Land – Importation of waste – Appellant pleading guilty to failing to comply with enforcement notice – Appellant subsequently appealing against conviction – Whether appellant entitled to rely upon certificate of lawful use when failing to raise point in appeal against enforcement notice – Appeal dismissed
A local planning authority brought criminal proceedings against the appellant for non-compliance with an enforcement notice issued under section 172 of the Town and Country Planning Act 1990. The appellant subsequently pleaded guilty to two counts of failing to comply with the notice, namely bringing waste materials onto the relevant land. He had pleaded guilty following a ruling that he was not entitled, before the jury, to rely by way of defence upon the terms of a certificate of lawful use (CLU) that had been granted in respect of part of the land affected by the enforcement notice.
The local planning authority, which conducted the prosecution, subsequently brought civil proceedings but failed to obtain an injunction to prevent breaches of the enforcement notice by the continuing importation of waste or to recover their costs of removing waste material from the land. The judge refused relief, having reached the opposite conclusion as to reliance upon the CLU, and concluded that the operations carried out by the appellant within the scope of the CLU did not in breach the enforcement notice.
In the light of that decision, the appellant appealed against his conviction. His appeal was heard together with a civil appeal by the local authority against the dismissal of their application for relief since they raised the same point of law between the same parties, albeit with the addition of a second respondent to the civil action. The civil appeal was allowed: [2007] EWCA Civ 864; [2007] PLSCS 177.
The Court of Appeal then went on to deal with the appellant’s appeal against conviction.
Held: The appeal was dismissed.
The recorder’s ruling that it was not open to the appellant to rely upon the CLU was correct and the trial judge had been right to refuse to reopen that ruling shortly before trial. The appellant’s pleas of guilty had not been affected by an incorrect ruling and his convictions were not unsafe.
Section 285 of the 1990 Act prevented reliance upon the CLU in criminal proceedings. If the CLU provided a basis for challenging the validity or ambit of the enforcement notice, the point could and should have been taken by way of appeal to the planning inspector, under section 174 of the 1990 Act, against the enforcement notice.
Moreover, it was not open to a defendant charged in criminal proceedings with failing to comply with an enforcement notice to challenge the notice even upon grounds, such as bad faith, that would not fall within section 174. That conclusion followed as a matter of construction of section 179(5) of the 1990 Act, which created the offence of failing to comply with an enforcement notice, which had not been quashed. It also conformed to the statutory purpose which was to restrict challenges to the legality of an enforcement notice in a criminal court because: (i) of the unsuitability of that court to determine it; (ii) the need for speedy determination of the validity of such a notice if planning control was to be effective; and (iii) the fact that the criminal proceedings were designed not only to punish but also to achieve compliance with planning control: R v Wicks [1998] 2 PLR 97 applied.
Anthony Smith QC and Patrick Darby (instructed by Dunham, Guest & Lyons, of Cannick) appeared for the appellant; Ian Dove QC, Nicola Preston and Richard Kimblin (instructed by the legal department of Staffordshire County Council) appeared for the prosecuting local authority.
Eileen O’Grady, barrister
