Town and country planning – Enforcement notice – Planning appeal – Criminal proceedings – Respondents carrying out unauthorised works at property – Appellant local authority issuing enforcement notices – Respondents applying for retrospective planning permission – Planning permission being refused – Respondents appealing – Local authority charging respondents with breaching enforcement notices before planning appeal remedies concluded – District judge finding respondents not guilty – Appellants appealing by way of case stated – Whether district judge’s analysis and findings undermining statutory planning scheme – Appeal allowed
The respondents were farmers who carried out development at Wadborough Park Farm, Wadborough, Worcestershire without planning permission. The appellant local authority served five enforcement notices on them alleging various breaches of planning control and requiring them to remove various agricultural buildings, extensions, roadways/feeding passages and service media. The respondents appealed against the enforcement notices under section 174(2)(d) of the Town and Country Planning Act 1990. Following an inquiry, the inspector dismissed the appeal and upheld the notices, specifying a revised date for compliance. The respondents then applied unsuccessfully to the appellant local authority for retrospective planning permission in respect of the unauthorised works. They then appealed against the refusal to grant planning permission under section 78 of the 1990 Act.
Before the appeal was heard, the appellants elected to commence criminal proceedings and brought eight charges against the respondents of breaching the enforcement notices contrary to section 179(2) of the 1990 Act. Having heard the evidence, the district judge found that, although the respondents had failed to comply with the notices, in applying for retrospective planning permission, they were genuinely attempting to regularise the unlawful works using a legitimate channel of appeal. Accordingly, the respondents had made out a defence under section 179(3) of the 1990 Act, namely, that they had done everything they could reasonably have been expected to do to secure compliance with the notices.
The appellants appealed against that decision by way of case stated, arguing that the analysis and findings of the district judge had subverted the statutory scheme. Since section 174(2)(a) provided a ground of appeal on the basis that the breach of planning control should not be enforced because planning permission ought to be granted, it amounted to an abuse of process to permit an appellant to raise the same issue as a defence under section 179(3).
Held: The appeal was allowed.
(1) In accordance with section 285 of the 1990 Act, the only mechanism by which an enforcement notice could be challenged was by way of an appeal under Part VII of that Act. The grounds of appeal were in section 174(2). Under Ground (a), an appeal could be properly advanced on the basis that planning permission should be granted. By virtue of section 174(3)(a), the written notice of appeal to the secretary of state had to be given before the date on which the enforcement notice would take effect. By virtue of section 175(4), where an appeal was brought under section174, the enforcement notice would have no effect pending the determination of the appeal. Section 180(3) provided that the subsequent grant of permission had no effect on the liability of any person for an offence in respect of a previous failure to comply with the notice. Reading those provisions together, it was clear that an appeal under section 174 was the only means by which an enforcement notice could be challenged. A timeous appeal would serve to suspend the operation of the enforcement notice until the substantive appeal was determined and all appeal routes exhausted. Once that process was concluded, the enforcement notice had such legal effect as had been determined in the relevant appellate proceedings.
(2) The owner of land subject to the enforcement notice had only one opportunity to challenge it, limited to specified grounds. He was not entitled to raise what in substance was another section 174(2) ground after the event. Whether the analysis was founded on abuse of process, delay and/or the inviolability of the statutory scheme, the upshot was the same. The sole focus of section 179(3) was the existence of concrete physical factors or practical impediments that rendered compliance with the terms of an enforcement notice unfeasible. It did not contemplate further legal action after the appellate process had concluded and the opportunities afforded by section 174 had been exhausted or abjured. If the district judge’s construction of section 179(3) was accepted, the making of a retrospective application for planning permission would, in substance and practical reality, have the effect that the enforcement notices were suspended to that extent. That construction ran counter to sections 174(3)(a), 175(4), 180(3) and 285, and ignored the obvious point that the scheme was being subverted, because matters that could and should have been raised through the portal of section 174(2)(a) were permitted to have a legal consequence after appropriate enforcement action had been taken: R v Wood [2001] EWCA Crim 1395; [2002] 1 PLR 1 followed.
(3) Accordingly, the district judge’s analysis and conclusions had undermined the statutory scheme. He had erred: (i) in holding that it was relevant that the respondents had acted reasonably and/or genuinely in applying retrospectively for permission, and then appealing against the appellants’ refusal to grant it; and (ii) in holding that such legal action could be accommodated in section 179(3). The respondents’ application for retrospective permission was legally irrelevant to any issue properly arising under section 179(3): R v Wicks [1998] AC 92 and R v Beard [1997] 1 PLR 64 followed.
Celina Colquhoun (instructed by Wychavon District Council) appeared for the appellants; Jason Taylor (instructed by Clarke Willmott, of Bristol) appeared for the respondents.
Eileen O’Grady, barrister
