Local planning authority – Enforcement notice – Abuse of process – Local planning authority issuing enforcement notice against claimant for breach of enforcement notice – Claimant seeking stay of prosecution as abuse of process – Magistrates refusing stay and accepting claimant’s guilty plea – Claimant seeking judicial review – Whether claimant satisfying conditions for stay – Application dismissed
The claimant formerly carried on a restaurant and hot food takeaway business from leasehold premises (15). The operation of the business was covered by planning permission. He later acquired a leasehold interest in additional premises at 15B. In October 2006, permission was granted for the “conversion of shop [15B] to restaurant kitchen and hot food takeaway as an extension to the present premises at number 15”. The landlord subsequently refused to renew the lease of 15 so that the claimant could only operate his business from 15B.
In December 2007, the claimant applied for permission for the conversion of 15B to an A5 takeaway independent of the other premises in the October 2006 permission. The local planning authority (the interested party) refused permission but the claimant continued to carry on his business from 15B. In November 2008, the interested party served an enforcement notice on the claimant in respect of 15B for breach of planning control.
The claimant did not exercise his right to appeal against the enforcement notice under section 174 of the Town and Country Planning Act 1990 but, on the advice of his planning agent and architect, he made a further application for planning permission, which was refused. An appeal to the planning inspector was dismissed.
The claimant’s continued use of 15B for his hot food takeaway business led to the interested party prosecuting the claimant in the magistrates’ court pursuant to section 179 of the 1990 Act, alleging breaches of the enforcement notice. The claimant contended that the prosecution should be stayed as an abuse of the process of the court. Number 15B had a permitted A5 use as a hot food takeaway business by virtue of the October 2006 planning permission. A prosecutor that was also the responsible body with powers to grant permission to develop land could not at the same time prosecute, as unlawful, a use for which permission had been granted. Thus the interested party’s conduct was self-evidently oppressive and unconscionable.
The magistrates concluded that the prosecution was not an abuse of process as a result of the claimant’s failure to comply with the enforcement notice. The claimant changed his plea to guilty and was fined.. He applied for judicial review of the refusal of a stay, contending that the necessary conditions were fulfilled because: (i) a section 174 appeal against the enforcement notice would inevitably have succeeded; and (ii) the claimant had an understandable reason for omitting to pursue an appeal, by relying on the advice of a qualified architect.
Held: The application dismissed.
(1) The general rule was that, in construing a planning permission which was clear, unambiguous and valid on its face, regard might only be had to the planning permission itself. That excluded reference to the planning application and other extrinsic evidence, unless the planning permission incorporated the application by reference. However, it was permissible to look at extrinsic material, including the application, to resolve any ambiguity in the wording of the permission.
By section 285 of the 1990 Act, the validity of an enforcement notice could not be questioned otherwise than by way of an appeal. In rare cases that law might be unjust where there was both a defect in the enforcement notice which could be established irrefutably (the first condition) and the landowner had an understandable reason for omitting to pursue a section 174 appeal (the second condition). The coincidence of those factors would be rare but administrative errors might lead to the issue of an enforcement notice when there was an existing planning permission, or certificate of lawful use, and the chance of such an error was increased if there were two different authorities involved. Since there was no power, even in an exceptional case, to extend time for bringing a section 174 appeal, a landowner could find himself with a cast iron defence to a prosecution under an enforcement notice, which he was prevented by section 285 from advancing: Staffordshire County Council v Challinor [2007] EWCA Civ 864; [2007] PLSCS 177 applied.
In the instant case, an appeal against the enforcement notice would inevitably have succeeded if it had been properly argued and the inspector had directed himself correctly in relation to it. The magistrates had therefore erred in finding that an appeal was by no means certain to be successful. Although the situation did not fall neatly within the wording of the first condition, as a defect in the enforcement notice which could irrefutably be established, the existence of a cast-iron ground of appeal was within the spirit of that condition.
(2) However, on the evidence, the justices had been reasonably entitled to make a finding that the claimant did not have an understandable reason for failing to appeal against the enforcement notice. The power to stay criminal proceedings on the ground of abuse of process was not to be exercised lightly. There was no injustice in refusing a stay where, as here, the local planning authority had acted reasonably and in good faith both in issuing the enforcement notice and in bringing the prosecution for breach of it; and where the claimant’s failure to appeal the enforcement notice had not been accidental or based on a simple misunderstanding of the legal position, but was the result of a deliberate decision to act on the advice of a professional adviser in making a separate application for planning permission rather than pursuing an appeal. The fact that another professional adviser had subsequently identified a ground on which an appeal would have succeeded was not a compelling reason for the grant of a stay. In any event, seen in the light of those broader considerations, the justices’ finding that the claimant’s explanation did not amount to an understandable reason for the failure to appeal was a proper one and there was no basis to interfere with it.
Richard Kimblin (instructed by Wilson Browne LLP) appeared for the claimant; the defendant did not appear and was not represented; Simon Butler (instructed by the legal department of Kettering Borough Council) appeared for the interested party.
Eileen O’Grady, barrister
