Town and Country Planning Act 1971–Enforcement notice requiring discontinuance of a use–Appeal to Secretary of State for the Environment one day out of time–Effect of a letter from the Department "accepting" the appeal on certain grounds–Subsequent letter from Department stating that appeal was of no effect–Lateness of appeal a fatal defect–Department’s "acceptance" made no difference to legal position–Applicant properly convicted for non-compliance–Order of certiorari refused
This was an
application by Richard Tynan for an order of certiorari to quash a decision of
Melton and Belvoir magistrates who had convicted him under section 89 of the
Town and Country Planning Act 1971 for non-compliance with an enforcement
notice and imposed upon him a fine of £200.
The applicant,
Richard Tynan, appeared in person; Igor Judge (instructed by P J G Herrick,
Solicitor to the Council) appeared for Melton Borough Council; Harry Woolf
(instructed by the Treasury Solicitor) represented the Secretary of State for
the Environment.
Giving
judgment, LORD WIDGERY CJ said: In these proceedings Mr Tynan, who appears in
person, moves for an order of certiorari to remove into this court with a view
to its being quashed a decision of the Melton and Belvoir Justices given,
according to his affidavit, on February 10 1976 imposing upon him a fine of
£200 in respect of an offence under section 89 of the Town and Country Planning
Act 1971, namely, failure to comply with an enforcement notice.
The premises
in question are in the occupation of Mr Tynan or his company. It matters not
for present purposes which is the case. He was served with an enforcement
notice in respect of these premises, the substance of the complaint being that
the premises had been the subject of a material change of use in that they were
being used for retail and wholesale selling of goods, whereas the premises were
formerly warehouse premises. On February 12 1975 on that basis an enforcement
notice was served and it required Mr Tynan within the period of one calendar
month beginning with the date upon which the notice was to take effect to
discontinue the use of the buildings for the purposes of retail and wholesale
sale.
Having been
served with that enforcement notice, Mr Tynan was minded to appeal against it
under the provisions of section 88 of the same Act. Having had some
correspondence, one gathers, with the Department of the Environment, he
submitted an appeal. The literal terms are not important at the moment. Having
submitted the notice, he received a stereotyped letter from the department
dated June 9 which referred to his letter giving notice of appeal, and the
letter goes on to say that it is confirmed that his notice of appeal has been
accepted on the evidence before the Secretary of State on grounds (b) and (f).
It goes on to criticise his failure to give certain other particulars, but
nothing turns on that. The document therefore on its face is an acceptance,
whatever that may prove to mean, of the appeal to which I have referred.
It is provided
in section 88 of the Act that where an appeal against an enforcement notice is
made there shall be an automatic stay of certain proceedings. The terms of
section 88(3) are these: "Where an appeal is brought under this section,
the enforcement notice shall be of no effect pending the final determination or
the withdrawal of the appeal."
Having sent in
his notice of appeal and having received the letter of June 9 to which I have
referred, Mr Tynan not surprisingly thought that he was protected by the terms
of section 88(3) from any proceedings in the period pending the determination
of the appeal.
It is
convenient at this point to refer to one or two dates. The notice of appeal,
according to Mr Tynan’s own affidavit, was dispatched to the Secretary of State
on March 14 1975. The enforcement notice had been dated February 12 1975 and
had been sent by post. Ultimately there was evidence from a postman, supported
by his recorded delivery book, which caused the justices to reach a conclusion,
which I think was unavoidable on their part, that in fact the enforcement
notice reached Mr Tynan on February 13 1975. The enforcement notice therefore
was served on February 13 1975 and the appeal followed on March 14. A close
examination of those dates shows that the time expiring between the service of
the enforcement notice and the delivery of the appeal is not 28 days but 29.
That is because February 13, the date upon which the enforcement notice was
actually served, does not count, since the law takes no account of part of a
day. The period therefore starts at midnight on February 13 and ends at
midnight on March 13. On the footing that the appeal was not lodged until March
14, Mr Tynan was one day out of time. One may well say that this all seems much
ado about a very small question, but it is not for the court to weigh the
importance of these issues. If these problems are put before us, we have to
answer them to the best of our ability, and I draw attention to the fact that
on the date submitted by the applicant, and/or found by the justices, he was a
day late in sending in his appeal.
In due course
the planning authority, who may or may not have been fully aware of what was
going on in the form of an appeal, brought proceedings against Mr Tynan for
breach of this enforcement notice, proceedings which they were perfectly
entitled to take if the protection of section 88(3) had not attached to Mr
Tynan’s activities, but which they were not entitled to take if he was thus
protected. I assume that the planning authority were at all events in no doubt
about the situation and so they brought these proceedings based on the breach
of the terms of the enforcement notice.
It was after
these proceedings had been launched that the Secretary of State wrote the
letter to which I referred a few moments ago of June 9 and it will be
remembered that the writer of the letter said that the Secretary of State had
accepted the notice of appeal on the evidence before the Secretary of State.
That letter of June 9 was brought to the notice of the justices on June 10 when
they met to consider, among other things, this case, and they did what on any
possible view was the right thing. They thereupon adjourned the proceedings sine
die. Mr Tynan has criticised that and said they had no jurisdiction to
adjourn the proceedings. If that were true, they would be sitting in the court
to this day. Of course they had to adjourn the proceedings, and they adjourned
them because under section 88(3) they had no power to continue if there was a
valid appeal on foot.
After that
nothing happened for some little while, but on August 21 the Department of the
Environment wrote to Mr Tynan, and the substance of the letter was that they
had considered the matter afresh in the light of additional evidence, and now
took the view that this notice of appeal was one day late and accordingly in
the view of the Secretary of State the appeal was of no effect and indicated that
they would proceed now to act on the footing that the appeal was of no effect.
I think that
was a perfectly proper conclusion because the question of what is the effect of
a failure to comply with the rules relating to enforcement notices has been
considered in the case of Howard v The Secretary of State for the
Environment [1975] 1 QB 235. The headnote reads:
On November 6
1970 the plaintiff’s solicitors wrote to the ministry asking that their letter
be accepted as formal notice of the plaintiff’s intention to appeal to the
minister against an enforcement notice served on him by the local planning
authority. The ministry replied that the letter could not be accepted as a
valid notice of appeal because, contrary to section 16 of the Town and Country
Planning Act 1968, it failed to state the grounds of appeal and the facts on
which the plaintiff relied. On November 16 the solicitors replied giving the
information but, as the result of an error, the letter was not posted until
after the expiration of the time in which notice of appeal had to be given to
the minister. The ministry replied that the minister had no power to extend the
time and, therefore, no action could be taken.
In the Court
of Appeal it was held that, although certain other defects in the notice might
have been made good, the failure to serve it within the time was fatal, and
that is a proposition which has to be applied in the present instance if the
facts are similar. They clearly are similar in my judgment.
Mr Tynan has
made some effort to discourage us from supporting the magistrates’ judgment,
but before the magistrates the evidence was all one way. There was evidence
that showed Mr Tynan had been a day late with his appeal and that the Secretary
of State was no longer interested in the matter by his letter of August 31. If
one stopped there, one would adequately express the main issues in this case,
because, to sum the story up as at this moment, Mr Tynan failed before the
magistrates because his notice of appeal was a day late. It being ultimately
found to be a day late, the Secretary of State refused to have anything more to
do with the matter and the justices then regarded themselves, I think quite
rightly, as being free from the restrictions of section 88(3) and in a position
to deal with the long-standing matter which had been before them on this breach
of the enforcement notice. But the matter does not stop there because Mr Tynan,
not unnaturally, brings us back more than once to the letter of June 9 and says
that if he was told, as he was, that the Secretary of State had accepted the
appeal, the only possible conclusion to be derived from that is that the appeal
was a good one. If the appeal was a good one, then the protection of section
88(3) continues. This has prompted some discussion between the court and
counsel on the situation where the Secretary of State and a bench of
magistrates are in danger of reaching, or actually reach, conflicting views on
a question of fact affecting a case of this kind. It is argued with some force
by Mr Tynan that if the Secretary of State accepted the appeal on June 9 it was
not open to the magistrates to take a different view in February when they
imposed a fine. As Mr Tynan puts it, if the Secretary of State has accepted the
validity of the appeal, then the magistrates are in no position to take a
different view.
This raises a
constitutional question of some little interest and importance. We have had the
advantage of argument from Mr Woolf and Mr Judge upon this, and I have come to
the conclusion that the situations which may give rise to a danger of conflict
are few in number and ought to be capable of solution on relatively sensible
principles.
The first
thing I would draw attention to is that there is no statutory justification for
the process apparently gone through by the Secretary of State in this case of
considering the application for appeal and accepting it or otherwise. One can
see that as a matter of administration that is probably a very sensible thing
to do. Many of these appeals come into the ministry and I have no doubt they
want to have some preliminary sieve which fishes out those which are obviously
no good and allows the others to go on. I can quite well see how the reference
to an appeal being accepted can arise. But it is important, I think, to realise
that there is nothing in the Act which says that the Secretary of State is to
reach a preliminary opinion merely by looking at the terms of the notice of the
appeal put before him. The position, as I believe it to be, is this. I think
that the Secretary of State is within his jurisdiction and acting perfectly
properly in an appropriate case if he says this appeal is hopeless; for example,
this appeal is three months out of time or something of that kind. He may then
quite properly give a final decision overriding the appeal. If he does that, I
have no doubt it is within his jurisdiction and that all other authorities
dealing with the matter thereafter must accept what he says. On the other hand,
I would deplore any practice growing up whereby a kind of interlocutory
decision was given by the Secretary of State before he was in a position to
deal with the matter finally. There is no harm done in conducting the sort of
sifting process to which I have already referred, but any suggestion that he
makes a decision prior to the ultimate and final decision I regard to be
inconsistent with the construction of the Act and certainly to be avoided.
In this
instance, therefore, I do not believe that the letter of June 9 made any
difference to the legal position of the parties at all. I think the position
still was that if the notice of appeal was valid, the protection umbrella
shielded Mr Tynan. If on the other hand a competent tribunal in due course came
to the conclusion that the notice of appeal was not valid, then the protection
would be taken away. I do not think that the letter of June 9 caused the matter
to move one way or another. Nor do I think that the letter of August 21 is in
any sense a different approach. It may be, of course, that the proper view of
the letter of August 21 is that it was the final determination of the matter
because it was the minister’s decision finally determining the question. But,
whether it was or was not, I regard the essential defect in the notice of
appeal–the fact that it was one day late–as continuing right the way through
this procedure. In fact it caused the notice of appeal to be invalid and in
fact, therefore, to deprive the applicant of his protection. I believe that
situation went on right up until February 1976 when the magistrates held their
last sitting in regard to this, and the situation in February 1976 was that
there was a proved defect in the notice of appeal and it was abundantly clear
by then that there was no protection to be afforded by section 88(3) to the
landowner.
In those
circumstances it would follow that the justices did have jurisdiction to make
the order that they made, and I would refuse the application.
MICHAEL DAVIES
and GOFF JJ agreed. Leave to appeal to the Court of Appeal was refused.
