England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM STAFFORD CROWN COURT
Mr Recorder Gareth Evans QC
and His Honour Judge McEvoy QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/08/2007

Lord Justice Hughes :

1. This is the judgment of the Court.
2. Mr Challinor pleaded guilty to two counts of failing to comply with an enforcement notice issued under section 172 Town and Country Planning Act 1990. The alleged breaches consisted of bringing waste materials onto the relevant land. He pleaded guilty following a ruling that he was not entitled, before the jury, to rely by way of defence upon the terms of a Certificate of Lawful Use, which had been granted to him in relation to some (but by no means all) of the land affected by the enforcement notice. His appeal seeks to challenge the correctness of that ruling.
3. The indictment charged breaches of the enforcement notice which were said to have been committed in February and April 2003. Shortly thereafter, in April 2003, the Local Planning Authority, which conducted this prosecution, also took direct action to remove from the land the waste material which was on it, and sued in the High Court for (a) its costs of doing so and (b) a permanent injunction against continuing the importation of waste. That civil action came on for hearing after the Crown Court proceedings were over. Her Honour Judge Kirkham, who tried it, came to the opposite conclusion as to the Certificate of Lawful Use. The Local Authority's action failed. It appealed. That civil appeal has been heard by this court in a consolidated appeal together with Mr Challinor's appeal against his conviction, because both raise the same point of law, and between the same parties, albeit with the addition of a second defendant to the civil action.
4. We attach hereto the judgments [ [2007] EWCA Civ 864 ] of this court in the civil appeal. The history of the case is there fully set out and does not need repetition here.
5. For the reasons set out in those judgments the effect of section 285 TCPA 1990 was to prevent reliance on the Certificate of Lawful Use in the criminal proceedings. If the CLU provided a basis for challenging the validity or ambit of the Enforcement Notice, that point could and should have been taken by way of appeal to the Inspector under section 174 against the Enforcement Notice. There was such an appeal, but grounds (c) and (d), under which this point could have been raised if it was correct, were expressly abandoned by Mr Challinor shortly before the hearing, in which he was advised by experienced Leading Counsel and a planning expert.
6. Moreover, in R v Wicks [1998] AC 92, the House of Lords ruled that it is not open to a defendant charged in criminal proceedings with failing to comply with an enforcement notice to challenge the notice even upon grounds which would not fall within section 174, such as bad faith. That conclusion was held to follow as a matter of construction of the offence-creating section; the offence is to fail to comply with an enforcement notice which has not been quashed. It was also held to conform to the statutory purpose which was to restrict challenges to the legality of an enforcement notice in a criminal court because of (a) the unsuitability of that court to determine it, (b) the need for speedy determination of the validity of such a notice if planning control was to be effective and (c) the fact that the criminal proceedings are designed not only to punish but to achieve compliance with planning control.
7. It follows that the ruling of Mr Recorder Evans QC on 21 May 2005 that it was not open to Mr Challinor to rely on the Certificate of Lawful Use was correct. Likewise Judge McEvoy QC was correct to refuse to re-open that ruling on 4 September 2006, shortly before the trial. There is no incorrect ruling which affected the Appellant's pleas of guilty. His convictions are not unsafe. His appeal against them must be dismissed.