Town and country planning – Enforcement notice – Section 179(7) of the Town and Country Planning Act 1990 – Magistrates convicting appellants of breach of enforcement notice – Crown Court dismissing appellants’ appeal – Appellants appealing by way of case stated – Whether Crown Court identifying correct date for determining available of defence – Whether Crown Court correctly concluding that defence not available to appellants – Appeal dismissed
The appellants were brothers and the joint owners of a freehold property in London E12. Between 2001 and 2006, the property was converted into two self-contained flats, which constituted a material change of use requiring planning permission. No planning permission was in fact sought or obtained. The respondent local authority sent a planning contravention notice to the appellants who made a retrospective application for planning permission which was refused. In October 2007, the respondents issued an enforcement notice, sent by the recorded delivery service and addressed to each appellant at his usual or last known place of abode. An appeal against that enforcement notice, allegedly on behalf of the second appellant, was dismissed in March 2008. The date for compliance with the enforcement notice was July 2008.
No enforcement action was taken until November 2010 when the respondents served the appellants with summonses for breach of the enforcement notice. In March 2012, the appellants were convicted of breach of an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990. The Crown Court dismissed the appellants’ appeal and they appealed to the court by way of case stated.
The issues referred by the Crown Court for the consideration of the court included: (i) whether it had been correct to conclude that the relevant date for the determination of the availability of the defence under section 179(7) of the 1990 Act was the date of the offence given in the summons rather than the last date for compliance with the enforcement notice; and (ii) whether it had been correct to conclude that the provisions of section 188 of the 1990 Act and art 26 of the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419), had been complied with by the respondents or that the omission of certain prescribed information had been irrelevant
Held: The appeal was dismissed.
(1) The offence created by section 179(2), read with subsection (1), was not complete until the date specified in an enforcement notice for steps to be taken or for an activity to cease had passed. The use of the words in subsection (1) “after the end of the period for compliance with an enforcement notice”, simply established that there could be no offence committed until that date had passed. It did not follow that the offence could not continue to be committed after that date. The offence under section 179(2) was only complete and crystallised, subject to the various “knowledge defences”, once the period for compliance had expired but thereafter the offence was a continuing one. The primary objective of the legislation was to ensure compliance with planning controls. The role played by the criminal law was a secondary one, in support of that primary objective. Very often in practice the threat or potential risk of criminal proceedings would have the salutary effect of concentrating the mind of a person, who would then take steps to ensure that a breach of planning control came to an end. On the appellants’ interpretation, such a person would still be guilty of an offence and could never undo the effect of that because he had not complied with the enforcement notice within the time specified in it. There was no reason why the legislation should wish to criminalise such conduct when the underlying objective of securing compliance with planning control has been achieved by the date of any prosecution: Maltedge Ltd v Wokingham District Council [1992] 3 PLR 136 considered.
(2) The purpose of the defence in section 179(7) of the 1990 Act was to protect the position of a person who was both himself unaware of the existence of an enforcement notice in respect of the land in question and could not obtain notice of the existence of that enforcement notice by checking the public register which was to be kept under section 188. However, in the present case, if anyone had checked the register he would immediately have been put on notice that there was an enforcement notice in respect of the property. He or his advisers could then reasonably be expected to take steps to find out what exactly that notice required. Although not all of the particulars of the notice, which should have been on the register in accordance with article 26 of the 1995 Order, were there, the crucial information which was needed to see that there was an enforcement notice in existence in respect of the relevant address was present. It would have been different if the entry on the register had omitted even reference to the address of the land concerned: then it could have been said that inspection of the register would not put a person on notice even of the existence of an enforcement notice. However, those were not the facts of the present case. Each case depended on the particular piece of legislation that fell to be construed: R v Soneji [2006] AC 340 distinguished.
Philip Coppel QC and Daniel Janner QC (instructed by Khakar & Co Solicitors, of Ilford) appeared for the appellants; Richard Barraclough QC and Emmaline Lambert (instructed by Director of Legal and Governance, Newham London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
