Town and Country Planning Act 1971–Appeal by planning authority against dismissal by magistrates of information alleging failure to comply with enforcement notice–Building 2 1/2 ft too high–Question whether information laid out of time under
This was an
appeal by St Albans District Council, by case stated, against the dismissal by
magistrates at St Albans of an information laid by the council complaining of
failure by Norman Harper Autosales Ltd to comply with an enforcement notice.
The breach of planning control alleged in the notice was the erection of a
building above the maximum height allowed without special planning permission.
Alistair
Dawson QC and John Furber (instructed by J D R Jeffery, Solicitor, St Albans District
Council) appeared on behalf of the appellants; Dennis Naish (instructed by
Murgatroyds, of St Albans) represented the respondents.
Giving
judgment, LORD WIDGERY CJ said: This is an appeal by case stated by justices
for the County of Hertford sitting as a magistrates’ court at St Albans, who,
on July 13 1976, had before them an information laid by the present appellants,
the St Albans District Council, against the present respondents, Norman Harper
Autosales Ltd, alleging that the respondents, having been served with an
enforcement notice under the Town and Country Planning Act 1971, had failed to
take the step required by the notice within the period allowed for compliance
therewith, namely, by January 26 1976. It was said that that was contrary to section
89 of the Town and Country Planning Act 1971.
The facts 2and
history of this matter are straightforward enough. The respondents as owners of
the property in question erected a building at the property, 318 Watford Road,
St Albans, and the aspect of the size of the building which is relevant and
material is that it was 12 ft high. Under the regulations then current with
regard to the height of such buildings in that area the maximum height
permissible without special planning permission would have been 9 ft 6 in, and
so it was 2 1/2 ft too high. This fact attracted the attention of the planning
authority, and they, as they were perfectly entitled to do, served an
enforcement notice under section 87 of the Act with a view to having the breach
of planning control remedied.
The relevant
passage is subsection (1) of section 89 of the Town and Country Planning Act
1971, which provides:
Subject to
the provisions of this section, where an enforcement notice has been served on
the person who, at the time when the notice was served on him, was the owner of
the land to which it relates, then, if any steps required by the notice to be
taken (other than the discontinuance of a use of land) have not been taken
within the period allowed for compliance with the notice, that person shall be
liable on summary conviction to a fine not exceeding £400 or on conviction on
indictment to a fine.
There one has
the development alleged to infringe control, the serving of the enforcement
notice and non-compliance by the respondents with the notice. But, as they were
perfectly entitled to, they took the matter by way of appeal to the Secretary
of State, and the Secretary of State found against them. He confirmed the
enforcement notice, but he prescribed a new date for compliance with the notice
because much, if not all, of the compliance time previously allotted had been
taken up in the machinery of appeal. Fixing that new date, the Secretary of
State chose September 29 1973, and so the enforcement notice required the
removal of these buildings by that ultimate date. It did not happen like that,
and the local authority in due course brought proceedings in the magistrates’
court alleging a breach of section 89 (1), to which I have referred.
The case came
on for hearing on May 13 1975 and the information was dismissed. The reason
seems to have been that the information was laid out of time because reliance
was placed on section 104 of the Magistrates’ Courts Act 1952 in these terms:
Except as
otherwise expressly provided by any enactment, a magistrates’ court shall not
try an information or hear a complaint unless the information was laid, or the
complaint made, within six months from the time when the offence was committed,
or the matter of complaint arose.
What seems to
have happened in May of 1975 was that, their attention having been drawn to
that provision, the justices thought that the matter of complaint had arisen
more than six months before the information, and they dismissed the
proceedings. Four days before this hearing the respondents had put in an
application for planning permission, the purpose of which was to modify these
buildings, among other things, and no doubt to comply with the law. But I do
not find it necessary to go into that in detail, except to mention it merely as
a part of the background. We have reached the stage where the justices have
dismissed the information in May of 1975, and the planning authority, in order
to cure the difficulty produced by their being said to be out of time, laid
down a new period for compliance with the enforcement notice. They said that
such notice should be required to be complied with within three months of June
29 1975, or, to look at it the other way, by September 30 1975. That was a
purely unilateral action (we have been shown the letter, but I do not find it
necessary to look at it again) and its purpose 7was obviously to extend the
time during which the respondents could carry out the stage required by the
aforesaid notice.
The authority
for this action on the part of the local authority is said to be section 89
(6), which provides:
Any reference
in this section to the period allowed for compliance with an enforcement notice
is a reference to the period specified in the notice for compliance therewith
or such extended period as the local planning authority may allow for
compliance with the notice.
No doubt most
people reading that subsection would regard it as a power for the local
authority to extend a concession to the landowner if they thought fit. In this
instance the attempted purported exercise of that power, on the face of it, was
not for the benefit of the landowner at all but for the benefit of the
authority, as we shall shortly see. The extension so made was renewed again, so
that finally the expiry of the period for compliance with the enforcement
notice had been advanced to January 26 1976. Within six months of that date,
though only just within six months of that date, the planning authority brought
their second proceedings alleging breach of the enforcement notice, and it was
of course from that information and its related hearing that the matter comes
before this court.
The way the
argument has gone is thus. Mr Dawson for the local authority (the appellants)
takes us to the justices’ reasons in the case, and they are found to be these.
First of all, the justices took the view, contrary to the submissions of the
local authority, that the offence created by section 89 (1) was not a
continuing offence. Furthermore, the justices held that the extension of the
period for compliance could not be done in a unilateral way without regard to
the interests or concern of the landowner. Putting it in their own language,
they said that ‘any power to extend the period for compliance with an
enforcement notice must be exercised within a reasonable time and in particular
before the expiration of the six months’ time limit provided by section 104 of
the Magistrates’ Courts Act 1952.’
It is common
ground that the appellants did not exercise the power within that time limit.
Against that background, the argument goes thus. Mr Dawson says that this is a
continuing offence. If it is a continuing offence, then he has no trouble
because such an offence is renewing itself, as it were, every day, and there
are plenty of instances within the last six months which may be relied upon as
being the basis for the prosecution. He says that it is a continuing offence
and that that is enough to get him home. The argument on the other side is that
the justices are right and this is not a continuing offence. Furthermore, it is
argued on behalf of the respondents that the justices were also right in
substance, if not in detailed reasoning, when they held that the period for
compliance could not be extended at the whim of the local authority and without
regard to the interests and needs of the landowner.
We must deal
with those two points separately. Counsel, with great frankness, has said that
it is not easy to direct our attention to any principle or authority which
shows beyond any doubt whether we are dealing here with a continuing offence or
with a single offence. In the end, everybody seems to agree that it is a matter
of construction of the statute, and very largely a matter of impression at
that. So I go back to look at section 89 with that in view. Subsection (1)
seems to me to have all the signs of a once-and-for-all offence. It is not
without importance that under section 91 of this Act the local authority, on
the default of the owner, can go in and do the work, and I think that the
draftsman of section 89 (1) had in mind that this was a once-and-for-all
offence. The authority’s sanction to get rid of the offending building was
section 91, and not some remedy whereby the offence was kept alive for that
purpose.
Suffice it to
say that, in my judgment, when one reads section 89 (1) it has the smack of a
single offence about it. Compare subsection (5) of the same section, which is
dealing with unauthorised development which has taken the form of a change of
use, and which provides:
Where, by
virtue of an enforcement notice, a use of land is required to be discontinued,
or any conditions or limitations are required to be complied with in respect of
a use of land or in respect of the carrying out of operations thereon, then if
any person uses the land or causes or permits it to be used, or carries out
those operations or causes or permits them to be carried out, in contravention
of the notice, he shall be guilty of an offence, and shall be liable on summary
conviction to a fine not exceeding £400, or on conviction on indictment to a
fine; and if the use is continued after the conviction he shall be guilty of a
further offence and liable on summary conviction to a fine not exceeding £50
for each day on which the use is so continued, or on conviction on indictment
to a fine.
I say nothing
about the first half of the section because it is not necessary for us today to
decide whether the initial offence under subsection (5) is a continuing offence
or not. But what is perfectly clear, in my judgment, is that the offence
constituted by the second half of subsection (5), which can only arise when
there has already been a successful prosecution on the first half, is a
continuing offence. I say that not for the first time, because in the case of R
v Chertsey Justices, ex parte Franks [1961] 2 QB 152 this court had to
decide on the then current legislation the substantial question of whether what
is now section 89 (5) created a continuing offence in its second half. Giving
the judgment of the court, I gave the opinion of the court as being that a
continuing offence was created. Now one asks oneself what is the justification
for that decision, and the answer is that the language is clearly language, in
my judgment, which points to a continuing offence. There is the daily penalty.
All these matters are relevant and powerful in directing one’s attention in
that manner.
In default of
any other authority, and in a situation in which I think we have to use our
commonsense and our best ability and produce an answer consistent with the
language of the statute, I have come to the conclusion that the offence charged
under section 89 (1) is not a continuing offence, as the justices
themselves had found.
One still has
to deal with the adjustment of the date for compliance, because there is the
argument that, even if this is a once-and-for-all offence, that offence is
committed on the first day after the expiry of the time prescribed by the
notice for compliance with the requirements of the notice. That means, of
course, that in the instant case one begins with the last day as being
September 29 1975–the date fixed by the Secretary of State as already
described. That period has long since expired, but it is said that the effect
of it has been continued or resuscitated by the unilateral directions to which
I have already referred whereby the planning authority purported to extend the
time for compliance. Ultimately that period, it will be remembered, was
extended to January 26 1976, and the argument is that the planning authority
can bring these proceedings, even on the basis of a one-offence section, as
long as the proceedings are taken within six months of January 26, as they
were.
I do not agree
with that either. It seems to me that it cannot possibly have been the
intention of Parliament that this simple little power, so obviously designed in
the first instance to enable the local authority to help a landowner, should be
capable of being used to the landowner’s detriment without any special provision,
and without any sort of application by the landowner to bring the matter before
the authority or the court. I think that the power of the local authority to
extend time under section 89 (6) is a power which must be exercised before the
time had expired. In other words, if the initial time, or any lawfully extended
time, has expired, it then becomes too late for the authority to extend time
again.
For those
reasons I think the justices were correct in their conclusion and right in
their reasoning, and I would dismiss the appeal.
PARK J agreed.
MAY J also
agreeing, said: I would merely add that, in my judgment, the single-offence
nature of subsection (1) of section 89 is made even clearer by the presence of
subsection (4), which, as I think, does for subsection (1) the same as the
second half of subsection (5) does for the first part of subsection (5).
The appeal
was dismissed with costs.
