Enforcement notice–House converted without permission to multiple paying occupation–56 days allowed by notice to rectify change of use–Magistrates in error in holding this period unreasonable as too short to enable landlord to get occupiers out–Enforcement notices are served on occupiers as well as owners–Correct test is what time is reasonably required to clear premises–One period of compliance only for all affected
This was an
appeal by case stated from a decision of North East London Area Magistrates
dismissing an information laid by the London Borough of Redbridge against Mrs H
Perry, the owner of premises known as 23 De Vere Gardens, Ilford, for alleged
failure to comply with an enforcement notice concerning the use of the
premises.
M B Horton
(instructed by L C Alexander, Borough Secretary to the London Borough of
Redbridge) appeared for the appellants, and P H Collins (instructed by E
Edwards, Son & Noice) represented the respondent.
Giving
judgment, LORD WIDGERY said: The information alleged that Mrs Perry was the
owner of premises known as 23 De Vere Gardens, Ilford, that an enforcement
notice under section 87 of the Town and Country Planning Act 1971 had been
served upon her to the effect that within a period of 56 days from the date on
which the notice took effect the use of the said premises as a house let in
lodgings or for multiple paying occupation should be discontinued, and the
information went on to say that on and after February 18 1975 the said Mrs
Perry had permitted the use of the said premises as a house let in lodgings or
for multiple paying accommodation. That sounds a great deal to swallow. The
essence of the charge is easy enough to understand. You have Mrs Perry as the
owner of a house. You have the London Borough of Redbridge (the prosecutors
below) as the local planning authority. The complaint that they make against
Mrs Perry is that she has made a material change in the use of the house 23 De
Vere Gardens,
had broken it up into lodgings whereas previously it was in single occupation.
The facts
found in the court below consequent upon that information being laid were that
at all material times Mrs Perry was the owner of the house. In March of 1973
work was being carried out in that house to convert it into seven
bed-sitting-room units. The local authority, hearing of this, on March 5 1973
sent her a request to stop this work because, as was pointed out by the
planning authority, it was in breach of planning control. Mrs Perry does not
seem to have been much impressed by letters from the local authority because,
notwithstanding the timely warning which she received in March 1973, in March
1974 she was still at it and she got another letter from the planning officer
saying that he was still awaiting an application for planning permission in
respect of this conversion which was going on and saying that the facts would
be reported to his committee.
In August 1974
the conversion of the house into seven bed-sitting-room units was complete, and
Mrs Perry, having got to that point, as it were, ahead of the council, lost no
time in providing occupiers who took over and occupied the seven
bed-sitting-room units. Then came the service of the enforcement notice to
which I have already briefly referred. Mrs Perry, having completed the
conversion operation and having let the premises, an enforcement notice was
served by the Borough of Redbridge, and it is always important in these cases
to see exactly what is complained of. The notice was sent altogether to eight
people; seven of them were occupiers of these seven bed-sitting-room units and
the other was Mrs Perry herself. The reason why the notice was sent to all
those people was no doubt the requirement of section 87 (4) of the Act of 1971
that an enforcement notice shall be served on the owner and on the occupier of
the land to which it relates. So service appears to be in accordance with the
Act. The notice recited that a material change of use had been made by the
house being used as a house let in lodgings, and the notice required that that
use should be discontinued. In fact the use was not discontinued. Use as seven
separate bed-sitting-room units continued and proceedings were ultimately
brought by the London Borough of Redbridge against Mrs Perry.
The basis of
the proceedings was section 89 of the same Act, which provides in subsection
(5) that a continuance of the use forbidden by an enforcement notice would
amount to a criminal offence. I will read section 89 (5) because it is
important in one or two places:
‘Where, by
virtue of an enforcement notice, a use of land is required to be discontinued,
or any conditions or limitations are required to be complied with in respect of
a use of land or in respect of the carrying out of operations thereon, then if
any person uses the land or causes or permits it to be used, or carries out
those operations or causes or permits them to be carried out, in contravention
of the notice, he shall be guilty of an offence . . . .’
So once the
enforcement notice has required a use to be discontinued any person who uses or
permits the land to be used in contravention of the notice commits the offence,
and at this stage in the proceedings the Borough of Redbridge are saying to Mrs
Perry, ‘You have permitted this breach. You have received an enforcement
notice. You have done nothing about it and we therefore prosecute you for an
offence under section 89 (5).’
When the case
came before the magistrates I get the impression–I hope I am not doing an
injustice to counsel by saying so–that counsel for Mrs Perry was somewhat short
of inspiration as to exactly what the defence ought to be. He might have
considered an argument that Mrs Perry had not permitted the continuance of the
use complained of and I must return to that possibility again later on. But he
has frankly told us that he did not take that point and he frankly and properly
accepts that, that being so, he cannot in this court take that point for the
first time. What point did he take? An
ingenious one. He reminded himself of section 87 of the Act, which in
subsection (6) specifies what an enforcement notice shall say. Among other
things the enforcement notice has to specify the period for compliance with the
notice, that is to say the period within which the steps to rectify the change
of use are required to be taken. In our enforcement notice that period was
stated to be 56 days.
There is
authority, surprising as it may seem, for the proposition that if a case comes
before magistrates on a prosecution for failure to comply with an enforcement
notice it is open to those magistrates to inquire into whether the period for
compliance was a reasonable period or not. I say that is a somewhat surprising
situation because one might well have thought this was essentially a matter for
the administrative authorities and not for the court, but it was so decided in Smith
v King (1970) 21 P & CR 560 DC and therefore one cannot now in this
court question the propriety of counsel for Mrs Perry raising the issue of
whether 56 days was a reasonable period or not. Of course on the face of it 56
days would seem to be more than reasonable. If all that had to be done was
discontinue the use of these seven bed-sitting units, one would not have
thought that any period like 56 days would have been required. But more
ingenuity again is shown here by the argument put forward by counsel, because
evidence was called before the magistrates to tell them how long it might take
to get the occupants of these seven bed-sitting-room units out of possession if
they took advantage of every possible statutory right which a tenant now has
under the various Landlord and Tenant and Rent Acts. The evidence given before
the magistrates was that at a conservative estimate it might take 16 weeks to
get the occupants out of the bed-sitting rooms, and so the magistrates said,
well, a reasonable period for the compliance with this enforcement notice must
be more than 56 days. It requires more than that to get the occupiers out and,
clearly recognising that 112 days would have been more to the point, the
magistrates dismissed the information and Mrs Perry walked out a free woman.
Where are we
now? The matter comes to this court and
the first question which has to be considered is whether the justices were
right in tailoring the period of compliance to the position of Mrs Perry or
whether they should not have taken a more objective view. In my judgment they
should have taken a more objective view, and the authority for that proposition
is the case of Johnston and Another v Secretary of State for the
Environment and Another (1974) 28 P & CR 424. This was a case in which
a somewhat similar situation arose, namely, that an enforcement notice had been
served in respect of a material change of use and the landlord was, as in the
instant case, out of possession by virtue of having granted a tenancy. So it
was argued in Johnston’s case that the period of compliance must refer
to time which the landlord would take to get the tenant out–exactly the same
sort of argument which was used in the present case. That point is dealt with
in the judgment of the court at page 429 in a judgment of my own in these
terms:
The third and
last point taken by Mr Hames is concerned with the period specified in the
enforcement notice for compliance. What the notice says is that the
recipient–and for present purposes I am regarding the recipient as Mr Hames’
clients–is required within 28 days after the date on which the notice takes
effect to discontinue the use of the garages for motor vehicle repairs. The
point taken is this: that since the garages in question are let, and, indeed,
let to tenants who have a measure of security under the Landlord and Tenant Act
1954,
the discontinuance of this use of the garages within 28 days, or indeed within
any foreseeable time.
Then, leaving
out the next paragraph, I go on:
I think that
this is a misunderstanding of the structure of the enforcement provisions of
the Act of 1971 because it should be remembered that enforcement notices are
not served only on the owners of the land. They are also served on the
occupiers. So far as the occupier is concerned, the notice to which I have
referred is intelligible and a direction with which he can comply. All that he
has to do is discontinue the use of the garage for the purpose of repairs. When
one comes to the landlord and asks oneself what the consequences will be if the
use is not discontinued, one finds the answer in section 89 (5) of the Act . .
. .
and I have
read that section and will not read it again. I stated this conclusion at the
bottom of page 429:
So it is only
a person who is in a position to determine the unlawful use and who,
notwithstanding the notice, either continues to use the land in defiance of it
or causes or permits some other person to do so who is at risk at all.
The points of
importance going beyond the scope of this case which arise out of these
considerations, I think, are as follows. First of all, there is to be one
period of compliance and only one. It has been suggested, although not very
seriously, in this case that an enforcement notice can give different periods
of compliance to different owners and occupiers to match the difficulty or lack
of difficulty which they will have in complying with the notice. That, I am
confident, is wrong. The notice must state a single period of compliance and
that single period of compliance following Johnston’s case must be
related to the time which would be taken by those in active occupation to
correct the particular breach of planning law which is in contemplation. If 56
days is enough for the seven tenants in this case to pack their bags and go,
then 56 days is sufficient as a period of compliance, and it does not matter in
my judgment that 56 days might be too short a period for Mrs Perry to initiate
proceedings to obtain possession, because the compliance period is related not
so much to people in possession who have additional problems of that kind but
to people who are in possession who are in a position to comply with the
notice. So the justices were misled here. They should not have asked themselves
how long it would take Mrs Perry to get possession. They should have asked how
long was reasonably required to clear the premises. The Act says quite clearly
that it must be carried out by the present occupiers and for that operation a
period of 56 days in my judgment would be ample. Although it is not a question
of law but a question primarily of fact, I would think it right in this case to
go thus far as to say that the matter should be sent back to the justices with
a direction that for the reasons which I have given a period of 56 days was
ample and that the ground upon which they dismissed this information has
thereby proved to be unsure, and that they should receive the case back with a
direction to convict.
That is really
an end of the matter, but I think it necessary for avoidance of confusion in
the future if I add one or two words about Mrs Perry’s position in regard to
‘permitting.’ It will be remembered that
she was barred from any argument on ‘permitting’ in this court because she had not
taken the point below. Questions may arise hereafter where the point is taken
in the court below and where some slight further investigation of the section
may be worthwhile. I come back again to section 89 (5), which is really the
basis of the decision in Johnston’s case and look at it again. The
offence is committed if these conditions are satisfied: that an enforcement
notice has been served, the use has been required to be discontinued and
thereafter a person has used or permitted the land to be used in contravention
of the notice. In the ordinary way one cannot use land in contravention of a
notice before the notice is served, and consequently when considering whether
an offence has been committed or not one has to have regard to the fact that
section 89 (5) is concerned with activity following the service of the notice,
activity in contravention of the notice. A person in Mrs Perry’s position, who
has been served with the notice and therefore on the face of it is at risk of
prosecution, can in my judgment plead that she did not use the land for that
purpose or permit the land to be used for that purpose if she had not used it
since the enforcement notice was served, nor had she since that notice was
served granted a permission to some person to use it in breach of the terms of
the notice.
This has
proved to be a somewhat difficult and complex case, although it has some
important points embedded in it, but at the end of the day the proper order is
that the appeal should be allowed and the case should be sent back to the
justices with a direction to convict of the offence charged.
CROOM-JOHNSON
and MAY JJ agreed, and the appeal was allowed with costs.
