Enforcement notice — Appellant charged on indictment for non-compliance under section 179(1) of the Town and Country Planning Act 1990 — Whether ultra vires could be raised as a defence to indictment
The appellant
was charged on indictment for failing to comply with an enforcement notice
contrary to section 179(1) of the Town and Country Planning Act 1990. He
pleaded not guilty contending that the decision to issue the enforcement notice
was made in bad faith. Following a ruling by the trial judge, that he could not
raise the vires of the enforcement notice, he changed his plea from not
guilty to guilty. The appellant appealed against his conviction on the ground, inter
alia, whether it is proper to challenge the decision to issue an
enforcement notice on Wednesbury grounds by way of defence on an
indictment alleging an offence contrary to section 179(1) of the Act.
As long as the
notice is not a nullity, patently defective on its face, it is an enforcement
notice and will remain so until it is quashed. For an offence under section
179(2) to be proved in criminal proceedings, there is no requirement on the
prosecutor to call evidence to establish that the decision of the local
authority to issue the notice was intra vires: see pp24H-25A.
It is only the
High Court which has the jurisdiction to quash an enforcement notice. No
criminal court has that power: see p25F. The determination of whether the
issuing of an enforcement notice was perverse in a Wednesbury sense, was
not an appropriate matter before a jury or even a crown court judge sitting
alone: see p26B.
to in the judgments
Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780;
64 TLR 290; 46 LGR 224
Bugg v Director of Public Prosecutions [1993] QB 473; [1993] 2 WLR
628; [1993] 3 All ER 815, DC
Davy v Spelthorne Borough Council [1984] AC 262; [1983] 3 WLR
742; [1983] 3 All ER 278; (1983) 82 LGR 193, HL
East
Riding County Council v Park Estate
(Bridlington) Ltd [1957] AC 223; [1956] 3 WLR 312; [1956] 2 All ER 669; (1956)
54 LGR 363; 6 PC&R 231, HL
Francis v Yiewsley and West Drayton Urban District Council [1958] 1
QB 478; [1957] 3 WLR 919; [1957] 3 All ER 529; (1957) 56 LGR 1; 9 P&CR 38;
[1958] JPL 154, CA
Friend v Brehort [1915] 111 LT 832
Kruse v Johnson [1898] 2 QB 91
Mead v Chelmsford Rural District Council [1953] 1 QB 32; [1952] 2
All ER 723; (1952) 3 P&CR 239
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196;
[1963] 2 WLR 225; [1963] 1 All ER 459; (1963) 61 LGR 152; 14 P&CR 266;
[1963] EGD 572; 185 EG 835; [1963] JPL 151, CA
Quietlynn
Ltd v Plymouth City Council [1988] QB 114;
[1987] 3 WLR 189; [1987] 2 All ER 1040; (1987) 85 LGR 856
R v Bovis Construction Ltd [1994] Crim LR 938
R v Ettrick Trout Co Ltd unreported October 19 1993
R v Oxford Crown Court, ex parte Smith (1990) 154 JP 422
R v Reading Crown Court, ex parte Hutchinson [1988] QB 384;
[1987] 3 WLR 1062; [1988] 1 All ER 333, DC
R v Smith (Thomas George) [1984] Crim LR 630; (1984) 48
P&CR 392; [1985] JPL 183, CA
Rhymney
Valley District Council v Secretary of State for
Wales [1985] JPL 27
Scarborough
Borough Council v Adams (1983) 47 P&CR
133; [1983] JPL 673
Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2
WLR 888; [1956] 1 All ER 855; (1956) 54 LGR 233; 6 P&CR 102, HL
Thomas v Sutton [1900] 1 Ch 10
White v Morley [1899] 2 QB 34
Appeal against
conviction
This was an
appeal by Peter Edward wicks
against his conviction in Canterbury Crown Court on an indictment that he had
failed timeously to comply with an enforcement notice.
and Kate Chandler (instructed by SJ Burton & Co, of Margate) appeared for
the appellant, Peter Edward Wicks.
Humphreys (instructed by solicitor to Thanet District Council) appeared for the
Crown.
following judgments were delivered.
LORD TAYLOR
OF GOSFORTH LCJ: Keene J will give the judgment of
the court.
KEENE J: This case raises the question of whether a defendant, charged with
an offence under section 179 of the Town and Country Planning Act 1990 of
failing to take steps required by an enforcement notice, can raise as a defence
an allegation that the decision to issue the enforcement notice was ultra
vires. This appellant was charged on indictment with such an offence at the
crown court at Canterbury, and on September 27 1993 he changed his plea from
not guilty to guilty following a ruling from the crown court judge. The learned
judge’s ruling was that unless the enforcement notice was invalid on its face
one could not, at the stage of a prosecution, go behind it and investigate the vires
of the decision to issue it. That, he said, was something which should be done
(if at all) by means of judicial review. After the change of plea, the
appellant was bound over for 12 months to come up for judgment if called upon
to do so. The appellant now appeals against conviction, the learned judge
having granted a certificate of fitness for appeal.
The grounds certified
are as follows:
(1) Whether it
is proper to challenge the decision to issue an enforcement notice on Wednesbury
grounds (irrelevant considerations, perversity, bad faith) by way of defence to
an indictment alleging an offence contrary to section 179(1) of the Town and
Country Planning Act 1990 (unamended).
(2) If it is
proper so to do, whether the validity of the enforcement notice is to be
determined by the judge as a matter of law having heard evidence in the absence
of the jury, or whether the jury is to decide relevant issues of fact in the
light of a direction as to the law by the judge.
The appeal
concerns an area of backland lying to the rear of residential properties in
Tivoli Road and Buckingham Road, Margate. It seems that on that land there
originally stood an old two-storey storage building. In March 1988, before the
appellant acquired the site, planning permission was granted for a change of
use of the existing building to light industrial use, but with conditions
making the permission personal to the then applicant, a toolmaker, and
requiring the use to cease by March 31 1989. The appellant acquired the site
later in 1988.
In 1989 he
unsuccessfully sought planning permission to demolish the existing building and
erect a bungalow. In December 1989 certain demolition work was carried out by
him or on his behalf to the upper part of the existing building, according to
him because storm damage had made part of the building dangerous. He then began
to carry out building works which he described as rebuilding, but he was told
by the local planning authority, Thanet District Council, in a letter dated
February 27 1990, that his proposed works would produce a materially different
building from the original and that they therefore required planning
permission. The letter also warned the appellant that work should stop
immediately.
On March 9
1990 a further letter was sent by the council warning that they might have to
serve an enforcement notice. On March 13 1990 an enforcement notice was issued,
followed by a stop notice. There appears to be no dispute that the enforcement
notice was duly served on the appellant. The notice recited that there had been
a breach of planning control on the land consisting in the carrying out of
building, engineering, mining or other operations described in schedule 2 to
the notice without planning permission, and schedule 2 identified the alleged
breach as the erection of a two-storey building. The notice required the
removal of all parts of the building higher than two and a half metres above
original ground level within the period of one month from the date on which the
notice took effect. Had there been no appeal to the Secretary of State for the
Environment, the notice would have taken effect on April 24 1990.
As is required
by regulations, the enforcement notice also set out the reasons why the local
planning authority considered it expedient to issue the notice. Given the
issues in the present appeal, it is not without relevance to note that those
reasons referred to the development as being ‘an undesirable form of backland
development’, resulting in additional overshadowing of adjoining properties due
to its height and position, as likely to result in an intensification of the
use over and above that
parking on the adjoining highway to the detriment of the free flow of vehicular
traffic on Buckingham Road. There was also reference to the height of the
building adding considerably to the sense of enclosure caused to the occupiers
of dwellings in Buckingham Road to the detriment of residential amenities.
Mr Wicks
appealed to the Secretary of State under section 174 of the Act, as he was
entitled to do, on April 12 1990. Apart from appealing on the planning merits
under ground (a) of section 174(2), he also appealed on grounds (b), (c) and
(g). These grounds asserted that the matters alleged in the notice did not
constitute a breach of planning control, that the alleged breach of planning
control had not taken place, and that the steps required by the notice were
excessive for the remedying of any such breach. The appellant chose to have the
appeal dealt with by way of written representations. As a result a detailed
statement of facts was submitted by the appellant to the Secretary of State.
While this statement alleged that the building works did not require planning
permission and that the steps required by the enforcement notice were
unreasonable, there was no suggestion in that document of any improper act on
the part of the council or of any legal invalidity of the enforcement notice.
The appeal to
the Secretary of State was determined by an inspector, Caroline Briggs BA(Hons)
FRTPI, barrister, acting on his behalf. In her decision letter dated May 10
1991 the inspector found that the work carried out constituted development
materially affecting the external appearance of the building and requiring
planning permission. She rejected the appeal on grounds (b) and (c), as well as
on ground (g). On the planning merits under ground (a) the inspector found that
there would be an overshadowing to and loss of daylight at 1A and 1B Buckingham
Road and that other dwellings in the area would suffer an unacceptable loss of
privacy. She also concluded that the lack of any off-street parking was an
indication of the problems of backland development and the unsuitability of
this restricted site in particular. In consequence she dismissed the appeal and
upheld the enforcement notice. No further appeal to the High Court was lodged
by this appellant against that decision, and that being so, the enforcement
notice finally took effect, the appeal to the Secretary of State having
prevented that from happening until then by virtue of section 175(4).
It appears
that certain further discussions then took place between the appellant and
officers of the council, but eventually by a letter dated October 31 1991 the
appellant was warned by the council to comply with the enforcement notice.
Nothing happened and in due course in June 1992 an information was laid
alleging an offence by the appellant under section 179(1) of the Town and
Country Planning Act 1990, in that the appellant, as owner of the land to which
the enforcement notice related, had not taken the steps required by that
notice. In due course the appellant elected trial in the crown court and on
January 14 1993 he was committed by the magistrates court for trial. There does
not seem to have been any suggestion that the appellant was not in breach of
the enforcement notice,
At the crown
court counsel on behalf of the appellant sought, after the jury had been sworn
in, to raise a challenge to the validity of the enforcement notice on grounds
of Wednesbury unreasonableness and bad faith. He also submitted that
these were issues to be determined by the jury, not the judge, saying that the
jury could decide what was reasonable or unreasonable. He was not prepared to
disclose to the judge what the factual basis for the allegation of Wednesbury
unreasonableness or bad faith was, because, as he put it, he did not wish to
forewarn the prosecution as to what his cross-examination would be. The
prosecution drew the court’s attention to the question of whether on the
authorities the court had jurisdiction in the matter, but relied principally on
the submission that the issues were ones for the crown court judge to
determine. As we have already indicated, the learned judge ruled that unless
the enforcement notice were invalid on its face a challenge to the validity of
the decision to issue such a notice could not be raised as a defence in the
crown court.
Before this
court Mr Keith Hornby, on behalf of the appellant, has referred to numerous
authorities and in reliance thereon has submitted that up until 1987 they
indicate that a defendant could raise by way of defence a challenge to the
validity of an enforcement notice or other like notices or byelaws. He
acknowledges that there are judicial decisions which go either way since that
date but submits that the position remains that a defendant can rely upon the
invalidity of an enforcement notice as a defence to a prosecution. He further
submits that it is for the trial court to determine that issue of validity and that
where there are likely to be significant factual disputes, those should be
decided by justices in summary trials and by a jury in the crown court. Mr
Richard Humphreys, on behalf of the respondent planning authority, seeks to
uphold the reasoning of the learned crown court judge.
It is not in
issue that the law relating to enforcement notices has long recognised a
distinction between:
(a) a notice
which is a nullity because of a basic defect (more than a mere slip)
apparent on the face of the document; and
(b) a notice
which is or may be invalid for some reason.
The classic
statement of that distinction is to be found in the judgment of Upjohn LJ in Miller-Mead
v Minister of Housing and Local Government [1963] 2 QB 196, at p226:
Now, I think,
is the time to draw the distinction between invalidity and nullity. For
example, supposing development without permission is alleged and it is found
that no permission is required or that, contrary to the allegation in the
notice, it is established that in fact the conditions in the planning
permission have been complied with, then the notice may be quashed under
section 23(4)(a). The notice is invalid: it is not a nullity because on the
face of it it appears to be good and it is only on proof of facts aliunde that
the notice is shown to be bad: the notice is invalid and, therefore, it may be
quashed. But supposing the notice on the face of it fails to specify some
period required by subsection (2) or (3). On the face of it the notice does
not comply with the section; it is a nullity and is so much waste paper. No
power was given to the justices to quash in such circumstances, for it was
quite unnecessary. The notice on its face is bad.
The learned
judge went on to give as another example of nullity a notice which was
hopelessly ambiguous and uncertain, which he again described as bad on its face
and a nullity. In using the expression ‘it … is so much waste paper’, the
learned judge may well have had in mind similar words used by Lord Goddard CJ
in Mead v Chelmsford Rural District Council [1953] 1 QB 32, at
p36, when describing an enforcement notice which did not comply with the Act
because it failed to specify a date at which it was to take effect.
Such a notice
will also be a nullity if, for example, it fails to specify the period for
compliance, because there is then a patent breach of what is now section 173(9)
of the Act of 1990. Similarly, if the notice failed to identify the land to
which it related it would be a nullity. In all these cases the document, in
effect, is not an enforcement notice at all but a mere piece of paper. It would
seem that no appeal to the Secretary of State can be brought under the 1990
Act, because there is in such cases no notice on which to base an appeal: see Rhymney
Valley District Council v Secretary of State for Wales [1985] JPL
27.
There is no
doubt that nullity can be raised by a defendant if a prosecution is brought for
an alleged breach of such an ‘enforcement notice’. The defect is evident on the
face of the document. Indeed, it arises as a matter of law and no evidence is
required to establish it. The defendant may therefore argue that the purported
enforcement notice is no such notice within the meaning of the Act and the
magistrates or the crown court judge can rule on the issue.
The position
is different where an allegation is made that an enforcement notice is invalid
in the sense used by Upjohn LJ. Such invalidity is not apparent on the face of
the document and consequently some evidence is required to support the allegation.
Some additional facts have to be proved to show that, for example, there has
been no breach of planning control. Many grounds of invalidity can be pursued
by way of an appeal to the Secretary of State for the Environment under section
174 of the Act and thence if necessary to the High Court on a point of law
under section 289 of the Act. Those grounds are covered by section 174(2)(a) to
(g), and relate to a variety of matters, including whether there has been a
breach of planning control, whether (in the case of building or other
operations) the breach occurred more than four years before the enforcement
notice was issued and whether the notice was served as required.
On none of
these grounds may the validity of an enforcement notice be questioned in any
other proceedings. Section 285(1) of the 1990 Act provides (as amended by the
1991 Act) as follows:
The validity
of an enforcement notice shall not, except by way of an appeal under part VII,
be questioned in any proceedings whatsoever on any of the grounds on which such
an appeal may be brought.
There is one
limited exception to this prohibition, provided by section 285(4), dealing with
failure to serve the notice in certain circumstances, but otherwise the
prohibition operates. It was held in R v Smith (Thomas George)
(1984) 48 P&CR 392 that the word ‘proceedings’ in the equivalent section of
the 1971 Act included criminal proceedings for failure to comply with an
enforcement notice and consequently no defence on any ground on which an appeal
lay to the Secretary of State could be raised by the defendant.
However, there
is a residual group of invalidity grounds which are not covered by the
statutory prohibition because they do not fall within any of the paragraphs of
section 174(2) and yet which do not render an enforcement notice a nullity.
These are essentially challenges to the vires of the decision to
issue the enforcement notice. In such a case, it is alleged that the notice is
invalid because the decision to issue it was ultra vires, being made for
an improper purpose or in bad faith, or being Wednesbury unreasonable or
being influenced by irrelevant considerations or by a failure to have regard to
relevant considerations. It was such a challenge which the appellant sought to
raise in the present case in the crown court by way of defence, and it gives
rise to the main issue in this case.
In support of
his proposition that such a challenge to the vires of the decision to
issue the enforcement notice can operate as a defence to a criminal prosecution,
Mr Hornby took us back to a number of the early cases dealing with byelaws. He
referred in particular to the well known decision in Kruse v Johnson
[1898] 2 QB 91. There the Divisional Court held, inter alia, that the
courts could hold a byelaw to be invalid because it was unreasonable and so
fell outside the statutory power under which it was made. It is clear that the
court there used the word unreasonable in the sense of something which ‘could
find no justification in the minds of reasonable men’: see p100. A similar
approach was adopted in White v Morley [1899] 2 QB 34 and Thomas
v Sutton [1900] 1 Ch 10. These cases seem to be mostly ones where the
court examined the wording of the byelaw in question and came to a conclusion
as to whether it was in itself so unreasonable as to be outside the power given
by the parent statute. For the most part these decisions did not involve the
courts in investigating on the basis of evidence of fact the reasonableness or
otherwise of the byelaw. There are some exceptions to this, of which Friend
v Brehort [1915] 111 LT 832 is an example. However, we do not find these
older cases on byelaws, dealing with validity long before the important
developments in judicial review during the last few decades, of great assistance
in determining the issue which is before us.
Somewhat more
recent is the decision in Allingham v Minister of Agriculture and
Fisheries [1948] 1 All ER 780, a case dealing with directions about
agricultural land issued under the Defence (General) Regulations 1939. There it
was held that the notice giving directions was invalid because it had not been
authorised by the appropriate body. That issue arose in the course of criminal
proceedings for failure to comply with the direction and it seems to have been assumed
by the court that this point was one which could be raised as a defence to that
prosecution. However,
be so raised was ever argued before the Divisional Court.
There are a
number of decisions to which the appellant has referred dealing specifically
with enforcement notices under the town and country planning legislation. We
have already referred to Mead v Chelmsford Rural District Council (ante),
where it was held that an argument that the enforcement notice was bad could be
raised by way of defence to a criminal prosecution. However, there the notice
was clearly defective on its face, having failed to specify the date when it
was to take effect. It was a nullity. The same is true of the House of Lords
decision in East Riding County Council v Park Estate (Bridlington)
Ltd [1957] AC 223, where the enforcement notice did not contain the
particulars required by the Act and was accordingly invalid.
Mr Hornby also
relied on the decision in Francis v Yiewsley and West Drayton Urban
District Council [1958] 1 QB 478. There, however, the landowner had brought
proceedings for a declaration that the enforcement notice was ineffective on a
number of grounds. In other words, the issue of the notice’s validity did not
arise in the course of criminal proceedings but rather in what nowadays would
be proceedings under Ord 53 of the Rules of Supreme Court by way of judicial
review. There was one obiter remark by Pearce LJ to the effect that the
question whether the notice was a good one might be a valid defence against
conviction, but the learned judge does not seem to have been seeking to
distinguish between grounds of nullity and those of invalidity.
The case which
is perhaps most helpful to the appellant in his current argument is that of Scarborough
Borough Council v Adams (1983) 47 P&CR 133 at pp 138-139, where
an enforcement notice had been served on the occupiers of three caravans
stationed in a layby on a highway. The occupiers were prosecuted under the
enforcement notice and the Divisional Court held that they should have been
convicted. However in the course of his judgment Watkins LJ said, referring to
the arguments of counsel for the prosecuting authority:
Secondly, he
contends that, by the time a person proceeded against under that section
reaches the magistrates’ court, it is too late for him to challenge the
validity of the enforcement notice on any of the grounds contained in section
88(2) of the Act. I do not agree. It is far too sweeping an assertion to make.
It may be — and I say nothing more positive about it than that for the purposes
of this case — that it is not open to someone in the position of the two Adams,
denied as they were the right of an appeal to the Secretary of State, to argue
before the justice the invalidity of any of the grounds set out in section 88,
but to assert that they were disentitled from otherwise attacking the
enforcement notice is, in my judgment, going unjustifiably too far. It must, so
it seems to me, be open to a person or persons in that position to argue that
an enforcement notice is a nullity or invalid for the reason, for example, that
the issuing authority had no jurisdiction to issue the notice — no jurisdiction
possibly because the persons named in the notice as issued had no interest in
the land and were neither owners nor occupiers of it. Therefore, it seems to me
that Mr Sullivan has not succeeded in
the validity of the enforcement notice. It is quite clear from the contents of
the notes in the Encyclopedia of Planning Law and Practice, volume 2, to
sections 87, 88 and 89 that the questions of nullity and invalidity are of very
considerable concern to the courts, where there is always an anxiety to ensure
that a person who comes before the court is not denied a proper right, in
appropriate circumstances, to challenge a notice that is the foundation of the
offences as charged.
The learned
judge seems in that passage to have been using the words ‘nullity’ and
‘invalidity’ almost interchangeably. He was undoubtedly right in stating that
the defendants were not totally disbarred from challenging the enforcement
notice and that they could do so on the basis that it was a nullity. But the
learned judge does not seem to have found it necessary in the circumstances of
that case to consider whether the same would apply where the notice was not a
nullity.
We have also
been referred to a passage from the speech of Lord Fraser of Tullybelton in Davy
v Spelthorne Borough Council [1984] AC 262 at p272D, which is said to
support the proposition that a defendant in criminal proceedings can raise not
only nullity on the face of the enforcement notice but also an allegation that
it was issued ultra vires. It is of some importance to set the passage
in context. The case was a civil claim against a local planning authority,
seeking damages for alleged negligent advice given to the plaintiff which had,
he said, caused him to refrain from appealing against an enforcement notice. In
the course of his speech, Lord Fraser said:
But in my
opinion, the respondent’s claim for damages is not barred by section 243(1)(a).
That paragraph provides that the validity of an enforcement notice shall not be
questioned in any proceedings whatsoever ‘on any grounds on which such an
appeal may be brought.’ The words ‘such an appeal’ are a reference back to an
appeal under Part V of the Act of 1971, and they mean in effect the grounds
specified in section 88(2). But section 243(1)(a) does not prohibit questioning
the validity of the notice on other grounds. If, for example, the respondent
had alleged that the enforcement notice had been vitiated by fraud, because one
of the appellant’s officers had been bribed to issue it, or had been served
without the appellants’ authority, he would indeed have been questioning its
validity, but not on any of the grounds on which an appeal may be brought under
Part V. So here, the respondent’s complaint that he acquiesced in the
enforcement notice because of negligent advice from the appellants is not one
of the grounds specified in section 88(2), and it would not have entitled him
to appeal to the Secretary of State under Part V of the Act of 1971.
Accordingly, even on the assumption that the validity of the enforcement notice
is being questioned in the present proceedings (an assumption which in my
opinion is open to serious doubt), it is certainly not being questioned on any
of the grounds referred to in section 243(1)(a) and the proceedings are not
barred by that subsection. In my opinion, therefore, the appellants’ first
contention fails.
It is apparent
that in that passage Lord Fraser was merely rejecting the appellants’
contention that the then equivalent of section 285 (the
not, because that statutory prohibition only applies to certain grounds. What
his lordship was not seeking to answer was the question in what proceedings the
issue of the vires of an enforcement notice could be raised. Neither
party in the present case denies that such a challenge can be raised by way of
judicial review. It does not automatically follow from Lord Fraser’s dicta
that an ultra vires point, which could have been taken by way of
judicial review, is available subsequently as a defence to a prosecution.
There have in
recent years been a number of decisions, not on enforcement notices as such but
on other documents forming the basis for a prosecution, where this issue has
been considered. They are of assistance in our view in the present case, but
the decisions do not all point in the same direction.
The first is
the Divisional Court decision in Quietlynn Ltd v Plymouth City
Council [1988] QB 114. There a company operating a number of sex shops was
prosecuted after it had been refused a licence under the relevant legislation
but had continued to trade. It sought to rely on various procedural
irregularities so as to show that the local authority’s refusal was invalid.
The Divisional Court held that it was for the local authority to determine
whether to grant a licence and any question of validity of the local
authority’s decision was to be determined by the High Court in proceedings for
judicial review. Until this happened, the local authority’s decision was to be
presumed to be validly made, unless it was invalid on its face. Accordingly, on
a prosecution for an offence, neither the justices nor the crown court had any
jurisdiction to consider the validity of the decision to refuse a licence.
The judgment
of the court was given by Webster J. In the course of it, he said at p131D:
The law
relating to judicial review has become increasingly more sophisticated in the
past few decades, and in our view justices are not to be expected to have to
assume the functions of the Divisional Court and consider the validity of
decisions made by a local authority under this Act in the light of what is now
a complex body of law. If a bona fide challenge to the validity of the decision
in question is raised before them, then the proceedings should be adjourned to
enable an application for judicial review to be made and determined. In our
view, therefore, except in the case of a decision which is invalid on its face,
every decision of the licensing authority under the Act is to be presumed to have
been validly made and to continue in force unless and until it has been struck
down by the High Court; and neither the justices nor a Crown Court have power
to investigate or decide upon its validity.
It is to be
observed that the court there did draw a distinction between invalidity on the
face of a document and other invalidity.
The reasoning
in that case was considered but not accepted in a Divisional Court decision
dealing with byelaws, R v Reading Crown Court, ex parte
Hutchinson [1988] QB 384. That case arose from prosecutions under the
byelaws relating to RAF Greenham Common. The defendants
in breach of the empowering statute because they affected rights of common. The
Divisional Court held that the defendants were entitled to raise such a
defence, because it was long established that justices could inquire into the
validity of a byelaw. In the main judgment Lloyd LJ referred to the Quietlynn
case as one where the decision was fully justified on its facts, because the
company had previously applied for judicial review but then withdrawn its
application. He stated at p394G that:
It is not
altogether surprising that the court held that the proper procedure in the
particular case was by way of judicial review, since that was the procedure
which the company had itself adopted, until it abandoned its application at the
door of the court.
We are bound
to say that we find it difficult to see why those past actions of the company
in Quietlynn should affect the issue of whether it could raise
invalidity of the local authority’s decision as a defence. In any event, Lloyd
LJ went on to say at p395B:
If the
validity of a decision of a local authority is an essential element in the
proof of the crime alleged, then I can see no reason why it should not be
challenged in the magistrates’ court or the Crown Court as the case may be.
In R v Oxford
Crown Court, ex parte Smith (1990) 154 JP 422, Simon Brown J was dealing
with an amenity notice served under what is now section 215 of the Town and
Country Planning Act 1990. The landowner appealed, as he was entitled to do, to
the magistrates’ court, that right being provided by the Act in the case of
such notices. In other words, the proceedings in the magistrates’ court were
not a prosecution for breach of the notice but the equivalent of an appeal to
the Secretary of State for the Environment in the case of enforcement notices.
The magistrates had the power on such an appeal to quash the notice. When the
proceedings got to the Crown Court on further appeal, the appellant sought to
challenge the vires of the notice. It was argued that it would be an
abuse of process for him to do so, but Simon Brown J rejected that argument,
saying he could not see why the appellant could not do so on the appeal
proceedings. He rightly drew attention to the fact that on enforcement notice
appeals the Secretary of State was prepared to consider vires arguments.
It was
apparently conceded in that case by counsel that the appellant could raise a vires
argument at the prosecution stage, but that was not an issue which the learned
judge had to determine. The case therefore is not authority for Mr Hornby’s
proposition.
Of
considerable assistance in our view is the more recent Divisional Court
decision in Bugg v Director of Public Prosecutions [1993] QB 473.
Like ex parte Hutchinson, that case was concerned with prosecutions
brought for breach of certain byelaws. The defendants sought to challenge the
validity of the byelaws. The Divisional Court distinguished between two
different situations. The first was where a byelaw was on its face
invalid because
outside the scope of the enabling legislation, or it was patently unreasonable.
(We note in passing that the word ‘patently’ must, in the light of what
followed, have been of considerable importance.)
The second situation
was where there had been non-compliance with a procedural requirement (in
regard to) the making of that byelaw, such as a failure to consult. In the
leading judgment Woolf LJ emphasised, at p494D, that in cases falling within
the first category (which he termed ‘substantive invalidity’) what had to be
attacked was not the decision to make the byelaw but the byelaw itself. He drew
attention to a practical difference between the two types of invalidity at
p495A:
In the case
of substantive invalidity, it is a matter of law whether, for example, a byelaw
is unreasonable in operation, or is outwith the authorising power. No evidence
is required; the court can decide the issue by looking at the terms of the
primary legislation and the subordinate legislation which is alleged to be
invalid. The situation is different with procedural invalidity. Evidence will
be required, for example, as to what happened during the course of the making
of the byelaw in order to see whether or not it has been validly made.
The court drew
attention to the fact that in ex parte Hutchinson consideration did not
appear to have been given to different types of invalidity. It cited Quietlynn
with approval and stressed that in cases of ‘procedural invalidity’ the reason
why the criminal court could not inquire into the matter was not because such a
challenge would be an abuse of process but rather that ‘it is not part of the
jurisdiction of that the criminal courts to carry out such an investigation and
they are not properly equipped to do so’: p499D.
The point was
also made that in such cases, if the matter was dealt with by the criminal
courts, there could be different outcomes in different cases to the invalidity
challenge because the evidence could be all important. ‘The same problem does
not arise with regard to substantive invalidity because there is no need for
evidence’.
The essence of
the court’s decision in Bugg is to be seen in a passage at p500C-E:
So far as
procedural invalidity is concerned, the proper approach is to regard byelaws
and other subordinate legislation as valid until they are set aside by the
appropriate court with the jurisdiction to do so. A member of the public is
required to comply with byelaws even if he believes they have a procedural
defect unless and until the law is held to be invalid by a court of competent
jurisdiction. If before this happens he contravenes the byelaw, he commits an
offence and can be punished. Where the law is substantively invalid, the
position is different. No citizen is required to comply with a law which is bad
on its face. If the citizen is satisfied that that is the situation, he is
entitled to ignore the law.
While the
terms ‘substantive’ and ‘procedural’ invalidity are no
misunderstandings when applied in other contexts. It is clear to us from the
court’s reasoning in that case that the distinction drawn between those two
types of invalidity is extremely close indeed to that which has long operated
in the law on enforcement notices between defects on the face of the notice
rendering it a nullity and those matters which may render a notice invalid. The
former is what Woolf LJ called ‘substantive’ invalidity, the latter
‘procedural’ invalidity, but we shall seek to avoid such terms for the reason
we have indicated. The same practical point, however, arises, namely that
evidence is not required if a defendant alleges that an enforcement notice is a
nullity, whereas a challenge to its validity on the grounds that the decision
to issue it was ultra vires would in almost all cases require such
evidence.
The approach
adopted in Bugg has been followed in a number of other cases. It was
cited with approval by this court in a case concerned with a prosecution under
the Ancient Monuments and Archaeological Areas Act 1979: R v Bovis
Construction Ltd [1994] Crim LR 938. In an unreported case decided by this
court on October 19 1993, R v Ettrick Trout Co Ltd, where the
appellant had been prosecuted for contravening the conditions of a consent to
discharge trade effluent, the court held that it was not open to the defence to
challenge the validity of the condition on the basis that it had been imposed
for an improper purpose. Giving the judgment of the court McCowan LJ quoted at
length from Bugg and said:
What is in
issue here is in Bugg terms procedural invalidity, where evidence would
be required as to what happened during the course of the decision to impose the
condition, and the challenge to that decision would have to be by way of
judicial review.
The court
concluded that the issue of a collateral challenge to the validity of the
condition was an attempt to bypass Ord 53 of the Rules of the Supreme Court and
the statutory appellate procedure and was, therefore, an abuse of process.
Having carried
out this extensive review of the authorities, we find that there is no previous
decision which clearly determines this issue in relation to enforcement notices
under the town and country planning legislation. The statutory provision
dealing with offences arising from non-compliance with such notices is section
179(2) of the Town and Country Planning Act 1990, as amended. That reads as
follows:
Where the
owner of the land is in breach of an enforcement notice he shall be guilty of
an offence.
The starting
point must be that subsection. So long as the notice is not a nullity, patently
defective on its face, it is an enforcement notice and will remain so until it
is quashed. For an offence under that subsection to be proved in criminal proceedings,
there is no requirement on the prosecutor to call evidence to establish that
the decision of the local planning
raised and the prosecution closes its case, we do not accept that it could
properly be submitted that there was no case to answer because the prosecution
had not called evidence to establish that point. Thus the hypothesis raised in ex
parte Hutchinson, namely ‘if the validity of a decision of a local
authority is an essential element in the proof of the crime alleged’, does not
arise, at least when dealing with enforcement notices.
The true
position seems to us to be that indicated in relation to byelaws in Bugg,
when it was said that a byelaw valid on the face of it ‘remains effective until
it is quashed’: p493A. As was said by Lord Radcliffe in Smith v East
Elloe Rural District Council [1956] AC 736, at p769:
An order,
even if not made in good faith, is still an act capable of legal consequences.
It bears no brand of invalidity upon its forehead. Unless the necessary
proceedings are taken at law to establish the cause of invalidity and to get it
quashed or otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders.
It was in line
with that reasoning that the Divisional Court in Bugg stated that until
such time as a byelaw is quashed, someone who contravenes it commits an
offence.
That approach
applies with even greater justification in the case of an enforcement notice.
Byelaws may not have come to the attention of the person prosecuted at the time
when those byelaws were made. They apply to an area of land usually of some
size, affecting a large and transient group of people; they do not have to be
served on a person before a prosecution can be brought.
In contrast,
an enforcement notice does have to be served on the people affected (usually
few in number). They know it applies to them. Thus they have a much greater
opportunity to challenge it by judicial review if they wish to raise an ultra
vires point. Moreover, enforcement notices are registrable as land charges.
It is only the
High Court which has the jurisdiction to quash an enforcement notice. No
criminal court has that power. If a criminal court rejected an argument that
the issue of an enforcement notice was Wednesbury unreasonable, that would not
stop the point being raised again on a further prosecution for another breach,
if such points could be taken as a defence to a prosecution. Mr Hornby conceded
that if his argument prevails there could be different decisions on the
validity of a notice from successive criminal trials.
The practical
considerations in favour of such an approach are also persuasive. Whether
before justices or before a crown court judge or jury, if an allegation were
raised that the decision to issue an enforcement notice was ultra vires,
the practical problems of such an issue being determined in either of those
processes would be formidable. If the allegation were one of Wednesbury
unreasonableness or failing to take account of relevant considerations, it
might well require a considerable amount of evidence about the relevant
planning policy context, since the discretion as to
by policy considerations. That may involve an examination of the relevant
development plan for the area and even national planning policy guidance.
This is
illustrated by the present case. Some of the local planning authority’s
objections to the new building operations were that they would be ‘an
undesirable form of backland development’, would involve an ‘intensification of
use’ and an ‘unsatisfactory access’. All those matters would involve a
consideration of the relevant policy documents, to determine whether the
issuing of the enforcement notice was perverse in a Wednesbury sense.
For these matters to be dealt with by expert evidence and cross examination
before a jury, or even before a crown court judge sitting alone, is not
appropriate. The same would be true of most ultra vires bases of
challenge. On the other hand, such arguments are the everyday concern of the
Crown Office list judges, who deal with judicial review applications.
In addition,
in most cases it would not be right for someone served with an enforcement
notice to be able, as was said in the Ettrick Trout case, to bypass the
Ord 53 procedures and restrictions. Challenges to the vires of a local
authority decision ought to be raised with some promptness, as is recognised by
Ord 53. Hence the usual three-month time-limit from the decision in question,
unless good reason for extending time is shown. Prima facie, it is
difficult to see why the recipient of an enforcement notice should be able to
sit back and do nothing, breach the enforcement notice after two or three years
(as can happen) and then, when prosecuted, raise the vires issue.
There might,
of course, be exceptional cases where some proper ground for challenge to the vires
of the council’s decision only came to light some time later as a prosecution
was about to be pursued. In those circumstances it seems to us that the
appropriate procedure would be for the defendant to raise that matter as the
basis of an application for an adjournment of the trial, on his undertaking to
apply for judicial review to quash the notice. If there was a sound basis for
such an adjournment the trial judge could, as a matter of discretion, no doubt
grant it and, again if the belated discovery of the matter were true, there
would normally be good reason for the time-limit for judicial review to be
extended. There would thus be no unfairness to a defendant in those
circumstances.
In the more
normal situation, a defendant who has been served with an enforcement notice
has had an opportunity to challenge its vires but has not (ex
hypothesi) taken it. We can see no reason why he should be able to take
such a point at some later stage.
Mr Hornby
sought to rely on a tentative passage in the judgment of Woolf LJ in Bugg.
After drawing the distinction between substantive invalidity (challengeable in
criminal proceedings) and procedural invalidity (not so challengeable) he went
on as follows:
However, we
do accept there may be cases with a grey area. We have particularly in mind
cases where it is suggested that there has been abuse of
faith, there may be an issue which the criminal court can determine and if so,
evidence will be required … There is then an evidential burden upon a defendant
to show that on the balance of probability there has been mala fides upon the
part of the byelaw maker.
Those
observations were obiter and whatever the position regarding byelaws, an
enforcement notice is, as we have already observed, made and served in
personam. The occupier, knowing it demands action from him personally, is
alerted to the opportunity to challenge the notice on appeal or by judicial
review. In fact, in the present case, the appellant did challenge the notice by
way of appeal. He did not however raise any question of mala fides at
that time. Had the trial judge in these proceedings allowed the proposed
challenge to the validity of the notice to be raised, it would have involved
issues of planning policy and Wednesbury unreasonableness, whether the
planning authority took into account irrelevant considerations as well as any
contention of mala fides which may have emerged. The inquiry would not
have been appropriate for the jury or for the determination of a crown court
judge in a criminal trial with a jury sworn and waiting to start work.
We therefore
conclude that the learned crown court judge in the present case was right in
his ruling that, unless the enforcement notice was invalid on its face and thus
a nullity, it was not open to the defence to go behind it and to seek to
investigate the vires of the decision to issue it. For the reasons we
have given, the first question posed in the certificate of fitness for appeal
will be answered ‘No’, and in those circumstances the second question does not
arise. This appeal is therefore dismissed.
Appeal
dismissed.
