Enforcement notice – Section 179 of Town and Country Planning Act 1990 – Non-compliance with enforcement notice – Land transferred to another but not registered at Land Registry – Meaning of “owner” – Whether failure to register title affording defence under section 179
In September 1998, the respondent council served an enforcement notice on the appellant, alleging a breach of planning control that involved a change of use without planning permission. The notice required cessation of the unlawful use. The appellant appealed. In March 1999, the Secretary of State for the Environment, Transport and the Regions, by his inspector, dismissed the appellant’s appeal and extended the period for compliance to June 1999. The appellant failed to comply. Between the date of the inspector’s decision and the expiry date, the appellant conveyed the land to B. The transfer was not registered until August 2000. In August 1999, the council commenced proceedings against the appellant for breach of the enforcement notice, alleging that the appellant, as owner of the land, had failed to comply with the notice. The magistrates concluded that the appellant was not the owner of the land for the purposes of the Town and Country Planning Act 1990 and acquitted him. The council appealed by case stated to the Divisional Court, which held that, as the transfer had not been registered, the appellant remained the owner of land for the purposes of the 1990 Act. The appeal was allowed. The case was remitted for rehearing. At the retrial before the magistrates, the appellant was convicted and fined. His appeal to the crown court was dismissed and the fine reduced. The appellant appealed by case stated from the decision of the Crown Court upholding his conviction. The question to be considered by the court was whether, notwithstanding that he remained the owner of the land for the purposes of the statutory provisions, the bona fide sale of the land to a third party, prior to the expiry of the period for compliance with the enforcement notice, gave him a defence under section 179 of the 1990 Act.
Held The appeal was dismissed.
It is clear that the bona fide sale of the land prior to the expiry of the period for compliance with an enforcement notice is not necessarily sufficient in itself to provide a defence under section 179(3) of the 1990 Act. Section 179 plainly contemplates that a vendor may be guilty of an offence notwithstanding the sale if, as here, he remained the owner of the land for the purposes of section 179. The sale does not operate automatically to terminate his potential liability. If he remains the owner, then he can avoid
Appeal by case stated
This was an appeal by Alan John Thompson, by case stated, from a decision of the crown court, upholding his conviction by the magistrates’ court in relation to a retrial of proceedings concerning a breach of an enforcement notice issued by East Lindsay District Council.
Robert Hill (instructed by the Ringrose Law Group, of Boston) appeared for the appellant, Alan John Thompson.
Thomas Cosgrove (instructed by Sharpe Pritchard, as agent for the solicitor to East Lindsey District Council) represented the respondent council.
Cases referred to in the judgment
East Lindsey District Council v Thompson [2001] EWHC Admin 81; [2001] 2 PLR 26; [2001] JPL 1382, QB
R v Basildon Crown Court, ex parte Cooper unreported 16 February 2000
R v Beard [1997] 1 PLR 64
The following judgment was delivered.
RICHARDS J:
1. These proceedings arise out of an enforcement notice issued by East Lindsey District Council on 3 September 1998 under section 172 of the Town and Country Planning Act 1990. The notice related to land at Robinsons Farm, near Boston, Lincolnshire. It alleged that there had been a breach of planning control in that there had been a change of use, without planning permission, from agricultural use to a mixed use for agriculture and storage. The notice required the use of the land for the storage of non-agricultural materials to cease.
2. The appellant, who was the owner of the land at the time of the notice, appealed to the Secretary of State for the Environment, Transport and the Regions, but the appeal was dismissed by an inspector on 16 March 1999. The inspector did, however, extend the period for compliance with the notice until the expiry of three months after the notice took effect, with the
3. The council took proceedings against the appellant for breach of the enforcement notice. On 22 September 2000, he was acquitted by the magistrates’ court. The acquittal was based upon the fact that, on 12 April 1999, before the expiry of the period for compliance with the notice, the appellant had sold the land in question to a Mr Bennett for £5,000, although the actual transfer was not registered with the Land Registry until 17 August 2000, well after the expiry of the period for compliance with the notice. The magistrates took the view that the appellant, by reason of the sale, was not the owner of the land at the material time for the purposes of compliance with the enforcement notice.
4. The council appealed by case stated to the Divisional Court. Judgment in that case, under the name of East Lindsey District Council v Thompson [2001] EWHC Admin 811, was given on 6 February 2001. The principal judgment is that of Keene LJ. The essence of the Divisional Court’s decision was that because the transfer had not been registered, the appellant remained the owner of the land for the purposes of the relevant statutory provisions and the magistrates had erred in concluding that he was not the owner. The acquittal was quashed and the case was remitted for rehearing.
1 [2001] 2 PLR 26
5. At the retrial before the magistrates the appellant was convicted and fined £2,500. His appeal to Lincoln Crown Court was dismissed on 7 September 2001, although his sentence was reduced to a fine of £1,000. He now appeals by case stated from the decision of the crown court upholding his conviction. The issue on the appeal, put shortly, is whether, notwithstanding that he remained the owner of the land for the purposes of the statutory provisions, the bona fide sale of the land to a third party prior to the expiry of the period for compliance with the enforcement notice gave him a defence under those provisions.
6. Section 179 of the 1990 Act provides as follows:
(1) 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.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3) 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.
7. Subsections (4) and (5) create an offence on the part of a non-owner who has control of, or an interest in, the land if he carries on, or causes or permits to be carried on, any activity that is required by the notice to cease.
8. Section 336(1), the definitions section, provides that:
“Owner”, in relation to any land, means a person, other than a mortgagee not in possession, who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let.
9. The Divisional Court, on the last occasion, held that, pending the registration of the transfer, and having regard to the provisions to which I have referred, and, in addition, to section 19(1) of the Land Registration Act 1925, the appellant remained the owner of the land for the purposes of section 179 of the 1990 Act. It is unnecessary to examine the details of its reasoning on that issue, which was based upon the statutory language, but reinforced by the existence of “sensible practical reasons why the registered proprietor should be treated as the owner for enforcement purposes”, in particular that the system of registration provides a straightforward method of ascertaining who is the owner of a particular parcel of land: see [25].
10. There are, however, two aspects of the judgment to which I should make more detailed reference. First, I should refer to certain of the statements of fact made concerning the land since they are incorporated by reference in the present case stated. Material factual statements in the judgment of Keene LJ additional to those that I have already mentioned are, first, that during the interval between sale and registration of the transfer, not only did the appellant’s name remain on the register as the owner of the land, but he also applied for planning permission for a change of use of the land. Second, since the date of the transfer, the appellant had visited the land three or four times to load materials, although it is right to record the existence of unchallenged evidence that, when the appellant returned to the land to load materials, he did so as agent for a third party, and not in any sense for the purpose of compliance with the enforcement notice or pursuant to any arrangement with the purchaser, Mr Bennett. The third factual matter in Keene LJ’s judgment to which I should refer is the statement that, after 12 April 1999, Mr Bennett, the purchaser, had accepted responsibility for removing the items from the land and had been onto it 20 or 30 times, and had also shown prospective purchasers the land.
11. In addition to those matters, I should refer to what was said by Keene LJ in relation to section 179(3), the section that is at the forefront of the present case. At paras 19 and 20, he referred to submissions by Mr Robert Hill, who represented Mr Thompson, at that time the respondent but now the appellant, and who continues to represent Mr Thompson today:
19. In response, Mr Hill, for the respondent, Mr Thompson, emphasises that section 179 is creating a criminal liability and so it is important that it should be construed in a way which does not create injustice or impose liability upon a person who can no longer control what happens on the land.
20. He accepts that section 179(3) would provide a defence to a transferor who has no such control, but in that case, he asks, what role is left for section 179(1) if the transferor always has a defence?”
12. In the reasoning of Keene LJ, at paras 28 to 30, it is stated:
28. It was clear that the legislature in enacting section 179 was treating the owner as someone who might not be in possession or control of the land. The very concept of the owner as a person entitled to receive the rack-rent envisages that the land may be let under a tenancy. Moreover, section 179(3) provides the owner who is not in occupation of the land with a potential defence, in that it is open to him to show,
“that he did everything he could be expected to do to secure compliance with the notice.”
29. That is the protection which an owner in Mr Thompson’s position has after executing a transfer of the land, but before that transfer has been registered. Normally, one would expect a transferee to wish to register his title as soon as possible, since he acquires no legal estate until that has been done. But, in the meantime a transferor who is no longer in occupation is not vulnerable to a prosecution, so long as he can show that he has acted in accordance with the terms of 179(3).
30. That seems to me to meet the points raised by Mr Hill about avoiding an interpretation which creates injustice or which would impose liability upon a person who can no longer control what happens on the land. If the transferor has no control at all, he would normally be likely to be able to rely on the section 179(3) defence. There will still be a purpose served by the term “owner” covering a transferor during this interim period, for there may be cases where the transferor has agreed with the transferee that he will be responsible for removing whatever it is that constitutes a breach of planning control, or he may, by agreement, retain some involvement with the land for some time after the transfer has been executed. In such situations, he may not be able to make out a defence under section 179(3), but there is no injustice caused if that is the case.
13. Those observations provided the foundation for the battle that was fought on the rehearing before the magistrates’ court, and on appeal before the crown court, with Mr Thompson contending that, despite his ownership of the land, he did have a defence under section 179(3). That brings me to the case stated. After a formal introduction, it is in these terms:
Findings.
1. Having heard and considered all of the evidence, oral and documentary, submitted by the parties the court found unanimously the following matters of fact and law:–
a. that the appellant had disposed of the land to Mr Bennett, at least in part, because of the burden of the enforcement notice,
b. that the situation as to the land was as set out in the Judgment of Keene LJ of the 6th February 2001 in the appeal by East Lindsey District Council, reference CO4608/00 as supplied to the court by the respondents,
c. that Mr Bennett had paid a reduced price because of the fact that the land needed clearance in accordance with the notice,
d. that the sale was not simply a device and that the appellant had not acted mala fides,
e. that the appellant was aware that the land had not been cleared when there were but a few weeks left prior to the expiration of the compliance period under the notice,
f. that the appellant did not by himself take steps to ensure that the notice was fully complied with ie by clearing the land by his own efforts or by the use of sub-contracted labour,
g. that the appellant had not communicated in writing, by himself or through his solicitors, to Mr Bennett any anxiety or request in respect of the non-compliance nor had he communicated the same to the local authority or sought any extension of time to effect compliance,
h. that, in all the circumstances, the appellant had not done as a matter of fact and or law “everything he could be expected to do to secure compliance with the notice” as set out in Section 179(3) of the Town and Country Planning Act 1990.
i. That accordingly the statutory defence was not made out and that the appeal failed as to conviction.
The Appellant has made an application to this Court to state a case; the basis being that, because the Court determined that the material land had been sold in good faith, and that it was otherwise a bona fide sale, the Court erred in law by holding that the Appellant was not entitled to rely upon the statutory defence provided by section 179(3) of the Town and Country Planning Act 1990.
Issue.
The case in point therefore is the issue as to whether or not a finding of a bona fide sale of land is sufficient of itself to satisfy the requirement of a person relying upon the said section to show that “he did everything he could be expected to do to secure compliance with the said notice”.
14. Before considering the submissions, I should refer to one authority on section 179(3) to which counsel have drawn my attention. It is a judgment of the Divisional Court in the case of R v Basildon Crown Court, ex parte Cooper unreported 16 February 2000. In para 7 of the leading judgment given by Blofeld J, it is pointed out that the burden of proof under section 179(3) lies upon the defendant, who has to prove, on the balance of probabilities, that he did everything that he could be expected to do to secure compliance with the notice. At para 11 reference is made to a decision of the Divisional Court in R v Beard [1997] 1 PLR 64, where Hobhouse LJ had said at p70G:
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.
[Emphasis added.]
15. In paras 13 and 14 of the judgment, Blofeld J, in Cooper, accepted that, as had been said in Beard, the expression “everything he could be expected to do” must be read as “reasonably expected to do”. He said:
It applies an objective criteria of reasonableness having regard to all the relevant circumstances, in particular any disabilities to which the owner of the land is subject.
16. The point about disabilities was specific to the subject matter of Cooper.
17. At para 27, Blofeld J stated:
It seems to me that this case has been brought before this court on a misapprehension. This is not a case where somebody charged under this particular section 179(2) has a defence if she has a reasonable excuse. It is only a defence if she can prove that “she did everything she could be expected to do to secure compliance with the notice”. This is a far higher burden upon her than just that of reasonable excuse.
18. In the present case, Mr Robert Hill, for the appellant, Mr Thompson, submits that the position is that a defendant must either himself comply with the notice or sell the land to somebody else who can so comply. What he cannot reasonably be expected to do is both to sell the land at a reduced price to someone who can comply and then to comply by clearing the land himself. It is pointed out that the sale in this case was made at a time when it would be possible to have cleared the land, there being sufficient time left before the expiry of the period for compliance with the notice. It is emphasised that there was no finding that the purchaser, Mr Bennett, lacked the resources or ability to clear the land. It is also pointed out that Mr Bennett himself was criminally liable under section 179(4) and (5) for failure to comply with the notice following his purchase of the land, and it is submitted that it was no part of the role of the appellant to secure compliance by Mr Bennett of his own independent obligation to comply with the notice, or to secure an extension of time for compliance by Mr Bennett with the notice.
19. The appellant himself, it is said, had no control over the land following the sale of that land. He had no right of entry and no right to remove the materials. There is no actual finding of fact to that effect, but I am invited to draw that conclusion from the fact of the sale. Equally, I am invited to draw the conclusion that the appellant did not himself appreciate that he continued to be the owner of the land. Again, there was no finding of fact to that effect, but it is pointed out that the appellant had no control over the timing of registration of the transfer, which is the responsibility of the
20. As to the reference in the case stated to the absence of any communication in writing to Mr Bennett, or to the council in relation to non-compliance, it is submitted that that does not support the case against him. He cannot reasonably be expected to have acted simply by way of morally supporting an action by the council against Mr Bennett. If one were to take into account the existence, or otherwise, of communications between the appellant and the purchaser, Mr Bennett, it would open up too much. One would have to look at Mr Bennett’s circumstances and characteristics to see how he would have reacted to such a communication. In any event, it is submitted, the focus should be upon what the appellant himself was in a position to do by way of clearing the materials from the land, not upon steps that might be taken by him vis-‡-vis a third party. One is concerned here with a criminal charge and a defence to a criminal charge, and that defence should not be construed as imposing an obligation upon a defendant to secure that a third party acts in a particular way. So far as the appellant himself was concerned, there was no more that he could reasonably be expected to do. He ought, therefore, to have been acquitted.
21. For the council, Mr Thomas Cosgrove submits that it is not for this court to embark on a merits review of the evidence. The issue raised by the case stated is a narrow one, namely whether the crown court was required to find the defence under section 179(3) made out once a finding of fact had been made as to a bona fide sale of the land. As to that, it is submitted that the answer is plainly no. If one looks more broadly at the facts, then the position is that the appellant had made no effort himself to remove the materials from the land before the sale of the land. He maintained involvement after the sale, having made a planning application and having visited the land. He made no effort himself to remove the materials after the sale, nor did he make any effort to get the purchaser, Mr Bennett, to remove those materials. It is submitted that, in all the circumstances, there was no error of law by the crown court and the conclusion it reached was one that it was entitled to reach on the facts.
22. The essential point in this case is a short one, and my answer to it can be expressed shortly. In my judgment, it is clear that the bona fide sale of the land prior to the expiry of the period for compliance with an enforcement notice is not necessarily sufficient in itself to provide a defence under section 179(3). Section 179 plainly contemplates that a vendor may be guilty of an offence notwithstanding the sale if, as here, he remains the owner of the land for the purposes of section 179. The sale does not operate automatically to terminate his potential liability. If he remains the owner, then he can avoid liability only by making out a defence in the specific terms of section 179(3).
23. As shown by Cooper and Beard (referred to in Cooper), the owner must show that he has done everything he could reasonably be expected to do to secure compliance with a notice. The subsection applies an objective
24. Even with regard to the sale itself, the court must, in my view, be entitled to consider the terms of the agreement between the vendor and purchaser in order, for example, to see whether one or the other has accepted responsibility for compliance with the notice. I note that in the present case it was found that the purchaser paid a reduced price because of the fact that the land needed clearance in accordance with the notice. There is no finding that the appellant imposed any contractual requirement, as he could have done, that the purchaser clear the land. It would appear that the responsibility accepted by the purchaser for clearing the land was informal in nature. To have imposed a contractual requirement would have been to do more than the appellant in fact did, although I leave open to what extent it would have been practicable to enforce any such requirement and to do so within the period for compliance with the notice. I accept that this point is not something identified by the crown court as informing its decision in the present case, but I mention it because I regard it as relevant to the general question of whether the bona fide sale of land necessarily provides a defence.
25. As to the position after the sale, and looking at the circumstances of this case, it was found as a fact that the appellant was aware that the materials had not been cleared from the land when there were but a few weeks for compliance with the notice. He did not himself take any steps to clear the land, although there is nothing to show that the purchaser would have opposed his doing so, or would have refused permission if permission had been required, nor is there anything to show that he did anything to get the purchaser to clear the land. It was found, as a fact, that he did not communicate in writing to the purchaser or to the council any anxiety or request in respect of non-compliance with the notice. There was no finding as to any other form of communication.
26. There may well have been an assumption on the part of the appellant that, having sold the land at a reduced price, and the purchaser having at some point informally accepted responsibility for clearing the land, the appellant himself was no longer the owner for relevant purposes and had no continuing duty to comply with the notice and therefore needed to do no more about it. Any such assumption was, however, clearly legally erroneous. A mistaken assumption is not enough to found a defence under section 179(3). If there were a defence of reasonable excuse, that might have availed the appellant in the circumstances of the case. It is not necessary for me to make a finding one way or the other on that because, as observed in Cooper, the defence in this statutory context is not one of reasonable excuse. It is a different defence and one that imposes a far higher burden upon a defendant. A mistaken assumption falls far short of
27. In my judgment, the matters taken into account by the crown court were all matters properly taken into account. Having found that there was a bona fide sale of the land, the court was not thereby bound to find the defence under section 179(3) made out. It was entitled to look at a wider range of circumstances than that, as it did. There was no error of law. The conclusion reached on the facts was reasonably open to it.
28. I do not read the judgment of the Divisional Court in the previous round of the present case as telling against the conclusion I have reached. Neither the present issue nor the detailed facts or submissions now before the court were before the court at that time. What was said about the position where a transferor has no control at all over the land does not provide a definitive answer to the issue before me, nor does it run counter to the reasoning that has led me to my conclusion.
29. If the result is a harsh one, it is none the less, in my judgment, one that flows from the statutory provisions, and harshness is something that can properly be taken into account in relation to penalty. I note in that respect that the crown court did substantially reduce the fine imposed upon the appellant.
30. For the reasons given, however, I would answer the question stated in the negative and would dismiss this appeal.
Appeal dismissed.
