England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		5th March 2002

1. MR JUSTICE COOKE: This is an application for leave to appeal against conviction which has been referred to the Full Court by the Single Judge. On 2nd May 2001, the applicant pleaded guilty to two counts on an indictment, namely that contrary to section 179(2) of the Town and Country Planning Act, which we will refer to as (the 1990 Act), on 23rd August 1999, as the owner of the land at Ordinance Survey Plot No 4462, he failed to comply with an enforcement notice issued on 16th January 1998, by failing to remove a caravan from the site by the date of compliance which was 30th October 1998.
2. Secondly, that on 11th May 2000, as the owner of the land, he failed to comply with an enforcement notice issued again on 16th January 1998, in that he used the land for the stationing of a caravan for residential use beyond the compliance date of 30th October 1998.
3. These pleas of guilty were not the pleas originally entered by the applicant at the pleas and directions hearing. He had pleaded not guilty and initially, at trial, by means of a skeleton argument and an oral argument, the applicant maintained those pleas while arguing that he was entitled to rely on the statutory defence provided by section 179(3) of the 1990 Act.
4. Section 179 of the 1990 Act, provides as follows:

"(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."

5. It is common ground that the word "reasonably" has to be read in section 179(3) before the words "be expected" in accordance with the decision with Kent County Council v Brockman [1996] 1 PLR 1. In the ordinary way, as this Court's decision in R v Wood [2002] Journal Planning Law 219 makes clear the question whether or not a defendant has done all that he can "reasonably be expected to do" is a matter which involves determination of facts to be decided by the tribunal of fact.
6. Section 179 was the subject of this Court's decision in R v Beard [1997] 1 PLR 64 and, in the current case, the applicant's counsel sought a ruling of law from the Crown Court Judge, His Honour Judge Croft QC, as to whether the court was bound by the judgment of this Court in that case, the judgment being given by Hobhouse LJ. The learned judge in the Crown Court held that he was bound to follow the Court of Appeal decision and the applicant then changed his plea to guilty and the court proceeded to sentence. The sole question that the learned judge had been asked to decide and did decide was whether he was bound in law to follow the decision of the Court of Appeal on the meaning and effect of section 179. As the judge pointed out in his short judgment, no questions of fact arose for him to consider at all. He describes the position thus in his ruling:

"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."

7. The judge in the Crown Court sought the views of counsel as to the appropriateness of making a determination of this preliminary point in the light of the decision in R v Beard, in R v Vickers 61 Cr App R 48 and R v Wood, to which we have already referred, all of which had deprecated such an approach on the ground that the factual matters upon which reliance was to be placed for the purpose of section 179(3) were likely to be unformulated or incompletely formulated or in many respects unspecific. The applicant's counsel in the Crown Court had however sought the ruling in this case and prosecution counsel had agreed to it, because the applicant had already entered a plea of "not guilty" and a pure question of law was involved.
8. The critical part of the decision in Beard is to be found at page 79 of the report, but the approach to the issue of construction can be summarised as follows: (i) the whole scheme of the Town and Country Planning Act 1990, as amended in 1991 has to be taken into account in construing section 179.

(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."

9. As a matter of construction of the statute, the Court then held as follows:

"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."

10. It is pointed out by counsel for the applicant - it is indeed the main point of his argument - that Beard was decided before the Human Rights Act came into force. It is now said that section 7 of that Act changes everything. However, the decision of this Court in R v Wood, was made after the Act came into force and to which we have referred, endorsed the earlier decision on Beard on construction, citing part of the passage to which we have just referred. There is no inconsistency between these two decisions, the only question being whether or not there are issues of fact and whether it is appropriate in any given case to determine, before evidence is heard by a jury, whether there is an available defence under section 179(3).
11. It is clear from Wood that the personal circumstances of the applicant fall to be taken into account in assessing inability to comply with an enforcement notice and, in appropriate circumstances of disability, a failure to do anything at all could fall within section 179(3) also. As the decision in Kent County Council v Brockman shows, there can therefore be relevant issues of fact for a jury to decide. Because, however, the alleged facts relied on in Beard did not relate to lack of capacity or inability on the part of the appellant in that case to comply with the enforcement notice (see page 71 at F) the Court held in that case that no defence was available to him by virtue of section 179(3).
12. The prosecuting authority in the present case relied on the statutory framework as explained in Beard and referred also to the terms of section 285 of the Town and Country Planning Act. The prosecuting authority setforth the scheme in this way.
13. In a series of propositions: (i) enforcement is dealt with under part 7 of the 1990 Act (ii) section 172 provides for the issue of enforcement notices if there has been a breach of planning control which is defined in section 171A so as to include the carrying out of development without planning permission, which in turn includes placing caravans on land without such permission (iii) section 174 provides an appeal mechanism, to those served with an enforcement notice. It can be on one of seven grounds and grounds (a) and (g) one that permission should be granted or that a longer period should be given for compliance (iv) the criminal offence is created in section 179 of the 1990 Act (v) the only elements of the offence are (a) that the person charged is the owner of the land and (b) that he is in breach of enforcement notice.
14. The whole scheme of the Act, it is said, is to restrict the issues can be raised as a defence to criminal proceedings for breach of notice. The Act, it is said, provides for an appeal to the Secretary of State for the Environment and the Regions where the validity of the notice can be questioned. That appeal includes the ground that permission should be granted. Section 285 of the 1990 Act then provides that the validity of an enforcement notice shall not be questioned in any proceedings on grounds on which an appeal may be brought, and that cross-refers to the ground in section 174 of the 1990 Act. That exclusion is equally applicable to criminal proceedings as is borne out by the decision in R v Smith PNCR 392. It is said that there are strong policy reasons for requiring all challenges to the validity of enforcement notices to be made to the Secretary of State for the Environment and restricting the kind of issues that can be raised in the Crown Court at the enforcement stage as set out by Lord Hoffmann in R v Wiggs [1997] 2 WLR 876, to which we make subsequent reference.
15. The facts upon which the applicant proposed to rely, before the Crown Court, were set out in the skeleton argument which was put before His Honour Judge Croft QC as the best findings of fact for which the applicant could contend on the evidence he proposed to adduce. If these facts, if and when established, would not constitute a defence, there was little point in hearing the evidence. Those putative facts were as follows: first, that the applicant was a Romany gypsy, living on the land with his wife and children. Second, that he and his wife wished to continue to live a traditional gypsy way of life. Thirdly, that he had nowhere else to station his caravan. Fourthly, his search for suitable gypsy accommodation had proved fruitless, and fifthly, he could not reasonably be expected to choose between abandoning his traditional gypsy way of life and evicting his family from the land and moving his caravan on to the road side so as to comply with the enforcement notice.
16. Before the court below, and in this Court, the applicant submitted that when a defendant seeks to advance the statutory defence provided by section 179(3), first, the question whether or not it is made out is a matter of fact for the tribunal of fact. Secondly, the tribunal of fact is permitted to take into account the defendant's personal and financial circumstances, in determining whether he has done everything he could reasonably be expected to do to secure compliance with the notice. Thirdly, the tribunal of fact is also entitled to consider whether a defendant could reasonably be expected to take steps which violate his right to respect for his home and family life, including his right to respect for his traditional way of life, and fourthly, that the statutory defence could be made out even if a defendant had done nothing to secure compliance with the notice, if that is all he could reasonably be expected to do. Fifthly, before the jury can decide whether it would be appropriate to convict the defendant, they have to determine whether the interference with the defendant's right to respect for his home and family life, including his right to respect for his traditional way of life is justified under Article 8(2) of the European Convention on Human Rights. Thus the jury would have to determine the question of proportionality.
17. In our judgment, the applicant is correct in relation to points 1, 2 and 4, that we have outlined above in relation to the running of the statutory defence, but the essence of the argument on points 3 and 5 falls foul of the decision in Beard.
18. The question of the rights of the applicant, in relation to home and family life, was fully considered at the earlier stage of the planning process, by the decisions of the planning authorities and the two appeals therefrom, where the inspectors decided against the applicant, as shown by decision letters of 28th March 2001 and 30th April 1998. Once those matters had been determined, the effect of section 285 and the decision in Beard is that these matters cannot be raised again at the enforcement stage.
19. Further, the decision in Beard establishes that for the court to consider the Human Rights element again, at the enforcement stage, would be inconsistent with and run counter to the whole statutory regime of the 1990 Act, and its successors. In R v Wicks [1997] 2 WLR 876, at page 894, Lord Hoffmann explained the policy justification for limiting the defences which could be raised at the enforcement stage. What he said was this:

"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."

20. In Beard, the Court decided that there was no inconsistency between the scheme of the United Kingdom planning legislation and the Convention, a point which was subsequently borne out by the decision of the European Court of Human Rights in relation to Beard itself and in Buckley v UK [1996] Journal Planning Law 1018 and Bryan v the United Kingdom [1995] 21 EHRR 342. The European Court of Human Rights has given general approval to the planning system and its operation, when considering Article 6, on the one hand, and the section 179(3) defence and Article 8 on the other. The last named decision being a case involving gypsies somewhat similar to the present case.
21. Moreover, in Chapman v United Kingdom [2001] 33 EHRR 18, the European Court of Human Rights expressly considered the operation of the Town and Country Planning Acts in connection with the lot of gypsy families in a similar situation to the present. Article 8 was examined from paragraphs 71 onwards and the domestic planning system was not found to be incompatible with Article 8 rights. There were adequate safeguards protecting Article 8 interests, in the regulatory framework and a proper balancing exercise was effected by the planning authorities in that case. (It should be pointed out that there is no suggestion that the Article 8 Rights of the applicant were not fully taken into account at the earlier stages of the planning process in the present case, as the prosecution authorities submit can be seen from the decision letters.)
22. The only defence available at the enforcement stage, therefore, is the limited one afforded by section 179(3) as interpreted in Beard. Where it is within the power of the owner of the land to comply with the enforcement notice without the assistance of others, no question of a defence can arise under section 179(3).
23. There is, therefore, in our judgment, no question of reading section 179(3) in isolation, and seeking to give effect to it in a way that is compatible with Convention rights.
24. Section 3 of the Human Rights Act provides that primary legislation must be read and given effect in a way which is compatible with Convention rights. The legislation as a whole must be so read and interpreted and when this legislative framework is examined we find, as did the Court in Beard and the European Court of Human Rights, no incompatibility between the two.
25. Mr Willers, for the applicant, has argued by analogy with two recent decisions, that section 179(3) should be read in itself subject to Article 8. First, he referred to the decision in South Buckinghamshire District Council v Porter, where the question of an injunction was dealt with in the context of Article 8. It seems to us that, when one is looking at injunctions under section 187B of the 1990 Act, different considerations apply because the discretion of the Court is directly involved in having to determine whether or not an injunction should be granted.
26. Reference was also made to the decision in the case of Fuller v The Chief Constable of Dorset, which was a decision dealing with section 61 of the Criminal Justice and Public Order Act, and the decisions of the police authority to move people on. Once again, a discretion is given to the police, in that context, and although it was accepted in that case by counsel concerned that the section 61(6)(b) defence gave rise to the possible Human Rights argument, and it is pointed out that section 61(6)(b) is not altogether dissimilar from section 179(3) of the 1990 Act, once again this decision does not relate to the same legislative framework with which we have been concerned.
27. Both the cases to which reference were made involve a discretion in taking action whether on the part of the police or the court concerned.
28. The enforcement regime, under the 1990 Act is, however, differently framed within the context of that Act, as we have already held.
29. On the putative facts which the applicant hoped to establish, therefore, there was, in our judgment, no defence available to him under section 179(3). It seems to us that, notwithstanding the comments in Beard and Vickers and Wood, as to the inadvisability of taking a point of law before the facts are found, there are some cases where this is an entirely sensible and pragmatic approach. What was done, in the present case, seems to us to have been eminently sensible when there was Court of Appeal authority standing squarely in the way of any successful defence. With a 'not guilty' plea entered, the argument on the point of law, effectively settled the disputed matters, subject to appeal, thus enabling the applicant to change his plea, obtain the benefit from entering such a plea in regard to sentence and to save the public time and money which would otherwise have been incurred in a contested trial in front of a jury to determine a series of putative facts which would have no impact whatsoever.
30. In our judgment, therefore, the conviction in the present case was entirely safe and, unlike Wood, where the putative facts to be relied on were not clear, here they had been well formulated and put forward in an articulated way, so that a decision could be reached on the availability of the defence. In fact, as we have mentioned, the decision here was on a pure point of law, without reference to any facts at all whether punitive or otherwise, namely whether the court was bound by the decision in Beard. The applicant then changed his plea in the light of the judge's decision on the point of law which we have found to be correct. That was the applicant's decision in the context of the putative facts he wished to establish, recognising that he could not satisfy the Beard test for a successful defence under section 179(3), even if those points were established on the facts. Even if it were to be suggested that new and different questions of fact could arise, (which they could not) from those covered in the skeleton arguments before the Crown Court judge, we could see no basis for giving permission to appeal. The application is therefore refused.