Enforcement notice – Prosecution for failure to comply – Whether defendant entitled to raise as defence to criminal proceedings validity of order of planning authority – Court of Appeal and House of Lords dismissing appeal
Mr Wicks was the owner of a building behind a row of houses in Tivoli Road, Margate. It used to be an old storehouse. In October 1987 and again in 1989 it was damaged by storms. Mr Wicks took down the roof and the upper part of the wall and began to rebuild. The local planning authority said that his works were producing a different building and required planning permission. Eventually, in March 1990, the council served an enforcement notice under section 87 of the Town and Country Planning Act 1971 (now section 172 of the 1990 Act). The notice required the removal of all parts of the building higher than 2.5m. In all respects the notice complied on its face with the provision of the Act. Mr Wicks did not take the steps required by the notice.
In June 1992 the council took out a summons before the Ramsgate justices alleging a breach of section 179(1) of the 1990 Act. Mr Wicks elected to be tried on indictment. At the opening of the trial he sought to challenge the service of the enforcement notice claiming, inter alia, that the council had acted in bad faith and was motivated by immaterial considerations. The judge ruled against allowing the defence to question the propriety of the decision to issue the notice. He suggested that Mr Wicks should plead guilty and test the ruling on appeal. The Court of Appeal dismissed his appeal making a distinction between an enforcement notice which was a nullity, “waste paper”, and one which was invalid only in the sense of being liable to be quashed. A notice which on its face failed to comply with some requirement of the Act was a nullity. A notice which could be quashed on the basis of extrinsic facts, for example because in fact no breach of planning control had taken place, was invalid but not a complete nullity. Mr Wicks appealed to the House of Lords.
Held The appeal was dismissed.
1. An enforcement notice in section 179(1) of the 1990 Act meant a notice issued by a planning authority which on its face complied with the requirement of the Act and had not been quashed on appeal or by judicial review.
2. A defendant who was prosecuted for an offence contrary to section 179(1) was not entitled as a matter of right to put forward the defence that the enforcement notice relied upon by the prosecution was invalid on the grounds that the decision to issue it was ultra vires.
3. There was no exception to the rule on the grounds that the invalidity arose as a result of male fides on the part of the authority issuing the enforcement notice, and its validity on such grounds could only be challenged in proceedings for judicial review.
4. It was doubted whether, for the purpose of affording a defence to a criminal charge, there was a distinction, as formulated in Bugg v Director of Public Prosecutions [1993] QB 473, between substantive invalidity, which could be raised as a defence before magistrates, and procedural invalidity, which could not.
Anthony Speaight QC and Francis Macleod Matthews (instructed by SJ Burton & Co, of Cliftonville) appeared for Mr Wicks; Richard Humphreys (instructed by Sharpe Pritchard, London agents for the solicitor to Thanet District Council) appeared for the Crown.
