B e f o r e :
MR JUSTICE BUTTERFIELD
MR JUSTICE COOKE
|R E G I N A|
|- v -|
|THOMAS GEORGE CLARKE|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR P MILLER appeared on behalf of the CROWN
Crown Copyright ©
"(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."
"There is, I am told by the defence in the form of Mr Willis, no dispute on the facts. It is conceded that he, [Mr Clarke] could have moved, [the caravan from the site] difficult though it might be.... he is not incapable of moving but [said that] it would be unjust and in breach of his rights that he should be forced to move by reason of a conviction or proceedings should be taken against him for failure to comply with the Enforcement Notice because he is a gypsy and cannot continue his way of life were he to accept alternative accommodation which has been offered to him."
(ii) Enforcement arises after the other procedures for which the Act provides have been completed and the obligation to comply with the notice has been established.
(iii) Those procedures provide for independent assessment and appeals from that assessment of the competing rights and interests of applicants for planning permission, and the interests of the community as a whole. These procedures include appeals against the issue of enforcement notices. The human rights of persons affected, whether gypsies or otherwise, are part of the equation which calls for consideration at those stages.
(iv) The Court of Appeal held, at page 72G-H:
"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, 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."
"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 section (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'. 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....
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."
"The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest."