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PALACEGATE PROPERTIES LIMITED v. LONDON BOROUGH OF CAMDEN [2000] EWHC Admin 372 (19th July, 2000)

Case No: CO /2503/99

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION (DIVISIONAL
COURT) ON APPEAL FROM KNIGHTSBRIDGE
CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19 July 2000

B e f o r e :
LORD JUSTICE LAWS
and
MR JUSTICE LONGMORE
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	PALACEGATE PROPERTIES LIMITED	Appellant
	- and -
	LONDON BOROUGH OF CAMDEN	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Malcolm Spence QC (instructed by Barker Guilette for the Appellant)
Mr Peter Harrison (instructed by The London Borough of Camden for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©
LAWS LJ:
Introductory
1 This is an appeal by case stated against a decision of the Knightsbridge Crown Court made on 19 March 1999 when that court dismissed the appellants' appeal against their conviction on 20 April 1998 by the Stipendiary Magistrate at the West London Magistrates Court of an offence of breach of an enforcement notice, contrary to s.179(2) of the Town and Country Planning Act 1990. The case requires the court to revisit well-trodden ground: how far may a defendant challenge, by way of defence to a criminal prosecution, the instrument or order which founds the prosecution against him on grounds which could have been raised upon an application for judicial review? For convenience I will call this the "collateral challenge issue".
The Facts
2 The facts of the case may best be taken from the case stated by the Crown Court:
"1 On 9 January 1998 an information was preferred against the Appellants:
that between 10 November 1996 and 28 November 1997 at land adjacent to and forming part of the Roundhouse fronting Regents Park Road and Chalk Farm Road London NW1, the Appellants having an interest in that land to which an enforcement notice issued 23 May 1996 applied did after the period for compliance had expired on 9 November 1996 permit an activity to be carried out in breach of the requirement of the Notice in that between the above dates the Appellants permitted the use of the land for public car parking unconnected with the use of the Roundhouse.
***
4 We found the following facts:-
(1) The Respondents are the local planning authority for their area which includes the site specified in the information.
(2) The site was Crown land and held in the name of the Receiver for the Metropolitan Police Division. His consent for the making issuing and/or serving of an Enforcement Notice was a statutory requirement.
(3) The Appellants occupied the site at all material times pursuant to the terms of a lease entered into on 12 May 1993.
(4) The Roundhouse itself is a well known Grade II listed building used as a theatre. The site the subject of the information is adjacent to the Roundhouse.
(5) On 16 July 1981 the Respondents issued a planning permission which permitted the continued use of the site as a car park for the Roundhouse. Conditions were attached which specifically limited the use of the car park until 30 November 1986 and to use by Roundhouse staff and patrons and for no other purpose without prior written permission of the Respondents.
(6) The Council had taken no action to prevent parking for customers of the Roundhouse.
(7) No officer of the Council had any general delegated authority to issue an Enforcement Notice on behalf of the Council and/or prosecute for breach thereof. Each Notice and/or prosecution required a specific Resolution of the Council.
(8) On 2 June 1994 the Respondents resolved that an enforcement notice be issued requiring that the use of the site as a car park should be discontinued and that prosecution action should be instituted in event of non-compliance.
(9) On 18 July 1994 the Respondents through their planning officer issued an Enforcement Notice which alleged the breach of planning control as being the change of use of the site to use as a public car park and the erection of portacabins ancillary to this use. The Notice required amongst other things the discontinuance of the use of the site as a car park, and allowed one month for compliance.
(10) The Notice dated 18 July 1994 was subsequently withdrawn. No consent from the Receiver for the Metropolitan Police Division had been sought or secured.
(11) On 21 May 1996 the Receiver for the Metropolitan Police Division gave his consent to the Respondents "to issue such Enforcement Notices as they consider appropriate relating to the Receiver's above site" viz the site in question.
(12) On 23 May 1996 an Enforcement Notice in identical terms to that set out in (9) above was made and issued by an officer of the Respondents Mr Roger Kemp.
(13) The Notice was served on the Appellants on 28 May 1996.
(14) Whereas ostensibly the Notice was made and issued in reliance on and pursuant to a resolution of 8 December 1994 which related to another site viz the adjacent forecourt site, the Notice was in fact made and issued in reliance on and pursuant to the resolution of 2 June 1994.
(15) The latest date for appealing against the Notice to the Secretary of State for the Environment was 16 July 1996. However, during August 1996 there was a sale of the share capital of the Appellant company and the new shareholders and directors did not know of the enforcement notice until after the date for appealing to the Secretary of State for the Environment.
(16) The lease mentioned in (3) above contained the following covenants:
(i) "2(11)(a) At all times during the said term to use the Demised Premises as a car park and for the storage of vehicles and materials in connection with the development and operation of the adjoining Roundhouse premises."
This was a lessee's covenant.
(ii) "3. The landlord hereby covenants ... that the Tenant ... shall peaceably hold and enjoy the Demised Premises ... without any lawful [sic: unlawful is of course intended] interruption by the Landlord ...."
The Issues Below and the Questions for this Court
3 The issues which the Crown Court had to decide appear from their succinct summary of the parties' submissions, which is followed by their findings and their statement of the questions arising for this court's consideration:
"6 The Appellants submitted:
(i) That the resolution of 2 June 1994 authorised the issue of one Enforcement Notice only. The Notice dated 18 July 1994 was issued in pursuance of it. There was no resolution authorising the Notice of 23 May 1996. Accordingly it was void.
(ii) That the Notice was a nullity for uncertainty. Despite the facts in paragraph 4(7) above although the breach of planning control alleged was that the site as being used as a public car park, the requirements of the Notice were that apparently all parking had to be discontinued.
(iii) That the consent of the Receiver was unlawful because it was contrary to the terms of the lease. An unlawful consent cannot ground a lawful Notice.
7 The Respondents submitted:
(i) That the Notice was clear and unambiguous on its face.
(ii) That the Notice had never been challenged in any proceedings which might have been taken.
(iii) That it was not now open to the Appellants to challenge the validity of the Notice as a defence to the charge.
***
9 We were of the opinion:
(1) that we were bound by the decision of the House of Lords in R v Wicks [1998] AC 92;
(2) that it was not open to Defendants to raise the challenge on any of their three bases as a defence to the charge;
(3) that since there was no other defence raised we were bound to dismiss the appeal;
10 The questions of law upon which the opinion of the High Court is required are as follows:
(1) Whether the Enforcement Notice dated the 23 May 1996 was lawfully authorised by a resolution of the 2 June 1994.
(2) Whether in deciding that the requirement of the Notice viz that "the use of the site as a car park [shall] be permanently discontinued" was not so uncertain as to its scope and meaning that the Notice was void, we were correct in disregarding its meaning to an informed reader and in particular the owner/occupier of the land.
(3) Whether the discrepancy between the breach of planning control alleged viz the change of use to a public car park and the requirement of the Notice viz to discontinue all car parking on the site rendered the Notice void.
(4) Whether the consent to the issue of the Notice given by the Receiver for the Metropolitan Police Division as a statutory pre-condition to the issue of the Notice was a good and valid consent irrespective of its inconsistency with the lease between the Defendant company and the Receiver.
(5) Whether we were correct in deciding that the Notice was valid on its face and that we were therefore bound by the decisions of the House of Lords in R v Wicks [1998] AC 92 and Boddington v BTC [1999] 2 AC 143 to disregard the defence submissions which raise the points set out in paragraph 1 to 4 above."
4 The respondents' submissions recorded at paragraph 7(ii) and (iii) of the case stated, the Crown Court's holding in paragraph 9, and Question (5) in paragraph 10 all engage the collateral challenge issue. The respondents' argument is that it is not legally open to the appellants to raise the matters set out in their submissions recorded at paragraph 6 of the case and reflected in Questions (1) - (4) in paragraph 10. Plainly this issue is logically prior to the points which the appellants seek to take to challenge the legality of the enforcement notice; and I will deal with it first. In fact Mr Malcolm Spence QC for the appellants accepted, as I think rightly, that if the court were against him on the collateral challenge issue it would be neither necessary nor appropriate to enter into the merits of the other arguments.
The Town and Country Planning Act 1990
5 It is convenient next to set out the material provisions of the Town and Country Planning Act 1990, dealing with enforcement notices. S.172 provides in part:
"(1) Where--(a) it appears to the local planning authority that there has been a breach of planning control after the end of 1963; and (b) the authority consider it expedient to do so having regard to the provisions of the development plan and to any other material considerations, they may issue a notice requiring the breach to be remedied.
(2) A notice under this section is referred to in this Act as an `enforcement notice'.
(3) There is a breach of planning control--(a) if development has been carried out ... without the grant of the planning permission required for that development ...
(4) An enforcement notice which relates to a breach of planning control consisting in--(a) the carrying out without planning permission of building ... operations in, on, over or under land ... may be issued only within the period of four years from the date of the breach.
(5) Subject to section 175(4), an enforcement notice shall take effect on a date specified in it (in this Part referred to as the `specified date').
(6) A copy of an enforcement notice shall be served not later than 28 days after the date of its issue and not later than 28 days before the specified date--(a) on the owner and on the occupier of the land to which it relates ..."
S.173 prescribes what an enforcement notice must contain:
"(1) An enforcement notice shall specify the matters alleged to constitute a breach of planning control.
(2) An enforcement notice shall also specify ...(b) any such steps as are mentioned in subsection (4) which the authority require to be taken ...
(4) The steps referred to in subsection (2)(b) are steps for the purpose ...(b) of removing or alleviating any injury to amenity which has been caused by the development.
(5) An enforcement notice shall specify the period within which any such step as is mentioned in subsection (2) is to be taken ..."
S.174 deals with appeals against enforcement notices:
"(1) A person having an interest in the land to which an
enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds -
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
(e) that copies of the enforcement notice were not served as required by section 172;
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."
S.179 provides as follows:
"(1) Where--(a) a copy of an enforcement notice has been served on the person who at the time when the copy was served was the owner of the land to which the notice relates, and (b) any steps required by the notice to be taken ... have not been taken within the compliance period, then ... that person shall be guilty of an offence.
(2) A person who is guilty of an offence under subsection (1) shall be liable--(a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to a fine ...
(5) If, after a person has been convicted under the previous provisions of this section, he does not as soon as practicable do everything in his power to secure compliance with the enforcement notice, he shall be guilty of a further offence and liable--(a) on summary conviction to a fine not exceeding £200 for each day following his first conviction on which any of the requirements of the notice ... remain unfulfilled; or (b) on conviction on indictment, to a fine."
S.285(1) provides:
"Subject to the provisions of this section, the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
The Collateral Challenge Issue: Preliminary
6 In Wicks [1998] AC 92, a decision of their Lordships' House which is of critical importance for the resolution of the present appeal (and which, as I have shown, the Crown Court considered concluded the case against the appellants: paragraph 9 of the case stated), Lord Nicholls of Birkenhead stated at 106C:
"Prima facie one would expect, surely, that in... criminal proceedings an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes his alleged criminal offence. That seems the proper starting point."
This statement is mirrored by others in our books to like effect. Hailsham RDC v Moran 18 PCR 428 was one of the planning cases to which Mr Spence referred us. There, Lord Parker CJ sitting in this court said this at 433-434:
"Prima facie it seems to me clear that on a prosecution a defendant is entitled to raise any matter unless by statute or by some principle of the common law he is debarred from doing so."
Mr Spence placed particular emphasis on the statement of the Lord Chancellor in Boddington [1999] 2 AC 143, 162G:
"In my judgment only the clear language of a statute could take away the right of a defendant to challenge the lawfulness of a byelaw or administrative decision where his prosecution is premised on its validity."
7 The general principle which these and other statements of high authority vouchsafe is plainly of the first importance. In order to elucidate its application to the present case, with very great respect I would venture to put it in this way. No one is to be deprived of the opportunity of advancing, by way of defence to a criminal charge, any facts or argument which are legally relevant to the question of his guilt. The relevance of the matter sought to be adduced is surely critical. It is no offence to the most hallowed traditions of our criminal law to prohibit a defendant from raising irrelevant material, whether he seeks to do so by evidence of fact or argument of law. As it seems to me, therefore, the question posed by the collateral challenge issue in any individual case is whether the putative assault on the lawfulness of the instrument or order, which is the prosecution's legal platform, is in law relevant to the issues joined between prosecutor and defendant. If it is, nothing is more obvious than the defendant's right to launch the assault for all it is worth; and any rule or statute which the prosecutor claimed to deny or restrict so plain a right would need to withstand a withering judicial eye. But if it is not thus relevant, there is no more offence to constitutional principle in stopping the defendant from raising it than there is in the court's elementary insistence in any context that it will only consider material which is relevant to the lis before it.
8 Points of fact or of law, raised by the defence in a criminal case, may be relevant in either of two ways. (1) The point may go to show that the prosecution has not proved its case: that is, proved on the facts all the legal elements of the offence. (2) The point may go to establish circumstances which, even though the prosecution has proved all the legal elements of the offence, give rise to a defence to the charge. Most of such defences are statutory, and may require the defendant to carry the burden of proof. An instance arising at common law is that of self-defence, which, however, once raised must be disproved by the Crown.

9 The principle that no one is to be deprived of the opportunity of advancing, by way of defence to a criminal charge, any facts or argument which are relevant to the question of his guilt is manifestly at work in the two cases decided in their Lordships' House to which particular attention was necessarily directed in the course of argument before us, namely Wicks and Boddington. (For the purposes of his submissions Mr Spence was at pains to rely on earlier authority of the House of Lords in East Riding CC v Park Estate (Bridlington) Ltd [1957] AC 223, to which I will come separately.) I will describe the reasoning and conclusions of these two authorities before addressing Mr Spence's argument.
Wicks
10 Wicks was a case in which the appellant (who had elected to be tried on indictment upon the charge against him) sought to challenge the enforcement notice in the case on the ground that the local planning authority had issued it in bad faith and had been motivated by immaterial considerations. The direction of Lord Hoffman's reasoning in relation to the principle I have been discussing is, if I may say so, exemplified by the following passages from his speech. First at 117A-D:
"But, my Lords, while I am willing for the sake of argument to accept Mr Speaight's submission that there is a wide right for anyone prosecuted under a local byelaw to challenge its validity, the point at which we absolutely part company is when he submits that this right can be extrapolated to enable a defendant to challenge the vires of every act done under statutory authority if its validity forms part of the prosecution's case or its invalidity would constitute a defence. In my view no such generalisation is possible. The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute."
(The distinct question whether the vires of a byelaw might be challenged by way of defence to a prosecution brought under it was authoritatively determined by their Lordships' House in Boddington, to which I shall come shortly.) Lord Hoffmann in Wicks proceeded as follows (117D-118H):
"The correct approach is in my view illustrated by the decision of the Divisional Court in Plymouth City Council v Quietlynn Ltd [1988] QB 114. This case arose out of a prosecution under paragraph 20(1) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 for using premises as a sex establishment without a licence. The Act had introduced a system of licensing. By paragraph 28(1) of the Schedule a person who was using premises as a sex establishment before the Schedule came into force and who had applied for a licence was entitled to continue so to use the premises `until the determination of his application'. The local council, as licensing authority, refused the application but the defendants continued the business. When prosecuted, they wished to argue that the decision to refuse had been vitiated by the council having regard to irrelevant considerations and failing to observe rules of natural justice. Consequently, they said that there had not yet been a `determination' of their application and their right to use the premises under paragraph 28(1) continued. The question for the Divisional Court was whether it was a defence that the refusal was in this sense ultra vires or whether, for the purposes of para 28(1), the application was `determined' when the council gave what purported to be its decision, notwithstanding that it might be liable to be quashed in proceedings for judicial review...
Webster J... went on to say:
`The law relating to judicial review has become increasingly more sophisticated in the past few decades, and in our view justices are not to be expected to have to assume the functions of the Divisional Court and consider the validity of decisions made by a local authority under the 1982 Act in the light of what is now a complex body of law ... In our view, therefore, except in the case of a decision which is invalid on its face, every decision of the licensing authority under the 1982 Act is to be presumed to have been validly made and to continue in force unless and until it has been struck down by the High Court; and neither the justices nor the Crown Court have power to investigate or decide on its validity.' (My emphasis.)
I have emphasised the references to the 1982 Act because in R v Crown Court at Reading, ex p Hutchinson, R v Devizes Justices, ex p Lee [1988] QB 384 at 394-396 Lloyd LJ criticised the Quietlynn case on the basis that it laid down a general principle applicable to all statutory powers--in particular, to local byelaws. This is not the case. The judgment makes it clear that the court was concerned only with the construction of the 1982 Act; indeed, strictly speaking, only with the meaning of the word `determination' in para 28(1) of Sch 3 to the 1982 Act, read in the light of the scheme of the relevant parts of the Act.
In my view the question in this case is likewise one of construction. What is meant by `enforcement notice' in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words `enforcement notice' are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed."
Having then indicated his view (at 119C) that "`enforcement notice' means a notice issued by the planning authority which is formally valid and has not been quashed", Lord Hoffmann proceeded to justify it by an examination of the relevant provisions of the Town and Country Planning Act 1990, which I have already set out. Having referred to ss.23 and 24 of the Town and Country Planning Act 1947 (which provided for a right of appeal to the Magistrates Court), the Caravan Sites and Control of Development Act 1960 (whereby the right of appeal to the justices was abolished and a right of appeal to the minister on wider grounds was substituted; and s.33(8) of that Act provided for the first time that, save by means of the appeal procedure, the validity of an enforcement notice could not be questioned in any proceedings on certain of the grounds on which an appeal could be brought), the Town and Country Planning Act 1968, which was consolidated in the Town and Country Planning Act 1971, and the Local Government and Planning (Amendment) Act 1981, he stated (119G-H):
"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."
Lord Hoffmann proceeds to discuss each of these three elements. With respect I need not set out the whole of the passage in which he does so; but this following section, on the first of the three, is important in light of Mr Spence's arguments (120A-F):
"First, then, the suitability of the subject matter. The Act of 1960 recognised that the planning merits of the enforcement notice were unsuitable for decision by a magistrates' court. It not only transferred the right of appeal to the minister (now the Secretary of State) but excluded challenge on most such grounds in any other proceedings. The present position is that no challenge is possible on any ground which can form the subject matter of an appeal.
On the other hand, there remain residual grounds of challenge lying outside the grounds of appeal in section 174(2) of the 1990 Act, such as mala fides, bias or other procedural impropriety in the decision to issue the notice. I shall call these `the residual grounds'. Mr Speaight says that the fact that the residual grounds were not swept up in the appeal procedure supports his argument. If section 285(1) says that the notice cannot be questioned on certain grounds, it follows that it can be questioned on any other grounds. But the fact that the residual grounds are not altogether excluded does not necessarily mean that they can be raised as a defence to a prosecution. They may be available only by some other means. One has to ask why they were not included in the appeal procedure. The reason, as it seems to me, is obvious. Questions of whether the planning authority was motivated by mala fides or bias or whether the decision to issue the notice was based upon irrelevant or improper grounds are quite unsuitable for decision by a planning inspector. The question then is whether Parliament regarded them as suitable for decision by a criminal court.
In deciding this question one is (and here I echo the words of Webster J in Plymouth City Council v Quietlynn Ltd [1988] QB 114) entitled to take into account the complexity and sophistication of the law relating to the residual grounds; a matter of which Parliament would have been aware when the legislation last received substantive consideration in 1981. I think it no criticism of lay justices to say that many would not find it easy to apply the distinction, which comes so easily to the Divisional Court, between the legality of an administrative act and its substantive merits. It would in practice be difficult to prevent the hearing from turning into a reassessment of the planning merits and thereby subverting the whole scheme of the Act."
I need cite only one further passage from Lord Hoffman's speech, at 122E-G:
"I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings. The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is `expedient' (section 172(1)(b)) is vitiated by some impropriety. As Keene J said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.
All these reasons lead me to conclude that `enforcement notice' in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review."
Their other Lordships agreed with Lord Hoffmann, Lord Nicholls setting out some further reasoning of his own from which I have drawn a brief citation. Plainly Wicks is critical for the resolution of this appeal, as the Crown Court found it was critical for the appeal before them. However to conclude the case by the abrupt elaboration of a particular appreciation of the reasoning in Wicks, whether pro or con Mr Spence, would not do justice to the careful and painstaking arguments which have been addressed to us, nor to the true depth of the controversy. It is necessary next to turn to Boddington.
Boddington
11 Mr Boddington liked to smoke. In particular, he liked to smoke on the train; on the Brighton line. But there was a conspicuous notice which forbade smoking. It was forbidden in every part of the train. The No Smoking notices were said to be authorised by a byelaw, which prohibited smoking in a train where there was a notice to that effect, and whose vires was claimed to be s.67(1) of the Transport Act 1962. Mr Boddington ignored the notice, and puffed away at his cigarette. He was charged and convicted by the Stipendiary Magistrate of an offence contrary to the byelaw. He desired to raise a defence to the effect that the byelaw was ultra vires s.67(1), because that only empowered byelaws to regulate the use of the railway with respect to smoking in carriages; whereas a complete or blanket prohibition of smoking on the train exceeded mere regulation. If the byelaw was ultra vires, then of course the notice could have no legal effect. The Divisional Court held that he was not entitled to put forward this defence. The House of Lords held that he was; though it was little comfort to Mr Boddington, for their Lordships also held that the byelaw was not ultra vires. So Mr Boddington's appeal was lost.
At 152F-H the Lord Chancellor said this:
"The question of the extent to which public law defences may be deployed in criminal proceedings requires consideration of fundamental principle concerning the promotion of the rule of law and fairness to defendants to criminal charges in having a reasonable opportunity to defend themselves. However, sometimes the public interest in orderly administration means that the scope for challenging unlawful conduct by public bodies may have to be circumscribed.
Where there is a tension between these competing interests and principles, the balance between them is ordinarily to be struck by Parliament. Thus whether a public law defence may be mounted to a criminal charge requires scrutiny of the particular statutory context in which the criminal offence is defined and of any other relevant statutory provisions. That approach is supported by authority of this House."
He proceeded to refer to DPP v Head [1959] AC 83, a case in which the defence put forward to a prosecution for an offence of carnal knowledge of "a woman... under care... in an institution" was that the original order by which the woman in question had been detained was legally defective: a matter which, as was accepted, could be raised by an application for certiorari. The Court of Criminal Appeal quashed the conviction, and their decision was upheld in their Lordships' House by a majority. There follows in the Lord Chancellor's speech a passage much relied on by Mr Spence, for reasons to which I will come in due course:
"In my judgment the views of the majority in DPP v Head have acquired still greater force in the light of the development of the basic principles of public law since that case was decided. Lord Denning had dissented on the basis of the historic distinction between acts which were ultra vires (`outside the jurisdiction of the Secretary of State'), which he accepted were nullities and void, and errors of law on the face of the relevant record, which rendered the relevant instrument voidable rather than void. He felt able to assign the order in question to the latter category. But in 1969, the decision of your Lordships House in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity: see Reg v Hull University Visitor, Ex parte Page [1993] AC 682, 701-702, per Lord Browne-Wilkinson (with whom Lord Keith of Kinkel and Lord Griffiths agreed, at p. 692), citing the speech of Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237, 278. Thus, today, the old distinction between void and voidable acts on which Lord Denning relied in DPP v Head no longer applies. This much is clear from the Anisminic case and these later authorities." (154A-D)

Then the Lord Chancellor went on to discuss some of the consequences of the principle given by Anisminic, namely that there is now a single category of illegality affecting public decisions and orders, the distinction between errors on the face and other errors of law having been abolished. He said this (155B-157B):
"Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid: see also T C Coombs & Co (a firm) v IRC [1991] 2 AC 283.
This is the principle to which Lord Diplock referred in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295...
Lord Diplock confirmed that once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion.
This view of the law is supported by the decision of this House in Wandsworth London BC v Winder [1985] AC 461. That case concerned rent demands made by a local authority landlord on one of its tenants. The local authority, pursuant to its powers under the Housing Act 1957, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. When sued by the local authority for that element, he sought to defend himself by pleading that the resolutions and notices of increase were ultra vires and void, on the grounds that they were unreasonable in the Wednesbury sense... This House ruled that Mr Winder was entitled as of right to challenge the local authority's decision by way of defence in the proceedings which it had brought against him. The decision was based squarely on `the ordinary rights of private citizens to defend themselves against unfounded claims': per Lord Fraser of Tullybelton, delivering the leading speech, at p. 509...
In my judgment, precisely similar reasoning applies, a fortiori, where a private citizen is taxed not with private law claims which are unfounded because based upon some ultra vires decision, but with a criminal charge which is unfounded, because based upon an ultra vires byelaw or administrative decision. The decision of the Divisional Court in Reg v Reading Crown Court, Ex parte Hutchinson [1988] QB 384 (and the principal authorities referred to in it, including the classic decision in Kruse v Johnson [1898] 2 QB 91) is in accord with this view."

12 There follows a passage, which I need not set out, in which the Lord Chancellor gives his reasons for overruling this court's decision in Bugg v DPP [1993] QB 473. Then at 160C-161H comes this:
"However, in every case it will be necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or an administrative act under it. There are situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely.
The recent decision of this House in R v Wicks is an example of a particular context in which an administrative act triggering consequences for the purposes of the criminal law was held not to be capable of challenge in criminal proceedings, but only by other proceedings... Lord Hoffmann, in the leading speech, emphasised that the ability of a defendant to criminal proceedings to challenge the validity of an act done under statutory authority depended on the construction of the statute in question. This House held that the Town and Country Planning Act 1990 contained an elaborate code including provision for appeals against notices, and that on the proper construction of s 179(1) of the Act all that was required to be proved in the criminal proceedings was that the notice issued by the local planning authority was formally valid.
The decision of the Divisional Court in Quietlynn Ltd v Plymouth City Council [1988] QB 114 is justified on similar grounds: see Reg v Wicks [1998] AC 92, 117-118, per Lord Hoffmann...
However, in approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so: `It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words:' Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286 per Viscount Simonds; cited by Lord Fraser of Tullybelton in Wandsworth London BC v Winder [1985] AC 461, 510.
As Lord Diplock put it in the Hoffmann-La Roche case [1975] AC 295, 366C: `... the courts lean very heavily against a construction of the Act which would have this effect (cf Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147).'
The particular statutory schemes in question in Reg v Wicks [1998] AC 92 and in the Quietlynn case [1998] 1 QB 114 did justify a construction which limited the rights of the defendant to call the legality of an administrative act into question. But in my judgment it was an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.
By contrast, where subordinate legislation (eg statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case."
13 Thus the Lord Chancellor held that Mr Boddington was entitled to raise the legality of the No Smoking notices by way of defence to the charge against him; but in the result took the view that the notices were perfectly lawful. Their other Lordships agreed. Lord Steyn delivered a speech whose reasoning was in large measure concerned with Bugg's case, in which a distinction had been taken between "substantive" and "procedural" invalidity (and whose correctness had been called into question by remarks of Lord Nicholls and Lord Hoffmann in Wicks); in common with the Lord Chancellor and their other Lordships Lord Steyn considered that Bugg was wrongly decided. Lord Browne-Wilkinson differed from the Lord Chancellor on one point: he said (164B-D):
"... I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid... The status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty...
I prefer to express no view at this stage on those difficult points."
See also per Lord Slynn of Hadley at 165A-F and Lord Steyn at 171E-172D; contrast the Lord Chancellor at 155C, a passage which I have read. Lord Hoffmann agreed with the Lord Chancellor and with Lord Steyn, and added no reasoning of his own.
Mr Spence's Submissions
14 Mr Spence accepts, as plainly he must, that a person prosecuted for breach of an enforcement notice cannot raise by way of defence any matter which might have constituted a ground of appeal to the Secretary of State under s.174 of the Act of 1990; so much is precluded by s.285(1). However, he submits that an enforcement notice may be open to legal challenge on grounds other than those specified in s.174. So far as it goes, this too is clearly right vis-a-vis the judicial review jurisdiction. But Mr Spence's argument is that, subject to Wicks, any such ground may form the basis of a defence to a prosecution, albeit it may also be raised by way of judicial review; there is no preclusive statutory prohibition, analogous to s.285(1), to prohibit any potential ground of judicial review from being asserted in other proceedings. More particularly, he submits that anything which goes to show that the enforcement notice is a nullity may be raised as a defence to a criminal prosecution.
15 In this context Mr Spence had of course to confront Lord Hoffman's use of the expression "a notice... which on its face complies with the requirements of the Act" (122F - my emphasis) in the last passage from his speech in Wicks which I have cited. If it means what it says, and the expressions "formal validity" and "formally valid", which as I have shown also appear in their Lordships' reasoning, are to be taken as implying nothing different, then (as I understand him to acknowledge) Mr Spence's arguments upon the collateral challenge issue must fail in principle. If the criminal court can look no further than the face of the notice (and require to be satisfied that the notice has not in fact been quashed upon an application for judicial review), then some at least of the appellants' points on the merits are bound to fail because the Magistrates Court and the Crown Court have no business looking into them. They would have no relevance to the issues arising upon the s.179 prosecution. But I shall have to say more in due course about "formal validity".
16 Mr Spence's submission, advanced to confront these difficulties, is that by the term "formally valid" their Lordships in Wicks (Lord Nicholls at 109E, Lord Hoffmann at 119C) did not merely mean an enforcement notice which bore no patent defect on its face; they meant a notice which was immune from judicial review except on grounds of bad faith, consideration by the local planning authority of irrelevant matters, or procedural impropriety. So other putative assaults on the enforcement notice, and in particular the very assaults his clients seek to launch in this case, are open to be taken by way of defence to a prosecution under s.179. Unless the references to formal validity are read in that way, says Mr Spence, Wicks would have to be taken to have overturned a very long line of authority, notably East Riding CC v Park Estate [1957] AC 223, whose effect has been that it is always open to a defendant in criminal proceedings to assert that the enforcement notice in question is a nullity. And he submits that, reading Lord Hoffman's speech fairly as a whole, he cannot have meant anything different at 122F when he referred to a notice's compliance "on its face". In any case, I think he would say, the Lord Chancellor made it crystal clear in Boddington that since Anisminic our public law recognises no qualitative difference between latent and patent errors: and so, with deference, no importance should be attached to Lord Hoffman's use of the expression "on its face".
17 I may turn to the authorities relied on by Mr Spence to support his restrictive reading of the speeches in Wicks. Prime among them was East Riding [1957] AC 223, to which I have already referred I passing. That was a case in which an enforcement notice failed to specify whether the development complained of contravened planning control before or after the day appointed under the Town and Country Planning Act 1947 (1 July 1948) as being the day upon which, in effect, the planning regime in the 1947 Act would bite. The affected landowner applied to the Magistrates Court for an order to quash the notice: as I have indicated, that procedure (provided for by the Act of 1947) was the statutory forerunner of the current regime, now given by s.174 of the Act of 1990, of appeal to the Secretary of State. The justices dismissed the landowners' appeal. A majority of their Lordships (Viscount Simonds, Lord Cohen and Lord Evershed) held that the justices could and should have quashed it. However all their Lordships held that the notice was bad; and Mr Spence relies on passages in the speeches suggesting that whether or not the notice might have been quashed on appeal to the Magistrates, since it was a "nullity" or "radically defective" it could not in any event be relied on by the planning authority in any forum: in short its legal defects could have been impleaded as a defence to a prosecution for breach of its requirements. As I have indicated Mr Spence says that the case is authority for the general proposition that it is always open to a defendant to such proceedings to allege nullity in the notice as a defence.
18 I will briefly cite the passages in East Riding on which Mr Spence essentially relies. At 236 Viscount Simonds says:
"I am therefore of opinion that the notice, if it was not, as in my opinion, it was, a notice which it was the duty of the justices to quash, was, in any case, not a notice upon which the appellants may rely."
Lord Morton at 238 described the notice as "wholly invalid". Lord Radcliffe stated at 241:
"... if the notice is, as I think, radically defective, it can have no substantive operation before any court of law."
Lord Cohen was one of the majority holding that the defect in the notice was properly subject to appeal to the justices; but at 243 he said this:
"... it has been... rightly held... that if the notice is defective in respects not there mentioned [viz. in the then statutory provision which conferred the appeal jurisdiction], the magistrate cannot quash the conviction [sic: this must be a mistake in the report for `quash the notice'] but on any proceedings to enforce an alleged breach of the planning control the accused may plead that the notice was bad and will not be prejudiced by the fact that it had not been quashed. See Mead v Chelmsford RDC [1953] 1 QB 32."
Lord Evershed took the view (251) that the notice was not "a nullity upon the face of it". At 252 he said this:
"In the present case, where the facts are undisputed, I do not doubt that the respondents would be fully protected by the expression of your Lordships' opinion that the appellants have failed effectively to exercise the power conferred on them by section 75 of the Act [sc. to serve a valid notice]... The notice which the appellants have served would have no more vitality in it than if it had been quashed..."
19 Mead v Chelmsford was a case in which this court held that an enforcement notice is not valid unless it specifies both the date when it is to become effective and the date by which the work it orders to be done is to be carried out. The applicant had been convicted by the justices for failure to comply with a notice served on him which was thus defective, and his appeal to Quarter Sessions was dismissed, the court holding that it lacked jurisdiction to entertain the applicant's complaint about the notice by way of defence to the charge. The case was of interest in East Riding (where it was cited by Lord Evershed as well as Lord Cohen), and is pertinent to Mr Spence's argument, by virtue of this passage in the judgment of Lord Goddard CJ at 37:
"Section 23(3) [of the 1947 Act, dealing with grounds of appeal to the justices] does not provide for an appeal against the notice on the ground that it is a bad notice, and I am not surprised that it does not, because if the notice is a bad notice it is not a question of appealing against it, but of a person who is summoned in respect of non-compliance with the notice, saying that he had never had a valid notice served on him..."
Later on the same page:
"... the point here was not one which could be taken before the justices by way of appeal and, therefore, the appellant could raise it by way of the defence."
20 That reasoning might suggest that any point as to the validity or legality of the notice which cannot be taken on a statutory appeal (because it lies outside the specific grounds of appeal which are provided for) may be taken by way of defence to a prosecution under what is now s.179. Mr Spence would however acknowledge that he cannot submit as much, since Wicks holds (at least) that what are there called the "residual grounds" - that is, Wednesbury grounds, including bad faith and bias, and procedural impropriety - are upon the proper construction of the Act of 1990 not available as criminal defences. Mr Spence is thus committed to the search for a via media: a species of potential defect in an enforcement notice which is neither within the statutory grounds of appeal to the Secretary of State (for in that case, it is barred from deployment before the criminal court by s.285), nor within common law grounds of challenge as articulated in the Wednesbury principles, or procedural impropriety.
21 Mr Spence referred to other authority showing, as he submitted, that East Riding (and Mead) remained good law in all the years before Wicks. With respect to the argument I need not, I think, cite this learning. It is enough to say that there has been no disapproval of East Riding or Mead, and to notice that in Dilieto v Ealing BC [1998] 3 WLR 1403, a decision of this court (given after Wicks and before Boddington) in a case concerning a "breach of condition" notice, East Riding was referred to without the least suggestion that it was anything but good law.
The Issues Confronted
22 I may deal at once with a particular submission advanced by Mr Spence, which I have set out above. That is the argument to the effect that the Lord Chancellor made it plain in Boddington that since Anisminic the law recognises no qualitative difference between latent and patent errors: and so, it is argued, no importance should be attached to Lord Hoffman's use of the expression "on its face" in Wicks. This submission advanced by Mr Spence represents, in my judgment, a misunderstanding of what was said by the Lord Chancellor touching the Anisminic decision. I have set out the relevant passage from the Lord Chancellor's speech in Boddington, which appears at 154A-D in the report. The mistake in Mr Spence's argument may be identified by reference to these two following propositions. (1) Any distinction between errors of law within and without jurisdiction has been abolished for the purpose of ascertaining and confining the limits of the legal powers enjoyed by public authorities, so that a decision of such an authority may fall to be quashed by judicial review for any error of law. This is a true proposition; it is with respect the effect of Anisminic, as it was summarised by the Lord Chancellor. (2) There can be no distinction between an enforcement notice which bears an invalidating error on its face and one which is or may be invalid on investigation, as it were, behind its face, in the context and for the purposes of the proper construction and application of s.179(1) of the Act of 1990. Mr Spence's argument is to the effect that proposition (1) entails proposition (2); but with respect to him, there is plainly no such entailment. The question, what are the ingredients of the criminal offence created by s.179(1) which must accordingly be proved against the defendant in any prosecution, has nothing whatever to do with the wholly different question, what is the nature and quality of legal error which will invalidate a decision arrived at by a public authority. There is not the least inconsistency between proposition (1) and a view of s.179(1) of the 1990 Act whose effect is that in a prosecution under that subsection all that has to be proved (so far as relevant to this argument) is that the notice bears no patent invalidity and has not been quashed in judicial review proceedings. Proposition (2) is false, and in my judgment Mr Spence can find no comfort in the Anisminic jurisprudence, or in what the Lord Chancellor said about it in Boddington. Moreover I consider that the failure of this particular argument advanced by Mr Spence very considerably undermines his case as a whole.
23 However, more broadly, the collateral challenge issue (as I categorised it at the outset) is in general terms rendered much more acute by the critical step forward made in our public law by the Anisminic decision as it has been understood and interpreted, and most recently described by the Lord Chancellor in Boddington. The reason is that the wider the available grounds of judicial review challenge, the more problematic is the question whether or how far the selfsame arguments may be run by way of defence in the criminal courts - where, usually at least, the first port of call is the Magistrates Court. I need not here repeat the practical difficulties which may arise in the rehearsal of judicial review points in courts other than the Crown Office List. They are with respect amply described by Lord Nicholls of Birkenhead in Wicks at 106C-F: compare Lord Hoffmann at 120E-H.
24 This, then, is a difficulty generated by the mature growth of judicial review; and it requires, of course, a principled response. I would say first that there is nothing in the least unconstitutional or contrary to basic principle in the proposition that in general there is no necessary coincidence or symmetry between points of law available on judicial review, and points available by way of criminal defence to assault the legal basis of the prosecution. In every case the task in relation to any given prosecution is to ascertain in principle everything which the prosecution must establish, and then see whether any part of it is not established. Thus if there is to be a proper conviction, the prosecutor must demonstrate his legal authority to prosecute, where that is put in issue; he must establish all the ingredients of the crime; and he must disprove any defence put forward (where the burden lies on the prosecution to do so), or, where proof of a defence lies on the defendant, he must by evidence or argument persuade the court that the defence is not established. The length or reach of these matters in any given case engages the question, to which I have already referred much earlier in this judgment, namely what facts or arguments are legally relevant to the question of the defendant's guilt.
25 In assessing the impact of the earlier jurisprudence, I think it has to be remembered that until at least 1977 when critical reforms to the procedure for judicial review (as it was then for the first time called) were introduced in a revised Order 53 of the Rules of the Supreme Court, or perhaps more realistically until 1983 when O'Reilly v Mackman [1983] 2 AC 237 was reported, our public law jurisprudence was significantly less comprehensive than it has since become. The full impact of Anisminic, and the extinction which that case vouchsafed of any material difference between errors of law within and without jurisdiction, have only circulated from the heart to the edges of the law's bloodstream since those times. Some might say it was comprehensive only with CCSU [1985] AC 374 - if then: proportionality as a head of challenge was left to another day, and took a backward step in Brind [1991] 2 AC 696, and there have been important developments in the law of legitimate expectations since that time. But however one regards the specifics of public law's growth in the years following 1969, it is to my mind clear that in the context we are presently called on to consider, the earlier decisions in the planning field upon which Mr Spence relied have to be regarded with a degree of care. In particular it is not to be supposed that they underwrite an approach to the law, given the modern comprehensive judicial review jurisdiction, whereby any challenge to an enforcement notice which is not subject to appeal to the Secretary of State is in principle open to be taken by way of defence to a prosecution for breach of the notice. In short I do not for a moment suppose that Lord Goddard in 1953 or their Lordships' House in 1956 contemplated that anything approaching the modern panoply of judicial review would be available as a criminal defence to an enforcement notice prosecution; indeed to assert as much would imply the plainest anachronism.
26 It is time to return to Wicks and Boddington. Boddington shows that where the very source of the actual or putative legal power to prosecute - in that case, the byelaw - is sought to be impugned by the defence as being, in truth, no legal source of power at all, the rule of law will require that the defendant be allowed to assert as much in the criminal court. His assault on the legality of the byelaw goes to the original jurisdiction or competence of the court to hear the lis in the first place; and whenever that is put in issue it is by necessity legally relevant to the resolution of the case, since otherwise the courts would license the exercise of purely arbitrary power by the State, and nothing is more elementary than that that is anathema to the rule of law. It seems to me with respect that this is a powerful theme of the Lord Chancellor's speech in Boddington. But in a case where the complaint is as to the legality of an enforcement notice, the issue belongs in principle to a different category. There is then no question as to the court's jurisdiction, for that is given by s.179 of the 1990 Act. In such a case s.179, and not the enforcement notice, is the analogue of the byelaw. The category to which the case belongs is that in which the issue is only (I do not by the adverb mean to diminish its importance) whether the prosecution have proved all the elements of the offence, and specifically whether it is proved that the document relied on is an "enforcement notice" for the purposes of s.179. And this, of course, was the issue addressed in Wicks, which shows, moreover, how the issue is to be resolved. First, it is necessary to identify what factors are legally relevant to the question whether the notice relied on is a properly constituted s.179 notice. That however is a general question, whose answer will in principle be the same for all such cases. Secondly, it has to be decided, given the proper ascertainment of the legally relevant factors, whether on the evidence the notice in question is within or without s.179.
27 With these considerations in mind I may return to Mr Spence's quest for a via media, that is a species of potential defect in an enforcement notice which is neither within the statutory grounds of appeal to the Secretary of State (for in that case, it is barred from deployment before the criminal court by s.285), nor within common law grounds of challenge as articulated in the Wednesbury principles, or procedural impropriety (for in that case, it is barred by Wicks). The search for the via media falls within the task of identifying the factors which are legally relevant to the notice's efficacy for the purpose of s.179. It is in my judgment at once plain that in this context Mr Spence's appeal to the concept of "nullity" is barren. A notice which is bad on Wednesbury grounds is as "null" as a notice which is bad on any other grounds. "Nullity", as a name for a distinct genus of cases, is incapable of providing any objective touchstone for Mr Spence's via media. Perhaps I should confess that once given the welcome extinction, following Anisminic, of any difference between legally bad decisions within and without the "jurisdiction" of the decision-maker, I have great difficulty in seeing what "null" is to be taken to mean in our public law jurisprudence, if it does not simply mean "unlawful": though I recognise and of course respect the fact that their Lordships deploy the language of "nullity" in Boddington. At all events, it cannot help Mr Spence.
28 What is left? Only some different understanding of "formal validity". And it is not, I think, far to seek. It may be illustrated by certain concessions which were, wholly correctly, made by Mr Harrison for the respondent local planning authority. He accepted that his clients had to prove as part of the prosecution case that, for example, the enforcement notice had been issued pursuant to a resolution of the council; and that (where, as here, it was required: see s.296(2)(a) of the Act of 1990, which I have not set out) the Receiver for the Metropolitan Police Division had given his consent to the issuance of the notice. But he disputed altogether that the council was required to prove that the resolution or the consent had been lawfully passed or given in, as it were, judicial review terms. In my judgment his concession correctly represented the edge or boundary of what his clients were required to establish. The resolution and the consent are functions of the notice's formal validity. The "formality" in question is simply a shorthand to collect the requirements which are imposed on the face of the statute for the issue of an enforcement notice. To go behind the face is necessarily to enter into the realm of Wednesbury or procedural review. And their Lordships' House in Wicks has held that to be impermissible. This distinction between what is on the face and what is behind it has nothing whatever to with the Anisminic jurisprudence; it is a function of the correct construction of the Act of 1990, in the quest to identify what is, and what is not, legally relevant in law and fact to a s.179 prosecution.
29 It follows that Mr Spence's submissions on the collateral challenge issue fall to be rejected in principle.
Consequences
30 All the necessary formal requirements (and in particular the resolution and the Receiver's consent) were, in my judgment, met on the findings of fact as they are set out in the stated case. As regards the resolution requirement (paragraph 10(1) in the case), it seems to me obvious that the resolution of 2 June 1994 effectively authorised the enforcement notice of 23 May 1996. As regards the Receiver's consent (10(4)), it is beyond dispute that there was a consent; Mr Spence's argument was that the consent was unlawful because it constituted a derogation of the grant contained in the lease between the defendant company and the Receiver. But that does not go to formal validity. It would be a point for judicial review. It could form no legitimate part of the debate in the criminal court, and it is with the proper limits of that debate that we are concerned on this appeal. The point is legally irrelevant to the criminal prosecution; and in those circumstances (and with deference to Mr Spence's careful argument) I do not propose to go into it any further. No more, in my judgment, are we called on to enter into the merits of paragraphs 10(2) and (3). I do not accept Mr Spence's submission that the notice is bad for uncertainty because it would appear ambiguous "to the informed reader". On its face, the notice contains no ambiguity. I agree with Mr Harrison whose submission was that anything left in 10(2) and (3) would amount to points which could have been taken upon an appeal to the Secretary of State under s.174(2)(f).

31 I would answer the question set out in paragraph 10(5) of the case stated in the affirmative, and dismiss the appeal.
LONGMORE J:
32 I agree.
33 For my part I would only wish to emphasise the significance to our decision in this case of Harrison's concession on behalf of the respondents that the prosecuting authority had to prove as part of their case that the enforcement notice had been issued pursuant to a resolution of the council and that the Receiver for the Metropolitan Police Division had given his consent to the issue of the enforcement notice (see Section 172 (1) and 296 (2) (a) of the Town and Country Planning Act 1990.
34 On one possible view that was an unnecessary concession in the light of the last sentence of Lord Hoffmann's speech in Wicks [1998] AC 92, 122F in which he concludes that the words "enforcement notice" in the planning legislation mean:-
"a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review."
There was after all, nothing on the face of the enforcement notice as attached to the case stated which showed any non-compliance with the requirements of the Act.
35 I do not consider, however, that Lord Hoffmann intended by his use of the words "on the face" to preclude a defendant in criminal proceedings from requiring the prosecution to prove that the enforcement notice was formally valid under the 1990 Act. That this is so is shown by two earlier passages in his speech; first (at 117B-C) where he contrasts on the one hand the case of a statute which may either require the prosecution to prove that the act in question is not open to challenge on any ground available in public law or enable the defence to show that it is open to such challenge and, on the other hand, a statute which on its true construction merely requires an act which appear formally valid and has not been quashed by judicial review. Of this latter kind of statute he says:
"In such a case nothing but the formal validity of the act will be relevant to an issue before the justices."
36 Secondly (at 119 A) he contrasts the possible meanings of "enforcement notice" as being either a notice which is not liable to be quashed on any of the standard grounds in public law or a notice issued by the planning authority
"which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review".
37 It is clear from these passages that the formal validity of an enforcement notice is a matter which can be put in issue by the defence and must, once it is in issue, be proved by the prosecution.
38 Like my Lord therefore, I am satisfied that Mr Harrison's concession is correct. I also agree, however, that that concession does not enable the appellants to succeed.