Town and Country Planning Act 1971 — Enforcement notice — Date when notice takes effect after dismissal of appeal by or on behalf of Secretary of State — Whether a period of 28 days (being the time given for an appeal to the High Court under Order 55, rule 4(4)) should be added to the period allowed for the requirements of the enforcement notice to be complied with — In present case inspector on dismissing appeal allowed a period of nine months and, on the respondents’ failure to comply within that period, a summons for non-compliance was brought against them by the local authority — The magistrates dismissed the summons, accepting a submission that the time for compliance had not expired as the 28 days for an appeal under section 246 of the 1971 Act should have been taken into account — The magistrates had been influenced by a dictum to which they had been referred in the judgment of Bridge J (as he then was) in Garland v Westminster London Borough Council — On the present appeal by case stated from the magistrates’ decision, the divisional court concluded that the magistrates had misunderstood the passage in Bridge J’s judgment and they noted that a comment in the Encyclopedia of Town and Country Planning was likewise based on a misunderstanding — The provision in section 88(10) of the 1971 Act that ‘the enforcement notice shall be of no effect pending the final determination or the withdrawal of the appeal’ refers to an appeal against an enforcement notice under section 88 to the minister; it does not refer to an appeal to the High Court under section 246 of the Act — Appeal allowed and the case remitted to the magistrates with a direction that they should continue the hearing.
This was an
appeal by case stated by Dover District Council from a decision of Dover
magistrates dismissing a summons against Alfred George McKeen and his wife,
Eileen Mabel McKeen, owner-occupiers of land at Temple Ewell, Dover, alleging
failure to comply with an enforcement notice.
Keith Simpson
(instructed by Lesley Cumberland, director of legal and administrative
services, Kent District Council) appeared on behalf of the appellant council;
the respondents, Mr and Mrs McKeen, did not appear and were not represented.
Giving
judgment, STEPHEN BROWN LJ said: This is an appeal by way of case stated from a
decision of the Dover Justices of May 30 1984 when they dismissed a summons
alleging failure to comply with an enforcement notice brought by the appellant,
Dover District Council, against Mr and Mrs McKeen, the respondents to this
appeal.
The facts
giving rise to the proceedings can be shortly stated. The respondents occupied
and used land at Temple Ewell, Dover, which was apparently a former goods yard,
for the purposes of welding, forge work, steel fabrication and incidental
processes. On April 15 1982, an enforcement notice was served by the appellant
authority, as local planning authority, requiring that user to cease, it being
alleged to be in breach of planning control and to constitute a material change
of use. The notice required that that use should be discontinued within one
calendar month from the date specified and further to discontinue the use of a
particular shed for the purposes of work and ancillary activities and the use
of the yard for ancillary activities within six months of the date specified in
the notice as the date upon which it should take effect.
The respondent
appealed to the Secretary of State against that enforcement notice under the
provisions of section 88 of the Town and Country Planning Act 1971 and a local
inquiry was held by an
delegated power to decide the appeal on behalf of the minister and he did so by
letter dated July 7 1983. He dismissed the appeal, save in so far as he varied
the period during which the steps required to be taken by the notice to a
period of nine calendar months. Subject to that variation he dismissed the
appeal and upheld the notice. He also refused to grant planning permission on
the deemed application which had been made under section 88B(3) of the 1971
Act. We are concerned only with the first enforcement notice. The consequence
was that that notice, according to the planning authority, should have become effective
in nine months following the determination of the appeal. They submit that the
letter of July 7 1983 was the date of the determination of the appeal. Nine
months from then would expire on April 6 1984.
The justices
found that investigating officers of the planning authority visited the
premises on April 18 1984 and found that five persons were working there on
engineering activities, that is to say on work which was a breach of the
planning control and a breach of the enforcement notice. As a result of that, a
summons was issued on May 4 1984 alleging breaches of the enforcement notice
and a failure to comply with it. That was the summons which came before the
magistrates on May 30 1984.
At that
hearing it was contended by the respondents that the period for compliance with
the terms of the notice did not expire until May 4 1984 because it was
submitted that a period of 28 days should automatically be added to the nine
months specified in the minister’s determination, having regard to the
respondents’ right of appeal against the minister’s determination as provided
for by section 246 of the Town and Country Planning Act 1971, that is to say an
appeal to the High Court, whether the respondents in fact appealed or not.
In support of
this contention, the decision of this court in Garland v Westminster
London Borough Council (1970) 21 P & CR 555 was cited. The case was not
similar in its facts to this present case, but the respondents sought to rely
on a passage in the judgment of Bridge J (as he then was) at p 558. By way of
explanation, it should be said that the case of Garland involved two
enforcement notices served on the appellant, Mr Garland, requiring him to
demolish certain buildings. He had appealed against those notices to the
minister, who dismissed his appeal. He then appealed, on a point of law, to the
High Court, which dismissed the appeal, and then he appealed further to the
Court of Appeal, which also dismissed his appeal on October 15 1968. He did not
at the time ask for leave to appeal to the House of Lords nor did he ask for
leave to appeal to the House of Lords at any later time. He did not comply with
the notices. Subsequently two informations were preferred against him charging
him with a failure to comply with the enforcement notice and he was convicted.
In his appeal
to the Divisional Court, by way of case stated from that conviction, he
contended that there was a serious possibility that he might still seek leave
out of time to appeal to the House of Lords with an outside possibility of
success. Therefore he contended that his appeal had not been ‘finally
determined’ within the meaning of section 46(3) of the Town and Country
Planning Act 1962, which was the predecessor of and was in precisely the same
terms as the present section 88(10) of the Town and Country Planning Act 1971.
He submitted that the enforcement notices had been of no effect. His appeal was
dismissed.
In the course
of his judgment Bridge J said:
As it seems
to me, without wishing to resolve any other arguments which may arise as to the
precise time at which an appeal under section 46 should be considered as having
been finally determined, this time must at the latest be the time when an
appeal, whether to the Minister or from the Minister to this Court or from this
Court to the Court of Appeal, has been dismissed and the time for appealing
further has expired without such further appeal having been instituted. One
thing which Parliament clearly must have contemplated in introducing such a
provision is that the time of the coming into operation of an enforcement
notice should be capable of being determined with certainty, and it is
inconceivable that Parliament should have intended the ascertainment of that
time to depend on anything so uncertain and inscrutable as the subjective
intention of the unsuccessful party to the proceedings.
In the present
case, the respondents did not appeal from the minister’s determination, but
nevertheless contended, and would wish to repeat this contention to this court
today, that the time of 28 days which is given for the time in which to appeal
from an order of the minister or determination of the minister by Order 55,
rule 4(4) of the rules of Supreme Court, should be added to the nine months’
period of this enforcement notice, that is to say the period during which its
requirements were to be met, and accordingly that the notice should extend that
time not to nine months from the date of determination but to nine months plus
28 days. That is the argument which was presented to the magistrates’ court
supported by the quotation to which I have just referred from the judgment of
Bridge J from Garland v Westminster London Borough Council. It
succeeded before the justices and they dismissed the summons. As I understand
it, they dismissed it upon a submission of ‘no case to answer’ and did not call
upon the respondents to answer the allegation of a breach of the enforcement
notice.
Mr Simpson, on
behalf of the planning authority, submits that the justices were wrong in the
interpretation which they gave to the effect of section 88(10) of the Town and
Country Planning Act 1971. He submits that the justices misunderstood the
passage in the judgment of Bridge J in so far as they considered that by
inference it added the period of 28 days to the period for compliance with the
enforcement notice and, accordingly, he says their decision was erroneous as a
matter of construction.
He points to
the fact, first of all, that the case of Garland was not deciding the
point which is in issue in the present appeal. He further points out that
Bridge J was careful to begin his reference to the time-factor with the words
‘As it seems to me, without wishing to resolve any other arguments which may
arise as to the precise time at which an appeal under section 46 should be
considered as having been finally determined’ and he did not say that time
should be added to allow for the time for appealing against the decision of the
minister. He referred this court to the case of Griffiths v Secretary
of State for the Environment [1983] 1 All ER 439 which was not cited to the
justices. That was a case of an appeal under section 36 of the Town and Country
Planning Act 1971 relating to a planning decision. The point for the decision
of the House of Lords in that case concerned the relevant date for the
determination of an appeal. It was decided that that date was the date of the
decision of the Secretary of State, which would be the date stamped on the
letter recording his decision. Time would begin to run from that date in so far
as it was material. Bridge J (now Lord Bridge) was a member of the judicial
committee which heard that appeal. It is not directly in point in the present
case, but it has a bearing upon the approach which the justices should have
made to the case which they heard, submits Mr Simpson.
Finally, he
turns to the wording of section 88(10) of the Town and Country Planning Act
1971, which provides:
Where an
appeal is brought under this section, the enforcement notice shall be of no
effect pending the final determination or the withdrawal of the appeal.
Mr Simpson
submits that the opening words of the subsection are words of limitation. The
words ‘Where an appeal is brought under this section’, he submits, must refer
to an appeal against an enforcement notice under section 88 to the minister and
the words ‘pending the final determination or withdrawal of the appeal’ refer
to the determination by the minister, the purpose of the provision being that
pending the determination of the appeal by the minister the enforcement notice
shall be held in suspense.
It is not,
submits Mr Simpson, an appeal under section 246. That is an entirely separate
right of appeal afforded by a different section and cannot of itself justify
adding to the period of suspension, under section 88(10), any further period of
suspension, whether or not this further right of appeal is exercised. None is
provided for in section 88(10) beyond the determination of the appeal by the minister.
It is pointed
out that the commentary at p 20669 of the Encyclopedia of Town and Country
Planning (Vol 2) which stated: ‘Suspension continues until the time for
making an appeal to the High Court has expired without any appeal being made’
(citing Garland v Westminster London Borough Council) is a
mistaken reading of the ratio of that case and, in so far as the commentary
makes that statement, it must be regarded as being erroneous.
I have
considered this matter and I have had the opportunity of carefully reading the
case stated. We have not had the opportunity of hearing the respondents. It has
been brought to our attention that they have not apparently been able to
acquire legal aid in order to appear in this court. Mr Simpson has helpfully
and carefully made clear to us the points which were made on behalf of the
respondents before the magistrates and the points which he believes that they
would have wished us to consider had they been here to argue them. They are not
here, but we bear in mind the submissions which did achieve success before the
magistrates and note that they had the support of that passage in the Encyclopedia
of Town and Country Planning to which I have referred.
However, for
my part, I am satisfied that the submissions made by Mr Simpson are correct. On
a reading of section 88(10) it is clear that this subsection applies only to an
appeal to the minister under section 88. There must be, as Lord Bridge (as he
now is) said in the case of Garland v Westminster London Borough
Council, certainty as to the time of the coming into operation of an
enforcement notice. In the words of a passage in his judgment, to which I have
referred:
One thing
which Parliament clearly must have contemplated in introducing such a provision
is that the time of the coming into operation of an enforcement notice should
be capable of being determined with certainty.
In my
judgment, Parliament did so determine it in section 88(10). I have to say that
I think the passage in his judgment at p 558 may have been misunderstood. This
appeal depends upon the construction of section 88(10) and if one applies one’s
mind to that particular task it seems to me to be clear that it does not admit
of the interpretation contended for by the respondents before the magistrates and
accepted by them.
For these
reasons, I would allow the appeal and since the matter was dismissed upon a
submission of no case, the court should direct, if my brother agrees, that the
matter be remitted to the justices with a direction that they should continue
the hearing.
STUART-SMITH J
agreed and did not add anything.
The appeal
was allowed with costs.
