Breach of planning permission — Failure to comply with enforcement notice — Informations served and dismissed — Whether magistrates entitled to allow evidence on appeal — Appeal allowed
On November 16 1994 two informations were served by the council against the respondents, who occupied land to the east of St James’ Church, West Hanney, Wantage, Oxfordshire. The planning environment officer said the land looked like a breakers yard whereas several years before it had looked like a typical small-holding. An enforcement notice dated October 1 1993 was served to take effect on November 1 1993. The notice alleged a breach of planning control, which had occurred in the last 10 years. The notice claimed that without planning permission there had been a change of use of the land from agriculture and garden use to business use and required that within three months the respondents discontinue that use and remove all related business items. The respondents appealed against the notice under section 174 of the Town and Country Planning Act 1990, as substituted by section 8 of the Planning and Compensation Act 1991 but withdrew their appeal on June 3 1994 and the notice took effect immediately.
The three-month period for compliance expired on September 3 1994. The respondents had not complied with the notice. Under section 179 of the Town and Country Planning Act 1990 an owner of land who was in breach of an enforcement notice was guilty of an offence. Section 285 of the same Act stated that the validity of a notice should not, except by way of an appeal under section 174, be questioned in any proceedings. The informations were dismissed. The council appealed by way of case stated. The question was whether section 285(1) of the Town and Country Planning Act 1990 precluded the magistrates from allowing evidence showing storage of vehicles more than 10 years before service of the enforcement notice, or whether the magistrates were required to allow such evidence to enable the respondents to establish their defence: Mansi v Elstree Rural District Council (1964) 16 P&CR 153.
Held The appeal was allowed, the acquittal set aside and the matters remitted to the magistrates.
1. For the respondents to succeed they had to show that the magistrates had based their decision on a finding of fact that the use enforced against had ceased and that the use, which was the subject of the prosecution, was lawful.
2. The magistrates had found that the storage of vehicles had taken place for a period in excess of 10 years ending with the service of the enforcement notice. They found that the general level of activity on the site had decreased after the enforcement notice was served. They did not find that the use had reverted to some previously existing lawful use.
3. The respondents had stored motor vehicles on the land before and after the enforcement notice was served. The proper remedy available to them was to appeal against the enforcement notice under section 174 of the 1990 Act. They failed to do so and were precluded from taking the point in the magistrates’ court under section 285(1) of the Act.
4. It was not open to the justices to come to the conclusion that they did.
Neil Cameron (instructed by Sharpe Pritchard, London agents for Vale of the White Horse) appeared for the council; Murray Hunt (instructed by Badcock & Mant, of Wantage, Oxfordshire) appeared for the respondents.
