Town and country planning – Planning control – Enforcement notice – Second respondent magistrates’ court acquitting first respondent of two offences of breaching enforcement notice – Appellants appealing by way of case stated – Whether justices correctly deciding enforcement notice not served – Whether justices wrongly failing to determine whether appellants substantially prejudiced – Whether justices applying correct test as to lateness of enforcement notice – Whether sufficient evidence of lateness – Whether justices entitled to conclude first respondent not aware of issue of enforcement notice – Appeal allowed
The first respondent was the registered proprietor of a property in Plaistow, E13. As a result of information from the finance department of the appellants, which collected council tax, the planning department began an inquiry into whether the property had been subdivided. Planning permission had never been sought or granted for the conversion. The appellants then served an enforcement notice alleging a breach of planning control under section 171A(1)(a) of the Town and Country Planning Act 1990, by a change of use of the property, to two self-contained flats, without planning permission. The recipient of the notice was required to cease that use and reconvert the property into one home in five months.
The enforcement notice was served on the first respondent at the property’s address. The appellants subsequently brought two charges before the magistrates court to the effect that the first respondent was in breach of the enforcement notice in that, being the freehold owner of the property, he failed to take the steps set out there contrary to section 179(2) of the 1990 Act. The magistrates acquitted the first respondent of each offence.
The appellants appealed against those decisions by way of case stated. The questions for the court were whether the magistrates: (i) were correct to conclude that leaving the enforcement notice at the property did not constitute service on the first respondent at “his usual or last place of abode” given that the council tax department of the appellants had earlier sent correspondence to him at a different address to which the enforcement notice could have been delivered; (ii) were entitled to conclude that the first respondent satisfied section 285(2) of the 1990 Act without specifying whether the appellants’ interests had been substantially prejudiced; (iii) applied the correct test in concluding that it was too late for the appellants to issue the enforcement notice; (iv) had sufficient evidence on which a reasonable tribunal could have found that it was too late to issue the notice; and (v) in respect of the second charge only, were entitled to conclude that the first respondent did not know and could not have reasonably been expected to know that the enforcement notice had been issued under section 179(7)(a) of the 1990 Act.
Held: The appeal was allowed.
(1) A person’s usual place of abode or last known address was a question of mixed fact and law. The statutory framework pointed clearly to the knowledge of the local planning department being relevant to service of an enforcement notice, not the council as a whole. Accordingly, the correct interpretation of the relevant statutory provisions was that, if a local authority was not provided with a current address by the owner of property, it was entitled to use the address at the Land Registry as the proper address to serve an enforcement notice. Thus the first respondent was properly served with the enforcement notice by the appellants. He did not satisfy section 285(2)(b) of the 1990 Act and could not challenge the validity of the enforcement notice because of section 285(1). Moreover, he did not have a defence under section 179(7)(a) to the prosecution: Newham London Borough Council v Ahmed [2016] EWHC 679 (Admin) applied.
(2) The breach of planning control alleged in the enforcement notice was the change of use of the property to two self-contained flats. Clearly it was a change of use case, not a case in which the enforcement notice alleged unlawful conversion. Where a person asserted that it was at the material time too late to take enforcement action in respect of a use of land that person had to prove that the relevant use had been ongoing on a continuous basis throughout the relevant immunity period. The rationale of the immunity was that throughout the relevant period of unlawful use, although the local planning authority had the opportunity to take enforcement action, it failed to do so and it would be unfair to permit enforcement afterwards. The onus was on the owner of a property to show that during the relevant period enforcement action was possible. Here the justices had focused on the date of conversion and did not address the extent to which the two flat use was occurring during the immunity period. The first respondent had not adduced evidence to satisfy the relevant test. There was simply no evidence on which a reasonable tribunal could have found that it was too late for the appellants to issue the enforcement notice. Applying the correct test, no reasonable tribunal could have concluded that a two flat use had been ongoing at the property continuously for a four year period prior to the issue of the notice: Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568; [2006] PLSCS 19 applied; Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226; [2002] 2 PLR 43 considered.
(3) For the purposes of the defence under section 179(7) of the 1990 Act, the relevant date for a defendant’s knowledge was the date of the alleged offence. The same had to be true in respect of the date for the state of knowledge of a defendant under section 285(2)(c)(i). Section 285(2) was the only exception to section 285(1) and section 285(2) was only available to assist a property owner where there was a prosecution under section 179. In order to use the section 179(7) defence, a defendant must not have known of the notice as at the date of the offence. Where he could not use section 179(7) because the notice was on the required register, as in this case, section 285(2) could be invoked. In the present case, the second offence was alleged to have commenced on 12 July 2012. By that date he knew that the enforcement notice had been issued. Thus in relation to the second offence he could not satisfy section 285(2)(c). Accordingly he could not challenge the validity of the enforcement notice on the grounds proposed by him because of section 285(1): Sanger v Newham London Borough Council [2014] EWHC 1922 (Admin); [2014] PLSCS 177 applied.
Jonathan Wills (instructed by Newham London Borough Council) appeared for the appellants; Daniel Brayley (instructed by Direct Access) appeared for the respondents.
Eileen O’Grady, barrister
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