Unauthorised works carried out to listed building — Prosecution — Section 9 of Planning (Listed Buildings and Conservation Areas) Act 1990 — Whether letter from local planning authority constituting promise not to prosecute — Whether abuse of process in commencing prosecution
B carried out building works to a Grade II listed building. Following a visit from an officer of the appellant council, a letter was sent, on 3 February 1999, on behalf of the council officer, requiring B’s confirmation that no further works would be undertaken without listed building consent. The letter warned that if that confirmation was not forthcoming, the council would need to consider what action to take. Retrospective listed building consent was granted in March 2000. In July 2000, the council commenced a prosecution against B, under section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990. B’s contentions that, having regard to the terms of the letter of 3 February, the prosecution constituted an abuse of process because she had stopped the unauthorised works, was accepted by the magistrates. The magistrates stayed the prosecution as an abuse of process and awarded B costs to the sum of £47,044.51. The council applied for judicial review of that decision, contending that the magistrates had erred in holding that there had been an abuse of process.
Held The application was allowed and the decision quashed.
There were two fundamental flaws in the magistrates’ decision to stay proceedings. First, they misdirected themselves in law in holding that exceptional circumstances do not need to be present for abuse of the process to be found. Second, the letter of 3 February was not sensibly capable of being construed as a clear promise by the council not to prosecute: see para 52.
Cases referred to in the judgments
Attorney-General’s Reference (No 1 of 1990), Re [1992] QB 630; [1992] 3 WLR 9; [1992] 3 All ER 169; [1992] 95 Cr App R 296
Chu Piu-Wing v Attorney-General [1984] HKLR 411
Postermobile plc v Brent London Borough Council The Times 8 December 1997
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R v Croydon Justices, ex parte Dean [1993] QB 769; [1993] 3 WLR 198; [1993] 3 All ER 129
R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42; [1993] 3 WLR 90; [1993] 3 All ER 138
R v Horseferry Road Magistrates’ Court, ex parte Director of Public Prosecutions [1999] COD 441
R v Bloomfield [1997] 1 Cr App R 135
Application for judicial review
This was an application by Tunbridge Wells Borough Council for judicial review of a decision of Sevenoaks Magistrates’ Court on 5 February 2001 to stay a prosecution brought by them against Cristina Belton as an abuse of process and an award of costs against the council.
The following judgment was delivered.
ROSE LJ
[1] Sullivan J will give the first judgment.
SULLIVAN J:
[2] This is an application for judicial review of a decision of Sevenoaks Magistrates’ Court on 5 February 2001 to stay a prosecution brought by Tunbridge Wells Borough Council against the interested party, Mrs Belton, as an abuse of process, and to award the (corrected) sum of £47,044.51 costs against the council. The council are the local planning authority for their area. Mrs Belton is the owner of a Grade II listed building in the council’s area known as Stream Farm, Iden Green, Benenden in Kent (the farm).
[3] By virtue of sections 7 and 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act), it is a criminal offence punishable with a fine of up to £20,000 and/or six months’ imprisonment on summary conviction, to carry out works to a listed building:
which would affect its character as a building of special architectural or historic interest, unless the works are authorised by a listed building consent.
[4] In November 1998, council officers visited the farm and noticed that building works were being carried out. They paid a further visit on 1 February 1999. As a result of what they saw on that visit, a letter was written on behalf of the planning and building control services manager to Mrs Belton dated 3 February 1999. The letter is as follows:
Thank you for your faxed letter of the 2nd February, 1999 concerning the above. I do appreciate your concerns however, the unauthorised works to the Listed Building seen by Council Officers constitute a very serious matter and|page:27| it was consequentially necessary to caution the builders on site regarding possible prosecution if works did not cease immediately. In addition, enforcement action may also need to be considered.
The removal of the doors, walls, floorboards and ceiling as well as works to timbers and fireplaces are unauthorised and I am writing to seek your confirmation, as a matter of extreme urgency, that no further works will be undertaken without the benefit of Listed Building consent.
If such a confirmation is not forthcoming, then Tunbridge Wells Borough Council will need to consider what action to take under the terms of the Planning (Listed Building and Conservation Areas) Act 1990. I must advise you that this will apply to yourselves, your agent Mr Wilkins, the Builders Keeble and Son and their on-site Sub-Contractors and anyone else involved with these works.
[5] On 13 September, the council’s planning committee authorised a prosecution under section 9 of the 1990 Act. Thirty-two informations were issued by the council on 12 July 2000, but not before retrospective listed building consent had been granted on 21 March 2000. There appears to be a dispute as to the extent to which work ceased after the letter of 3 February, but it is agreed that it substantially resumed once listed building consent had been retrospectively granted.
[6] By the time the matter came before the magistrates on 5 February 2001, four of the 32 informations had been withdrawn. No evidence was called before the magistrates. A submission was made by Mr Robert Lewis, on behalf of Mrs Belton, that, in view of the terms of the letter of 3 February 1999, the prosecution was an abuse of process. The magistrates accepted that submission, and have confirmed that the following is an accurate record of the reasons for their decision:
Counsel for the defence has put forward an application for abuse of process. We are asked to consider whether there is a breach of promise not to prosecute.
In the TWBC letter 3/2/99 the two phrases “I am writing to seek your confirmation… that no further work will be undertaken…” and, “If such a confirmation is not forthcoming, then TWBC will need to consider what action to take.” are the heart of the matter.
We find that, to any reasonable person, implicit in these phrases is the understanding that if confirmation is given that no further works will be undertaken then no action will be taken by the Borough Council. The same inference can be drawn from the phrase in para 1 “possible prosecution if works did not cease immediately”.
[7] Accordingly, we find that the letter constitutes a conditional promise. Neither party disputes that the work stopped and that the condition was met. In fact, all subsequent correspondence underlines Mrs Belton’s willingness to co-operate with the council, specifically her handwritten fax dated 4 February and acknowledged by the borough council on 5 February and the John Wilkins Associates letter of 8 February.|page:28|
[8] We have been referred to several authorities.
[9] In R v Croydon Justices, ex parte Dean on p831 we quote: “In my judgment… [to]… an abuse of process.” On this occasion, the prosecuting arm is the council and we find that this should hold equally for them.
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1 This refers to the written submissions placed before the judge. The case has been reported at [1993] QB 769
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[10] The prosecution have argued that the references on pp77 and 84 of the same authority indicate that abuse of process was allowed because of “exceptional circumstances”. We hold that “exceptional circumstances” do not need to be present for abuse of process to be found, as illustrated in Postermobile plc v Brent London Borough Council1.
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1 Reported in the Times 8 December 1997
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[11] The prosecution also referred us to Croydon and Chu Piu-Wing v Attorney-General1 (McMullin V-P) indicating that, in both cases, there was undisputed evidence of a promise, and argued that the council’s letter of 3 February did not constitute a clear promise. We find that any reasonable person would find in that letter a clear understanding that no action would be taken upon compliance.
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1 Reported at [1984] HKLR 411
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[12] Reference is made by the prosecution to later correspondence in which the council outline their processes for deciding whether to prosecute. However, this post-dates the letter of 3 February in which a clear indication is given that, with compliance, no prosecution will ensue. We find that, as in Postermobile, Mrs Belton should have been able to rely upon the statement of a public official.
[13] In arguing the absence of a promise, the prosecution placed emphasis upon Mrs Belton’s failure to pursue the matter or to refer to it in correspondence. The reference to “expecting punishment for jumping the gun”, in Mr and Mrs Belton’s letter of 11 July 1999, is also mentioned. We find it unreasonable to have expected Mrs Belton to have realised the full legal significance of the council’s letter of 3 February, or to have been aware of the existence of abuse of process.
[14] We have not addressed the question of delay. However, it has not escaped our attention that the original letter sent out on 3 February provoked immediate compliance on the part of Mrs Belton; all work was stopped with, apparently, consequent deterioration of the property, and no legal action was then instituted for some 16 months.
[15] We find that there has been abuse of process, and order that the proceedings be stayed.
[16] An application for costs was made on behalf of Mrs Belton. After a hearing on 9 February, according to the court’s records, the magistrates awarded Mrs Belton the sum of £41,508.41 on each of the informations. It is agreed that this is a clerical error. The magistrates plainly intended that there should be one award of costs in respect of all of the informations, and it is further agreed that the correct sum, using the methodology that appears to have been adopted by the magistrates, is £47,044.51. The|page:29| magistrates explained why they awarded costs in their acknowledgment of service:
On the 9th February, 2001, the justices heard representations from both parties on this issue. As a result of their findings regarding abuse of process, the justices concluded that the Tunbridge Wells Borough Council had carried out an improper act by bringing the prosecution against Mrs Belton and that Mrs Belton had incurred costs by having to defend the proceedings.
[17] On behalf of the council, Mr Ian Albutt challenges both the decision to stay the proceedings and, even upon the premise that that decision was justified, the quantum of the costs award.
[18] So far as the abuse of process issue is concerned, his first submission is that the letter of 3 February 1999 does not amount to a promise not to prosecute for past offences if work ceased immediately. Rather, the letter was concerned with preventing further works as a matter of urgency. Nor, he submits, did the magistrates conclude that there was any express promise. Instead, to use their own words, they concluded that an understanding was “implicit” in the letter, that if confirmation was given that further works would cease, there would be no prosecution for past offences. Alternatively, they concluded that such an “inference” could be drawn from the letter. But he points out that no evidence was called as to how Mrs Belton understood the letter, or what inferences, if any, she drew from it.
[19] Beyond the mere existence of the letter there was nothing exceptional about the case. In particular, there was no evidence that Mrs Belton had somehow been persuaded to act to her detriment in reliance upon the letter. The magistrates specifically concluded that “exceptional circumstances… do not need to be present for abuse of process to be found”. Accordingly, he submits, they erred in principle in their approach to this application. Staying proceedings on the ground of abuse of process is justified only in very special, compelling or exceptional circumstances. The local authority are an elected body, and any decision as to prosecution would have to be made by their members, rather then by their officers. That was, or should have been, apparent to anyone reading the letter.
[20] On behalf of Mrs Belton, Mr Lewis was originally minded to submit that the council had adopted the wrong procedure for challenging the magistrates’ decision; they should have proceeded by way of case stated. Judicial review should be allowed only where there is an allegation of “unfairness, bias or serious procedural irregularity”. It was said in his skeleton argument that this was not such a case.
[21] In the light of an indication from the court, Mr Lewis did not pursue this point. In my judgment, he was right not to do so. If magistrates wrongly stay proceedings on the ground of an abuse of process, then there will, undoubtedly, be a serious procedural irregularity. In many cases, it may well be more convenient to challenge the alleged irregularity by way of case stated, because there would then be no room for doubt as to the|page:30| facts found by the magistrates and their reasons for allowing the application.
[22] But those considerations do not apply on the facts of the present case. No evidence was called here, and there is an agreed transcript of the magistrates’ reasons for their decision. Thus, there is no ground upon which this court should, as a matter of discretion, refuse to consider this application for judicial review on the basis that a more appropriate alternative remedy is, or was, available. In this context, I should add that there were attempts by both parties to adduce substantial amounts of evidence that were not before the magistrates. In my judgment, such evidence is inadmissible in proceedings of this kind. We should simply look at the magistrates’ reasons, together with any document or documents, such as the letter of 3 February 1999, referred to in those reasons.
[23] Turning to the substance of the matter, Mr Lewis submitted that the letter of 3 February 1999 is not simply concerned with future works. He draws attention to the Department of Environment, Transport and the Regions’ good practice guide relating to the enforcement of planning controls, which advises local authorities, wherever it is appropriate, to consider alternative courses to taking formal enforcement action, including, for example, inviting a retrospective planning application.
[24] I do not find the guide of any assistance in the present case. It is dealing with unauthorised development that is being carried out without planning permission, which, although it may be the subject of enforcement proceedings, is not a criminal offence. Carrying out unauthorised works to a listed building is a criminal offence. It may also result in a listed building enforcement notice.
[25] Mr Lewis submits that there is no rule of law that only a breach of an expressed, as opposed to an implied, promise qualifies as a potential abuse of process. But, he submits, in any event, here, the letter of 3 February 1999 did contain an express promise. He says that its terms were clear, and the magistrates were entitled to conclude that it did give a “clear indication”, or give rise to a “clear understanding”.
[26] He also submits that there is no rule of law that requires there to be prejudice for an abuse of process argument to succeed. The doctrine of abuse for breach of promise by a prosecutor not to prosecute is not founded on prejudice to the accused, but on the court’s anxiety to ensure, in the interests of the proper administration of justice, that prosecutors do not break their word or act in a way that “offends the court’s sense of justice and propriety”: see Lord Lowry in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 at p74H.
[27] He submits further that, in any event, in the present case, Mrs Belton was prejudiced because she immediately ceased all work on the farm, including work that, at least arguably, did not require listed building consent, and, as a result of this, there was deterioration in the property. He submits that the magistrates were right to conclude that|page:31| exceptional circumstances were not required in order to found an application for a stay based upon abuse of process. The justices certainly had to consider the exercise of their jurisdiction “carefully and sparingly and only for very compelling reasons” (see Lord Lowry in Bennett), but that is precisely what they did in the present case; they retired and gave a reasoned decision.
[28] He further referred to the decision of the Divisional Court in Postermobile, as authority for the proposition that planning authorities are bound by statements made by planning officials, and that the magistrates were entitled to conclude that it was an abuse of process for the council to prosecute after those statements had been relied upon.
[29] What had happened in Postermobile was that the appellant had been told by planning officers that consents were not required for temporary advertisements. Having received that advice, it went away and put up temporary advertisements, and was then prosecuted by the council. In the Divisional Court, Schiemann LJ, with whom Moses J agreed, said:
The expression of opinion clearly informed the appellants they could proceed without planning consents.
…
It was important that the citizen should be able to rely on the statements of public officials. Once one accepted the advice had been given and there were no long term effects then it was an abuse of process to allow the prosecution to proceed and the correct procedure would have been for the council to withdraw the prosecutions.
[30] Mr Lewis also referred to the doctrine of legitimate expectation and to the question of delay. He said that the magistrates plainly felt it unnecessary to address the question of delay because they were satisfied as to the meaning of the letter of 3 February 1999, but this was a subsidiary ground upon which they concluded that to proceed with the prosecution would be an abuse of process.
[31] For my part, I am in no doubt that the magistrates erred in concluding that there had been an abuse of process and that proceedings should be stayed. There is ample authority for the proposition that a stay of proceedings on the ground of abuse of process is an exceptional course. It is “a power to be most sparingly exercised” (see the speech of Lord Griffiths at p63H of Bennett). The power must be “exercised carefully and sparingly and only for very compelling reasons”: see the speech of Lord Lowry at p74 of the same case).
[32] In R v Horseferry Road Magistrates’ Court, ex parte Director of Public Prosecutions [1999] COD 441, the stipendiary magistrate found that a detective constable had said that no further action would be taken|page:32| against the defendant. The magistrates granted a stay, saying:
Following the case of R v Croydon Justices, ex p Dean which involved an implied indication that there would be no prosecution I ruled that an express indication to the defence solicitors that no further action would be taken against [the defendant] coupled with the length of time that had elapsed between the date 25 February 1997 and the subsequent date 5 March 1998 when he was charged with others (over a year later) meant that it would ipso facto be unfair to try him now.
[33] The Divisional Court (Kennedy LJ and Blofeld J) allowed the prosecution’s application for judicial review. The notes of the court’s judgment include the following:
The jurisdiction to stay proceedings encompasses two categories of abuse: first, where the defendant’s prospects of a fair trial have been unduly prejudiced by the prosecution’s actions; and, second, where to try the defendant at all would be so unfair or wrong that the court should not permit the trial to proceed: R v Horseferry Road Magistrates’ Court, ex parte Bennett…
… (a) The matters which were raised before the magistrate were ones it was incumbent upon her to approach with a considerable degree of caution. Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. Attorney General’s Reference (No 1 of 1990) (1990) 95 Cr App R 296; R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 43.
(b) None of the special circumstances in Dean or Bloomfield existed in the present case. In Dean, the defendant had been led to believe he would not been prosecuted, and as a result had given considerable assistance to the police. In Bloomfield, the prosecution had stated in open court that no evidence would be offered at the next hearing. The administration of justice would be brought into disrepute if the CPS were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was: R v Croydon Justices, ex parte Dean [1993] QB 769; and R v Bloomfield [1997] 1 Cr App R 135, considered.
[34] In the present case, although the magistrates referred to delay, they did not found their decision upon it: “We have not addressed the question of delay.” The magistrates do not suggest in their reasons that Mrs Belton could not receive a fair trial, whether by reason of delay or for any other reason. Thus, the question is whether, in the light of the letter of 3 February 1999, it would be so wrong or unfair for the prosecution to be allowed to proceed that the court’s sense of “justice and propriety” would be offended.
[35] I accept the proposition advanced by Mr Lewis that it will not always be necessary to demonstrate actual or potential prejudice to the defendant in order to demonstrate abuse of process under this second limb. R v Bloomfield [1997] 1 Cr App R 135 is an example, but it is an extreme case, since the prosecution gave an unequivocal assurance in open court. Save at the extreme end of the spectrum, the presence or absence of prejudice to the accused is bound to be, at the very least, a relevant factor in the exercise of the magistrates’ discretion.
[36] In the present case, since no evidence was called, there was no evidence of prejudice to Mrs Belton. Indeed, the magistrates do not refer to the question of prejudice. They do refer to the fact that work stopped, following the letter. Mr Lewis has submitted that this shows that|page:33| Mrs Belton was prejudiced to some degree. I am unable to accept that submission, whatever Mrs Belton might have understood the letter to say. As to the works that had been carried out on her behalf, there can be no doubt that the council were very concerned to stop any further works. The letter has to be seen in its surrounding context. This was not a letter written by the borough solicitor after a fair opportunity to consider all the papers, it was a letter written by a planning enforcement officer a matter of days after a site visit, where he was clearly concerned, as a matter of very considerable urgency, to put a stop to any further unauthorised works to a listed building. In my judgment, in that context, it is simply unrealistic to seek to infer an assurance from such an officer in such circumstances that there would be no prosecution for past offences if work ceased.
[37] In any event, since further unauthorised works would, on any basis, have exposed Mrs Belton to the risk of prosecution and/or have aggravated any offences that might have been committed, and, conversely, since stopping work immediately upon receipt of the letter would, all other things being equal, be a significant factor in mitigation of any offence that might have been committed, it was plainly sensible, from her point of view, to stop work and await the outcome of a retrospective application for listed building consent. Had work continued, the council might have commenced injunction proceedings, rather than simply relied upon service of a listed building enforcement notice.
[38] There is, therefore, no possible basis for the suggestion, which was not, in any event, accepted by the magistrates, that Mrs Belton suffered prejudice in some way in reliance upon the letter of 3 February 1999.
[39] Postermobile is distinguishable. In that case, not merely was there a clear expression of opinion by a planning officer, who might reasonably have been expected to know whether or not consent was required for the putting up of temporary advertisements, but the appellant proceeded to act upon the planning officer’s advice by putting up advertisements, thereby exposing itself to prosecution. In the present case, the unauthorised works had already been carried out. There is, therefore, no equivalent reliance upon an expression of view by a council officer.
[40] Mr Lewis submits that the letter of 3 February 1999 was an expressed promise not to prosecute in respect of past offences. In my judgment, it could not possibly be construed in that manner. It says nothing about what will happen in respect of past offences. Moreover, the magistrates did not conclude that there was any express promise not to prosecute. They found that there was “an implicit understanding”, and that “an inference” could be drawn to the effect that there would not be a prosecution. It is perfectly true that, later on, they concluded that the understanding was clear and that the indication was clear.
[41] The problem with that approach, on the facts of the present case, is that since no evidence was called, not merely was there no evidence of prejudice, but also there was no evidence as to how Mrs Belton had, in fact, understood the letter of 3 February 1999, or as to what, if any, implication or implications she had drawn from it. I accept that, in principle, an|page:34| implicit promise may be sufficient to found a submission that there has been an abuse of process, but, as a matter of common sense, the less explicit the promise, the less likely it will be that the court’s sense of propriety and justice will be offended by the prosecution.
[42] Putting it at its highest, from Mrs Belton’s point of view, it could be said that the letter of 3 February 1999 was equivocal, leaving open the question: “Yes, but what will you do about the works that have been carried out without the benefit of listed building consent?” How Mrs Belton thought the council would answer that question, the magistrates were not in a position to know. They did, however, have the assistance of seeing a bundle of correspondence. We have been taken to that correspondence by Mr Albutt and Mr Lewis. I find it unnecessary to go through the letters in detail. It is sufficient to say that it is plain from the subsequent correspondence that Mrs Belton did not understand the letter of 3 February 1999 as conveying any sort of promise not to prosecute.
[43] Simply by way of illustration, the area planning officer wrote toMrs Belton on 15 July 1999 saying, inter alia:
Any question of prosecution for carrying out works to a listed building would also be a matter for elected Members, once a report is made to the eastern area planning committee. At this stage therefore I can give no commitment on this matter.
[44] Had Mrs Belton understood the letter of 3 February 1999 as though it were a promise not to prosecute if she ceased work immediately, there can be little doubt that she would have written back to the council, pointing out that understanding and complaining of the resulting unfairness. Mr Lewis says that she is not legally qualified. She is simply a layperson and indeed was living abroad. It seems to me that that does not answer the point fairly made by Mr Albutt, that if there had been any reliance upon this letter of 3 February 1999, or any understanding that it was a promise not to prosecute, then that is a matter that would have been raised, no doubt in non-legal language, at a much earlier opportunity than on the very eve of the hearing before the magistrates.
[45] Again, by way of example, the area planning officer told Mrs Belton in the letter of 7 September 1999:
We are now bringing this matter in front of Members of the Eastern Area Planning Committee meeting on 13th September 1999 to seek their views on whether legal proceedings should be instigated.
[46] There was no response to this letter and no suggestion to the effect that: “Surely, you promised me that if I stopped work you would not prosecute me.”
[47] For these reasons, this case is very far removed from the very special circumstances that existed, for example, in Dean and Bloomfield. Far from there being any clear representation by a person who might be thought to have sufficient authority, such as a prosecutor, in open court, there is an equivocal letter from a planning officer, who, leaving aside entirely the members’ role in prosecutions, would not reasonably be|page:35| expected to have responsibility for deciding whether or not prosecutions in respect of past unauthorised works to listed buildings should be undertaken. The letter did not emanate from the council’s solicitor. There was no direct evidence as to how that equivocal letter was understood by Mrs Belton, but it seems plain from the correspondence that was before the magistrates that she did not understand it as some form of implicit promise not to prosecute.
[48] There is, for the reasons that I have given, no evidence of prejudice to her and no question of her having relied upon whatever assurance was given to her detriment. Specifically, the fact that works stopped upon receipt of the letter did not amount to any detriment, and is not evidence in support of any belief that there would be no prosecution for past offences. It was simply a sensible course of action from her point of view.
[49] Moreover, the magistrates’ approach to the matter shows an underlying error in that they rejected the council’s submission that abuse of process applications should not be granted, save in exceptional circumstances. The magistrates held that “exceptional circumstances do not need to be present for abuse of process to be found.”
[50] There is no recognition in the magistrates’ reasons that staying a prosecution on the ground of abuse of process is an exceptional course, however the test is formulated, whether in terms of “very compelling reasons”, “exceptional circumstances” or “most sparingly exercised”. Even if there had been such a recognition that this was the appropriate test, there was no suggestion that a fair trial for Mrs Belton would not be possible upon the basis of the material laid before the magistrates.
[51] In the light of the matters that I have referred to above, it could not reasonably have been concluded that the mere sending of the letter of 3 February 1999 meant that it would be so unfair to try Mrs Belton that the court should stay proceedings. For these reasons, I would allow the council’s application in respect of the decision to stay proceedings. It follows that it is unnecessary to consider the council’s challenge to the quantum of the costs award.
ROSE LJ:
[52] I agree. There are, as it seems to me, two fundamental flaws in the justices’ decision to stay proceedings. First, they misdirected themselves in law in holding that, in their words: “Exceptional circumstances do not need to be present for abuse of process to be found.” There has, for at least a decade, been substantial authority at the highest level that the power to stay criminal proceedings for abuse of process, particularly when exercised by magistrates, should be most sparingly and carefully exercised and only for very compelling reasons: see per Lord Lane CJ in Re Attorney-General’s Reference (No 1 of 1990) [1992] QB 630; [1992] 95 Cr App R 296 and R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 per Lord Griffiths at p63H-64B and Lord Lowry at p74G.
[53] Second, for the reasons given by my lord, the terms of the letter of 3 February 1999, written on behalf of the council’s planning and building|page:36| control services manager, is not, in my judgment, sensibly capable of being construed as a clear promise by the local authority not to prosecute. Indeed, although this is not, of itself, determinative, there was nothing before the justices to suggest that it was so understood by Mrs Belton.
[54] Accordingly, the relief sought is granted. The justices’ decision staying these proceedings is quashed, and the case will be remitted to Sevenoaks Magistrates’ Court for a differently constituted bench to continue the hearing in relation to the summonses.
Claim allowed.
