Non-compliance with enforcement notice – Statutory defence – Notice requiring removal of caravan from land owned by gypsy – Appellant council laying information – Magistrates finding defence made out – Respondent unable to remove caravan without dismantling it – Respondent unable to find alternative site – Whether justices erred in law by considering hardship and reasonableness – Appeal allowed
The respondent owned a strip of land in a part of metropolitan green belt that was designated as a special landscape area. He used the land as a residential caravan site and lived there with his family. The appellant council served an enforcement notice on the respondent for breach of planning control and required him, inter alia, to stop using the land as a residential caravan site and to remove his caravan from the site. The respondent’s appeal against that notice was dismissed by an inspector appointed by the secretary of state, and the appellants subsequently laid an information against the respondent alleging a failure to comply with the enforcement notice, contrary to section 179 of the Town and Country Planning Act 1990.
The respondent accepted that he had failed to comply with the enforcement notice, but relied upon the defence contained in section 179(3) of the 1990 Act. He contended that: (i) his neighbours had restricted his access to their land, which he would have to cross if he were to remove his caravan; (ii) it would otherwise be impossible to remove the caravan without first dismantling it; and (iii) there were no alternative sites. The justices found that it was not reasonable for him to have to dismantle his home in order to comply with the enforcement notice since he would be unable to re-erect it. Similarly, it was not reasonable for the respondent no longer to live in the caravan, but to leave it on the site, because then he and his family would be homeless and would not have fully complied with the notice. Accordingly, the justices dismissed the information.
The appellants appealed by way of case stated, contending that the facts and evidence demonstrated that the respondent was able to comply with the notice. They contended that the justices had wrongly had regard to the defendant’s hardship following his compliance with the notice, which, as a matter of law, was outside the scope of the defence under section 179(3).
Held: The appeal was allowed.
The justices had erred in law in their approach to the statutory defence and in finding that the respondent had done all that he could reasonably have been expected to do to comply with the notice. The matter would be remitted to them with a direction to convict.
In determining whether the defence under section 179(3) was established, the question was whether it was within the power of the landowner, as a matter of fact, to comply with the notice without the assistance of others. The issue was one of incapability of compliance, not whether there was a reasonable excuse for non-compliance. Issues of hardship and the reasonableness of compliance were irrelevant: R v Beard [1997] 1 PLR 64, R v Wood [2001] EWCA Crim 1395; [2002] 1 PLR 1, R v Clarke [2002] EWCA Crim 753; [2002] JPL 1372 and Wycombe District Council v Wells [2005] EWHC 1012 (Admin); [2005] JPL 1640 applied; Kent County Council v Brockman [1996] 1 PLR 1 distinguished.
In the instant case, the charge laid against the respondent had related solely to a cessation of the use of the land in question as a residential caravan site. The respondent could have complied with that requirement by removing himself and his family from the land without the need to obtain permission from his neighbours. The further issues of whether he could have dismantled the mobile home and found suitable alternative sites were not relevant considerations for the justices.
Saira Sheikh (instructed by the legal department of Sevenoaks District Council) appeared for the appellants; David Watkinson (instructed by Bramwell Browne Odedra, of Chesham) appeared for the respondent.
Eileen O’Grady, barrister
