Appeal against enforcement notice–Appellant fails to supply adequate statement of facts relied on–Secretary of State writes to say that in consequence appeal cannot be entertained–Letter held to constitute a determination on appeal which appellant had 28 days to challenge in High Court–This period having elapsed appellant was correctly convicted on information based on notice–Interesting discussion of effect of Howard v Secretary of State for Environment–Department’s ‘anxiety’
This was an appeal
by way of case stated by Kent justices sitting at Dartford on April 19 1973,
when the appellant, Mr George Button, was convicted on two informations
preferred by the respondent, Mr Donald Bertie Jenkins, surveyor to the Dartford
Rural District Council, alleging user of property known as The Trotters, Green
Street, Darenth, in contravention of enforcement notices dated August 22 1972.
The notices required the discontinuance of the parking and display of motor
vehicles for sale, in one case at the side and rear of the premises in
question, and in the other case at the front. The magistrates fined the
appellant £50 in each case.
Mr M B Horton
(instructed by Adler & Aberstones) appeared for the appellant, and Mr P
Ground (instructed by Hewitt, Burrough & Co, of Dartford) represented the
respondent. The court was assisted by Mr A McCowan QC and Mr H K Woolf, who
were instructed by the Treasury Solicitor on behalf of the Secretary of State
for the Environment.
Giving the
first judgment, KILNER BROWN J said that from the facts found by the justices
it was plain that from the year 1967, if not before, there was persistent user
in the manner alleged, and after efforts by persuasion had failed, the local
authority resorted to enforcement action. The appellant took advice, and on
September 13 1972 gave notice of appeal to the Secretary of State for the
Environment. In that notice of appeal he gave grounds, but did not state the
facts on which he relied, as he should have done, having regard to the terms of
section 88 of the Town and Country Planning Act 1971. By letter dated September
18 1972 the Secretary of State acknowledged receipt of the notice of appeal but
did not necessarily accept it, for it was pointed out that although some
grounds were given as required by subsection (1) of section 88, there was no
statement of facts as required by subsection (2). This letter and its form were
of considerable importance, and pausing there, it seemed plain that on receipt
of that letter the appellant was given the clearest warning, as the letter went
on to say that if the statement of facts was not in the hands of the Secretary
of State before the effective date of the enforcement notices the Secretary of
State would be unable to entertain the appeals.
the appellant informing him that he had not complied with the requirement to
include in the notice of appeal a statement of facts on which the appeal was
based. This letter went on to state that the appeals could not and would not be
entertained. Again the appellant did nothing. The effective date specified in
the enforcement notice was October 26, and as found by the justices there was a
failure to discontinue the prohibited user thereafter.
Before the
justices and before the Divisional Court it was contended on behalf of the
appellant that there was a valid appeal against the enforcement notices, and
that therefore by reason of section 88 (3) the enforcement notices were of no
effect pending determination of the appeal. Alternatively it was contended that
the purported rejection of the appeal by the Secretary of State was wrong in
law and that the justices were entitled to inquire into the validity or
otherwise of the notice of appeal. Although the justices were referred to the
decision at first instance in the case of Howard v Secretary of State
for the Environment, then reported in [1972] 3 WLR 51, the decision on
appeal reported in [1974] 2 WLR 459 had not been made and was not before them.
The effect of the Court of Appeal’s decision would be to make the notice of
September 13 a valid notice, the requirements as to grounds and statement of
facts being no more than directory and not sufficient to make the notice a
nullity. So it was argued now that there was a valid notice of appeal in the
instant case and in consequence the enforcement notices were suspended and
there could be no convictions for the contravention thereof. Alternatively, it
was said that at the most the issue of jurisdiction arose out of a collateral
matter and the justices were enabled to inquire into the position. In the court
below, the magistrates accepted the submission advanced on behalf of the
respondent that they could not inquire into the actions of the Secretary of
State, and that whether or not his decision was wrong in law they were bound by
that decision and must treat the case as if there were no appeal on foot. Both
informations were found proved.
The court was
informed by Mr McCowan, counsel appearing on behalf of the Department of the
Environment, that the Secretary of State was anxious about the effect of the
decision in Howard’s case. However, as would later appear, it was not
necessary to pronounce upon the possibility that it was open to the Secretary
of State to continue as before and that informations might be laid alleging
contravention of enforcement notices when according to Howard’s case
there was in fact a valid appeal in existence. Moreover, Mr McCowan had rightly
reminded the court that the subject had under section 246 of the Act a right to
test the validity of an alleged notice of appeal in the High Court either by
way of mandamus or by seeking a declaration. It was understandable that the
Secretary of State desired to prevent consideration of the validity of his
decision in a magistrates’ court when the Act clearly envisaged that the proper
tribunal for this was the High Court. Nevertheless, if the matter rested there
it would be difficult to reject the attractive argument on behalf of the
appellant. It was clear that this was a case which fell to be decided on the
particular facts in question, and Mr McCowan submitted that there was in effect
a withdrawal of notice of appeal by the appellant, in that he by his conduct
never acceded to the invitation to submit facts in support of his appeal.
That might or
might not be so, but a more powerful argument had been addressed to the court
by Mr Ground, counsel for the respondent. For the purpose of the argument it
was accepted that the letter from the appellant dated September 13 1972 was a
valid notice of appeal. On September 18 receipt of this notice was
acknowledged, but the appellant was requested to submit a statement of facts.
He never did. On October 2 1972 the Secretary of State reminded him of this
failure and stated that he was now unable to accept jurisdiction. In other
words, he was saying that he regarded the appeal as having lapsed. That was a
decision by the Secretary of State in proceedings on an appeal. It was then
open to the appellant under section 246 to appeal to the High Court against the
decision or to request the Secretary of State to state a case. He was allowed
28 days in which to do so. He never did. Therefore when the time had passed and
no action was taken by the appellant the lapse of time converted the decision
into a final determination. That meant that the suspension of the enforcement
notices under section 88 (3) was at an end. Support for this line of approach
was to be found in the case of Garland v Westminster Borough Council
(1970) 21 P & CR 555. It meant moreover that Howard’s case was not
directly in point and could be distinguished on the facts. This argument
prevailed. The issue of jurisdiction begged two simple and vital questions of
fact. First, was a user of the premises as alleged proved to have occurred on
February 3 1973? The answer was that it
was. Second, were there on that day enforcement notices effectively requiring
discontinuance of that user? The answer
was that there were. The result was that a conviction on both informations was
inevitable and the appeal must be dismissed.
LORD WIDGERY
and WALLER J agreed, and an order was made accordingly. The respondent was
awarded costs. No order as to costs was sought by the Secretary of State.
