Enforcement notice — Appellant charged on indictment for non-compliance under section 179 of the Town and Country Planning Act 1990 — Appellant refused to move to official gypsy site — Whether unsuitability of official gypsy site is a defence within section 179(3)
The appellant,
a gypsy, was charged on indictment for failing to comply with an enforcement
notice contrary to section 179 of the Town and Country Planning Act 1990. The
enforcement notice required him to cease use of a site which he owned and
occupied, and on which he had stationed caravans in order to live a traditional
gypsy lifestyle. A number of previous applications by the appellant for
planning permission for use of the site, which was in an area of special
landscape value, had been refused. The appellant had refused the offer of a
pitch on an official site on the grounds of unsuitability. Before the Crown
Court, the appellant pleaded not guilty, but later changed his plea to guilty
and was convicted. He appealed against his conviction on the ground, inter
alia, that he had a defence under section 179(3) to the indictment in that
his decision not to move to the official site was reasonable, he had searched
for alternative accommodation without success and if forced to comply with the
enforcement notice he would not be able to follow the traditional lifestyle of
a gypsy. In consequence, the appellant had done everything he could be expected
to do to secure compliance with the notice. The appellant also indicated that
he was minded to make an application to the European Convention of Human Rights
under article 8.
Section 179(3)
implies an objective criterion of reasonableness, having regard to all the
relevant circumstances, in particular any disabilities to which the owner of
the land is subject: see p70G. The alleged facts relied upon by the appellant
do not relate to any lack of capacity or inability of the appellant to comply
with the enforcement notice: see p71E. In respect of the appellant’s reference
to article 8 of the European Convention on
United Kingdom [1995] JPL 633, there is no inconsistency between the
scheme of the United Kingdom planning legislation and the convention. The
legislative scheme allows for the legitimate rights and expectations of gypsies
to be taken into account at the appropriate stages of the procedure, including
the stage of deciding whether an enforcement notice should be upheld. Once an
appropriate decision has been made in accordance with the law to uphold the
enforcement notice, its enforcement involves no conflict with article 8. The
subject-matter of section 179 is failure to comply with a lawful enforcement
notice. There is no ambiguity the resolution of which requires recourse to the
convention. The appellant is not prevented from following a nomadic life or
abandoning a communal existence with other gypsies: see p72G.
to in the judgment
Buckley v United Kingdom [1995] JPL 633
Guildford
Borough Council v Smith [1994] JPL 734, CA
Kent
County Council v Brockman [1996] 1 PLR 1
Pepper (Inspector of Taxes) v Hart [1993] AC 593; [1992] 3
WLR 1032; [1993] 1 All ER 42, HL
R v Secretary of State for the Home Department, ex parte Brind
[1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720, HL
R v Vickers [1975] 1 WLR 811; [1975] 2 All ER 945; 61 Cr App R
48, CA
Reed v Reed unreported December 12 1995, CA
Appeal against
conviction
This was an
appeal by John Beard against his conviction in Preston Crown Court on an
indictment that he had failed timeously to comply with an enforcement notice.
(instructed by Clarkson Penhale) appeared for the appellant, John Beard.
Tucker (instructed by the solicitor to Lancaster City Council) appeared for the
Crown.
judgment was delivered.
HOBHOUSE LJ: This is an appeal on a point of law by John Beard against the
conviction entered against him at the Crown Court at Preston before Laws J on
December 8 1995 on his own plea of guilty. The amended indictment charged him
with an offence under section 179(2) of the Town and Country Planning Act 1990
(as amended by the Planning and Compensation Act 1991). The particulars of
offence read:
That John
Beard, between 24th June 1994 and 21st November 1994, failed to take the steps
required, and to cease the activity required, by an Enforcement Notice served
on the 18th December 1991 by Lancaster City Council, which was upheld and
varied by the Secretary of State by a decision letter dated 9th September 1992,
in respect of land known as Cinderbarrow Malt Kiln, in that,
expired on 9th March 1993 between the said dates John Beard:
(i) failed to
break up the hard surface formed and laid on the land and remove all rubble and
other material resulting therefrom from the land;
(ii) failed
to remove caravans from the land; and
(iii)
permitted the carrying on of the activity of the use of a caravan upon the said
land for residential purposes.
Cinderbarrow
Malt Kiln is a small plot of land about 0.365 ha in area. It takes its name
from a derelict barn which is on the site. It lies in open countryside close to
the Lancaster Canal. There is a working farm nearby. It is approached by a lane
which leads to the A6 trunk road. It had been bought by the appellant in
October 1986. By the time that he bought the land, it had already been the
subject of a number of unsuccessful planning applications by others to develop
the site for various purposes. These applications had been consistently refused
on rural policy and other grounds, including visual amenity and poor access.
Two of these decisions were confirmed on appeal; it therefore had a well established
planning status. Its existing use was agricultural. Shortly after he bought the
land the appellant made an application for planning permission to convert the
barn into four holiday homes. The application was refused and the refusal
upheld on appeal, the inspector concluding that the development would be
visually harmful and lead to an unacceptable increase in traffic in the lane.
The structure
plan for Lancashire was published in 1990. The area within which the land lay
was scheduled as being of special landscape value and any development of the
land would not be in accordance with the policies stated in that plan. However,
in September 1991 the appellant made a new planning application. It was for the
development of the land as a caravan site for up to six caravans. It appears
that the application also contemplated that the appellant would use the site
for his carpet business. The application was refused in November 1991 and he
appealed. Meanwhile he had proceeded with his development and change of use notwithstanding
that he had not obtained planning permission. He constructed hard stands; he
moved a number of caravans on to the site; he took up residence in one of the
caravans. An enforcement notice was accordingly served on him in December 1991.
He appealed, as he was entitled to do, against the enforcement notice and,
after a public inquiry, his appeals against both the refusal of planning
permission and the enforcement notice were dismissed on September 10 1992. The
inspector did, however, of his own motion, modify certain of the requirements
of the enforcement notice. As a result, the terms of the enforcement notice as
amended corresponded to the terms in which the count in the indictment was
drafted.
Before he
rejected Mr Beard’s appeals, the inspector considered fully all the
circumstances of the case including:
… the effect
of the development on the character of the area and upon highway safety and
whether any planning objections to the development are outweighed by a special
need for accommodation to be provided for gypsies.
Mr Beard had
argued in support of his application and his appeals that he himself was a
gypsy and he intended that the caravan site should be used by other gypsies.
The inspector carefully considered the evidence as to what spaces were
available for gypsies in the area and the extent to which they were being taken
up. He concluded:
In my
judgment, the special need for accommodation to be provided for gypsies is not
so weighty in the present case as to outweigh the harm caused to the character
of the area and the adverse effects on highway safety.
He also took
into account the personal needs of Mr Beard and his family. Mr Beard did not
raise as a ground of appeal that the steps required by the notice exceeded what
was necessary to remedy any breach of planning control or to achieve a purpose
specified in section 173(4) of the Act.
On June 7
1993, Mr Beard made a further and more limited planning application. However,
this application still involved a change of use for the land and the stationing
of a number of caravans on it. This application was refused in July 1993. His
appeal was similarly rejected on January 25 1994.
In England as
in most democratic countries the development of land is controlled by
appropriate planning legislation. This legislation exists in the interests of
the community as a whole. The scheme of control has to take into account
environmental considerations and the protection of the rights and legitimate
expectations of others. The system of planning controls is entrusted to
democratically elected local authorities with rights of appeal to ministers who
are answerable to parliament. Applicants who are aggrieved by actions or
decisions of planning authorities have appropriate rights of recourse to the
courts under the statute or by way of judicial review. The policies which
govern planning decisions are proposed and confirmed in published policy
documents which are open to objection by members of the public before they are
adopted. The procedures are accessible to the public. On appeals from planning
decisions and cognate matters there is scope for public hearings at which the
parties and interested members of the public are entitled to present their
views and evidence.
It is only
after planning applications have been refused following procedures such as
those which I have referred to, that any question of enforcement arises. If a
development takes place without the appropriate planning permission, the local
authority have a discretion whether to issue an enforcement notice and, if they
do so and the landowner in question does not accept it, he can challenge the
notice (as did Mr Beard) by a procedure which includes in effect an ex post
facto application for the requisite planning permission. Thus, no
enforcement notice comes into effect without a full consideration of its
propriety and merits by officers responsible to democratically elected bodies
and a further consideration of the planning policies and decisions relevant to
the notice.
All this
occurred in the present case. The evaluation of the appellant’s
scheme of the legislation must be taken into account in construing section 179.
Enforcement arises after the other procedures have been completed and the
obligation to comply with the enforcement notice has been established. This is
the statutory context in which section 179 was drafted and takes effect. The
scheme of the legislation provides that considerations such as those raised before
us by Mr Beard are to be evaluated and taken into account at the earlier
stages. Thus, the fact that the applicant is a gypsy and that there may be
special needs of the applicant or other gypsies for camp sites may justify the
grant of a planning permission which would be refused in the absence of those
special considerations.
Section 179
(as amended) reads:
(1) Where, at
any time after the end of the period for compliance with an enforcement notice,
any step required by the notice to be taken has not been taken or any activity
required by the notice to cease is being carried on, the person who is then the
owner of the land is in breach of the notice.
(2) Where the
owner of the land is in breach of an enforcement notice he shall be guilty of
an offence.
(3) In
proceedings against any person for an offence under subsection (2), it shall be
a defence for him to show that he did everything he could be expected to do to
secure compliance with the notice.
(4) A person
who has control of or an interest in the land to which an enforcement notice
relates (other than the owner) must not carry on any activity which is required
by the notice to cease or cause or permit such an activity to be carried on.
(5) A person
who, at any time after the end of the period for compliance with the notice,
contravenes subsection (4) shall be guilty of an offence.
When this case
came on before Laws J, the appellant was arraigned on the amended indictment
and pleaded not guilty. His counsel stated that Mr Beard accepted that, unless
there was a defence available to him under section 179(3), he had no defence to
the charge. He admitted that he was the owner of the land and had received the
enforcement notice and had not, within the time limited for compliance, taken
the steps required nor ceased the activity referred to in the notice. He
accepted that the burden of proof was upon him to ‘show that he did everything
he could be expected to do to secure compliance with the notice’. Through his
counsel he told the judge that ‘he was unwilling to comply with the notice
because it would mean that he could no longer live on the site’ — the only
other gypsy site within reasonable distance was one to which he was unwilling
to go because he feared that he would be assaulted if he did. At the judge’s
suggestion, it was agreed that he should hear legal argument whether the
matters upon which Mr Beard proposed to rely would amount to a defence under
section 179(3). A jury was not sworn. The judge heard legal argument. He gave
his ruling in a considered judgment which runs to 12 pages of transcript. The
judge having given his ruling, the appellant decided to change his plea to
guilty and did so. The judge then adjourned the case without sentencing the
appellant.
This procedure
was in principle highly undesirable and has been the subject of adverse comment
by this Court on a number of occasions. As regards preliminary rulings on law,
see R v Vickers 61 Cr App R 48; as regards adjourning sentence
pending appeal, see Reed v Reed December 12 1995, CA. Nothing
that we say in this judgment should be taken as detracting in any way whatever
from what has been said in these cases. In the present case the demerits of
this procedure are obvious. The factual matters upon which the appellant seeks
to rely were unformulated and in many respects unspecific. We suspect that many
of them would have never been accepted by a jury. They contradicted other
evidence and, indeed, some of the things which Mr Beard had himself said. Both
counsel said that they had been taken by surprise by the judge’s suggestion,
but they had not objected to it.
Having heard
full argument in this court we are satisfied that there is nothing unsafe in
the conviction of the appellant on this count. The ruling of Laws J did not
mis-state the law. The appellant was not misled in any way. The change of plea
was the free choice of the appellant. Further it is clear that, in reality and
on the merits, the appellant never had any answer to the charge.
Although it
was not the point upon which the argument either in the court below or in this
court focused, it was not disputed that the appellant had not broken up the
hard surface which he had laid on the land, nor had he removed from the land
the other caravan or caravans in which he and his wife were not living. He had
no answer whatsoever to his non-compliance with these aspects of the notice
and, therefore, even on his own case, the only proper verdict could be that he
was guilty of an offence under section 179(2).
For the
purposes of the hearing before us, Mr Anthony Crean on behalf of the appellant
prepared a schedule of ‘the most advantageous findings of fact in the
Defendant’s favour’. It was on the basis of these that he argued that his
client had a defence under section 179(3). It is not necessary to refer to all
these facts and we will refer simply to those which were relied upon in his
argument.
The appellant
is a gypsy, that is to say, a person of a nomadic habit of life, whatever his
race or origin. He habitually lives in the area of North Lancashire. The only
authorised site for gypsies within that area is a site owned and operated by
the local council which at some earlier unspecified date had been condemned by
the environmental health and fire officers. In 1986, at a time when the
appellant’s son was living on that site, an incident occurred as a result of
which the appellant had been the subject of a violent and unprovoked attack by
other gypsies. The appellant and his wife (whose children are grown-up) are now
relatively elderly and ‘entertain a reasonable expectation that if they return
to the Council site they will be subjected to further attacks on themselves or
their property and/or that the Council site fails relevant standards of health
or safety’. The appellant’s ‘decision not to move to the Council site is
reasonable’. He ‘has made an exhaustive search for alternative accommodation,
but without success’. If he is forced to comply with the enforcement notice,
‘he will no longer be able to follow the traditional lifestyle of a gypsy’.
These factual
allegations would all be matters for the jury. Some of them are directly
contrary to the evidence contained in the committal papers, in particular the
existence of appropriate and adequate alternative sites at which the appellant
and his wife could have lived if they so chose. Similarly, the references to
his nomadic lifestyle are directly at variance with his own evidence of his
efforts since at the latest 1991 to establish a settled and permanent home for
himself and his wife at Cinderbarrow.
However, apart
from his factual difficulties, the appellant faced a legal difficulty. It was
this that was the subject-matter of the argument and the ruling of Laws J. The
appellant did not dispute that he was the owner and, with his wife, the sole
occupier of the land in question. He had the complete control of it. He did not
suggest that he required the assistance of anyone else to remove the caravans
from the land or to cease the change of use. He did not suggest that in so far
as he might have had to use some contractor to break up the hard surfaces he
did not have the ability and resources to employ a contractor. His argument was
simply that he could not reasonably be expected to go and live somewhere else:
therefore he had done everything that he could reasonably be expected to do.
The argument
of the prosecution before us and before Laws J was that subsection (3) must be
read with subsections (1) to (5) of section 179. Subsection (3) relates to what
may be the limited ability of an owner to secure others to do what is necessary
to comply with the enforcement notice. Subsection (3) only applies to
subsection (2) which in turn only applies to the owner of the land. By
contrast, a person who is not the owner is subject to subsection (4) to which
the defence in subsection (3) does not apply. If a person, other than the
owner, fails to cease from the relevant activity or causes or permits such an
activity to be carried on, he is guilty of an offence and subsection (3) has no
application. Further, subsections (1) and (2) apply both to steps required to
be taken and to the cessation of activities whereas subsection (4) only applies
to the latter, the failure to cease activities.
But, most
importantly, subsection (3) uses the words ‘everything he could be expected to
do to secure compliance’. The argument of the appellant ignores these words and
their necessary implication that the owner is having to secure that someone
else comply with, or assist in the compliance with, the notice.
We consider
that the submissions made on behalf of the prosecution are correct. The meaning
of section 179 is clear and unambiguous. Where it is within the power of the
owner of the land to comply with the notice without the assistance of others,
no question of a defence under subsection (3) arises. Before a defence can
arise under that subsection, the owner must show that compliance with the
notice is not within his own unaided powers, otherwise no question of his
having to secure compliance with the notice can arise. Thus, if there are other
persons in occupation of the land, it is enough if he has done everything he
could reasonably be expected to do to secure that they comply with the notice.
If compliance would require, for example, some engineering work and the owner
is not himself
it, he will have a defence if he can show that he did everything he could
reasonably be expected to do to secure compliance with the notice. These
examples suffice to illustrate the application of subsection (3). We accept, as
does counsel for the prosecution, that the phrase ‘everything he could be
expected to do’ must implicitly be read as ‘reasonably expected’. It applies an
objective criterion of reasonableness, having regard to all the relevant
circumstances, in particular any disabilities to which the owner of the land is
subject.
In Kent
County Council v Brockman October 11 19931; a 65 year
old man who had had a heart attack and was in difficult financial circumstances
was unable to comply with an enforcement notice relating to land which he
owned. The Divisional Court held that his personal circumstances could be taken
into account by the magistrates in considering whether he had a defence under
subsection (3). It was a question of fact for the magistrates whether the
circumstances did provide a defence. Like Buckley J, Simon Brown LJ sounded a
note of caution [see [1996] 1 PLR 1, at p5]:
1 Reported at [1996] 1
PLR 1
I agree, and
would merely echo Buckley J’s words of caution to magistrates not too readily
to accept the section 179(3) defence when advanced essentially on the basis of
impecuniosity. It is clearly imperative that land should not be left in an
unsatisfactory state, perhaps as a public eyesore, unless a landowner has taken
every practical step to overcome his financial problems in complying with the
requirements of the enforcement notice, to the extent if need be of selling his
land, if that is possible, to ensure that it will be put into a proper state.
The alleged
facts relied upon by the appellant do not relate to any lack of capacity or
inability of the appellant to comply with the enforcement notice. His
compliance does not involve his securing that any other person do or desist
from doing anything. He himself has the resources and the power to comply with
the notice.
Laws J said
(at p10):
In the course
of argument, Mr Crean accepted a proposition which I put to him, namely that
his submission would mean that subsection (3) is available in circumstances
where the defendant, though perfectly able physically and financially and
legally, to comply with the enforcement notice did not do so because for good
reason he did not wish to comply with it.
In my
judgment, that exposes the flaw in Mr Crean’s argument. Subsection (3) is not
concerned with a balance of social factors. It is not concerned with such
policy issues as arise in relation to the circumstances in which gypsies live.
It does not enjoin a court to accept a defence on the footing only that it
concludes that it would be a good thing if the defendant were not required to
comply. Indeed, it is not at all concerned with the
individual who shows that in reality and common sense he is unable to comply
with the obligations imposed on him by an enforcement notice as owner.
We agree with
what Laws J has said. The arguments advanced by Mr Crean are not germane to
section 179. Their relevance is to an earlier stage in the planning procedure —
the consideration of the application for planning permission and the appeal
against the enforcement notice.
Before us Mr
Crean also sought to rely upon Pepper (Inspector of Taxes) v Hart
[1993] AC 593. At p634, Lord Browne-Wilkinson said:
In my
judgment, subject to the questions of the privileges of the House of Commons,
reference to Parliamentary material should be permitted as an aid to the
construction of legislation which is ambiguous or obscure or the literal
meaning of which leads to an absurdity.
Relying upon
this statement, Mr Crean sought to refer us to certain extracts from
parliamentary debates. In our judgment, this argument is misconceived. There is
nothing ambiguous, obscure or absurd about subsection (3). In any event, the
parliamentary material to which he has referred us does nothing to advance his
argument.
Finally, in
support of his argument, Mr Crean referred us to article 8 of the European
Convention on Human Rights and to the majority opinion of the Commission in Buckley
v United Kingdom [1995] JPL 633. He said that Mr Beard was making a
similar application to the European Court of Human Rights and he referred also
to what was said by Steyn LJ in Guildford Borough Council v Smith
[1994] JPL 734 at p740. That was a case concerning penalties for contempt of
court. A sentence of imprisonment had been suggested. Steyn LJ said (p740):
If they
acceded to this invitation, they would face these gypsies with the stark choice
of imprisonment or abandoning their communal existence. And they would be doing
so despite the fact that Parliament has recognised that sites must be set aside
so that gypsies can maintain their position as a cohesive and separate group in
our society. Given that the defendants had done all in their power to seek an
alternative site, and that compliance with the order would not be within their
reasonable capacity, it would be an affront to the civilised values of our
society to accede to the local authority’s invitation.
There is no
inconsistency between the scheme of the United Kingdom planning legislation and
the convention. The legislative scheme allows for the legitimate rights and
expectations of gypsies to be taken into account at the appropriate stages of
the procedure, including at the stage of deciding whether or not an enforcement
notice should be upheld. Once an appropriate decision has been made in
accordance with the law to uphold the enforcement notice, its enforcement
involves no conflict with article 8. The subject-matter of section 179 is
failure to comply with a lawful enforcement notice. There is no ambiguity, the
resolution of which requires
Department, ex parte Brind [1991] 1 AC 696 at p747 per Lord Bridge.
There is nothing in the present case which requires the appellant to desist
from following a nomadic life or abandoning a communal existence with other
gypsies. Indeed, his complaint seems to be that the enforcement notice will
have the effect of compelling him to resume a nomadic lifestyle and, on
occasions, live with other gypsies to whom he objects.
This appeal
must be dismissed. The conviction was not unsafe. It was the appellant’s choice
to plead guilty. The ruling on law given by Laws J was not erroneous.
The appeal
was dismissed.
