with a direction that they continue
the hearing of the committal proceedings applying the interpretation of section
92(1) of the Town and Country Planning Act 1971, which I have detailed. In
passing, I would suggest that it is perhaps unwise for magistrates to stop
committal proceedings for a reason which turns upon the correct interpretation
of a section in legislation such as the town and country planning legislation
unless it is abundantly clear that the interpretation advanced on behalf of the
defendant is correct and that advanced on behalf of the prosecution is wrong.
If the point is arguable, then in my view, it is a better course for the
magistrates to commit the defendant for trial and to leave such matters of
statutory interpretation to be resolved by the crown court judge with the
assistance of full argument from counsel.
The second
issue of delay can be dealt with shortly. First, Mr Newton seeks to have the
leave granted by the single judge in this case set aside on the grounds of
delay. That matter was first raised in an undated affidavit by Mr Knight’s solicitor
which we were told was sworn on November 14 and which would have been seen by
the local planning authority a day or so later.
In my
judgment, that application has to be refused. The application for leave for
judicial review was made some eight days prior to the expiration of the
three-month period. However, the local planning authority had made it clear at
a much earlier time that they considered the justices to have been in error and
proposed to take some action. A local planning authority have to be careful in
the way in which they spend public funds. These applicants took counsel’s
opinion and, having taken counsel’s opinion, had then to obtain the authority
of the proper committee of the district council before instituting proceedings
for judicial review. In the period of time occupied by those processes the
Christmas and New Year breaks intervened. For those reasons, I am not persuaded
that there was undue delay in this case or that there was delay which could
properly lead to the leave to move this court, granted by Simon Brown J on
March 20 1989, being set aside.
Mr Newton
mounts a second attack based upon delay under the terms of section 31(6) of the
Supreme Court Act 1981.
That section
reads:
Where the High
Court considers that there has been undue delay in making an application for
judicial review, the court may refuse to grant —
(a) .
. .
(b) any relief sought on the application,
if it
considers that the granting of the relief sought would be likely to cause
substantial hardship to, or substantially prejudice the rights of, any person
or would be detrimental to good administration.
I have already
indicated that I am not satisfied in this case that there was undue delay on
the part of the local planning authority. But the matter does not stop there,
in my judgment, because the evidence does not disclose any substantial hardship
to Mr Knight or any substantial prejudice to his rights. Mr Knight has on his
land a building which is considerably in excess of the building for which he
has planning permission. It is a building which the inspector at the local
inquiry concluded was unduly prominent and incongruous in its setting and, as
such, damaged the character of this rural area. The building represents a
serious breach of planning control.
I do not
consider that the granting of relief to the local planning authority in this
case would be detrimental to good administration. Quite the opposite. In my
view, good administration requires that this matter proceed.
Mr Newton was
in effect arguing that if we allow this application to succeed all local
authorities will wait almost three months before making applications for
judicial review. That is not what I understand to be meant by ‘detrimental to
good administration’. That phrase, in my view, embraces situations such as the
dairy quota cases, where to allow an application out of time would lead either
to a flood of applications based on events occurring long in the past or, if
those subsequent applications were refused, one person in a class gaining an advantage
over all others in that class, which many would consider unfair.
Here, Mr
Kelly, for the local planning authority, argued that good administration, far
from requiring the disallowance of this application, called for it to be
granted. With that submission I agree.
NEILL LJ: I agree that, for the reasons stated by Roch J, this application
should be remitted to the justices with a direction that they should continue
the hearing.
Application
granted and decision remitted to the Chichester Justices with a direction to
continue with the committal hearing.
