Enforcement notice–Plea of no case, since no evidence adduced in support of allegation that respondent was owner and occupier of land in question–Proof that he was owner and occupier six months before service is good enough unless he can produce evidence of some change in the situation
This was an
appeal by Mr T J R Whitfield, clerk to the Cumberland County Council, from the
dismissal by magistrates sitting at Penrith on October 11 1973 of a complaint
against the respondent, Mr Joseph Alan Gowling, of Whinney Hill, Catterlen,
Penrith, charging him with failure to comply with an enforcement notice,
contrary to section 89 (1) of the Town and Country Planning Act 1971.
Mr M Rich
(instructed by Sherwood & Co, agents for T J R Whitfield, of Carlisle)
appeared for the appellant, and Mr J Trench (instructed by Doyle, Devonshire,
Box & Co, agents for T H Campbell Wardlaw, of Newcastle-upon-Tyne)
represented the respondent.
Giving
judgment, LORD WIDGERY said that Cumberland County Council served an enforcement
notice on the respondent on December 1 1971 on the basis that he was owner and
occupier of land at Whinney Hill, Catterlen, Penrith. The notice required him
within 28 days to remove certain buildings, including an oil storage tank, from
the land in question and restore it to its previous condition. The respondent
appealed against the notice, but after an inquiry held in October 1972 the
notice was confirmed and limited to come into effect on January 3 1973. The
respondent having failed to comply with the terms of the notice, he was duly
summoned. Before the magistrates he contended that he had no case to answer,
because there was no evidence to show that he was the owner and occupier of the
land on the date of service of the notice. The local planning authority was
then allowed to put in further evidence and produced a certificate under
section 16 of the Town and Country Planning Act 1962 which was signed by the
respondent and admitted that he was the owner and occupier of the land in
question when he made an application for planning permission in June 1971. Also
submitted was a statement signed by the respondent to the effect that he was
the owner and occupier of the land pursuant to section 215 of the Town and
Country Planning Act 1962, and that no other person had any interest in the
land.
No authorities
were cited to the magistrates, and it was for them to decide whether the proof
of ownership subsisting in June 1971 could be carried through to December 1971.
There was a dictum of Fry J relating to the proof of ownership in Governors
of Magdalen Hospital v Knotts (1878) 8 Ch D 709. In that case it had
been submitted that there was no presumption that in 1783 the hospital remained
the owner of land which had been conveyed to it in 1763, but the learned judge
determined against that submission, saying that when there was evidence that
land was conveyed to a particular person there was, in the absence of anything
to the contrary, a presumption that the land remained the property of the
person to whom it had been conveyed. In the present case there was evidence
that the respondent was the owner and occupier of the land six months before
the enforcement notice was served. The magistrates should have considered the
matter on the footing that having been satisfied about ownership and occupation
in June 1971, they should have presumed that that ownership and occupation
continued until December 1971, unless there was some ground for thinking that
that was not the case. The magistrates should therefore not have acceded to the
submission of no case to answer, and the matter should be sent back with a
direction to continue the hearing.
BRIDGE and MAY
JJ agreed, and had nothing to add. The costs of the appellant were ordered to
be paid by the respondent
