Enforcement notice — Calendar year limitation to 28 days under Town and Country Planning General Development Order 1988 — Enforcement notice taking effect after commencement of calendar year — Whether 28-day limitation commenced when enforcement notice took effect or commencement of calendar year
The defendant
landowner was served with an enforcement notice requiring him to cease use of
land for the purposes of clay pigeon and air rifle shooting for more than 28
days in any calendar year. He appealed to the Secretary of State for the
Environment, who by his inspector, extended the period for compliance from
seven days to four months; the enforcement notice thus taking effect from
February 6 1994. Two shooting events took place on November 20 and December 4
1994, the 30th and 31st events for that calendar year, for which the defendant
was charged on indictment on two counts for breach of the enforcement notice
contrary to section 179(2) of the Town and Country Planning Act 1990. The trial
judge ordered a verdict of not guilty on the grounds that the shooting which
occurred on four days prior to February 6 1994, did not count towards the
28-day total permitted under the Town and Country Planning General Development
Order 1988. The Attorney General referred a point of law to the Court of
Appeal.
An offence is
committed under section 179(2) by proof of the use of the land for the named
purpose on a given date, falling after the time fixed for compliance if the
land has been used for the named purpose for more than 28 days in the calendar
year.
to in the judgment
LTSS
Print and Supply Services Ltd v Hackney London
Borough Council [1976] QB 663; [1976] 2 WLR 253; [1976] 1 All ER 311;
(1975) 74 LGR 210; 31 P&CR 133; [1976] 2 EGLR 148; 240 EG 711, CA
Attorney-General’s
reference
This was a
reference by the Attorney-General under section 36 of the Criminal Justice Act
1972 seeking the court’s opinion on a point of law.
Drabble QC and Nicholas Hilliard (instructed by the Treasury Solicitor)
appeared for the Attorney General.
Bright (instructed by Goodhand & Forsyth, of Redhill) appeared for the
defendant.
following judgment was delivered.
LORD
BINGHAM, LCJ: The Attorney-General has referred a
point of law to this court under section 36 of the Criminal Justice Act 1972
and the court is accordingly bound to give its opinion on that point of law.
The point has been clearly and succinctly expressed in these terms:
Where:
(i) an enforcement notice is served having a
period for compliance fixed, pursuant to section 173(9) of the Town and Country
Planning Act 1990, to end part way through ‘a calendar year’ and
(ii) the notice requires the Defendant to cease
the use of the land for a named purpose (for example clay pigeon and air rifle shooting)
‘for more than 28 days in total in any calendar year permitted by virtue of the
provisions of Article 3 and Schedule 2, Part 4, Class B of the Town and Country
Planning General Development Order 1988’
is the
offence under section 179(2) of the 1990 Act (breach of an enforcement notice)
proved by proof of the use of the land for the named purpose on a given date,
falling after the time fixed for compliance, if the land has been used for the
named purpose for more than 28 days in the calendar year if account is taken of
days of use falling before the expiry of the time fixed for compliance, but not
otherwise?
The case which
gave rise to this issue concerned a defendant who, with another, was the owner
of land which had a forestry and agricultural use. For some years the land had
been used for the purpose of clay pigeon and air rifle shooting (‘shooting’).
On February 15 1993 the district council served an enforcement notice
concerning the land. The effect of the enforcement notice was to require the owner
to cease the use of the land for shooting for more than the 28 days in total in
any calendar year
class B to the Town and Country Planning General Development Order 1988.
The enforcement
notice contained a paragraph entitled ‘WHAT YOU ARE REQUIRED TO DO’. It read:
Within seven
days from the date on which this Notice takes effect, you should:
(i) cease the
use of the land for clay pigeon and air rifle shooting for more than 28 days in
total in any calendar year permitted by virtue of the provisions of Article 3
and Schedule 2 Part 4 Class B of the Town and Country Planning General
Development Order 1988;
(ii) remove
any moveable structures brought on to the land for the purposes of shooting.
The landowner
appealed against that enforcement notice. On October 7 1993 the inspector
dismissed the appeal in substance, but extended the period allowed for
compliance in the paragraph that we have quoted from seven days to four months
to enable clubs involved in shooting, and their members, to make arrangements
for their future activities. The effect of that variation was to extend the
date on which the enforcement notice took effect to February 6 1994.
On November 20
1994 and December 4 1994 shooting events took place on the land in question.
The event on November 20 was the 30th shooting event that took place on the
land since January 1 1994; the December 4 event was the 31st shooting event
since that date. The defendant in those proceedings was charged in an
indictment which contained two counts, each of being in breach of an
enforcement notice contrary to section 179(2) of the Town and Country Planning
Act 1990 as substituted by section 8 of the Planning and Compensation Act 1991.
The offences were alleged to have been committed on November 20 1994 and
December 4 1994.
When the
matter came to court the trial judge ruled in favour of a defence submission to
the effect that because four of the days of shooting had occurred before
February 6 1994, those days did not count towards the 28-day total permitted
under the general development order and thus no offences had been committed. In
the course of his ruling the trial judge said:
I can see
that there is an argument; that 28 days in a calendar year is the period and,
therefore, whether or not time is allowed for compliance, acts committed during
that period are to be taken into account among the 28 days. I reject the
argument because, as I say, it seems to me absurd that if a person is given
time to comply he, nevertheless, can be prosecuted for what he has done during
that time to comply, as though it were an unlawful act.
He went on to
question whether, if time were given to comply, it was indeed to be regarded as
an unlawful act. In the light of that ruling the prosecution offered no
evidence and the judge ordered that verdicts of not guilty should be recorded
on both counts. The Attorney General
leads to the reference of the current issue to this court.
In the course
of a clear and helpful reference, supplemented by a skeleton argument on behalf
of the Attorney General, a series of propositions are advanced, most of which
have not been challenged. By section 57 of the Town and Country Planning Act
1990, planning permission is required for the carrying out of any development
of land. Permission may be granted by a development order: see section 58(1)(a)
of that Act. Where permission is granted by a development order for the use of
land for any purpose on a limited number of days in a period that provision
shall be taken to be a provision granting permission for the use of the land for
any purpose subject to the limitation that the land shall not be used for any
one purpose in pursuance of the provision on more than that number of days in
that period: see section 60(4) of the Town and Country Planning Act 1990.
Class B of the
General Development Order 1988 provides permission for the use of land for any
purpose for not more than 28 days in total in any calendar year. Failure to
comply with such limitation is a breach of planning control by virtue of
section 171A(1)(b) of the Town and Country Planning Act 1990. However, it is
submitted on behalf of the Attorney General, and accepted by the respondent, a
breach of planning control is not, without more, an offence against the
criminal law. It is none the less the case that if use is made of land, which
is a change of use for which planning permission is required, without planning
permission having been obtained, it is an unlawful change of use: see LTSS
Print and Supply Services Ltd v Hackney London Borough Council
[1976] QB 663 at p679C–F. That remains the position even though no offence has
been committed.
The Attorney
General submits that the appropriate course for a planning authority to adopt
where a persistent breach of planning control occurs is to issue an enforcement
notice under section 172 of the 1990 Act, as substituted by the Planning and
Compensation Act 1991. If the owner of land is in breach of an enforcement
notice he will be guilty of an offence under section 179(2) of the 1990 Act.
The Attorney General submits that by virtue of section 173(9) of the 1990 Act
an enforcement notice must specify the period at the end of which any steps are
required to have been taken or any activities are required to have ceased. It
is submitted that the effect of the notice in the instant case was to require
the owner of the land to cease the use of the land for the named purpose,
except in accordance with the planning permission granted by the general
development order, by February 6 1994. Accordingly, it is argued, any use of
the land after February 6 1994 for the named purpose would be a breach of the
notice, unless it had the benefit of the planning permission granted by the
general development order.
It is
submitted by the Attorney General, and not challenged, that the expression
‘calendar year’ for the purpose of the general development order must mean the
period running from January 1 in any year to 31 December. Accordingly, it is
said, a use only has the benefit of the planning permission granted by the
order if the total number of days’ use in the
General therefore submits that on the facts of the instant case the owner of
the land only had the benefit of the planning permission conferred by the order
for a total of 28 days in the calendar year. By extending the period of
compliance the inspector was not and could not have been granting planning
permission for uses falling after the time fixed for compliance which did not
otherwise have the benefit of the permission conferred by the order. Any use of
the land for more than 28 days in total in a calendar year remained outside the
permission conferred by the order. It follows, so it is submitted by the
Attorney General, that use of the land for the named purpose after the expiry
of the time fixed for compliance, and without the benefit of the permission
conferred by the order (because 28 days’ use had already occurred within the
calendar year), was a breach of the notice and an offence under section 179(2)
of the 1990 Act.
In a skeleton
argument submitted by Mr Richard Drabble QC, on behalf of the Attorney General,
the essential argument contained in the reference is somewhat, but not greatly,
elaborated. It is there repeated that any use of the land for shooting that took
place after the time for compliance had passed would be a breach of the notice
unless it fell within one of the 28 days in total in any calendar year
permitted by virtue of the general development order. Thus, it is submitted,
one has to consider the nature of the permission granted by the general
development order, on the one hand, and the effect of the extension of time
fixed for compliance, on the other.
Mr Drabble
submits that the nature of the planning permission granted by the general
development order is clear. A use on a given day can only have the benefit of
the permission if it is capable of being one of the 28 days in any calendar
year for which permission is granted. Day 29 in a calendar year necessarily
falls outside the scope of the planning permission and is an unlawful use of
land. Mr Drabble argues that there can be no doubt that in the absence of any
notice the disputed days in the instant case, ie November 20 1994 and December
4 1994, on which shooting took place, would not have had the advantage of the
planning permission conferred by the general development order.
Mr Drabble
goes on to submit that the fact that an enforcement notice has been served, and
that the earlier days fell within the time fixed for compliance, cannot alter
that result. The extension of time fixed for compliance by the inspector
cannot, he says, alter or enlarge the content of the statutory planning
permission granted by the general development order. It remains the case, he
submits, even when an enforcement notice has been served, that day 29 in any
calendar year cannot have the advantage of the permission granted by the
general development order. He suggests that it is important to recognise that
the extension of the time fixed for compliance with the notice does not operate
to grant planning permission for the use of the land during the period of
compliance. Use of the land for the relevant purpose during the period fixed
for compliance is a breach of planning control, albeit not a breach of planning
control that
argues, the existence of the period fixed for compliance within a calendar year
cannot alter the planning status of a use of land on days falling after the
expiry of the time.
Mr Drabble refers
to the ruling given by the trial judge, from which we have already quoted, and
submits, with respect, that it was based on a misapprehension. It was not a
question of prosecuting the defendant for what he had done during the period
allowed for compliance, but of treating the shooting days during that period as
counting towards the 28 days allowed in any calendar year. The position
therefore, as summarised in Mr Drabble’s argument, is this. If 28 days’
shooting took place within the period fixed for compliance, none of those days
would be either unlawful in the sense of being in breach of planning control,
nor criminal in the sense of being a breach of the notice. Each day would have
the benefit of the permission granted by the general development order.
However, shooting on the 29th day, if it took place after the date fixed for
compliance, would be both a breach of planning control and, because a breach of
the notice, a criminal act. If, however, 30 days’ shooting took place within
the time fixed for compliance, the first 28 days would have the benefit of the
permission granted by the general development order. They would constitute the
use of the land with the benefit of planning permission. The remaining two
days, because outside the terms of the general development order permission,
would be in breach of planning control but would not constitute a breach of the
criminal law.
Mr Andrew
Bright, who has appeared for the respondent, has not (as we understand him)
challenged the statutory references upon which the Attorney General bases his
argument. His first submission is that an enforcement notice must be clear and
explicit in its terms so that the landowner on whom it is served can know what
he has to do to comply with it. Since non-compliance is a criminal offence, he
urges that the document must not be ambiguous and that the citizen must not
face the risk of criminal prosecution on the strength of an ambiguous document.
In support of that proposition he cites authority to which we need make no
reference since the principle itself is not capable of being challenged. He
submits that the enforcement notice served in this case is ambiguous and
uncertain in its effect in that it leaves the landowner to whom it is addressed
unable with reasonable certainty to divine what it is that he is allowed to do
and what it is that he is not allowed to do. For our part, having had the
benefit of considering the statutory provisions and the notice, we do not find
the notice ambiguous. It may very well be that, as with other statutory
notices, it is one on which the recipient would do well to take advice in order
to make sure that its terms are fully appreciated, but had the landowner done
so we do not feel that he would or should have been left in any doubt as to
what the notice required.
Mr Bright
submits that the enforcement notice did not require the demolition of a
building or a total discontinuance of a particular use or activity, but simply had the effect of confining
shooting to a total of 28 days in a calendar year. That is not, in our
judgment, entirely accurate. The
year. What the enforcement notice did was to make it a criminal offence to
breach that planning restriction which, in the absence of a notice, would have
been unlawful but not criminal.
Mr Bright
submits that the extension of the time for compliance to February 6, rather
than, say, to December 31 1993 would have been pointless unless it was intended
to exempt from the computations the 28 shoots which took place before February
6 1994. We are unable to accept that submission. In the first place, the time
for compliance gave the landowner the opportunity to remove movable structures
which had been brought on to the land for the purposes of shooting. More
importantly, it gave the clubs, to which the inspector on appeal made
reference, the opportunity to revise their arrangements and complete a part of
their programme without putting the landowner at risk of committing a criminal
offence. We do not accept counsel’s submission that the only common-sense
interpretation of the extension was to exclude any shooting during the first 37
days of the year from computation when calculating how many days’ shooting
there had been in the calendar year 1994.
Mr Bright goes
on to submit that if the contention of the prosecution had been correct, the
respondent would have been free to hold shoots on his land on every one of the
37 days from January 1 1994 to February 6 1994 without risk of prosecution, but
would then be liable to prosecution if he shot on one more day after February 6
1994. For our part, we accept that that would indeed be so. The effect of the
enforcement notice was to render criminal conduct which up to then had amounted
to a breach of planning control but not to a criminal offence. We cannot, for
our part, read that submission as in any way undermining the correctness of the
proposition which the Attorney General has advanced.
Last, it is
urged on behalf of the respondent that to ignore the period for compliance with
the enforcement notice in calculating the 28 days in the calendar year 1994 is
to override the substance and effect of the inspector’s decision which would
surely otherwise have been to extend the period of compliance only until
December 31 1993. The court cannot accept that view. If the enforcement notice
had only allowed a compliance period until January 1 1994, then completion of
the shooting programme between January 1 and February 6 would have been a
crime, which it was not, since as a result of the period for compliance it was
simply a breach of planning control.
At the end of
the day the point at issue is a short one. The planning permission only
sanctioned 28 days’ shooting during the calendar year 1994. Breach of that
condition was not criminal, in so far as it occurred before February 6 1994.
After that, by virtue of the enforcement notice, any shooting beyond 28 days in
the calendar year was a criminal offence.
The Attorney
General has posed the point of law for the opinion of this court in the form of
a question. In our judgment, the answer to that question is ‘yes’.
