Town and country planning — Enforcement notice — Non-compliance — Statutory defence — Section 179 of Town and Country Planning Act 1990 — Notice requiring removal of caravan from land owned by gypsy — Local planning authority laying information alleging non-compliance — Defence of having done all that could be expected to secure compliance with notice — Inability to remove caravan without dismantling it — Lack of available alternative site — Whether issues of hardship and reasonableness relevant to application of defence
The appellant local planning authority served an enforcement notice on the respondent. They alleged a breach of planning control by a change of use of the respondent’s land from agriculture to a residential caravan site. The notice required the respondent to cease such use, to remove all touring caravans, plus hardstanding and ancillary buildings and to reinstate the land to its former condition. The respondent’s appeal against the notice was dismissed. The appellants subsequently laid an information against the respondent, charging him with failing to comply with the notice, contrary to section 179 of the Town and Country Planning Act 1990. The information referred only to the cessation of use as a residential caravan site. The respondent sought to rely upon the defence in section 179(3) that he had done all that he could be expected to do to secure compliance with the notice. In support of that case, he asserted that: (i) he was a gypsy and the provision of gypsy sites in the area was inadequate; and (ii) owing to access problems, in order to be removed, the caravans would have to be dismantled in such a way that they could not afterwards be reconstructed. Dismissing the information in the magistrates’ court, the justices found that it would be unreasonable to expect the respondent to dismantle his home when he could not reconstruct it afterwards. It was also not reasonable for him to cease living in the mobile home while leaving it on the site, since he and his family would have no other home to live in and would have failed fully to comply with the notice.
The appellants appealed by way of case stated. They submitted that: (i) the justices had erred by taking into account questions of reasonableness and hardship whereas the section 179(3) defence was concerned only with whether the respondent was capable, as a matter of fact, of complying with the notice; and (ii) since the notice related solely to the respondent’s failure to cease residential use, he could comply by leaving the site without removing the caravans.
Held: The appeal was allowed.The test, under section 179(3) of the 1990 Act, is whether the owner of land has the power to comply with the notice without the aid of others. The subsection is concerned only with the landowner’s ability to comply, not with wider issues of hardship or the reasonableness of compliance. Issues as to the proportionality of any interference with the right to respect for one’s home under Article 8 of the European Convention on Human Rights are taken into account in the planning system and need not be considered when an authority seeks to apply an enforcement notice by means of a criminal prosecution. The charge against the respondent related solely to his failure to cease using the site as a residential caravan site. He could have complied with that requirement by no longer living in the mobile home; he was able to do that without the help of others. Whether such a step would cause him hardship owing to the lack of an alternative home was not a proper consideration at the stage of a prosecution for breach of a valid enforcement notice. Likewise, even if the charge had related to the removal of the caravan, the respondent could comply by dismantling it, and any hardship involved in so doing was irrelevant at that stage. The matter would be remitted to the justices with a direction to convict.
The following cases are referred to in this report.
Chichester District Council v First Secretary of State; sub nom First Secretary of State v Chichester District Council [2004] EWCA Civ 1248; [2005] 1 WLR 279; [2005] 3 PLR 39
Kent County Council
v Brockman [1996] 1 PLR 1, DC
R v Beard [1997] 1 PLR 64, CA
R v Clarke [2002] EWCA Crim 753; [2002] JPL 1372
R v Wood [2001] EWCA Crim 1395; [2002] 1 PLR 1
Wycombe District Councilv Wells [2005] EWHC 1012 (Admin); [2005] JPL 1640
This was an appeal by the appellants, Sevenoaks District Council, from a decision of the Kent Justices, sitting in Sevenoaks Magistrates’ Court, dismissing an information laid against the respondent, George Harber, alleging a failure to comply with an enforcement notice contrary to section 179 of the Town and Country Planning Act 1990.
Saira Sheikh (instructed by the legal department of Sevenoaks District Council) appeared for the appellants; David Watkinson (instructed by Bramwell Browne Odedra, of Chesham) represented the respondent.
Giving judgment, Keene LJ said:
[1] This appeal concerns the breach of an enforcement notice served under the Town and Country Planning Act 1990 (the 1990 Act). It comes to this court by way of a case stated by the Kent Justices, sitting at Sevenoaks Magistrates’ Court. On 1 November 2007, they found the respondent not guilty of an offence under section 179 of the 1990 Act because he had, in their judgment, established a defence under subsection (3) of that section. The appellants, which were the prosecuting authority before the magistrates, are the local planning authority for the area in question.
[2] The appellants had served an enforcement notice, dated 7 January 2005, on the respondent, the owner of the land to which the notice related. It alleged a breach of planning control by making a material change of use from agriculture to use as a residential caravan site. It spelt out the relevant planning considerations that led to the decision to enforce, including the fact that the land lay within the metropolitan green belt, in an area of outstanding natural beauty and in an area designated as a special landscape area. The notice then went on |page:92| to require the respondent to take certain steps within a specified period. Those steps were four in number:
(a) Cease the use of the land as a residential caravan site.
(b) Remove all touring caravans from the land.
(c) Remove all hardstandings, structures, buildings, septic tank and fencing used for purposes ancillary to the use of the land as a residential caravan site.
(d) Reinstate the land to its former condition before the development took place.
[3] The respondent appealed to the Secretary of State, as he was entitled to do, but his appeal was dismissed by an inspector appointed by the Secretary of State to determine the appeal. That right of appeal arose under section 174 of the 1990 Act, which provides a number of potential grounds of appeal, including one to the effect that planning permission ought to be granted for the development in question. Mr George Harber appealed on that ground and also on the ground that time should be extended for compliance. He was thus raising grounds (a) and (g). In the event, this enforcement notice was upheld, although the time for compliance with it was extended to 27 March 2007.
[4] There is no dispute that the respondent failed to comply with the notice, as indeed the justices found, by the specified date. As a result, the appellant authority laid an information charging the respondent with an offence under section 179, the relevant parts of which are subsections (1), (2) and (3):
(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.
Subsections (8) and (9) then deal with the penalties for the offence.
[5] In the present case, the respondent was charged with not having taken the first of the four steps required by the enforcement notice, namely to cease the use of the land as a residential caravan site. He accepted that he had failed to cease that use, but he relied upon the statutory defence under section 179(3), saying that he had done everything that he could be expected to do to secure compliance with the notice. It is, I note, well established that that subsection is to be read as though the word “reasonably” appears before the words “be expected”.
[6] The respondent’s case before the justices was that he was a gypsy and that there was inadequate provision in the area of gypsy sites. He said that he had sought to comply with the enforcement notice by asking his neighbours if he could move his mobile home across their land, so as to remove it from the enforcement notice land, but they had refused. His own land was a strip of land without immediate access to a road, although there does seem from the plan accompanying the enforcement notice to be a path or track adjoining the respondent’s land. Consequently, he could not remove the mobile home from his land without dismantling it. He contended that he was not able to cease the use as such because there was nowhere else for his children to sleep.
[7] The justices found certain facts, among which were the following:
(ii) The Respondent had failed to comply with a step required by the enforcement notice as alleged. However, the Respondent had taken reasonable steps to secure compliance.
(iii) Attempts were made by the Respondent to remove the mobile home from his land but neighbours refused access to their land, and the vehicle which was to remove the mobile home was unable to gain access to the Respondent’s land via other means.
(iv) It was not reasonable for the Respondent to dismantle his mobile home in order to comply with the notice.
[8] The justices also expressed the opinion that it was not reasonable for the respondent to dismantle his home in order to comply with the enforcement notice, since he would have been unable to reconstruct it afterwards. They went on to say:
It was similarly not reasonable for the Respondent to merely cease living in the mobile home and leave it on the site as he would still have no other home in which to live with his family, and would not have complied fully with the notice in any event.
Consequently, they found the respondent not guilty.
[9] The questions posed for this court are as follows:
1. Whether we were correct that the Respondent had established the statutory defence when he could merely have ceased living in the mobile home to comply with the enforcement notice having regard to the allegation in the summons.
2. Whether we were correct that the Respondent had established the statutory defence in Section 179(3) of the 1990 Act when we accepted that he could have complied with the notice by dismantling his mobile home.
3. Whether we were correct in finding that, in the circumstances, the Respondent had done all that he could reasonably be expected to do to comply with the notice.
[10] There is a certain amount of case law now available as to the meaning of section 179(3) and how the defence under that provision should be approached. The earliest is Kent County Council v Brockman [1996] 1 PLR 1, a Divisional Court decision. The main issue there was whether and to what extent the personal circumstances of a defendant to a section 179 charge could be taken into account under subsection (3). The court held that they could if those circumstances meant that he was “genuinely incapable” of complying with the notice: see at pp3E and 4C. The defendant in that case had been found to be physically incapable of complying with the notice because of a heart attack and financially incapable of paying others to do the required work.
[11] The leading case, which has been followed ever since, is that of R v Beard [1997] 1 PLR 64. As with the present case, that decision concerned a gypsy using land as a residential caravan site. He argued that it was reasonable of him not to move to a council site because he had previously been attacked there, and he had searched exhaustively for alternative accommodation without success. Thus, he had done everything that he could reasonably be expected to do to secure compliance.
[12] The Court of Appeal (Criminal Division) rejected that line of argument. Hobhouse LJ, giving the judgment of the court, said, at p70F-H:
But, most importantly, subsection (3) uses the words “everything he could be expected to do to secure compliance”. The argument of the appellant ignores these words and their necessary implication that the owner is having to secure that someone else comply with, or assist in the compliance with, the notice.
We consider that the submissions made on behalf of the prosecution are correct. 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.
[13] There then followed a succinct summary of the correct approach, at p71E-F:
The alleged facts relied upon by the appellant do not relate to any lack of capacity or inability of the appellant to comply with the enforcement notice. His compliance does not involve his securing that any other person do or desist from doing anything. He himself has the resources and the power to comply with the notice.
[14] That approach was followed in another decision of the Court of Appeal (Criminal Division), R v Wood [2001] EWCA Crim 1395*, and again by the same court in R v Clarke [2002] EWCA Crim 753†. In the latter case, again one involving a gypsy and land being used for |page:93| the stationing of a caravan for residential use, the court found that the fact that the defendant had nowhere else to station his caravan, in which his family lived, did not go towards establishing a defence under section 179(3). The crucial paragraph of the judgment is [22], which reads as follows:
The only defence available at the enforcement stage, therefore, is the limited one afforded by section 179(3) as interpreted in Beard. Where it is within the power of the owner of the land to comply with the enforcement notice without the assistance of others, no question of a defence can arise under section 179(3).
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* Editor’s note: Reported at [2002] 1 PLR 1
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† Editor’s note: Reported at [2002] JPL 1372
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[15] Finally, on this aspect of the case, there is the decision of Newman J in Wycombe District Council v Wells [2005] EWHC 1012 (Admin)*, another gypsy caravan site case. It followed Beard and also emphasised that the issue is one of incapability of compliance with the enforcement notice, not whether there was a reasonable excuse for non-compliance, such as the lack of an alternative site or hardship to the defendant: see especially [7].
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* Editor’s note: Reported at [2005] JPL 1640
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[16] In reliance upon those cases, Ms Saira Sheikh, for the appellants, submitted that the justices in the present case erred in law. She submitted that, first, it is clear that the respondent was physically able to leave the site with his family and to cease using the site for residential purposes. He required no assistance to achieve that. She emphasised that the charge against the respondent related only to his failure to cease that use step (a) as set out in the enforcement notice. That, in itself, did not require the removal of the mobile home as such. Whether or not there was alternative accommodation for the family was not relevant at this late stage of the process, as the authorities demonstrate. Ms Sheikh pointed, in particular, to a passage in Newman J’s judgment in Wycombe, where, in [13], he said:
The respondent was not incapable of leaving the site. Whether or not he had an alternative site to go to, he was physically able to leave the site with his family.
[17] Moreover, in so far as the mobile home itself is concerned, the justices’ findings show, it is submitted, that the respondent was physically capable of removing it from the site by dismantling it. The appellants contend that the justices erred, in that they had regard to what they considered would be a measure of hardship to the respondent. They were persuaded that the defence was made out because he would not be able to reconstruct the mobile home after complying with the requirements of the notice. They also thought, said Ms Sheikh, that it was unreasonable for him to comply with the notice by merely ceasing to live in the mobile home, something that he was physically capable of doing, because he would still have no other home in which to live with his family.
[18] In fact, it is contended, the issue for the magistrates was not whether it was desirable for the respondent to have to leave the site, having regard to the inconvenience and hardship that it would cause him and his family, including whether he had another home to live in. All that the magistrates were required to do was to consider whether the respondent was capable, as a matter of fact, of complying with the notice. It is said that, from the case stated, it is abundantly clear that the justices found that he was capable of complying with the notice, but that they did not think that he should have to do so because of the hardship caused to him by so doing.
[19] For the respondent, Mr David Watkinson argued, first of all, that all cases are fact-sensitive, and whether a defendant has done all that he could reasonably be expected to do to secure compliance is in the ordinary way a matter for the tribunal of fact, in this case the justices. For that proposition, he relied, among other authorities, upon Brockman.
[20] Pausing there, I agree. However, that proposition is subject to the condition, as Mr Watkinson acknowledged, that the tribunal of fact has approached the question properly as a matter of law. If it is evident that it has adopted the wrong legal approach, this court can (and indeed should) intervene.
[21] Mr Watkinson, however, submitted that the justices here asked themselves the right question, that is to say whether the respondent had done all that he reasonably could so as to comply. He emphasised that this mobile home was occupied by the respondent, his wife and their four children, aged between five and 19. Moreover, the respondent had tried to find alternative accommodation. We are told by Mr Watkinson that he had made some 11 attempts to find an alternative site that would be acceptable to the planning authority, but all without success.
[22] It is submitted that the respondent’s rights under Article 8 of the European Convention on Human Rights, in particular the right to respect for the home, are important in this case. The effect of those rights on the interpretation of section 179(3) must be taken into account because of section 3 of the Human Rights Act 1998 (the 1998 Act). It is contended on behalf of the respondent that this means that section 179(3) should be construed in a proportionate way, so as not to impose an excessive burden on a defendant to establish the defence. There may be steps that could be taken that would lead to compliance with the enforcement notice, but in certain circumstances, such as the present, it would be unreasonable and disproportionate to require him to do that in order to make out the defence.
[23] In so far as the justices found that it would be unreasonable for the respondent to have to dismantle the mobile home and remove it, because he would be unable to reconstruct it, they were holding, it is said, that such a course of action would be disproportionate. In addition, it is also submitted that the justices’ findings show that it would be disproportionate to comply by vacating the land and leaving the mobile home behind, again resulting in the loss of the respondent’s home.
[24] Mr Watkinson submitted that the respondent in the present case is in a different position from the parties in the various cases cited. The position is that the respondent here, because of the lack of co-operation with his neighbours, could not remove the mobile home from the land, certainly not in one piece, and the justices were entitled to find, therefore, that he had done everything that he could reasonably be expected to do in order to secure compliance.
[25] In the other cases relied upon by the appellants, the defendant was able to move the caravan from the site. Here, the respondent cannot do so, save by dismantling it, which would leave him without that caravan. This, submitted Mr Watkinson, distinguishes it in particular from Wycombe in the Strasbourg court, a decision upon which the appellants rely.
[26] For my part, I cannot accept the argument advanced by the respondent concerning the effect of Article 8 in respect of section 179(3). Although it is right that the decision in Beard antedated the 1998 Act, the court there did consider the effect of Article 8 because this country was a signatory to the Convention at that time and Article 8 was relied upon by the defendant in that case. The point made by the court in rejecting the argument has been echoed in subsequent decisions. What Hobhouse LJ stressed in Beard was that the considerations that come into play under the concept of proportionality are allowed for in the UK’s legislative scheme dealing with enforcement notices. At p72G-H of his judgment, he said:
There is no inconsistency between the scheme of the United Kingdom planning legislation and the convention. The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including at the stage of deciding whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with article 8.
By “enforcement” in that last sentence, the lord justice clearly meant its enforcement by means of a prosecution.
[27] Unsurprisingly, therefore, Beard has been followed in cases that have been decided since the 1998 Act came into force, namely Wood, Clarke and Wycombe. |page:94|
[28] In Clarke, the Court of Appeal (Criminal Division), in following Beard, put the point in these terms, in [8(iii)], referring to the statutory procedures concerning enforcement notices:
Those procedures provide for independent assessment and appeals from that assessment of the competing rights and interests of applicants for planning permission, and the interests of the community as a whole. These procedures include appeals against the issue of enforcement notices. The human rights of persons affected, whether gypsies or otherwise, are part of the equation which calls for consideration at those stages.
[29] That proposition is borne out by the decision in Chichester District Council v First Secretary of State [2004] EWCA Civ 1248*. In other words, the balancing exercise required by the concept of proportionality is relevant, but it is taken into account in this country’s planning system, where enforcement is concerned, at the stage: (a) where the local planning authority in their discretion decide to issue an enforcement notice because there is a breach of planning control in their judgment; and (b) at the stage of any appeal that is lodged by the recipient of the notice to the Secretary of State. Proportionality therefore does not need to be taken into account when an authority seek to apply an enforcement notice by means of a criminal prosecution.
[30] That approach has now received the endorsement of the Strasbourg court when Wycombe was taken to it by Mr Wells. In its decision of 16 January 2007 on application no 37794/05, the European Court of Human Rights found Mr Wells’ complaint manifestly ill-founded, saying that it is at the stage of the appeal against the enforcement notice itself that the individual’s interests are balanced against those of the community in planning controls in the system operated by the UK. They concluded that Mr Wells’ Article 8 rights had not been violated by the approach adopted by Newman J in the case to which I have earlier referred.
[31] Consequently, the test to be applied under section 179(3) is that spelt out in Beard and followed in the later cases to which I have referred. It is whether it is within the power of the owner of the land to comply with the notice without the assistance of others. The subsection is concerned with his ability to comply, not with wider issues of hardship or the reasonableness of compliance. Those were indeed issues raised by the respondent on his appeal against the enforcement notice to the Secretary of State in this case because, as I have indicated, he appealed on ground (a) among others, which enables a wide range of considerations to be taken into account. He specifically relied upon Article 8 at that stage of the process.
[32] It seems to me that the justices in the present case did err in law in their approach to the statutory defence. First of all, the charge against the respondent related solely to his failure to cease using the site as a residential caravan site. The justices’ first question for this court clearly implies that he could have complied with this requirement under the enforcement notice by ceasing to live in the mobile home. That would seem to be right, given the other quite separate requirements in the notice. However, the justices regarded such a step as being unreasonable, because he had no other home to go to. In my judgment, that was an incorrect approach. Whether such a step would cause him and his family hardship was not a proper consideration at this stage of a prosecution for breach of a valid enforcement notice. He patently could have ceased living in the mobile home and required no one else’s assistance to achieve that end.
[33] Second, even if the charge for which the respondent was prosecuted had related to the removal of the mobile home by means of dismantling it, the hardship involved in so doing would not have been a relevant consideration at that stage. It was not suggested that the respondent was unable to dismantle the mobile home and remove it, and that would be the issue had that been the charge that he faced.
[34] Consequently, for my part, I would answer all three questions posed in this case stated in the negative because of the authorities to which I have referred, and I would remit this matter to the justices with a direction to convict.
[35] Treacy J said: I agree.
Appeal allowed.
