In London Borough of Newham v Miah and another [2016] EWHC 1043 (Admin) the High Court considered the grounds for challenging an enforcement notice (EN) where defects in service are alleged.
The local planning authority (LPA) served an EN at a property in relation to the unlawful change of use arising from its sub-division into two flats. The authority held another address for the owner, where he lived, which the LPA subsequently used when prosecuting him under Section 179 of the TCPA 1990 for failure to comply with the EN. The owner relied on Section 285(1) TCPA 1990, under which the restriction on questioning the validity of an enforcement notice other than by way of an appeal does not apply if the defendant “did not know and could not reasonably have been expected to know” that the EN had been issued. The Magistrates’ Court accepted his pleadings that the subdivision had become immune from enforcement by the time the EN was served on this basis.
The authority appealed to the High Court by way of case stated under Sections 111 to 114 of the Magistrates’ Court Act 1980. Cranston J held that:
- Service at the property was sufficient as his “usual or last place of abode” given that it was noted at the Land Registry as the owner’s address. There is no need for authorities that have not been given a current address to “trawl through the[ir] records […] as a whole” to see if there is another address recorded for different purposed by different departments. Section 285(2) therefore did not apply.
- The fact that the magistrates had noted that it was too late for the owner to appeal the notice once he discovered it was enough to show that they had dealt with the issue of substantial prejudice.
- Had the owner been entitled to question the validity of the notice under Section 285(2)(c), evidence of continuous occupation during the four year period was essential immunity, (applying Swale BC v First Secretary of State [2005] EWCA Civ 1568).
- Given that the owner had become aware of the enforcement notice by the time of the prosecution, he could not rely on Section 285(2)(c). The point of knowledge is that the date of the offence not the EN. Having failed not have the EN quashed, the second prosecution would therefore have effect in relation to the period after which the owner had acknowledged that he had received correspondence relating to the enforcement proceedings (albeit that he was by then out of time for any appeal against them).
The case is a reminder that to avoid a repeat prosecution, an owner must challenge any EN as soon as they do became aware of it, rather than simply wait to raise issues as a defence further down the line.
Roy Pinnock is a partner in the planning and public law team at Dentons
