Enforcement notice — appellant charged on indictment for non-compliance under section 179(1) of the Town and Country Planning Act 1990 — Whether ultra vires could be raised as a defence to indictment
The appellant
was charged on indictment for failing to comply with an enforcement notice
contrary to section 179(1) of the Town and Country Planning Act 1990. He
pleaded not guilty contending that the decision to issue the enforcement notice
was made in bad faith. Following a ruling by the trial judge, that he could not
raise the vires of the enforcement notice, he changed his plea from not
guilty to guilty. The appellant’s appeal, against his conviction on the ground,
inter alia, whether it is proper to challenge the decision to issue an
enforcement notice on Wednesbury grounds by way of defence to an
indictment alleging an offence contrary to section 179(1) of the Act, was
dismissed by the Court of Appeal. He appealed.
The principle
formulated in Bugg v Director of Public Prosecutions [1993] QB
473, that there is a distinction between substantive invalidity and procedural
invalidity, is open to criticisms. However there is no general right enabling a
defendant to challenge the vires of every act done under statutory
authority if its validity forms part of the prosecution’s case or its
invalidity would constitute a defence. It depends entirely upon the
construction of the statute under which the prosecution is brought, and what
the statute requires the prosecution to prove. There is no general theory of
the ultra vires defence which applies to every statutory power: p108 et
seq. Under section 179(1) of the 1990 Act an enforcement notice does not
mean a notice which is liable to be quashed on any of the standard grounds in
public law; it means a notice which complies with the formal requirements of
the Act and has not actually been quashed on appeal or judicial review. The
appellant had failed to comply with such an enforcement notice and he was
therefore guilty of the offence. The matters which he proposed to raise at his
trial were irrelevant: p117.
to in the opinions
Bugg v Director of Public Prosecutions [1993] QB 473; [1993] 2
WLR 628; [1993] 3 All ER 815, DC
Chief
Adjudication Officer v Foster [1993] AC 754;
[1993] 2 WLR 292; [1993] 1 All ER 705, HL
Hoffmann-La
Roche (F) & Co AG v Secretary of State for
Trade and Industry [1975] AC 295; [1974] 3 WLR 104; [1974] 2 All ER 1128,
HL
Kruse v Johnson [1898] 2 QB 91
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196;
[1963] 2 WLR 225; [1963] 1 All ER 459; (1963) 61 LGR 152; 14 P&CR 266;
[1963] EGD 572; 185 EG 835; [1963] JPL 151, CA
O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All
ER 1124, HL
Queen
(The) v Davey [1899] 2 QB 301
Quietlynn
Ltd v Plymouth City Council [1988] QB 114;
[1987] 3 WLR 189; [1987] 2 All ER 1040; (1987) 85 LGR 856
R v Goldstein [1983] 1 WLR 151; [1983] 1 All ER 434, HL;
[1982] 1 WLR 804; [1982] 3 All ER 53, CA
R v Mary Rose, ex parte Wood (1855) 19 JP 676
R v Reading Crown Court, ex parte Hutchinson [1988] QB 384;
[1987] 3 WLR 1062; [1988] 1 All ER 333, DC
Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2
WLR 888; [1956] 1 All ER 855; (1956) 54 LGR 233; 6 P&CR 102, HL
Wandsworth
London Borough Council v Winder [1985] AC
461; [1984] 3 WLR 1254; [1984] 3 All ER 976; 83 LGR 143, HL
Appeal against
conviction
This was an
appeal by Peter Edward Wicks against the decision of the Court of Appeal
dismissing his appeal in Canterbury Crown Court on an indictment that he had
failed timeously to comply with an enforcement notice.
Speaight QC and Francis Macleod Matthews (instructed by SJ Burton & Co, of
Cliftonville) appeared for the appellant, Peter Edward Wicks.
Humphreys (instructed by Sharpe Pritchard, agents for the solicitor to Thanet
District Council) appeared for the council.
following opinions were delivered.
LORD
BROWNE-WILKINSON: My lords, for the reasons given
in the speeches of my noble and learned friends Lord Nicholls of Birkenhead and
Lord Hoffmann with which I agree I would dismiss the appeal and answer the
certified questions as proposed by my noble and learned friend Lord Hoffmann.
LORD
JAUNCEY OF TULLICHETTLE: My lords, I have had the advantage
of reading a draft of the speeches of my noble and learned friends Lord
Nicholls of Birkenhead and Lord Hoffmann. For the reasons they give, I, too,
would dismiss this appeal.
LORD
NICHOLLS OF BIRKENHEAD: My lords, the underlying
question in the present case is best approached by taking the example of a
public body which, in exercise of statutory powers, makes an order or byelaw or
issues a notice failure to comply with which is a criminal offence.
Subsequently an individual is charged with having committed the offence. At his
trial the accused wishes to challenge the lawfulness of the order or byelaw or
notice (for brevity I shall use the compendious description of the ‘impugned
order’;). He wishes to contend, first, that the impugned order is ultra
vires, having been made in terms not authorised
was not validly made because the public body were motivated by immaterial
considerations and made the order for an unauthorised purpose. (The second
defence corresponds to the defence the appellant, Mr Wicks, wished to raise
before the Crown Court in the present case, in respect of an enforcement
notice.)
The underlying
question calling for consideration on the present appeal is whether in such a
case the accused can raise both these defences in the criminal proceedings or
whether, although he can raise the first, he cannot raise the second. The
question is whether, unlike the issue raised by the first defence, the issue
raised by the second defence is beyond the jurisdiction of the criminal court
and can only be decided in judicial review proceedings brought for the purpose.
So, in respect of the second defence the accused must start his own judicial
review proceedings in the Divisional Court against the public body which made
the order, and seek an adjournment of the criminal proceedings until the
judicial review proceedings have been concluded. The second line of defence is
outside the boundary of the issues which can be raised in and decided by the
criminal court, even though (or so one might expect) no offence will have been
committed by the accused if the issue raised by the second defence is decided
in his favour by the Divisional Court.
I have phrased
the underlying question in this way because it is now well established that
where the criminal offence lies in failure to comply with an order made under
statutory powers, it is open to the defendant to challenge the lawfulness of
the order on certain grounds, by way of defence in the criminal proceedings.
Among the most well established of these grounds is lack of vires to
make the material part of the order where this is apparent merely from a
reading of the order in conjunction with the enabling Act: see, for instance, R
v Mary Rose, ex parte Wood (1855) 19 JP 676. That is the first of the
two defences which the accused wishes to raise in my example.
Conversely,
there are decisions to the effect that not all challenges to the lawfulness of
an impugned order can be raised by way of defence in the criminal proceedings.
Some must be decided in judicial review proceedings. Included in this category
are some, but not, it seems, all challenges to the procedure which led to the
making of the impugned order.
The
boundary
However, there
is at present some confusion over where, as a matter of general principle, the
boundary between the two categories is, or should be, drawn. The uncertainty is
a byproduct of developments in the law of judicial review over the last 30
years. The greatly widened supervisory role now exercised by the court emerged
largely from a much expanded application of the concept of ultra vires.
Thus, if the ancient boundary line, distinguishing simply between challenges
based on lack of vires and other challenges, were applied today the
result would be to bring within the purview of the criminal courts a much wider
range of challenges than formerly. This result would not attract universal
approval.
I refer
briefly to four recent decisions as illustrations. In Quietlynn Ltd v Plymouth
City Council [1988] QB 114, at p131, the Divisional Court espoused a narrow
view of the jurisdiction of the criminal court, confining this to invalidity on
the face of the decision in question. In R v Reading Crown Court, ex
parte Hutchinson [1988] QB 384, at p391, Lloyd LJ supported the broad view
that if the validity of a local authority’s decision is an essential element in
the proof of a crime, that should be open to challenge in the magistrates’
court or the Crown Court. In Bugg v Director of Public Prosecutions
[1993] QB 473, at pp494–495, 499–500, the Divisional Court favoured a more
restricted role for the criminal courts. Woolf LJ drew a distinction between
substantive invalidity and procedural invalidity. The former is a matter for
the criminal court, the latter is not. The former category includes orders
which on their face are invalid, as dealing with matters outside the scope of
the enabling legislation or patently unreasonable. The issue raised in this category
is a question of law, on which evidence is not required. Woolf LJ recognised
that, additionally, there may be a grey area, where an abuse of power is
alleged because of bad faith on the part of the byelaw maker. Fourth, in the
instant case the Court of Appeal took an even more restrictive approach to the
jurisdiction of the criminal court. Keene J delivered the judgment of the court
comprising Lord Taylor of Gosforth CJ, Mantell J and himself. Keene J
considered that the terms ‘substantive’ and ‘procedural’ invalidity were no
doubt appropriate when dealing with byelaws, as in Bugg, but that they
could give rise to misunderstandings in other contexts. In the field of
enforcement notices he preferred the distinction between defects on the face of
a notice rendering it a ‘nullity’ and those matters which may render a notice
‘invalid’.
To some extent
these differences in approach reflect the different statutory regimes
applicable to the orders in question, but this is not a complete explanation. Hutchinson
and Bugg were both byelaw cases.
Reasons
for the boundary
Against this
background one turns to seek the general principle or principles which underlie
the boundary and the need for it. The terms of the enabling legislation will
always need to be considered, and I shall come to this important aspect
presently. Leaving that on one side for the moment, what are the reasons why
some challenges to the lawfulness of an impugned order can only be raised in
judicial review proceedings? Prima facie one would expect, surely, that
in the criminal proceedings an accused should be able to challenge, on any
ground, the lawfulness of an order the breach of which constitutes his alleged
criminal offence. That seems the proper starting point.
The primary
reasons put forward are that the Divisional Court is a more suitable tribunal
than the criminal court for deciding certain types of issue. Challenges to the
lawfulness of an order often raise complex and sophisticated issues, suited for
decision by the specialist judges in the Divisional Court. The criminal courts,
and lay magistrates in particular, are not equipped to handle them.
Further,
judicial review proceedings have built-in safeguards, in the public interest.
There are tight time-limits, and the court has a measure of discretion in
deciding whether to permit proceedings to be brought and in granting or
withholding relief. This protection would be circumvented if a similar
challenge could be raised as of right by way of defence in the criminal court.
Still further,
the public body whose order is being impugned will be a party to judicial
review proceedings. The public body can ensure that all the necessary evidence
and legal submissions are presented. This will not always be so with criminal
proceedings.
Finally, a decision
in the criminal proceedings will not bind the public body. There is a risk of
inconsistent decisions in different cases. This is not so in judicial review
proceedings. There, if the challenge is successful, the impugned order will be
quashed and set aside.
These reasons,
taken cumulatively, show that there will be cases where proceedings in the
Divisional Court are, in practice, much more suitable and convenient. Having
said that, it must also be said that the guidance they give on where the
boundary should be drawn and, indeed, on whether there should be a boundary at
all, is questionable. These arguments stand in danger of proving too much. If
they are persuasive they might be thought to lead to the conclusion that, save
in glaringly obvious cases, all challenges to the lawfulness of an impugned
order should be made directly to the Divisional Court rather than indirectly by
way of defence in the criminal court. In respect of challenges which even on
the narrowest view may be raised by way of defence, lay magistrates can be
confronted with tricky questions of law. So far as there is a risk of
inconsistent decisions, or a problem regarding parties, that also exists in
those cases where the challenges may be raised as a defence in the criminal
courts. Similarly with the risk of inadequate evidence: evidence may have to be
called in the criminal court to establish, for instance, whether land to which
a byelaw purports to extend is subject to rights of common and outside the
authorised reach of the byelaw. Likewise, in those ultra vires cases
which admittedly are within the purview of the criminal courts, the decision in
the criminal court does not formally set aside the impugned order. And in those
cases the protective time-limits and discretions are not available. Indeed, as
to this last point, it is highly questionable whether a judicial discretion to
grant or withhold relief should have a significant role when a criminal
consequence hangs upon the lawfulness or unlawfulness of the impugned order.
Procedure
and discretion
The matter
goes further. These reasons, important as they are, are largely reasons of
practical convenience. They are said to support the need for two different
categories. But hard and fast rules should have no place when deciding questions
of practical convenience. There is a place for guidelines, and for prima
facie rules, or residual rules. But circumstances in individual cases vary
infinitely. If convenience is the governing factor, then at some point in the
system there should be space for a discretionary
not all questions of invalidity, whether substantive or procedural, are
sophisticated and complex. And sometimes a short point of disputed fact,
concerning what happened when a local authority were deciding to make the
impugned order, might be determined as easily, or better, in a criminal court
than in judicial review proceedings in the Divisional Court. If a discretion as
to the more suitable forum were to exist, factors to be taken into account
would include the extra expense involved for an accused in having to initiate
separate proceedings of his own in the Divisional Court (the ‘cumbrous
duplicity of proceedings’; mentioned by Lord Bridge of Harwich in Chief
Adjudication Officer v Foster [1993] AC 754, at pp766–767), and the
greater difficulty of the accused in obtaining legal aid in civil proceedings.
One possible
way ahead, therefore, is to abandon the attempt to define a boundary. Rather,
the guiding principle should be that prima facie all challenges to the
lawfulness of an impugned order may be advanced by way of defence in the
criminal proceedings, but that the criminal court should have a discretionary
power to require an unlawfulness defence to be pursued, if at all, in judicial
review proceedings. Thus, to return to the example I mentioned at the outset,
in the exercise of its discretion the criminal court might decide that the two
defences should be decided together by the same court. That court would be
either the criminal court or the Divisional Court, depending on the
circumstances. Even more radical is the suggestion of Carl Emery, in his
illuminating article in [1992] CLJ 308, that the criminal court should itself
have power to refer an issue for decision to the Divisional Court.
A more
fundamental problem
I say no more
about this aspect of the underlying question, because there is lurking here a
more fundamental problem which will have to be resolved before the boundary
dispute can be settled finally. Thus far I have considered, as reasons for the
boundary’s existence and its location, reasons which are primarily practical. Bugg
v Director of Public Prosecutions introduced another reason, of an
altogether more basic character. Woolf LJ said, at p500C:
So far as
procedural invalidity is concerned, the proper approach is to regard byelaws
and other subordinate legislation as valid until they are set aside by the
appropriate court with the jurisdiction to do so. A member of the public is
required to comply with byelaws even if he believes they have a procedural
defect unless and until the law is held to be invalid by a court of competent
jurisdiction. If before this happens he contravenes the byelaw, he commits an
offence and can be punished. Where the law is substantively invalid, the
position is different. No citizen is required to comply with a law which is bad
on its face. If the citizen is satisfied that that is the situation, he is
entitled to ignore the law.
(Emphasis
supplied.)
On this
reasoning there is not only a boundary between the two different types of
invalidity. There is also an imperative need for the
ambiguous grey area. On this reasoning the boundary is not merely concerned
with identifying the proceedings in which, as a matter of procedure, the
unlawfulness issue can best be raised. Rather, the boundary can represent the
difference between committing a criminal offence and not committing a criminal
offence.
According to
this reasoning, a decision on invalidity has sharply different consequences, so
far as criminality is concerned, in the two types of case. Setting aside an
impugned order for procedural invalidity, as distinct from substantive invalidity,
has no effect on the criminality of earlier conduct. Despite a court decision
that the order was not lawfully made, the accused is still guilty of an
offence, by reason of his prior conduct.
Further, it
would seem to follow that in the case of procedural invalidity, the accused
could be convicted even after the order is set aside as having been made
unlawfully, so long as the non-compliance occurred before the order was set
aside. In cases of substantive invalidity the citizen can take the risk and disobey
the order. If he does so, and the order is later held to be invalid, he will be
innocent of any offence. In cases of procedural invalidity, the citizen is not
permitted to take this risk, however clear the irregularity may be.
This
reasoning, with the consequences just mentioned, calls for the most careful and
rigorous examination. At present I am not persuaded of its soundness. I am not
persuaded that, for the purpose of affording a defence to a criminal charge,
there is a distinction as suggested in Bugg or, if there is, that the
boundary line is as suggested in that case, with the availability of a defence
depending, for instance, on whether the invalidity is patent as distinct from
latent.
I have
emphasised the italicised words because issues concerning the invalidity of an
impugned order arise in a variety of contexts. The consequence of invalidity
may not be the same in all contexts and in respect of all persons. An order may
be void for one purpose and valid for another: see the helpful discussions in Wade
and Forsyth, Administrative Law, 7th ed, pp339–344, and Craig on Administrative
Law, 3rd ed, pp451–466. Thus, when considering the consequences of
different grounds of invalidity the purpose in hand is always important, as
well as the particular statutory context.
Enforcement
notices and the planning legislation
I have said
enough to show that the questions raised by the observations in Bugg are
far-reaching in their importance. They involve more basic issues than those
canvassed in argument on this appeal.
In the event
it is not necessary to decide these questions. It is unnecessary because the
general principles discussed so far must always take effect subject to any
contrary indication in the relevant legislation. With some byelaws, for instance,
the enabling legislation is likely to give no guidance on the forum in which
challenges to the lawfulness of the byelaw may be made. Then the general
principles will guide. In other
the necessary guidance.
The criminal
offence of not taking steps required by an enforcement notice, created by
section 179 of the Town and Country Planning Act 1990, is embedded in an
elaborate statutory code, with detailed provisions regarding appeals. For the
reasons given by my noble and learned friend Lord Hoffmann, I agree with him
that as a matter of statutory interpretation ‘enforcement notice’; in section
179(1) means a notice issued by the authority which is formally valid and has
not been set aside. The appellant’s contention, that the decision to issue the
enforcement notice was influenced by bias and improper motives on the part of a
councillor, is not a contention he can raise before the criminal court. I, too,
would dismiss this appeal.
LORD
HOFFMANN: My lords, Mr Wicks is 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 a wall and began to rebuild.
Thanet District Council, the local planning authority, said that his works were
producing a different building and required planning permission. In particular,
one wall was higher than before and overshadowed the gardens of houses in a
side street off Tivoli Road. On February 27 1990 the council wrote warning Mr
Wicks that he was in breach of planning control and asked him to stop. On March
9 1990 the council wrote again, warning that an enforcement notice might be
served.
On March 13
1990 the council served an enforcement notice under section 87 of the Town and
Country Planning Act 1971 substituted (after previous amendments by 1974 Act)
by Local Government and Planning (Amendment) Act 1981, section 1 and Schedule,
para 1: it is now section 172 of the Town and Country Planning Act 1990 and for
convenience I shall refer to the Act of 1990, which came into force on August
24 1990. The provisions dealing with enforcement notices are in Part VII. The
material parts of section 172 read as follows:
(1) Where —
(a) it appears to the local planning authority
that there has been a breach of planning control after the end of 1963; and
(b) authority consider it expedient to do so
having regard to the provisions of the, they may issue development plan and to
any other material considerations a notice requiring the breach to be remedied.
(2) A notice
under this section is referred to in this Act as an ‘enforcement notice’.
(3) There is
a breach of planning control
(a) if development has been carried out …
without the grant of the planning permission required for that development …
(4) An
enforcement notice which relates to a breach of planning control consisting in
(a) the carrying out without planning
permission of building … operations in, on, over or under land … may be issued
only within the period of four years from the date of the breach.
(5) Subject
to section 175(4), an enforcement notice shall take effect on a date specified
in it (in this Part referred to as ‘the specified date’).
(6) A copy of
an enforcement notice shall be served not later than 28 days after the date of
its issue and not later than 28 days before the specified date —
(a) on the owner and on the occupier of the
land to which it relates …
(b) Section 173 prescribes what an enforcement
notice must contain:
(1) An
enforcement notice shall specify the matters alleged to constitute a breach of
planning control.
(2) An
enforcement notice shall also specify
(a) …
(b) any such steps as are mentioned in
subsection (4) which the authority require to be taken …
(4) The steps
referred to in subsection (2)(b) are steps for the purpose
(a) …
(b) of removing or alleviating any injury to
amenity which has been caused by the development.
(5) An
enforcement notice shall specify the period within which any such step as is
mentioned in subsection (2) is to be taken …
The
enforcement notice of which a copy was served on Mr Wicks recited that it
appeared to the council that there had been a breach of planning control by the
erection of a two-storey building and that the council considered it expedient,
having regard to the provisions of the development plan and to all other
material considerations, to issue the enforcement notice. It required the
removal of all parts of the building higher than 2.5 m in order to alleviate
the injury to amenity caused by the development. It specified April 24 1990 as
the date on which, in accordance with section 172(5), the enforcement notice
would take effect. Finally, in accordance with section 173(5), it allowed one
month for the work to be done. The Act calls this ‘the compliance period’: see
section 178(7). There is no dispute that the notice complied upon its face with
all the provisions of the Act.
Section 174
gives a right of appeal against an enforcement notice to the Secretary of
State. Subsection (2) lists eight grounds upon which appeals may be brought. Mr
Wicks appealed on four of them:
(a) that planning permission ought to be
granted for the development to which the notice relates …
(b) that the matters alleged in the notice do
not constitute a breach of planning control;
(c) that the breach of planning control
alleged in the notice has not taken place; …
(g) that the steps required by the notice to be
taken exceed what is necessary to … achieve a purpose specified in section
173(4) …
(The other
four, (d), (e), (f) and (h), are, in brief, that the breach took place more
than four years before the notice was served or, in the case of a change of
use, before 1964, that copies of the notice were not properly served and that
the compliance period is too short.)
Section 175(4)
provides that where an appeal is brought under section 174, the enforcement
notice shall be of no effect pending the final determination of the appeal. Mr
Wicks was entitled under section 175(3) to ask for a public inquiry by one of
the Department’s inspectors but agreed to have the appeal determined on written
submissions. Just over a year later, on May 10 1991, the inspector dismissed the
appeal on all four grounds.
Another year
passed during which there were some negotiations between Mr Wicks and the
planning authority but he did not take the steps required by the notice.
Section 179 provides as follows:
(1) Where —
(a) copy of an enforcement notice has been
served on the person who at the time when the copy was served was the owner of
the land to which the notice relates, and
(b) any steps required by the notice to be
taken … have not been taken within the compliance period,
then … that
person shall be guilty of an offence.
(2) A person
who is guilty of an offence under subsection (1) shall be liable —
(a) on summary conviction, to a fine not
exceeding the statutory maximum, or
(b) on conviction on indictment, to a fine …
(5) If, after
a person has been convicted under the previous provisions of this section, he
does not as soon as practicable do everything in his power to secure compliance
with the enforcement notice, he shall be guilty of a further offence and liable
—
(a) on summary conviction to a fine not
exceeding £200 for each day following his first conviction on which any of the
requirements of the notice … remain unfulfilled; or
(b) on conviction on indictment, to a fine.
On June 11
1992 the council caused a summons to be issued before the Ramsgate justices,
alleging a breach of section 179(1). Mr Wicks elected to be tried on
indictment. An indictment was prepared on February 2 1993 and the trial before
Judge Rooke and a jury began on September 27 1993.
After the jury
had been sworn but before anything else had been done, there was a discussion
between counsel and the judge about what Mr Wicks’s defence might be. The
enforcement notice had been properly served and was, as I have said, formally
valid. There was no dispute that he had failed to comply. He could not reopen
the questions which had been decided against him by the inspector, because
section 285(1) says:
Subject to
the provisions of this section, the validity of an enforcement notice shall
not, except by way of an appeal under Part VII, be questioned in any
proceedings whatsoever on any of the grounds on which such an appeal may be
brought.
Mr Wicks’
counsel said that he wanted to challenge the service of the enforcement notice
on the grounds falling outside the eight statutory
notice, the council’s decision to serve it had been improper. They had not
genuinely considered, in accordance with section 172(1)(b), whether service of
the notice was ‘expedient’; the council had acted in bad faith and had been
motivated by immaterial considerations. He proposed to adduce evidence on these
matters and submitted that as they involved questions of fact, they should be
decided by the jury.
Counsel for
the prosecution did not dispute that in principle Mr Wicks could challenge the
validity of the enforcement notice on these grounds. But he submitted that they
should have been raised by way of an application for judicial review. At the
criminal trial, a notice which had not actually been quashed by the Secretary
of State or the court should be treated as valid.
The judge
accepted the prosecution’s submission and gave a ruling that he would not allow
the defence to question the propriety of the decision to issue the notice. He
suggested that, as Mr Wicks was now left with no defence, he should plead
guilty and test the ruling on appeal. Mr Wicks changed his plea to guilty and
was bound over for 12 months to come up for judgment if called upon to do so.
This meant that Mr Wicks had to comply with the notice. If he did not do so, he
would be liable to a daily fine on summary conviction under section 179(5). On
a certificate granted by the judge, he appealed to the Court of Appeal.
The Court of
Appeal (Lord Taylor of Gosforth CJ, Mantell and Keene JJ) dismissed the appeal.
Keene J, who gave the judgment of the court, referred to the well known
distinction which Upjohn LJ had made in Miller-Mead v Minister of
Housing and Local Government [1963] 2 QB 196, at p226 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.
Miller-Mead v Minister of Housing and Local Government concerned the
power of the Secretary of State to amend or vary an enforcement notice under
what is now section 176(2) of the Act of 1990. The Court of Appeal decided that
he could amend a notice which was otherwise invalid but not one which was upon
its face a nullity. The purpose for which the distinction was used was
therefore different from the issue in this case. But, as Keene J observed, a
very similar distinction was employed by the Divisional Court in Bugg v Director
of Public Prosecutions [1993] QB 473 to describe the grounds upon which a
defendant to a prosecution under a local byelaw could challenge the validity of
the byelaw in the criminal proceedings.
Mr Bugg was
prosecuted for breach of a byelaw made under the Military Lands Act 1892. He
claimed that on various grounds the byelaw was ultra vires and the
question was whether he could raise these points before the magistrates. Woolf
LJ drew a distinction between ‘substantive invalidity’, where, as he put it,
the byelaw is [p494B]:
… on its face
invalid because either it is outwith the power pursuant to which it was made
because, for example, it seeks to deal with matters outside the scope of the
enabling legislation, or it is patently unreasonable,
and ‘procedural
invalidity’ in which the complaint is of some impropriety in the way the byelaw
was made. Substantive invalidity could be raised as a defence before the
magistrates but procedural invalidity could not. If the byelaw was valid on its
face, it should be treated as valid until set aside by judicial review
proceedings in the Divisional Court.
Keene J said
that the distinction between substantive and procedural invalidity corresponded
with Upjohn LJ’s distinction between nullity and invalidity. Defects on the
face of the enforcement notice could be relied upon in the criminal proceedings
but (procedural) invalidity was a matter either for the Secretary of State on
appeal or the Divisional Court on judicial review. The learned judge went on to
give reasons why it was appropriate to apply this distinction in the case of an
enforcement notice, to which I shall in due course return.
Before your
lordships’ House Mr Speaight QC on behalf of the appellant launched a sustained
attack on the principle formulated in Bugg v Director of Public
Prosecutions. He said, by reference to cases on prosecutions under byelaws
going back many years, that the distinction between substantive and procedural
invalidity was an entirely new invention, retrospectively imposed upon cases
which had said in perfectly general terms that a defendant in criminal proceedings
was entitled to challenge the vires of the byelaw under which he was being
prosecuted. The most recent such general statement was by Lloyd LJ in the
Divisional Court in R v Reading Crown Court, ex parte Hutchinson
[1988] QB 384, another prosecution for breach of byelaws made under the
Military Lands Act 1892. The Act provided, in section 14(1), that ‘no byelaws
promulgated under this section shall authorise the Secretary of State to take
away or prejudicially affect any right of common’ and the defendants claimed
that a byelaw prohibiting access to a military base at Greenham Common
infringed this proviso. The Crown Court decided that as this was not a defect
appearing upon the face of the byelaw and would have to be proved by evidence,
it could not be raised as a defence to criminal proceedings. Lloyd LJ disagreed
and said in robust and general terms that [p391E]:
… justices
have always had jurisdiction to inquire into the validity of a byelaw. They are
not only entitled, but bound to do so when the defendant relies on the
invalidity of the byelaw by way of defence.
Woolf LJ
distinguished R v Reading Crown Court, ex parte Hutchinson on the
ground that there the defence was one of substantive invalidity and could
therefore properly be raised. The distinction between substantive and
procedural invalidity had not been argued. However, if substantive invalidity
means a defect apparent on the face of the byelaw, I confess to some difficulty
in seeing how the Greenham Common defence came
and nature of the common rights which were prejudicially affected. It is true
that in subsequent litigation Lord Bridge of Harwich said that certain of the
byelaws were ‘ultra vires as they stand’. But ‘as they stand’ was being
contrasted with what might be their effect if they were modified by some form
of severance. It was necessary to have evidence from the Commons Register of
the common rights which would be prejudicially affected.
On the other
hand, it is certainly true that the Greenham Common defence cannot be said to
have concerned a procedural matter. This suggests, as do some other
authorities, that the line between the substantive and procedural in the normal
sense of those words does not necessarily coincide with the distinction between
matters which appear on the face of the instrument and those which need to be
established from extrinsic facts. Woolf LJ appears to have been conscious of
this difficulty: he conceded the existence of a grey area, occupied in
particular by:
… cases where
it is suggested that there has been an abuse of power because of mala fides
on the part of the byelaw maker. In the case of bad faith, there may be an
issue which the criminal court can determine and if so, evidence will be
required.
The breadth of
the principle, which did not appear to be confined to byelaws, was also said to
be inconsistent with the reasoning in cases like Wandsworth London Borough
Council v Winder [1985] AC 461. There a tenant was sued for
non-payment of rent. He was held entitled to raise as a defence in the county
court an allegation that the council’s decision to increase rents had been Wednesbury
unreasonable. In Bugg v Director of Public Prosecutions this case
was also said to have involved substantive invalidity. As a matter of ordinary
language, this seems to be right: the tenant’s complaint was that the
[council’s] decisions to increase the rent were such as no reasonable man could
consider justifiable’. This appears concerned with the decision itself and not
the way it was made. But the ground of invalidity would not have appeared upon
the face of the resolution fixing the new rents. A good deal of detailed
evidence would probably have been required.
Woolf LJ also
said that Winder was concerned with civil proceedings. He may have had
in mind that a circuit judge could probably cope rather better with difficult
questions of administrative law than magistrates. But there are other matters
to be taken into account. Lord Fraser of Tullybelton said of the defendant in Winder:
He did not
select the procedure to be adopted. He is merely seeking to defend proceedings
brought against him by the appellants. In so doing he is seeking only to
exercise the ordinary right of any individual to defend an action against him
on the ground that he is not liable for the whole sum claimed by the plaintiff.
Moreover he puts forward his defence as a matter of right, whereas in an
application for judicial review, success would require an exercise of the court’s
discretion in his favour … I would adopt the words of
Local Government [1960] AC 260, 286 as follows:
It is a
principle not by any means to be whittled down that the subject’s recourse to
Her Majesty’s courts for the determination of his rights is not to be excluded
except by clear words.
It is
reasonable to suppose that Lord Fraser would have regarded these sentiments as
applying with even greater force to a defendant to a criminal prosecution.
There are two
statements in cases in this House which are often cited in this context. One is
by Lord Radcliffe in Smith v East Elloe Rural District Council
[1956] AC 736 at pp769–770 and the other by Lord Diplock in F Hoffmann-La
Roche & Co AG v Secretary of State for Trade and Industry [1975]
AC 295, at p366. In the former, Lord Radcliffe said of a compulsory purchase
order:
An order,
even if not made in good faith, is still an act capable of legal consequences.
It bears no brand of invalidity upon its forehead. Unless the necessary
proceedings are taken at law to establish the cause of invalidity and to get it
quashed or otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders.
These remarks
were made specifically about the effect of a compulsory purchase order. They
are not capable of being generalised so as to have any bearing on the question
of whether, and to what extent, an ultra vires defence may be raised in
criminal proceedings. All that can be gained from this citation is that it is
conceptually possible to have an act which is entirely valid and effective
until quashed in appropriate proceedings. Whether a particular exercise of
statutory power should be regarded as such an act is an altogether different
question.
In the other
passage, Lord Diplock deprecated the use of terms like ‘voidable’, ‘void’; or;
‘a nullity’ as useful descriptions of the status of subordinate legislation
‘before its validity has been pronounced on by a court of competent
jurisdiction’:
All that can
usefully be said is that the presumption that subordinate legislation is intra
vires prevails in the absence of rebuttal, and that it cannot be rebutted
except by a party to legal proceedings in a court of competent jurisdiction who
has locus standi to challenge the validity of the subordinate
legislation in question.
The context of
these remarks was the question of whether the Crown should be obliged to give a
cross-undertaking in damages in return for an interlocutory injunction
enforcing a statutory instrument which was alleged by the defendant to be ultra
vires. The presumption of validity to which Lord Diplock referred was, in
my view, an evidential matter at the interlocutory stage and the presumption
existed pending a final decision by the court. Lord Diplock was not putting
forward the sweeping proposition that subordinate legislation must be treated
for all purposes as
procedural invalidity and such a proposition would have gone far beyond
anything said in Bugg v Director of Public Prosecutions.
As your
lordships will have gathered, I think that there is considerable force in Mr
Speaight’s criticisms of the principle enunciated in Bugg. It is not necessary
in these proceedings to express any concluded opinion on its application to
byelaws. It does however seem to be the case, as Lloyd LJ said in R v Reading
Crown Court, ex parte Hutchinson [1988] QB 384, at p391, that defendants
prosecuted for breaches of local byelaws have always in the past been allowed
to challenge their vires without discrimination as to the grounds upon
which they were doing so. I have some doubt as to whether this ancient
jurisdiction of the local justices can be cut back in the manner suggested or
whether it would be wise to do so. Like Lloyd LJ, I am impressed by the
submission of the defendant before him in R v Reading Crown Court, ex
parte Hutchinson, which he recorded as follows [at p392B]:
Coming to
London to the High Court is inconvenient and expensive. Byelaws are generally
local laws which have been made for local people to do with local concerns.
Magistrates’ courts are local courts and there is one in every town of any size
in England. The cost of proceedings in a magistrates’ court are far less than
in the High Court. I believe this egalitarian aspect of seeking recourse to the
law in a magistrates’ court to be an important sign of the availability of
justice for all.
I recognise
that there is a good deal in the point that the issues which arise in modern
judicial review proceedings are sometimes unsuited for decision by a
magistrates’ court. Ultra vires was a relatively unsophisticated
doctrine in the days of Kruse v Johnson [1898] 2 QB 91; today it
requires a good deal of specialised legal knowledge and a sensitivity to the
proper boundaries between legislative, executive and judicial power. The
distinction between substantive and procedural invalidity is presumably
intended to confine magistrates’ courts to points of law on which the justices
can be advised by their clerk. It is meant to avoid them having to apply
complicated rules of administrative law to their findings of fact. But, as the
cases show, the distinction between substantive and procedural invalidity appears
to cut across the distinction between grounds of invalidity which require no
extrinsic evidence and those which do.
If the
argument is that developments in judicial review have brought about a change in
the old law about challenging byelaws, there is great difficulty in identifying
when the change took place. I agree with Lloyd LJ that it could hardly have
been as a result of changes in the procedure for judicial review or the
practice introduced by O’Reilly v Mackman [1983] 2 AC 237. It may
be that the problem cannot be solved by judicial creativity and that, as Lord
Fraser of Tullybelton said in Wandsworth London Borough Council v Winder
[1985] AC 461, at p510, if it is thought inconvenient to have questions of ultra
vires decided by magistrates, Parliament must change the law.
Furthermore, I
have read in draft the speech of my noble and learned friend Lord Nicholls of
Birkenhead and I agree that the implications of Bugg v Director of
Public Prosecutions, in particular its generalisation of the passages from
the speeches of Lord Radcliffe and Lord Diplock to which I have referred, go
wider than questions of procedure. They suggest that someone who contravenes a
byelaw commits an offence even if the byelaw is afterwards quashed for procedural
invalidity. For my part, I would (in the absence of specific legislation) find
their conclusion unacceptable.
But, my lords,
while I am willing for the sake of argument to accept Mr Speaight’s submission
that there is a wide right for anyone prosecuted under a local byelaw to
challenge its validity, the point at which we absolutely part company is when
he submits that this right can be extrapolated to enable a defendant to
challenge the vires of every act done under statutory authority if its
validity forms part of the prosecution’s case or its invalidity would
constitute a defence. In my view, no such generalisation is possible. The
question must depend entirely upon the construction of the statute under which
the prosecution is brought. The statute may require the prosecution to prove
that the act in question is not open to challenge on any ground available in
public law, or it may be a defence to show that it is. In such a case, the
justices will have to rule upon the validity of the act. On the other hand, the
statute may upon its true construction merely require an act which appears
formally valid and has not been quashed by judicial review. In such a case,
nothing but the formal validity of the act will be relevant to an issue before
the justices. It is, in my view, impossible to construct a general theory of
the ultra vires defence which applies to every statutory power, whatever
the terms and policy of the statute.
The correct
approach, is in my view, illustrated by the decision of the Divisional Court in
Quietlynn Ltd v Plymouth City Council [1988] QB 114. This case
arose out of a prosecution under para 20(1) of Schedule 3 to the Local
Government (Miscellaneous Provisions) Act 1982 for using premises as a sex
establishment without a licence. The Act had introduced a system of licensing.
By para 28(1) of the Schedule a person who was using premises as a sex
establishment before the Schedule came into force and who had applied for a
licence was entitled to continue so to use the premises ‘until the
determination of his application’. The local council, as licensing authority,
refused the application but the defendants continued the business. When
prosecuted, they wished to argue that the decision to refuse had been vitiated
by the council having regard to irrelevant considerations and failing to
observe rules of natural justice. Consequently, they said that there had not
yet been a ‘determination’ of their application and their right to use the
premises under para 28(1) continued. The question for the Divisional Court was
whether it was a defence that the refusal was in this sense ultra vires
or whether, for the purposes of para 28(1), the application was ‘determined’
when the council gave what purported to be their decision, notwithstanding that
they might be liable to be quashed in proceedings for judicial review.
Webster J
said, at p129A: ‘it is open to us to treat the question before
licensing] code’.
He referred to
the case of the Queen v Davey [1899] 2 QB 301, in which a woman
was charged with obstructing the execution of an order of a magistrate under
section 124 of the Public Health Act 1875, made ex parte on the
application of a local council official, which required the removal of her
child, who had scarlet fever, to the local hospital. The question was whether,
as a defence to the prosecution, she was entitled to say that the order should
never have been made. The Divisional Court held that she could not. Darling J said
[at p304]:
… the
subject-matter with which this legislation deals is the spread of infection
among people who have cases of infectious disease in their own homes; and if
the proceedings to be taken by the local authority are of a dilatory character
the legislation becomes nugatory. The object of the legislation is to get
people so suffering into hospitals, and if the removal of the patients may be
obstructed and the whole question of their removal argued de novo before
the justices, the summary remedy is gone altogether, and the danger to the
neighbourhood continues until the justices give their decision. Such a result
was certainly never intended.
Webster J
likewise came to the conclusion that:
… some of the
results which the [sex establishment licensing] code achieves, with clarity and
certainty, would be frustrated if [the defendants’] contention were correct.
He gave
examples of various anomalies which might arise and said, at p 129A: ‘Results
of this kind would, in our view, frustrate the clear policy of the statutory
code’. He said, at p 131, that although it had:
… long been
the practice for justices to decide for the purposes of a case immediately
before them upon the validity of byelaws and, before the Town and Country
Planning Act 1971, of enforcement notices,
these
practices had grown up before judicial review had been given statutory
recognition in section 31 of the Supreme Court Act 1981. He went on to say:
The law
relating to judicial review has become increasingly more sophisticated in the
past few decades, and in our view justices are not to be expected to have to
assume the functions of the Divisional Court and consider the validity of
decisions made by a local authority under [the Act of 1982] in
the light of what is now a complex body of law … In our view, therefore, except
in the case of a decision which is invalid on its face, every decision of the
licensing authority under [the Act of 1982] is to be presumed to
have been validly made and to continue in force unless and until it has been struck
down by the High Court; and neither the justices nor a Crown Court have power
to investigate or decide on its validity.
(Emphasis
supplied.)
I have
emphasised the references to the 1982 Act because in R v Reading
Crown Court, ex parte Hutchinson [1988] QB 384 at pp394–396 Lloyd LJ
criticised the Quietlynn case on the basis that it laid down a general
principle applicable to all statutory powers in particular, to local byelaws.
This is not the case. The judgment makes it clear that the court is concerned
only with the construction of the Act of 1982; indeed, strictly speaking, only
with the meaning of the word ‘determination’ in para 28(1) of Schedule 3 to the
Act of 1982, read in the light of the scheme of the relevant parts of the Act.
In my view, the
question in this case is likewise one of construction. What is meant by
‘enforcement notice’ in section 179(1) of the Act of 1990? Does it mean a
notice which is not liable to be quashed on any of the standard grounds in
public law? Or does it mean a notice issued by the planning authority which
complies with the formal requirements of the Act and has not actually been
quashed on appeal or judicial review? The words ‘enforcement notice’ are, in my
view, capable of either meaning. The correct one must be ascertained from the
scheme of the Act and the public law background against which it was passed.
In my view,
when one examines Part VII of the Town and Country Planning Act 1990, the
scheme of enforcement of planning control which it exhibits and the history of
its provisions, one is driven to the conclusion that ‘enforcement notice’ means
a notice issued by the planning authority which is formally valid and has not
been quashed.
I start with a
brief history of the enforcement notice provisions. These have been recast by
parliament on several occasions since they were first introduced in sections 23
and 24 of the Town and Country Planning Act 1947. Originally there was a right
of appeal on limited grounds to the local justices and from them to quarter
sessions. In some cases the method of dealing with non-compliance was for the
planning authority to do the work and claim the cost from the owner. In others,
non-compliance was a summary offence. At that time there was plainly no
restriction on the way in which the validity of an enforcement notice could be
challenged by an owner in criminal proceedings.
A radical
change was made by the Caravan Sites and Control of Development Act 1960, when
the right of appeal to the justices was abolished and a right of appeal to the
minister on wider grounds was substituted. Section 33(8) of that Act provided
for the first time that, save by means of the appeal procedure, the validity of
an enforcement notice could not be questioned in any proceedings on certain of
the grounds on which an appeal could be brought.
The
enforcement notice code was further amended and re-enacted by the Town and
Country Planning Act 1968 which was consolidated in the Town and Country
Planning Act 1971. The latter Act also for the first time made the offence of
failure to comply triable on indictment. The code was again amended and
re-enacted in the Local Government and Planning (Amendment) Act 1981. It is the
provisions substituted by this last Act which are now consolidated in the Town
and Country Planning Act 1990.
The history
shows that over the years there has been a consistent policy
enforcement notice can raise when he is prosecuted for failing to comply. The
reasons for this policy of restriction are clear: they relate, first, to the
unsuitability of the subject-matter for decision by the criminal court; second,
to the need for the validity of the notice to be conclusively determined
quickly enough to enable planning control to be effective and to allow the
timetable for service of such notices in the Act to be operated; and, third, to
the fact that the criminal proceedings are part of the mechanism for securing
the enforcement of planning control in the public interest.
First, then,
the suitability of the subject-matter. The Caravan Sites and Control of
Development Act 1960 recognised that the planning merits of the enforcement
notice were unsuitable for decision by a magistrates’ court. It not only
transferred the right of appeal to the minister (now the Secretary of State),
but excluded challenge on most such grounds in any other proceedings. The
present position is that no challenge is possible on any ground which can form
the subject-matter of an appeal.
On the other
hand, there remain residual grounds of challenge lying outside the grounds of
appeal in section 174(2) of the Act of 1990, such as mala fides, bias or
other procedural impropriety in the decision to issue the notice. I shall call
these ‘the residual grounds’. Mr Speaight says that the fact that the residual
grounds were not swept up in the appeal procedure supports his argument. If
section 285(1) says that the notice cannot be questioned on certain grounds, it
follows that it can be questioned on any other grounds. But the fact
that the residual grounds are not altogether excluded does not necessarily mean
that they can be raised as a defence to a prosecution. They may be available
only by some other means. One has to ask why they were not included in the appeal
procedure. The reason, as it seems to me, is obvious. Questions of whether the
planning authority was motivated by mala fides or bias or whether the
decision to issue the notice was based upon irrelevant or improper grounds are
quite unsuitable for decision by a planning inspector. The question then is
whether parliament regarded them as suitable for decision by a criminal court.
In deciding
this question one is (and here I echo the words of Webster J in Quietlynn)
entitled to take into account the complexity and sophistication of the law
relating to the residual grounds; a matter of which parliament would have been
aware when the legislation last received substantive consideration in 1981. I
think it no criticism of lay justices to say that many would not find it easy
to apply the distinction, which comes so easily to the Divisional Court,
between the legality of an administrative act and its substantive merits. It
would in practice be difficult to prevent the hearing from turning into a
reassessment of the planning merits and thereby subverting the whole scheme of
the Act.
In the case of
a trial on indictment, which was first introduced by the Act of 1971, Mr
Speaight submits that these questions would have to be decided by the jury
after being given proper directions as to the law. Although on my view of the
construction of section 179(1) the question does not arise for decision, I
think that this is probably wrong. The vires of the enforcement notice
is a question of law and should be decided by the
[1982] 1 WLR 804; [1983] 1 WLR 151. But if Mr Speaight is right, the point
about the unsuitability of the subject-matter gains added force.
Then there is
the question of timing. The enforcement of planning control obviously does not
have the same urgency as the measures to prevent the spread of infectious
diseases considered in the Queen v Davey [1899] 2 QB 301. But one
is entitled to say that the institution and extension of the appeal procedure
shows a policy of having challenges to enforcement notices decided as soon as
possible after they have been served. It is not only a question of avoiding
undue delay. The policy must be seen against the background of the timetables
laid down by the Act. An enforcement notice in respect of a breach of planning
control by carrying out building operations without planning permission (such
as occurred in this case) must be served within four years from the date of the
breach: section 172(4). That may seem a long time but the facts of this case
show that if the validity of the enforcement notice is left to be determined in
the criminal prosecution, there may not be time to serve another. The breach
took place in January or February 1990 and the notice was served with
commendable rapidity on March 13 1990. Despite the case being a relatively
simple one and the waiver of any public inquiry, the appeal was not determined
until May 10 1991. There were then negotiations and the summons was not issued
until June 11 1992. Election for trial on indictment had the effect of delaying
the trial until September 27 1993. By that time there would have been less than
six months in which to serve a fresh notice and if Mr Wicks’s appeal had been
allowed by the Court of Appeal on April 11 1995 it would have been too late.
This was, as I say, an extremely straightforward case and (apart from the
period of negotiation in 1991–1992) there is nothing to show that the planning
authority could have progressed the matter more quickly. Thus the exclusion of
the residual grounds from the appeal procedure in section 174(2) would
harmonise better with the scheme of the Act if they had to be raised by
judicial review within the time-limits prescribed for that procedure than if
they could be relied upon in a criminal prosecution.
Third, there
is the purpose of the provisions for enforcement by criminal proceedings. The
provisions of section 179(5), by which failure to comply after a first
conviction gives rise to a fresh offence punishable by a daily fine, show that
the criminal law is being used not merely to punish for a past act but as an
instrument of coercion to encourage compliance in the future. The criminal
proceedings thus form part of the general scheme of enforcement of planning
control contained in Part VII of the Act and should, in my view, be interpreted
to give effect to the overall policy of the enforcement procedures.
I do not think
that construing the Act in this way involves any inroad upon the principle that
criminal statutes should be clear and in case of ambiguity construed in favour
of the defendant. The duty of the landowner is perfectly clear: if the
enforcement notice has not been quashed, he must obey it. It was submitted that
the power of the Divisional Court to quash an enforcement notice is
discretionary and that
Wade has said in a passage in his book on Administrative Law, 6th ed
(1988), at p354 which was cited in Bugg v Director of Public
Prosecutions [1993] QB 473, at pp499–500:
There are
grave objections to giving the courts discretion to decide whether governmental
action is lawful or unlawful: the citizen is entitled to resist unlawful action
as a matter of right, and to live under the rule of law, not the rule of
discretion. ‘To remit the maintenance of constitutional right to the region of
judicial discretion is to shift the foundations of freedom from rock to sand:
…’. The true scope for discretion is in the law of remedies, where it operates
within narrow and recognised limits and is far less objectionable. If the
courts were to undermine the principle of ultra vires by making it
discretionary, no victim of an excess or abuse of power could be sure that the
law would protect him.
In my view,
this passage, with which I entirely agree, has no application to the present
case. The fact that the decision not to quash the notice was an exercise of
discretion (for example, because the court was satisfied that although one
councillor should not have taken part in the decision, the notice would
certainly have been served in any case) does not mean that any discretion
enters into the question of whether the owner has committed an offence. The
original decision to serve the notice was also a matter of discretion. But the
offence is to disobey an enforcement notice which has not been quashed and the
fact that the decision to issue it or not to quash it involved the exercise of
discretion is irrelevant. On the contrary, it seems to me that the discretion
which the Divisional Court has to refuse to quash when it is satisfied that a
procedural impropriety would have made no difference is a reason why parliament
would not have intended this question to go to the justices or jury, who would
obviously have no such discretion.
I do not think
that in practice hardship will be caused by requiring the residual grounds to
be raised in judicial review proceedings. The statutory grounds of appeal are
so wide that they include every aspect of the merits of the decision to serve
an enforcement notice. The residual grounds will in practice be needed only for
the rare case in which enforcement is objectively justifiable but the decision
that service of the notice is ‘expedient’ (section 172(1)(b)) is vitiated by
some impropriety. As Keene J said in the Court of Appeal, the owner has been
served with the notice and knows that he has to challenge it or comply with it.
His position is quite different from that of a person who has contravened a
byelaw, who may not have heard of the byelaw until he contravened it.
All these
reasons lead me to conclude that ‘enforcement notice’ in section 179(1) means a
notice issued by a planning authority which on its face complies with the
requirements of the Act and has not been quashed on appeal or by judicial
review. There was no dispute that Mr Wicks had failed to comply with such an
enforcement notice and he was therefore guilty of the offence. The matters
which he proposed to raise at his trial were irrelevant.
The Court of
Appeal certified the following points as being of general public importance:
(1) Is a
defendant, who is prosecuted for an offence contrary to section 179(1) of the
Town and Country Planning Act 1990, entitled as a matter of right to put
forward in such proceedings the defence that the enforcement notice relied upon
by the prosecution is invalid on the grounds that the decision to issue it was ultra
vires?
2(2) If a
defendant is not permitted to raise such a defence as of right in criminal
proceedings and can only challenge the validity of such notice on such grounds
in proceedings for judicial review, are there any exceptions to such a rule,
such as where it is contended by the defendant that the invalidity arises as a
result of mala fides on the part of the authority issuing the
enforcement notice?
(3) If it is
open to a defendant to raise such a defence in criminal proceedings on indictment,
is the validity of the enforcement notice to be determined by the judge as a
matter of law, having heard evidence in the absence of the jury, or is the jury
to decide relevant issues of fact in the light of a direction as to the law by
the judge, the burden being on the defendant to prove such invalidity on the
balance of probabilities?
I would answer
them (1) No; (2) No: (3) Does not arise; and dismiss the appeal.
LORD HOPE
OF CRAIGHEAD: My lords, for the reasons given in
the speech of my noble and learned friends, Lord Nicholls of Birkenhead and
Lord Hoffmann, which I have read in draft and with which I agree, I, too, would
dismiss this appeal. I also agree that the certified questions should be
answered as my noble and learned friend Lord Hoffmann has proposed.
The appeal was dismissed.
