England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10th May 1996

LORD JUSTICE HOBHOUSE: This is an appeal on a point of law by John Beard against the conviction entered against him at the Crown Court at Preston before Laws J on 8 December 1995 on his own plea of guilty. The amended indictment charged him with an offence under section 179(2) of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991). The Particulars of Offence read:

"That John Beard, between 24th June 1994 and 21st November 1994, failed to take the steps required, and to cease the activity required, by an Enforcement Notice served on the 18th December 1991 by Lancaster City Council, which was upheld and varied by the Secretary of State by a decision letter dated 9th September 1992, in respect of land known as Cinderbarrow Malt Kiln, in that, as owner of the land, after the period for compliance with the said notice had expired on 9th March 1993 between the said dates John Beard:

(i) failed to break up the hard surface formed and laid on the land and remove all rubble and other material resulting therefrom from the land;

(ii) failed to remove caravans from the land; and

(iii) permitted the carrying on of the activity of the use of a caravan upon the said land for residential purposes."

Cinderbarrow Malt Kiln is a small plot of land about 0.365 hectares in area. It takes its name from a derelict barn which is on the site. It lies in open countryside close to the Lancaster Canal. There is a working farm nearby. It is approached by a lane which leads to the A6 trunk road. It had been bought by the Appellant in October 1986. By the time that he bought the land, it had already been the subject of a number of unsuccessful planning applications by others to develop the site for various purposes. These applications had been consistently refused on rural policy and other grounds, including visual amenity and poor access. Two of these decisions were confirmed on appeal; it therefore had a well-established planning status. Its existing use was agricultural. Shortly after he bought the land the Appellant made an application for planning permission to convert the barn into four holiday homes. The application was refused and the refusal upheld on appeal, the inspector concluding that the development would be visually harmful and lead to an unacceptable increase in traffic in the lane.

The structure plan for Lancashire was published in 1990. The area within which the land lay was scheduled as being of Special Landscape Value and any development of the land would not be in accordance with the policies stated in that plan. However, in September 1991 the Appellant made a new planning application. It was for the development of the land as a caravan site for up to six caravans. It appears that the application also contemplated that the Appellant would use the site for his carpet business. The application was refused in November 1991 and he appealed. Meanwhile he had proceeded with his development and change of use notwithstanding that he had not obtained planning permission. He constructed hard stands; he moved a number of caravans on to the site; he took up residence in one of the caravans. An enforcement notice was accordingly served on him in December 1991. He appealed, as he was entitled to do, against the enforcement notice and, after a public inquiry, his appeals against both the refusal of planning permission and the enforcement notice were dismissed on 10 September 1992. The inspector did, however, of his own motion, modify certain of the requirements of the enforcement notice. As a result, the terms of the enforcement notice as amended corresponded to the terms in which the count in the indictment was drafted.

Before he rejected Mr Beard's appeals, the inspector considered fully all the circumstances of the case including:

"...the effect of the development on the character of the area and upon highway safety and whether any planning objections to the development are outweighed by a special need for accommodation to be provided for gypsies."

Mr Beard had argued in support of his application and his appeals that he himself was a gypsy and he intended that the caravan site should be used by other gypsies. The inspector carefully considered the evidence as to what spaces were available for gypsies in the area and the extent to which they were being taken up. He concluded:

"In my judgment, the special need for accommodation to be provided for gypsies is not so weighty in the present case as to outweigh the harm caused to the character of the area and the adverse effects on highway safety."

He also took into account the personal needs of Mr Beard and his family. Mr Beard did not raise as a ground of appeal that the steps required by the notice exceeded what was necessary to remedy any breach of planning control or to achieve a purpose specified in section 173(4) of the Act.

On 7 June 1993, Mr Beard made a further and more limited planning application. However, this application still involved a change of use for the land and the stationing of a number of caravans on it. This application was refused in July 1993. His appeal was similarly rejected on 25 January 1994.

In England as in most democratic countries the development of land is controlled by appropriate planning legislation. This legislation exists in the interests of the community as a whole. The scheme of control has to take into account environmental considerations and the protection of the rights and legitimate expectations of others. The system of planning controls is entrusted to democratically elected local authorities with rights of appeal to Ministers who are answerable to Parliament. Applicants who are aggrieved by actions or decisions of planning authorities have appropriate rights of recourse to the courts under the statute or by way of judicial review. The policies which govern planning decisions are proposed and confirmed in published policy documents which are open to objection by members of the public before they are adopted. The procedures are accessible to the public. On appeals from planning decisions and cognate matters there is scope for public hearings at which the parties and interested members of the public are entitled to present their views and evidence.

It is only after planning applications have been refused following procedures such as those which I have referred to, that any question of enforcement arises. If a development takes place without the appropriate planning permission, the local authority has a discretion whether to issue an enforcement notice and, if it does so and the land owner in question does not accept it, he can challenge the notice (as did Mr Beard) by a procedure which includes in effect an ex post facto application for the requisite planning permission. Thus, no enforcement notice comes into effect without a full consideration of its propriety and merits by officers responsible to democratically elected bodies and a further consideration of the planning policies and decisions relevant to the notice.

All this occurred in the present case. The evaluation of the Appellant's submissions must take into account this background. But, more importantly, the scheme of the legislation must be taken into account in construing section 179. Enforcement arises after the other procedures have been completed and the obligation to comply with the enforcement notice has been established. This is the statutory context in which section 179 was drafted and takes effect. The scheme of the legislation provides that considerations such as those raised before us by Mr Beard are to be evaluated and taken into account at the earlier stages. Thus, the fact that the applicant is a gypsy and that there may be special needs of the applicant or other gypsies for camp sites may justify the grant of a planning permission which would be refused in the absence of those special considerations.

Section 179 (as amended) reads:

"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence...

(3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence..."

When this case came on before Laws J, the Appellant was arraigned on the amended indictment and pleaded not guilty. His counsel stated that Mr Beard accepted that, unless there was a defence available to him under section 179(3), he had no defence to the charge. He admitted that he was the owner of the land and had received the enforcement notice and had not, within the time limited for compliance, taken the steps required nor ceased the activity referred to in the notice. He accepted that the burden of proof was upon him to "show that he did everything he could be expected to do to secure compliance with the notice". Through his counsel he told the Judge that "he was unwilling to comply with the notice because it would mean that he could no longer live on the site" - the only other gypsy site within reasonable distance was one to which he was unwilling to go because he feared that he would be assaulted if he did. At the Judge's suggestion, it was agreed that he should hear legal argument whether the matters upon which Mr Beard proposed to rely would amount to a defence under section 179(3). A jury was not sworn. The Judge heard legal argument. He gave his ruling in a considered judgment which runs to 12 pages of transcript. The Judge having given his ruling, the Appellant decided to change his plea to guilty and did so. The Judge then adjourned the case without sentencing the Appellant.

This procedure was in principle highly undesirable and has been the subject of adverse comment by this Court on a number of occasions. As regards preliminary rulings on law, see Vickers 61 Cr App R 48; as regards adjourning sentence pending appeal, see Reed and Reed 12 December 1995, CA. Nothing that we say in this judgment should be taken as detracting in any way whatever from what has been said in these cases. In the present case the demerits of this procedure are obvious. The factual matters upon which the Appellant seeks to rely were unformulated and in many respects unspecific. We suspect that many of them would have never been accepted by a jury. They contradicted other evidence and, indeed, some of the things which Mr Beard had himself said. Both counsel said that they had been taken by surprise by the Judge's suggestion, but they had not objected to it.

Having heard full argument in this Court we are satisfied that there is nothing unsafe in the conviction of the Appellant on this count. The ruling of Laws J did not misstate the law. The Appellant was not misled in any way. The change of plea was the free choice of the Appellant. Further it is clear that, in reality and on the merits, the Appellant never had any answer to the charge.

Although it was not the point upon which the argument either in the Court below or in this Court focused, it was not disputed that the Appellant had not broken up the hard surface which he had laid on the land, nor had he removed from the land the other caravan or caravans in which he and his wife were not living. He had no answer whatsoever to his non-compliance with these aspects of the notice and, therefore, even on his own case, the only proper verdict could be that he was guilty of an offence under section 179(2)

For the purposes of the hearing before us, Mr Crean on behalf of the Appellant prepared a schedule of "the most advantageous findings of fact in the Defendant's favour". It was on the basis of these that he argued that his client had a defence under section 179(3). It is not necessary to refer to all these facts and we will refer simply to those which were relied upon in his argument:

The Appellant is a gypsy, that is to say, a person of a nomadic habit of life, whatever his race or origin. He habitually lives in the area of North Lancashire. The only authorised site for gypsies within that area is a site owned and operated by the local council which at some earlier unspecified date had been condemned by the Environmental Health and Fire Officers. In 1986, at a time when the Appellant's son was living on that site, an incident occurred as a result of which the Appellant had been the subject of a violent and unprovoked attack by other gypsies. The Appellant and his wife (whose children are grown-up) are now relatively elderly and "entertain a reasonable expectation that if they return to the Council site they will be subjected to further attacks on themselves or their property and/or that the Council site fails relevant standards of health or safety". The Appellant's "decision not to move to the Council site is reasonable". He "has made an exhaustive search for alternative accommodation, but without success". If he is forced to comply with the enforcement notice, "he will no longer be able to follow the traditional lifestyle of a gypsy".

These factual allegations would all be matters for the jury. Some of them are directly contrary to the evidence contained in the committal papers, in particular the existence of appropriate and adequate alternative sites at which the Appellant and his wife could have lived if they so chose. Similarly, the references to his nomadic lifestyle are directly at variance with his own evidence of his efforts since at the latest 1991 to establish a settled and permanent home for himself and his wife at Cinderbarrow.

However, apart from his factual difficulties, the Appellant faced a legal difficulty. It was this that was the subject matter of the argument and the ruling of Laws J. The Appellant did not dispute that he was the owner and, with his wife, the sole occupier of the land in question. He had the complete control of it. He did not suggest that he required the assistance of anyone else to remove the caravans from the land or to cease the change of use. He did not suggest that in so far as he might have had to use some contractor to break up the hard surfaces he did not have the ability and resources to employ a contractor. His argument was simply that he could not reasonably be expected to go and live somewhere else: therefore he had done everything that he could reasonably be expected to do.

The argument of the prosecution before us and before Laws J was that subsection (3) must be read with subsections (1) to (5) of section 179. Subsection (3) relates to what may be the limited ability of an owner to secure others to do what is necessary to comply with the enforcement notice. Subsection (3) only applies to subsection (2) which in turn only applies to the owner of the land. By contrast, a person who is not the owner is subject to subsection (4) to which the defence in subsection (3) does not apply. If a person, other than the owner, fails to cease from the relevant activity or causes or permits such an activity to be carried on, he is guilty of an offence and subsection (3) has no application. Further, subsections (1) and (2) apply both to steps required to be taken and to the cessation of activities whereas subsection (4) only applies to the latter, the failure to cease activities.

But, most importantly, subsection (3) uses the words "everything he could be expected to do to secure compliance" (our emphasis). The argument of the Appellant ignores these words and their necessary implication that the owner is having to secure that someone else comply with, or assist in the compliance with, the notice.

We consider that the submissions made on behalf of the prosecution are correct. The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of subsection (3). We accept, as does counsel for the prosecution, that the phrase "everything he could be expected to do" must implicitly be read as "reasonably expected". It applies an objective criterion of reasonableness, having regard to all the relevant circumstances, in particular any disabilities to which the owner of the land is subject.

In Kent County Council v Brockman, 11 October 1993, Divisional Court, a 65-year-old man who had had a heart attack and was in difficult financial circumstances was unable to comply with an enforcement notice relating to land which he owned. The Divisional Court held that his personal circumstances could be taken into account by the Magistrates in considering whether or not he had a defence under subsection (3). It was a question of fact for the Magistrates whether the circumstances did provide a defence. Like Buckley J, Simon Brown LJ sounded a note of caution:

"I agree, and would merely echo my Lord's words of caution to Magistrates not too readily to accept the section 179(3) defence when advanced essentially on the basis of impecuniosity. It is clearly imperative that land should not be left in an unsatisfactory state, perhaps as a public eyesore, unless a land owner has taken every practical step to overcome his financial problems in complying with the requirements of the enforcement notice, to the extent if need be of selling his land, if that is possible, to ensure that it will be put into a proper state."

The alleged facts relied upon by the Appellant do not relate to any lack of capacity or inability of the Appellant to comply with the enforcement notice. His compliance does not involve his securing that any other person do or desist from doing anything. He himself has the resources and the power to comply with the notice.

Laws J said (at p.10):

"In the course of argument, Mr Crean accepted a proposition which I put to him, namely that his submission would mean that subsection (3) is available in circumstances where the Defendant, though perfectly able physically and financially and legally, to comply with the enforcement notice did not do so because for good reason he did not wish to comply with it.

In my judgment, that exposes the flaw in Mr Crean's argument. Subsection (3) is not concerned with a balance of social factors. It is not concerned with such policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin a court to accept a defence on the footing only that it concludes that it would be a good thing if the Defendant were not required to comply. Indeed, it is not at all concerned with the Defendant's wishes; only with his capacity. It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner."

We agree with what Laws J has said. The arguments advanced by Mr Crean are not germane to section 179. Their relevance is to an earlier stage in the planning procedure - the consideration of the application for planning permission and the appeal against the enforcement notice.

Before us Mr Crean also sought to rely upon Pepper v Hart [1993] AC 593. At page 634, Lord Browne-Wilkinson said:

"In my judgment, subject to the questions of the privileges of. The House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity."

Relying upon this statement, Mr Crean sought to refer us to certain extracts from Parliamentary debates. In our judgment this argument is misconceived. There is nothing ambiguous, obscure or absurd about subsection (3). In any event, the Parliamentary material to which he has referred us does nothing to advance his argument.

Finally, in support of his argument, Mr Crean referred us to Article 8 of the European Convention on Human Rights and to the majority opinion of the Commission in Buckley v United Kingdom [1995] JPL 633. He said that Mr Beard was making a similar application to the European Court of Human Rights and he referred also to what was said by Steyn LJ in Guildford Borough Council v Smith [1994] JPL 734 at 740. That was a case concerning penalties for contempt of court. A sentence of imprisonment had been suggested. Steyn LJ said (p. 740):

"If we acceded to this invitation, we would face these gypsies with the stark choice of imprisonment or abandoning their communal existence. And we would be doing so despite the fact that Parliament has recognised that sites must be set aside so that gypsies can maintain their position as a cohesive and separate group in our society. Given that the defendants have done all in their power to seek an alternative site, and that compliance with the order would not be within their reasonable capacity, it would be an affront to the civilised values of our society to accede to the local authority's invitation."

There is no inconsistency between the scheme of the United Kingdom planning legislation and the Convention. The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including at the stage of deciding whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with Article 8. The subject matter of section 179 is failure to comply with a lawful enforcement notice. There is no ambiguity, the resolution of which requires recourse to the Convention. (Ex parte Brind [1991] 1 AC 696 at 747 per Lord Bridge.) There is nothing in the present case which requires the Appellant to desist from following a nomadic life or abandoning a communal existence with other gypsies. Indeed, his complaint seems to be that the enforcement notice will have the effect of compelling him to resume a nomadic lifestyle and, on occasions, live with other gypsies to whom he objects.

This appeal must be dismissed. The conviction was not unsafe. It was the Appellant's choice to plead guilty. The ruling on law given by Laws J was not erroneous.

(Prosecution application for costs refused.)

MR CREAN: My Lord, I am instructed to apply for leave to appeal on the grounds that the case raises an issue of general public importance.

LORD JUSTICE HOBHOUSE: What do you say is the point of general public importance?

MR CREAN: The extent to which a prosecuted person may rely upon circumstances unrelated to his ownership of land when seeking to set out the statutory defence under section 179(3).

LORD JUSTICE HOBHOUSE: Why do you say it is of general public importance?

MR CREAN: Because it has an application which goes beyond the circumstances of this case. This case, as my Lord knows, is not confined to the position of gypsies failing to comply with an enforcement notice; it relates to any person failing to comply with an enforcement notice and the circumstances in which any person in any position can seek to rely upon circumstances unrelated to his ownership of land.

LORD JUSTICE HOBHOUSE: Is there anything more you want to say?

MR CREAN: No, my Lord.

LORD JUSTICE HOBHOUSE: Have you any observations to make on this?

MR TUCKER: No observations, my Lord.

LORD JUSTICE HOBHOUSE: No, we do not think that this raises a point of general public importance. The terms of the statute are clear and we see no viable basis for the argument that is being presented. To suggest that this case presents the courts with any problem is unrealistic. Had we been prepared to certify we would also have refused leave, but that does not arise since we are not prepared to certify.