Planning permission — Change of use — Respondents serving enforcement notice on appellant — Appellant conveying land to third party before expiry of period for compliance with enforcement notice — Third party not immediately registering title — Respondents bringing proceedings for breach of enforcement notice — Appellant convicted and fined — Whether appellant owner of land — Whether appellant entitled to rely upon statutory defence — Section 179(3) of Town and Country Planning Act 1990 — Appeal dismissed
In September 1998, the respondent local planning authority served an enforcement notice on the appellant (T) alleging a change of use of T’s registered land from agricultural use to mixed use for agriculture and storage of non-agricultural materials. The notice required the storage use to cease. T’s appeal was dismissed, but the period for compliance with the notice was extended to June 1999. In April 1999, T conveyed the land to a third party (B) although the transfer was not registered until August 2000. The land continued to be used to store a variety of materials.
In August 1999, the respondents laid an information against T, pursuant to section 179(2) of the Town and Country Planning Act 1990, alleging that, as the “owner of the land”, he was in breach of the enforcement notice. Section 336 of the Act defined “owner” as “a person… who… is entitled to receive the rack-rent of the land, or, where the land is not let at a rack-rent, would be so entitled if it were so let”. T contended that he had ceased to be the owner of the land for the purposes of section 179 after it was transferred to B in April 1999, because, after that date, B had had control of the land and would have been entitled to receive any rack-rent had the land been let. The justices acquitted T on that basis.
The Divisional Court allowed the respondents’ appeal, and remitted the case to the justices on the basis that T remained the legal owner of the land until such time as the transfer of title was registered: see [2001] EGCS 22. The justices convicted T and imposed a fine of £2,000. The crown court dismissed T’s appeal against conviction, but reduced the fine to £1,000. T appealed, by way of case stated, from the decision to uphold his conviction. The issue was whether, notwithstanding that T remained the owner of the land for the purposes of section 179, the bona fide sale of the land to a third party, prior to the expiry of the enforcement notice, gave him a defence under section 179(3) of the 1990 Act.
Held: The appeal was dismissed.
1. Section 179 contemplated that a vendor might be guilty, notwithstanding a sale, if, as here, he remained the owner of the land for the purposes of that section. A sale of land would not operate automatically to terminate any potential liability. The vendor could avoid liability only by making out a defence under section 179(3). That provision provided the owner, who was not in occupation of the land, with a potential defence, in that it was open to him to show “that he did everything he could be expected to do to secure compliance with the notice”. That implied an objective criterion of reasonableness, having regard to all the relevant circumstances. However, the test was considerably higher than that of reasonable excuse, and it was for T to satisfy it on the balance of probabilities: R v Beard [1997] PLR 64 and R v Basildon Crown Court, ex parte Cooper unreported 16 February 2000 applied.
2. T had been aware that the offending materials had not been cleared in the weeks prior to the deadline for compliance. He had done nothing to ensure that the land was cleared, nor had he requested the purchaser to do so. There might have been an assumption that T, having sold the land at a reduced price, was no longer the owner, and was under no continuing duty to comply with the enforcement notice, and that the purchaser had informally accepted the responsibility of clearing the land. However, a mistaken assumption fell far short of showing that he had done everything he could be expected to do to secure compliance with the notice so as to make out a section 179(3) defence.
Robert Hill (instructed by The Ringrose Law Group, of Boston) appeared for the appellant; Thomas Cosgrove (instructed by Sharpe Pritchard, as agent for the solicitor to East Lindsey District Council) appeared for the respondents.
Eileen O’Grady, barrister
