Town and Country Planning Act 1971, section 89(5) — Alleged failure by owner of land to comply with enforcement notice — Use of land for purposes of a residential caravan occupied by a person other than the owner of the land — A trespasser placed a caravan on the land and had ignored efforts to secure its removal, including prosecution and imposition of fines — The landowner had tried to obtain the removal by seeking advice and assistance from police, local authority, parish council, social services and his Member of Parliament, but had not taken proceedings in the county court for eviction — Eventually the owner was served with an enforcement notice and prosecuted for non-compliance on the ground that he ‘permitted’ the land to be used in contravention of the notice — The magistrates were of the opinion that the owner had not ‘permitted’ the use and they dismissed the information — The question for the divisional court was whether the magistrates had reached the correct conclusion — After a review of authorities the court held that the magistrates were entitled to reach that conclusion — The matter depended on all the circumstances — It was a matter of fact for the magistrates to decide whether in a particular case the failure to launch legal proceedings for eviction was reasonable; it was going too far to say that such a failure must be equivalent to a ‘permission’ to remain on the land — Here the owner had sought by a variety of means to obtain the removal of the trespasser, although he had stopped short of eviction proceedings — Appeal against dismissal of summons dismissed
This was an
appeal by case stated against the dismissal by magistrates of proceedings
against a landowner for alleged contravention of an enforcement notice by
permitting his land to be used for the siting of a residential caravan contrary
to section 89(5) of the Town and Country Planning Act 1971.
A R Porten
(instructed by Sharpe Pritchard & Co, agents for D A Leyland, Town Hall,
Ripley, Derbyshire) appeared on behalf of the appellant; the respondent owner
did not appear and was not represented.
Giving
judgment, PARKER LJ said: This appeal by case stated arises out of the use of
certain land for the purposes of a residential caravan which was occupied by
somebody other than the owner of the land. On September 7 1982 an information
was preferred by the appellant that on February 11 1982 the Amber Valley
District Council (being the local planning authority for the purpose of the
Town and Country Planning Act 1971) served on the respondent (the owner of the
land) a copy of an enforcement notice, issued on February 11 1982 under section
87 of the Act, requiring the respondent within the period of five months from
the date on which the notice took effect (which was March 16 1982) to
discontinue the use of the said land for the purpose of siting a residential
caravan thereon and that on August 18 1982 the respondent permitted the said
land to be used for the siting of a residential caravan thereon contrary to
section 89(5) of the Town and Country Planning Act 1971.
The facts as
found in the case are very simple. Some time in 1980 a Mr Taylor placed on the
land concerned a residential caravan owned by him. That he did without the
consent of the owner. He was thus a trespasser. The caravan remained on the
land and was occupied by Mr Taylor continuously from 1980 to August 18 1982.
During the whole of that period the respondent was the owner of the land. The
notice having been served and having expired the position was as follows. Mr Taylor
was requested on two occasions between February 11 and August 18 1982 to vacate
the land. They were verbal requests. In addition, between 1980 and August 18
1982, the respondent continuously wished Mr Taylor to remove his caravan and
had sought advice and assistance from various agencies, namely, the police, the
Amber Valley District Council, the parish council, social services and his
Member of Parliament, on any steps that could be taken to have Mr Taylor and
his caravan removed from the land and rehoused. He did not, however, at any
time institute legal proceedings to have Mr Taylor evicted from the land.
It was
contended before the magistrates by the appellant that although Mr Taylor was
trespassing, the respondent had nevertheless permitted the land to be used in
contravention of the enforcement notice as he had not taken all reasonable
steps to secure compliance with it, including applying to the county court for
an eviction order, and that that inaction amounted to ‘permitting’ within the
meaning of section 89 of the 1971 Act. For the respondent it was contended
that, since Mr Taylor was a trespasser and was on the land against his wishes,
it could not be said that he had permitted the land to be used in contravention
of the enforcement notice, that he had taken active steps (which I have already
recited) and that it was not reasonable to require him to incur the expense of
legal proceedings to have Mr
neither of which does the appellant consider it necessary to refer us, although
he has referred us to three other cases.
The
magistrates were of the opinion that the respondent had not permitted the land
to be used in contravention of the enforcement notice for three reasons: (i)
that Mr Taylor was a trespasser and was there against the respondent’s wishes;
(ii) that he had made the verbal requests and efforts to obtain assistance to
which I have already referred; (iii) (and the wording is of some importance):
‘There was no obligation upon the respondent, in these circumstances, to take
legal proceedings for an eviction order.’
They accordingly dismissed the information.
Before I refer
to the question included in the case for the opinion of this court I must refer
briefly to the sections of the Act. The power to issue an enforcement notice is
provided for in section 87(1), which provides, so far as material:
Where it
appears to the local planning authority that there has been a breach of
planning control after the end of 1963, then, . . . the authority, if they
consider it expedient to do so having regard to the provisions of the
development plan and to any other material considerations, may issue a notice
requiring the breach to be remedied and serve copies of the notice in accordance
with subsection (5) of this section
Subsection (5)
requires a copy of the enforcement notice to be served:
(a) on the
owner and on the occupier of the land to which it relates; and (b) on any other
person having an interest in that land, being an interest which in the opinion
of the authority is materially affected by the notice.
Section 89(5)
provides for the offence concerned and is as follows:
Where, by
virtue of an enforcement notice, a use of land is required to be discontinued,
. . . then if any person uses the land or causes or permits it to be used, . .
. he shall be guilty of an offence, and shall be liable on summary conviction
to a fine not exceeding £1,000, or on conviction on indictment to a fine; and
if the use is continued after the conviction he shall be guilty of a further
offence and liable on summary conviction to a fine not exceeding £100 for each
day on which the use is so continued, or on conviction on indictment to a fine.
It is clear
that as a result of that section both the owner of the land, if he causes or
permits a use, and the actual user of the land can be prosecuted. It is not so
recorded in the case, but we were informed that Mr Taylor was prosecuted under
that section and was fined and it was not until after those events that
proceedings were taken against the owner. The result of the continuing offence
is, of course, that Mr Taylor is exposed to a daily fine, but the authority are
not able to take steps to remove the caravan. The respondent, by virtue of
simple proceedings in the county court, is able to obtain an eviction order.
The question
is one which has not been before the courts under this section previously and
raises a not unimportant point. It is obviously difficult, logically, to accept
that Mr Taylor can be a trespasser and at the same time be permitted to use the
land, for if permission to use the land is given he ceases to be a trespasser.
There is, therefore, plainly not express permission, but the fact that Mr
Taylor may be a trespasser does not, on the authorities, prevent him from being
someone who is being permitted to use the land within the meaning of the
section. The matter came before the courts in 1963 in Test Valley
Investments Ltd v Tanner (1963) 15 P & CR 279. I need not refer
to more than the headnote in that case. The position there was that land
belonging to an owner was invaded, as land sometimes is, by gypsies and used as
a caravan site without a site licence being in force, contrary to section 1 of
the Caravan Sites and Control of Development Act 1960. The owner was charged
with permitting the land to be used for camping purposes for more than 42
consecutive days without the necessary licence and was convicted. On appeal it
was held:
(1) that a
person might be said to ‘permit’ something not only if he gave express
permission but also if he failed to take reasonable steps to prevent it; but a
failure to take unreasonable steps could not amount to ‘permitting’. (2) that
on the facts the appellants, having taken without success every measure short
of self-help, could not reasonably be expected to eject the gipsies physically,
with all the risks involved in taking that course, and accordingly were not
guilty of ‘permitting’ the use of the land after they had begun the county
court proceedings.
It is to be
noted that in that case county court proceedings were taken, but prior to the
taking of such proceedings it was perfectly plain that the owner not only did
not object to but permitted the use of the land. Hence, until the county court
proceedings had been commenced there could be no question but that the owner
was permitting the use of the land.
The next case
to which I should refer is Bromsgrove District Council v Carthy
(1975) 30 P & CR 34. At p 35 of that report Lord Widgery CJ says as follows
(and the facts are adequately shown by what he says):
The agent . .
. did his best on the spot. He went to the site. He attempted to persuade the
caravan owners to leave, and the justices find that he endeavoured by all
peaceful means to persuade the gypsies to go, including service of a written
notice on each of them and reading the notice over to each of them, explaining
it to them and leaving a copy with each of them. He had drawn the line at the
use of physical force, even though as a matter of strict law such force might
have been permissible.
The
respondents did not take legal advice with a view to bringing proceedings
against the gypsies to evict them from the land, and indeed no such proceedings
had been taken, although they were suggested to the respondents by the clerk of
the rural district council at some date in 1973.
Then, having
referred to Test Valley Investments Lord Widgery CJ says this:
What I get
from that authority is, first, the proposition that ‘permitting’, when related
to a failure to take steps, must take into account the reasonable or other
character of those steps. Failure to take steps by refusing to take reasonable
means may amount to permitting. A failure to take steps which on the facts are
unreasonable does not amount to permitting. It seems to me, prima facie,
that the justices as the tribunal of fact are the authority to decide what
steps are reasonable and unreasonable in a particular situation.
The case is,
however, clear authority for the proposition that the landowner is not required
to resort to physical force for the removal of gypsies on his land. Physical
force, with all the hazards that it involves, was accepted by each of the three
members of this court as being a step which the landowner could not reasonably
be expected to take.
However,
there are passages in Lord Parker CJ’s judgment which suggest that a failure to
take legal action for eviction may be a failure to take reasonable steps, and
it is, I think, on the basis of those observations that Mr Sears formulates his
main proposition before us, which is that as a matter of law an occupier of
land who fails to take legal proceedings to evict gypsies of this kind must be
held to be permitting them to remain on the land.
That, as I
understand it, is the submission, and for my part I think that it goes very
much too far. I have no doubt that when considering what steps are reasonable
and what are not the possibility of bringing legal proceedings must be
considered. Whether, however, in a particular case it can be said to be
reasonable to expect the occupier to take legal proceedings depends entirely on
the circumstances of that case. It would depend on the nature of the
proceedings available, the prospect of success and the prospective cost of
taking the proceedings and their prospective effectiveness against the gypsies,
because it is no good, as the justices may perhaps know, bringing proceedings
against a floating population like gypsies only to find that those on whom the
proceedings can be effected have left and had their place taken by others.
The Lord Chief
Justice then went on to point out that under Order 113 of the Rules of the
Supreme Court it had become much easier to obtain possession against squatters.
A further
circumstance which it appears to me is to be taken into consideration is the
prospects of the local authority succeeding by the use of the daily fine and
the financial pressure that that may produce of obtaining the cessation of the
use to which they object.
We were told
that in the present case the owner of the caravan itself, Mr Taylor, was a man
of little money and of a somewhat itinerant nature and it is therefore more
than probable that the continuation of fines may well not have been successful.
The position was that before the magistrates these matters were not really
ventilated. They had before them only the material which is referred to in the
case. We were invited to say that on the basis of Mr Taylor being clearly a
trespasser proceedings would have been cheap and speedy and it was therefore unreasonable
to have reached any conclusion other than that the owner was permitting the use
of the land.
It may be that
if those matters had been ventilated and the magistrates had had before them
more in the way of evidence concerning the possible effectiveness of steps
which might be taken by both parties, they would have found it very difficult
to have come to any other conclusion than that the use of the land was being
permitted by the respondent, but on the material they had before them they
were, in my judgment, well entitled to reach the conclusion which they did. The
matter, as was pointed out in Bromsgrove, is a matter of fact for the
magistrates in each particular case and whether or not the failure to launch
legal proceedings was a failure to take a reasonable step which the respondent
was obliged to take must depend on the full circumstances.
The question
which is included in the case is as follows:
Does a
landowner who orally requests a trespasser to remove a caravan from his land
and who seeks the advice and assistance of the police, local authority,
parish council, social services and his Member of Parliament with regard to
removing the trespasser and his caravan, but takes no other action to have the
trespasser removed, thereby ‘permit’ the trespasser to use the land in breach
of an enforcement notice served on the trespasser and the landowner?
So put, it is,
as was really accepted by Mr Porten, much too wide, as was the question put in
the Bromsgrove case. The answer to that question must inevitably be
‘no’.
A suggested
redraft of the question substituting the word ‘may’ for the word ‘does’ at its
outset was suggested by Mr Porten. So redrafted the answer to the question must
equally inevitably be ‘yes’. That leaves the position that in my judgment this
appeal must fail. The question as put must be answered in the negative and I
would uphold the dismissal of this summons. It must, however, be stressed that
it is a continuing use of this land and that if in the future it was necessary
for the council to take further steps and the matters which I have mentioned
were fully investigated it by no means follows that any further summons would
be dismissed. The matter will depend upon all the circumstances and a situation
may well be arrived at, as it was in the Test Valley case, where the
owner would then take proceedings, in which case he would not be guilty of a
further offence, or that he would fail to take such proceedings, in which case
he might well be so guilty.
FORBES J
agreed and did not add anything. The appeal against the summons was dismissed.