Appellant local planning authority bringing enforcement proceedings against respondent – Respondent applying for certificate of lawful development – Appellants withdrawing proceedings – Certificate granted – Appellants revoking certificate and instituting fresh proceedings – Magistrates applying autrefois acquit – Whether magistrates erred – Appeal allowed
In March 1998 Islington London Borough Council (the appellants), served an enforcement notice upon the respondent requiring him to cease operation of a car wash and vacuuming facility at his petrol-station business, and to remove the facility within 28 days. Subsequently, the appellants instituted enforcement proceedings against the respondent, pursuant to section 179(2) of the Town and Country Planning Act 1990, alleging breach of the enforcement notice. The respondent pleaded not guilty and consented to summary trial. The trial was listed for 12 May 1999. During the course of the enforcement proceedings, the respondent applied for a certificate of lawful development (LDC) under section 191 of the 1990 Act. The central point of his application was that the car-wash business was merely ancillary to his petrol-station business. In anticipation of the imminent decision to grant an LDC, the appellants decided to withdraw the proceedings.
In May 1999 the respondent was granted an LDC. However, following the grant of the LDC, there were further recorded uses of the site for a car-wash business and there was public concern about the noise nuisance created by it. In October 1999 the appellants revoked the LDC on the basis that it had been obtained by non-disclosure, and misrepresentation as to the intensity of use and the ancillary nature of the car-wash business. In May 2000 the appellants laid an information against the respondent alleging failure to comply with the enforcement notice of March 1998. The magistrates held that the doctrine of autrefois acquit applied and dismissed the charge. The appellants appealed by way of case stated.
The question for the court was whether, in the specific circumstances of the withdrawal of the first summons, a second summons based upon the same allegation was barred by the doctrine of autrefois acquit. The appellant submitted that: (i) it could not be an abuse of process for a prosecutor to proceed upon a fresh summons if he had been misled into withdrawing the first summons; (ii) withdrawal of a summons was not tantamount to an acquittal; and (iii) given the likelihood that a trial in May 1999 would have been adjourned pending the grant of the LDC, it was material to ask whether the respondent was ever in jeopardy in the first proceedings.
Held: The appeal was allowed.
The withdrawal of a summons was not tantamount to an acquittal: R v Grays Justices, ex parte Low [1990] 1 QB 54 applied. Where there had been no adjudication on the merits of the first summons, the respondent was not put in peril of conviction upon that charge. The matter had been disposed of administratively. The principle of autrefois acquit simply did not arise and the magistrates erred in accepting that it did.
Marc Beaumont (instructed by the solicitor to Islington London Borough Council) appeared for the appellants; the respondent was not represented and did not appear.
Sarah Addenbrooke, barrister
