Stop notice — Prohibited activity — Notice prohibiting operational development — Notice not confined to work in breach of planning control — Notice invalid — Reference to enforcement notice to ascertain extent of prohibition not permissible
The appellant
was granted planning permission to erect a part two-storey, part single-storey
extension to his property at 2 Belgrave Gardens, London N14. Upon his erecting
a second storey over the part of the extension where only one storey was
permitted, the local planning authority served an enforcement notice requiring
him to reduce all parts of the development which exceeded the permission. They
also served a stop notice pursuant to section 90 of the Town and Country
Planning Act 19711 (now section 183 of the Town and Country Planning
Act 1990) prohibiting continuance of the activity specified in Schedule 2 to
the notice as ‘operational development consisting of the carrying out of any
building and/or construction and/or related works in connection with the
extensions . . .’. Building continued and the appellant was prosecuted under
section 187(1) of the 1990 Act for contravening the stop notice. A second count
charged him with permitting the contravention. At trial he pleaded not guilty,
but changed his plea to guilty following the rejection of legal submissions by
the recorder. On appeal against conviction, the point was raised for the first
time that the stop notice was invalid.
1Town and Country Planning Act 1971, section 90; see post p
62A-C.
the convictions quashed.
Section 90
made it plain that a stop notice could only prohibit work, the continuation of
which was in breach of planning control. Schedule 2 to the notice served on the
appellant was not so confined but purported to prohibit all operational
development on the site. It was the stop notice which defined the extent of the
prohibition. Because of the penal consequences which flowed from a
contravention of the stop notice, its terms must be strictly construed: it was
not permissible to look at the enforcement notice annexed to the stop notice in
order to ascertain what was and what was not prohibited. Accordingly, the
wording of Schedule 2 rendered the stop notice invalid: see pp 63G-64E.
referred to in the judgment
Appeal against
conviction
This was an
appeal by Nazir Ahmed Dhar against conviction on September 27 1991 at Wood
Green Crown Court (Mr Recorder Giovene)
alleged the contravention of a stop notice, contrary to section 187(1) of the
Town and Country Planning Act 1990. Count 2 alleged the permitting of the
contravention of the stop notice. The appellant was fined £ 2,500 on the first
count and ordered to pay prosecution costs of £ 1,709. No separate penalty was
imposed on count 2.
(assigned by the Registrar of Criminal Appeals) appeared for the appellant,
Nazir Ahmed Dhar.
Davey (instructed by the solicitor to Enfield London Borough Council) appeared
for the Crown.
following judgment of the court was delivered.
RUSSELL LJ: The appellant in this case is a medical practitioner. He resides at
2 Belgrave Gardens, Southgate, London, N14. On March 15 1989 Enfield London
Borough Council, as planning authority, granted the appellant planning
permission to erect an extension to his property in order to provide additional
living accommodation, together with a doctor’s surgery and waiting room for
patient management and a diet clinic. The permission granted was subject to a
number of conditions and in particular provided for the extension to be part
two-storey and part single-storey, illustrated by plans accompanying the
application for permission.
Building
operations began whereupon it came to the notice of the planning authority that
the appellant was breaching the terms of the planning permission by erecting a
second storey over that part of the extension where only a single storey was
permitted. Ultimately, on May 15 1990, the council issued an enforcement
notice. Having set out that it appeared to the council that ‘the erection of
extensions to both side and rear elevations of the premises had been carried
out . . . without the planning permission required in that behalf in accordance
with the Part II of the Town and Country Planning Act 1971, thereby
constituting a breach of planning control’ and that the council considered it
expedient for identified reasons to issue the enforcement notice, it concluded
with the words that the council ‘hereby require that, pursuant to section 87 of
the said Act within one calendar month after the date on which this notice
takes effect (subject to the provisions of section 88(10) of the said Act) you
shall take the following steps in order to remedy the breach: (1) reduce all
parts of the development which go beyond the development permitted by a
planning permission DP/88/0918. This notice shall take effect on 19th day of
June 1990.’
The planning
authority believed that at the date of their enforcement notice prohibited work
was continuing on the site. Accordingly, the authority invoked section 90 of
the Town and Country Planning Act 1971 and on May 18 1990 served a stop notice
to take effect on May 22 1990.
Section 90, so
far as material to this appeal, reads as follows:
90.– (1) Where in respect of any
land the local planning authority —
(a) have served . . . an enforcement notice
requiring the breach of planning control to be remedied; but
(b) consider it expedient to prevent, before
the expiry of the period allowed for compliance with the notice, the carrying
out of any activity which is, or is included in, a matter alleged by the notice
to constitute the breach,
then, subject
to the following provisions of this section, they may at any time before the
notice takes effect serve a further notice (in this Act referred to as a ‘stop
notice’) referring to, and having annexed to it a copy of, the enforcement
notice and prohibiting the carrying out of that activity on the land, or on any
part of it specified in the stop notice.
(2) A stop notice shall not prohibit . . .
(c) the taking of any steps specified in the
enforcement notice as required to be taken in order to remedy the breach of
planning control; . . .
(9) A stop notice shall not be invalid by a
reason that . . . the enforcement notice to which it relates was not served as
required by section 87(5) of this Act, if it is shown that the local planning
authority took all such steps as were reasonably practicable to effect proper
service.
The stop
notice served on May 18 1990, having rehearsed by way of preamble the issue of
the enforcement notice, continued:
(2) the Council consider it expedient to prevent,
before the expiry of the period allowed for compliance with the requirements of
the Enforcement Notice, the activity alleged to constitute or form part of the
alleged breach of planning control.
NOTICE IS
HEREBY GIVEN that the Council, in exercise of their
powers in Section 90 of the 1971 Act, now prohibits the continuance of the
activity specified in Schedule 2 of this Notice.
A copy of the
related Enforcement Notice, issued under Section 87 of the 1971 Act, is annexed
to this Notice.
This Notice
shall take effect on 22nd May 1990 when all the activities specified in
Schedule 2 to this Notice shall cease.
Schedule 2
provided:
The activity
to which this Notice relates is operational development consisting of the
carrying out of any building and/or construction and/or related works in
connection with the extensions coloured yellow on the annexed plan.
We pause to
observe that a copy of the annexed plan which we have seen simply shows,
without any elevations, the whole area of the extension coloured yellow, both
two storey and one storey.
Building
operations continued. The planning authority decided to prosecute and did so
under section 187(1) of the Town and Country Planning Act 1990. The appellant
exercised his right to elect trial and on September 27 1991, in the Crown Court
at Wood Green before Mr Recorder Giovene, he pleaded not guilty to an
indictment that contained two counts:
Count 1
Statement of Offence
Contravention
of a Stop Notice contrary to Section 187(1) of the Town and Country Planning
Act 1990.
Particulars of Offence
Nazir Ahmed
Dhar who on 18th day of May 1990 was served with a Stop Notice which prohibited
operational development consisting of the carrying out of any building and/or
construction and/or related works in connection with the extensions to a
building at 2 Belgrave Gardens, Southgate, London N14 between the 15th July
1990 and 30th August 1990 caused building works and related works of rendering
pebble dashing and painting to be carried out to the extensions beyond that
permitted by a planning permission no TP 88/0918 and in contravention of the
requirements of the said Stop Notice.
A second count
was in identical terms save that it alleged the permitting of the contravention
of the stop notice. After arraignment submissions were made to the learned
recorder to the effect that no offence had been committed because: (1) at the
date of the stop notice ‘the erection’ had been completed in the sense that the
structure of the extension had been completed and consequently there was no
work which could be prevented by the stop notice; and/or (2) the work of
‘rendering, pebble dashing and painting’, even if carried out after the service
of the stop notice, was not prohibited work because it did not form part of
‘the erection of extensions’ prohibited by the planning authority.
Both the
submissions were rejected by the learned recorder, whereupon the appellant changed
his plea to guilty on both counts. The recorder imposed a fine of £ 2,500 upon
the first count, together with costs of £ 1,709. No separate penalty was
imposed on count two.
The appellant
appeals against his conviction with the leave of the single judge. We say at
once that, in our judgment, the two points taken on behalf of the appellant
before the learned recorder are virtually unarguable. We are abundantly
satisfied that the rendering, pebble dashing and painting carried out after the
stop notice were part of the works of erection, just as the slating of the roof
would be part of the works of erection. If this appeal had turned upon the
points taken before the learned recorder it would inevitably have failed.
Nevertheless,
we have to consider the validity of the stop notice. If it was invalid, then
the prosecution failed in limine.
In our
judgment, the terms of section 90 make it plain that a stop notice can prohibit
only work, the continuation of which is in breach of planning control. The
concluding words of subsection (1) make it plain that the prohibition relates,
and relates only, to the carrying out of ‘that activity on the land, or any
part of it, specified in the stop notice’, ‘that activity’ being the activity
which constitutes the breach of planning control.
We return to
the terms of the stop notice served in this case. it purported to prohibit ‘the
activities specified in Schedule 2’. Schedule 2, which we have already cited in
full, embraced all operational
have been, to that part of the work, the continuation of which would be in
breach of the planning permission.
Mr Tobias
Davey, on behalf of the prosecution, sought to contend that planning
authorities may well have to require the cessation of all activity on a
building site in order to secure proper compliance with planning control
because it is sometimes difficult to ascertain what activity is within or
without planning permission when a determined attempt is made by a developer to
continue building operations in defiance of the conditions of his permission.
We sympathise with that difficulty, but in our judgment the terms of section 90
are plain. It does not give the planning authority the power to prohibit the
activity described in Schedule 2 of this stop notice.
Mr Davey, in
his helpful submissions, also contended that we could look at the terms of the
enforcement notice annexed to the stop notice in order to ascertain what was and
what was not prohibited. We disagree. It is the stop notice which defines the
extent of the prohibition: it is a contravention of the stop notice which was
the subject-matter of this prosecution and, in our judgment, because of the
penal consequences that flow from such a contravention, the terms of the stop
notice must be strictly construed. If the meaning is unambiguous, assistance is
not to be derived from other documents.
Reluctantly,
therefore, and although the point was never taken before the learned recorder,
we have come to the conclusion that the wording of Schedule 2 in the stop
notice in this case rendered that notice invalid. It follows that this appeal
against conviction must be allowed and the convictions and penalties set aside.
Appeal allowed
and convictions quashed. Order for payment of appellant’s costs of appeal from
central funds; no order as to costs below. Application for certificate under
Criminal Appeal Act 1968, section 33(2) refused.
