Enforcement notice – Non-compliance – Prosecution – Change of plea to guilty following judge’s ruling – Defences – Section 179(3) of Town and Country Planning Act 1990 – Burden and standard of proof – Whether judge entitled to exclude evidence of defence
The appellant, W, was a gypsy, who was living in a mobile home that had been stationed on his land without planning permission. The council served two enforcement notices on him. The first, in 1995, required him to remove a concrete base that he had constructed without planning permission; the second, in February 1997, required him to remove the mobile home. W failed to comply with both notices. In the crown court, W was convicted on both counts for failing to comply with the enforcement notices, contrary to section 179 of the Town and Country Planning Act 1990. In those proceedings, W changed his plea from not guilty to guilty, following a ruling by the trial judge that he would direct the jury to convict without having heard any defence evidence. W had intended to rely on the defence under section 179(3) of the Act, namely that he had done everything he could reasonably be expected to do to secure compliance with the notices, but he was not permitted to call expert evidence. W appealed against his conviction on the ground, inter alia, that the judge was wrong to indicate that, on the disclosure of the facts, he would be obliged to direct the jury to convict.
Held The appeal was allowed and the conviction quashed.
The practice of ruling upon the availability of a defence before any evidence has been heard has been deprecated by the Court of Appeal on many occasions in the past, but notably in R v Vickers (1975) 61 Cr App R 48 and R v Beard [1997] 1 PLR 64. Problems may arise, particularly when the factual basis for the proposed defence has not been reduced to writing, nor subjected to a clear and coherent formulation. The following direction on the burden and standard of proof should therefore be followed when considering each count separately. The prosecution must show that: (i) the defendant was served with a valid enforcement notice; and (ii) the defendant failed to comply with the notice. If he did fail to comply, the burden is upon on the defendant, if running a defence under section 179(3), to show that he did everything that he could reasonably be expected to do to comply with the notice. In this connection, the words “did everything that he could reasonably be expected to do” are a matter for the court to decide on all the evidence before it. Whether he did so is a matter for the jury to decide, based on all the evidence before them.
Kent County Council v Brockman [1996] 1 PLR 1
R v Beard [1997] 1 PLR 64
R v Vickers [1975] 1 WLR 811; [1975] 2 All ER 945; (1975) 61 Cr App R 48, CA
Appeal against conviction
This was an appeal brought by the appellant, David Wood, against his conviction in Southend Crown Court on 3 May 2000 by Judge Lockhart on two counts of failing to comply with two enforcement notices issued by Basildon District Council, pursuant to section 179 of the Town and Country Planning Act 1990.
Stephen Field (instructed by Biebuyck, of Chelmsford) appeared for the appellant, David Wood.
Allan Compton (instructed by the solicitor to basildon District council) represented the Crown.
The following is the judgment of the court.
MANTELL LJ:
1. David Wood is a gypsy. He prefers the life of a rover. Your bricks-and- mortar dwelling is not for him. He chooses to live in a caravan or mobile home albeit with its wheels removed and planted on a large concrete base. That is at Wickford in Essex, and on a piece of land that David Wood owns. The contradiction between his philosophy and his actions cannot pass unnoticed. However that may be, it is in the mobile home at Wickford that he, his wife, his daughter, his son-in-law and his baby grandson continue to live.
2. He does not have planning permission to house the mobile home on his land, or to use it as a dwelling. Nor did he obtain planning permission to lay the concrete base.
3. Wickford lies within the bailiwick of Basildon District Council.
4. On 13 October 1995 Basildon District Council served an enforcement notice on Mr Wood, requiring him to remove the concrete base. On 19 February 1997 the council served another enforcement notice, requiring Mr Wood to remove the mobile home.
5. Mr Wood has failed to comply with either enforcement notice.
6. He does not dispute that he is the owner of the land, or that the enforcement notices were served upon him, or that he has failed to comply, or that both enforcement notices remain valid and effective.
7. It is a criminal offence not to comply with an enforcement notice.
8. Section 179(1) of the Town and Country Planning Act 1990 provides that:
.–Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
By subsection 2:
Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
9. Accordingly, Mr Wood was prosecuted. He was charged with two offences: one in relation to the concrete base and one in relation to the mobile home. In the first instance, he pleaded not guilty, but on 3 May 2000 at Southend Crown Court, following a ruling by Judge Lockhart, he changed his plea on rearraignment to one of guilty in respect of both charges.
10. It had previously been his intention to avail himself of the defence provided by section 179(3) of the Act, which provides that:
In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
11. On authority, the subsection has to be read as if the word “reasonably” were inserted before “expected”.
12. The judge ruled that on the facts made known to him, as to the defence that was to be presented, he would be obliged to direct the jury to return verdicts of guilty. He also made a ruling, adverse to Mr Wood, that the evidence of an expert witness as to the availability of alternative sites for gypsies was inadmissible.
13. Notwithstanding his plea of guilty Mr Wood now appeals against his conviction by leave of the single judge. There is no doubt that he is entitled to do so: see R v Vickers (1975) 61 Cr App R 48.
14. His grounds are that: (i) the judge was wrong to disallow the expert evidence; (ii) the judge was wrong to indicate that, on the disclosed facts, he would be obliged to direct the jury to convict; and (iii) the appellant has been denied a right to a fair trial, as required under Article 6(1) of the European Convention on Human Rights.
15. Should the appeal succeed on any one of the grounds advanced, it is conceded by Mr Stephen Field, on behalf of the appellant, that there would have to be a retrial.
16. We tackle the second ground first. The ambit of the available defence under section 179(3) was considered by this court in the case of R v Beard [1997] 1 PLR 64. At p70G Hobhouse LJ (as he then was), giving the judgment of the court, said:
The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does
17. In the ordinary way, the question of whether a defendant has done all that he can “reasonably be expected” to do is a matter for the tribunal of fact, whether it be the magistrates or the jury: see Kent County Council v Brockman [1996] 1 PLR 1.
18. In the course of the judgment in Beard this court approved some words of Laws J (as he then was), in giving his ruling at first instance, at p71G:
In the course of argument, Mr Crean accepted a proposition which I put to him, namely that his submission would mean that subsection (3) is available in circumstances where the defendant, though perfectly able physically and financially and legally, to comply with the enforcement notice did not do so because for good reason he did not wish to comply with it.
In my judgment, that exposes the flaw in Mr Crean’s argument. Subsection (3) is not concerned with a balance of social factors. It is not concerned with such policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin a court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply. Indeed, it is not at all concerned with the defendant’s wishes; only with his capacity. It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner.
19. That personal circumstances are material is clear from Brockman. At p3D having referred to the subsection, Buckley J said:
It seems to me that the plain meaning of those words does indeed permit the personal circumstances of a defendant to be taken into account. I bear in mind in reaching that conclusion that this section creates a criminal offence. To hold someone guilty of a criminal offence for not doing something which they are genuinely incapable of doing, would be quite contrary to any tenets of criminal law known to me at least.
20. It is also clear, on the same authority, that the defence remains available even though a defendant has done nothing, provided always that there is not anything that he could reasonably be expected to do.
21. Applying those principles to the present case, was the judge right to rule as he did?
22. We begin by taking two extracts from the transcript of the ruling:
The defence available is that a person has done everything that he could reasonably have been expected to do. It does not extend, and cannot, in my view, be extended to cover a situation where a Defendant may have difficulty in finding somewhere else to live. It does not – and, again, in my view, cannot
It has been made absolutely clear to me that his stance today is that it remains in the best interests of his family, including his infant grandchild who I am told suffers from a particular and serious medical condition in respect of which, as at today’s date, there is still no medical opinion or assessment available, that he should remain there. It has been made quite clear that he has done nothing. Mr Field, on his behalf, submits that notwithstanding this, it would be open to him to invite a Jury to consider that his client has a defence to these allegations on the grounds possibly of justification. It seemed to me that the possibility of necessity may arise, and the possibility of reasonable excuse may arise. I have to say that this, to me, flies in the face of the clear meaning, clear intention behind Section 179(3).
I am in no doubt that Mr Wood has done nothing in all the time available to him, and it is clear that his case would be that he is acting in the best interests of his family, in a way which he feels is reasonable and necessary. But, the reality is that he has done nothing, and intends to do nothing. It seems to me therefore, that that being the basis upon which a possible defence would be for the Jury, I would have to direct that that is not a defence to either of these charges. I am conscious of the fact that one must be careful in making this sort of ruling, prior to the Jury being empanelled, and prior to the evidence being called, but with the absolute certainty, as I believe I have it, that this would be the Defendant’s case. It is not a case that I could leave to the Jury. It is simply not an available defence.
23. The practice of ruling upon the availability of a defence before any evidence has been heard has been deprecated by this court on many occasions in the past but, notably in Vickers and Beard, even though, as possibly happened here, it was with the encouragement, or at least the connivance, of counsel. The problems that may arise, particularly when the factual basis for the proposed defence has neither been reduced to writing nor subjected to a clear and coherent formulation, are amply illustrated by the present case. As a single example, Mr Field tells us that one element of the defence would have been the possible inability of the appellant to persuade his family to move, whether or not he was prepared to go himself. That is not something that is reflected in the judge’s ruling, and we remain unclear as to whether or not it was mentioned at the time.
24. In those circumstances, we think it unfortunate that the matter was allowed to proceed as it did. We do not attempt to apportion blame, although Mr Field has graciously accepted that he may have been at fault in failing to put across his instructions with sufficient clarity, or in not running the defence for what it was worth. Even so, we are troubled as to whether this conviction should be regarded as safe. There is no doubt that there is little or no merit in the defence being advanced. The high probability is that a jury, properly directed, would return verdicts of guilty on both counts. However, the outcome is by no means a forgone conclusion, and we are left to consider whether the convictions should stand. After a good deal of hesitation, and with considerable misgivings, we have decided that they cannot. Accordingly, we propose to allow the appeal, quash the convictions and order a retrial.
25. When it comes to the retrial, it may be that the trial judge would be helped by our respectful suggestion as to how the jury might be directed on the law.
26. We suggest the following direction. Considering each count separately: (1) Have the prosecution made you sure that: (i) the appellant was served with a valid enforcement notice by Basildon District Council? and (ii) the appellant failed to comply with that notice?
27. If the answer to either of these questions is no, he is not guilty.
28. If the answers to both questions are yes, go on to consider:
(2) Has the defendant shown that it is more probable, or more likely than not, that in failing to comply with the notice, he did everything that he could reasonably be expected to do?
29. If the answer to this question is yes, he is not guilty.
30. If the answer is no, he is guilty.
31. It is not disputed in each case that the defendant failed to comply with a valid enforcement notice. The prosecution have therefore proved what they have to prove. The only question for you to decide is whether the defendant has proved that it is more likely than not that he did everything he could reasonably be expected to do to comply, and remove from the site caravans, vehicles and rubbish (count 1) and the concrete base (count 2).
32. In this connection, you will note the words “did everything that he could reasonably be expected to do”. Whether he did this is a matter for you to decide on all the evidence called before you. You are not concerned with whether it is socially desirable for someone in the appellant’s situation to be required to move. It is no defence for a man to say: “I did nothing because I wished to stay”, or “I decided that it would be inconvenient for me [and my family] to comply”. The appellant is only entitled to be found “not guilty” if, taking each count separately, he can show that his circumstances were such that, in reality and common sense, he was unable to comply with the particular obligations imposed upon him by the enforcement notice.
33. We have not considered the Article 6 point, which adds nothing to the argument. Nor have we found it necessary to pronounce upon the admissibility of the expert evidence, beyond observing that it is usually advisable to delay ruling until the time arrives when the evidence is to be introduced and objection has been taken.
Appeal allowed
