Town and Country Planning Act 1971–Motion for certiorari to quash conviction by justices for breach of enforcement notice–Notice of appeal to Secretary of State under section 88 lodged one day out of time–Application refused–Conviction stands
In these
proceedings Richard Tynan, company secretary, Tynan’s Cash and Carry, Saxby
Road Industrial Estate, Melton Mowbray, moved for an order of certiorari to
quash a decision of justices sitting at Melton Mowbray on February 10 1976
whereby they convicted him of breach of an enforcement notice served upon him
by the Melton Mowbray District Council and fined him £200.
The applicant
appeared in person; Igor Judge (instructed by P J G Herrick, solicitor to the
council) appeared for the first respondents, the Melton Mowbray District
Council; and H K Woolf (instructed by the Treasury Solicitor) represented the
second respondent, the Department of the Environment.
Giving
judgment, LORD WIDGERY said that the enforcement notice, for breach of which
the applicant was convicted, complained that there had been a change of use
without planning consent in warehouse buildings in Saxby Road and required him
to cease using such warehouse premises for the purpose of wholesale and retail sales.
The notice having been served, the applicant lodged notice of appeal under
section 88 of the Town and Country Planning Act 1971. In due course he received
a stereotyped letter from the second respondent informing him that his appeal
had been ‘accepted.’
Section 88 of
the Act provided that once an appeal had been lodged there was an automatic
stay on any enforcement notice pending outcome of the appeal or until it was
withdrawn. The appeal notice was lodged on March 14 1975. The enforcement
notice was dated February 12 1975 and took effect on March 13. A perusal of
those dates showed that the applicant was one day out of time in lodging his
notice of appeal.
In due course
the first respondents, who were no doubt ignorant of the appeal application,
commenced proceedings alleging breach of the order. When the matter first
reached the justices on June 9 they quite properly adjourned the proceedings sine
die after the applicant had told them of the appeal application. On August
21 the applicant was told in a letter from the second respondent that his
appeal was one day out of time and therefore of no effect. After further
adjournments of the proceedings, the justices finally convicted on February 10
1976.
The
applicant’s contention was that since he was told on June 9 that his appeal had
been ‘accepted’ section 88 applied and still applied because there had been no
determination or withdrawal of the appeal. He (his lordship) could see how the
reference to the appeal being ‘accepted’ was being construed by the applicant,
but there was nothing in the Act which required the Secretary of State to reach
a preliminary view on an appeal when lodged. The Secretary of State was acting
properly if he stated that an appeal was hopeless and he could then give a
final decision. On the other hand he could not give an interlocutory decision.
He (his lordship) did not think the letter of June 9 made any difference to the
legal position. The position was that if the appeal was valid, then section 88
protection was not taken away. The essential defect in the applicant’s notice
of appeal was that it was one day out of time during the whole time and
deprived the applicant of the protection of section 88. That state of affairs
continued until the justices determined the matter as they were entitled to do.
The application failed.
MICHAEL DAVIES
and GOFF JJ agreed and the application was dismissed.
