Enforcement notice — Prosecution for breach — Essential elements of offence — Date when compliance period expired to be averred and proved — Town and Country Planning Act 1990 section 179(1) and (6)
On April 6
1987 two enforcement notices were served by Wokingham District Council relating
to land at Old Billingbear Brickworks, Hurst, Berkshire, alleging: (1) the
making of a material change of use of the land to use for the hire and storage
of plant; and (2) the erection of offices for use in connection with a
plant-hire business. Both notices required the breaches to be remedied by
specified dates. Appeals to the Secretary of State against the notices were
dismissed, save that the compliance period was extended from six to 12 months.
In October 1990 an information (as later amended) was laid against the
appellant, Frost, alleging that between June 22 1989 and September 28 1990 he
used the land in contravention of the first enforcement notice, contrary to
section 179(6) of the Town and Country Planning Act 1990. An information was
also laid against Maltedge Ltd, as owners of the land, alleging that on and
since June 22 1989 they had failed to take the steps required by the second
notice within the period allowed for compliance with it, contrary to section
179(1) of the 1990 Act. Neither information alleged the date by which the
enforcement notice had to be complied with, whether originally or as extended
on appeal, nor was any evidence given to the magistrates as to the date when
the compliance period expired. Both appellants were convicted and appealed to
the High Court by way of case stated.
The date by
which an enforcement notice has to be complied with is part of the definition
of the offence created by section 179(1) of the Town and Country Planning Act
1990 and, implicitly, of the offence created by section 179(6). Accordingly, on
a prosecution under either subsection, the date when the compliance period
expired must be both averred and proved: see p 139C.1
1Editor’s note: This case was decided on the wording of section 179
as originally enacted. The new section 179 (as substituted by section 8 of the
Planning and Compensation Act 1991) defines the offences in different terms but
the substance remains unchanged.
to in the judgments
Hodgetts v Chiltern District Council [1983] 2 AC 120; [1983] 2 WLR
577; [1983] 1 All ER 1057; (1983) 45 P&CR 402; [1983] JPL 377, HL
Appeals by way
of case stated
These were two
appeals by way of case stated from decisions of Bracknell Magistrates’ Court on
January 2 1991 whereby the appellants, Maltedge Ltd and Howard Patrick Layton
Frost, were convicted of offences contrary to section 179(1) and (6) of the
Town and Country Planning Act 1990 respectively.
(instructed by Leuty & Co, of Bracknell) appeared for the appellants,
Maltedge Ltd and Howard Frost.
respondents, Wokingham District Council, did not appear and were not
represented.
following judgments were delivered.
LAWS J: On April 6 1987 two enforcement notices were made by Wokingham
District Council. They both related to the same land. One, which I will call
the Frost notice, alleged that a breach of planning control had taken place on
the land in question, which is at Old Billingbear Brickworks, Maidenhead Road,
Hurst, Berkshire, the breach consisting of the making of a material change of
the use of the land, namely the hire and storage of plant, including
earth-moving machinery. The other enforcement notice, which I will call the
Maltedge notice, alleged that a breach of planning control had taken place on
the land within the period of four years before the date of issue of the
notice, by the erection of offices for use in connection with plant-hire
business.
This appeal by
way of case stated is concerned with prosecutions for breach of those
respective notices by the two appellants, namely Mr Frost and Maltedge Ltd.
The notices
were served on April 24 1987. Both required the breaches which they alleged to
be remedied within some six months of May 26 1987. The notices were appealed to
the Secretary of State and it appears that although the appeals were dismissed
in substance, time for compliance with each notice was extended from six to 12
months. On October 2 1990 an information was laid in the magistrates’ court
against Mr Frost. In its unamended form it alleged that between June 17 1989
and September 28 1990 he used the land in contravention of the Frost notice.
That was said to be contrary to section 179(6) of the Town and Country Planning
Act 1990. It is not necessary to go into the details of the alleged
contravention because, as will become apparent in a moment, the point taken on
this appeal and which, in my judgment, is determinative of it, is short and
does not depend on any narrative of the facts relating to the alleged breach.
The
information against the other appellant, Maltedge Ltd, was served on October 8
1990. That alleged that on and since June 18 1988, Maltedge, being the owners
of the land, had failed to take the steps required by the Maltedge notice to be
taken within the period allowed for compliance with it. That was an offence
contrary to section 179(1) of the Town and Country Planning Act 1990.
The
informations were both heard on January 2 1991. On that date they were both
amended. In the Frost case the information was amended
land in contravention of an enforcement notice and so forth. In the Maltedge
case, the information was amended so that it charged commission of the offence
on and since June 22 1989.
At the hearing
before the magistrates’ court evidence was, of course, led by the prosecution.
There was a submission in each case of no case to answer. That was rejected by
the magistrates’ court. No evidence was called by either appellant. Closing
speeches were made on behalf of both and the appellants were found guilty.
The appeals by
way of case stated raise on their face a number of questions, one of which
concerns the receipt by the magistrates of only oral evidence relating to the
appeal proceedings before the Secretary of State. However, there is a prior
point and this is the point which, as I have indicated, seems to me to be
determinative of the appeal.
Neither
information alleged the date by which the enforcement notice had to be complied
with, whether originally or by extension on appeal to the Secretary of State.
More than that, it is entirely clear from each case stated that the magistrates
did not receive evidence as to the date when the compliance period expired.
Each case asserts that the decision letter, that is to say, the Secretary of
State’s inspector’s decision letter on the appeal, was not put before the
magistrates, who received no evidence as to the date of the letter. It is
implicit in the last question asked in each case that the magistrates had no
evidence as to what was in fact the date of the expiry of the period for
compliance. That question reads:
Whether we
were entitled to convict the appellant in the absence of any evidence before us
as to the date of the expiry of the period for compliance as extended by the
inspector’s letter containing the appeal decision.
Section
179(1), which is the successor to section 89(1) of the Town and Country
Planning Act 1971, provides as follows:
179.— (1) Where —
(a) a copy of
an enforcement notice has been served on the person who at the time when the
copy was served was the owner of the land to which the notice relates, and
(b) any steps
required by the notice to be taken (other than the discontinuance of a use of
land) have not been taken within the compliance period,
then . . .
that person shall be guilty of an offence.
Subsection
(6), which is the successor to section 89(5) of the 1971 Act, provides:
(6) Where, by virtue of an enforcement notice —
(a) a use of land
is required to be discontinued . . .
then, if any
person uses the land or causes or permits it to be used . . . in contravention
of the notice, he shall be guilty of an offence.
It will be seen
that the date by which an enforcement notice falls to be complied with is a
defining factor in the offence created by section 179(1) because that section
is drafted by reference to the compliance
In Hodgetts
v Chiltern District Council [1983] 2 AC 120 the House of Lords, through
the medium of the speech of Lord Roskill, made it clear that these offences
were, as it were, single offences. Mr de Haan submits that in a prosecution for
an offence under section 179, which involves or consists in a contravention or
breach of an enforcement notice, it is a material averment to plead the
compliance period or, more specifically, to plead the date within which
compliance with the enforcement notice must have taken place. He further
submits that, it being a material averment, it is necessary for the prosecution
to prove that date. As the short recital of the facts which I have given
indicates, the date was neither averred nor proved before the magistrates’
court.
In my
judgment, Mr de Haan’s submission is correct. It is part of the very definition
of the offence created by section 179(1) and it is inherent implicitly in the
terms in which the offence in section 179(6) is created that the compliance
period must be alleged and proved so that the court can see whether the facts
alleged to constitute a breach have occurred at the time and the only time with
which the statute is concerned. None of this happened here. There being no
averment as to the date when the period for compliance expired, nor yet proof
of it, these informations and the convictions which flowed from them were, in
my judgment, defective. These appeals must be allowed.
In the result,
I would answer question 17(c) in the Frost case in the negative and I would
answer question 16(d) in the Maltedge case likewise in the negative. I have
said nothing about the other questions in the case stated. There may be nice
issues, in particular those with regard to the question the magistrates asked
about their admission of oral testimony: para 16(c) in the Maltedge case and
para 17(a) in the Frost case. It is not, however, necessary to go into those
questions, as I see the case, having regard to the conclusions that I have
already reached upon the last question asked in each of the stated cases by the
magistrates. In those circumstances it would, in my judgment, be right to allow
the appeal and to answer those last questions as I have indicated. Each case
must be returned to the magistrates’ court with a direction to acquit.
BELDAM LJ: I agree.
Appeals
allowed. Order for payment of appellants’ costs out of central funds.
