Non-compliance with enforcement notice — Notice requiring removal of mobile home from land owned by gypsy — Appellant council laying information — Magistrates finding defence made out where respondent had done all he could to find alternative accommodation — Section 179(3) of the Town and Country Planning Act 1990 — Appeal allowed
The appellant council, as the local planning authority, laid an information against the respondent, a gypsy, as the owner of land, alleging a failure to comply with an enforcement notice contrary to section 179 of the Town and Country Planning Act 1990. The notice required the respondent to cease to use the land as a caravan site and to remove all temporary structures from it.
The magistrates dismissed the information after finding that the respondent had made out the defence in section 179(3), namely that he had done everything that he could have been expected to do in order to secure compliance with the notice, in particular, to find suitable alternative accommodation for himself and his family. Their findings of fact included: (i) the respondent had made enquiries about the purchase of alternative land, but to no avail; (ii) gypsy sites in the area were in shortage, so that none would be available to the respondent; (iii) he had approached the appellants’ housing department prior to purchasing his land and had been informed that, as the owner of a mobile home, he was not deemed to be homeless and that therefore no accommodation was available to him; (iv) the sale of his mobile home would have rendered him intentionally homeless, so that local authority accommodation would still not have been available; and (v) such a sale would only have funded the rental of accommodation, at current market values, for a period of around 10 months.
The appellants appealed by way of case stated. The question for the court’s determination was whether the steps that, as the magistrates had found, the respondent had taken to comply with the enforcement notice constituted a valid statutory defence under section 179(3).
Held: The appeal was allowed.
The answer to the question posed for the court was “No”. The magistrates had erred in finding that the defence was made out because the respondent had done all that he could reasonably have been expected to do in order to find suitable alternative accommodation. A defence under section 179(3) could not be established by demonstrating that the reason for non-compliance with an enforcement notice was that no alternative site was available. Otherwise, numerous activities that took place in breach of planning control could continue merely because alternative sites were available for them to be carried on, and the enforcement procedures would be entirely undermined. The respondent could leave the site, whether or not he had an alternative site to go to. As to his financial circumstances, although selling the mobile home might only enabled him to provide a home for himself and his family for a limited period of time, the hardship that that created did not establish that he was incapacitated by any impecuniosity; it did not prevent him from leaving the site: R v Beard [1997] 1 PLR 64 applied; Kent County Council v Brockman [1996] 1 PLR 1 distinguished.
Moreover, the magistrates seemed to have concluded that the fact that the respondent owned a mobile home meant that he would not be regarded as homeless. However, the service of an enforcement notice requiring the respondent and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family for the provision of local authority housing to be considered by the appellants’ housing department. The appellants accepted that the position of the respondent’s family meant that the issue was fit to be taken up by their housing department as soon as any application was made.
Saira Sheikh (instructed by the legal department of Wycombe District Council) appeared for the appellants; Marc Willers (instructed by Bramwell Brown-Odedra, of Chesham) appeared for the respondent.
Sally Dobson, barrister
