In a prosecution for failure to comply with an enforcement notice, a landowner has a statutory defence if it can demonstrate that it did everything within its power to comply with the terms of the notice.
In Wycombe District Council v Wells [2005] EWHC 1012 (Admin); [2005] PLSCS 97 the appeal court considered a case in which the owner of agricultural land had been required to remove a mobile home that he occupied on the land. His defence had been that he had tried, unsuccessfully, to find suitable alternative accommodation.
The court held that this did not meet the requirements of the defence. On the same basis, a whole range of activities that took place contrary to planning control would be allowed to continue simply because nowhere else existed for them to be pursued. It was necessary for a defendant to demonstrate that, having done all that could be reasonably expected, it had been unable to comply with the terms of the notice. In this case the defendant had been able to remove his caravan from the land as required by the notice.
A body of case law has evolved in relation to this defence. Some successful defences have been mounted in relation to premises where the breach has been the responsibility of third parties over whom the owner has no control. The courts have also determined that in exceptional circumstances it may be appropriate to take into account the personal, physical and financial circumstances of the defendant in determining whether it has done everything that could reasonably be expected in order to secure compliance with the notice. Each case is, however, determined upon its own facts.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
In a prosecution for failure to comply with an enforcement notice, a landowner has a statutory defence if it can demonstrate that it did everything within its power to comply with the terms of the notice.
In Wycombe District Council v Wells [2005] EWHC 1012 (Admin); [2005] PLSCS 97 the appeal court considered a case in which the owner of agricultural land had been required to remove a mobile home that he occupied on the land. His defence had been that he had tried, unsuccessfully, to find suitable alternative accommodation.
The court held that this did not meet the requirements of the defence. On the same basis, a whole range of activities that took place contrary to planning control would be allowed to continue simply because nowhere else existed for them to be pursued. It was necessary for a defendant to demonstrate that, having done all that could be reasonably expected, it had been unable to comply with the terms of the notice. In this case the defendant had been able to remove his caravan from the land as required by the notice.
A body of case law has evolved in relation to this defence. Some successful defences have been mounted in relation to premises where the breach has been the responsibility of third parties over whom the owner has no control. The courts have also determined that in exceptional circumstances it may be appropriate to take into account the personal, physical and financial circumstances of the defendant in determining whether it has done everything that could reasonably be expected in order to secure compliance with the notice. Each case is, however, determined upon its own facts.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
