QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| WYCOMBE DISTRICT COUNCIL
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Marc Willers (instructed by Bramwell Brown-Odedra) for the Respondent
Crown Copyright ©
Mr Justice NEWMAN :
"We were of the opinion that, on the balance of probabilities, the respondent has shown that in reality and in common sense he was unable to comply with the obligations imposed upon him by the enforcement notice because he had done all that he could reasonably be expected to do to find suitable alternative accommodation. Accordingly we found the respondent not guilty of the offence."
"(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."
(1) The respondent's children attend school locally. It is in their best interests to remain at their respective schools.
(2) The respondent made approaches to local farmers to buy land, confirmed in letters of June and September 2004, and was unsuccessful. The respondent also made enquiries of, and is registered with, local property consultants. These enquiries as to available local land also proved unsuccessful.
(3) There is a shortfall of gypsy accommodation in the Wycombe area and consequently other alternative local sites were not available. The respondent did not look for any alternative gypsy accommodation outside the Buckinghamshire area.
(4) The respondent approached the appellant's housing department for alternative accommodation before purchasing Ashbrook Farm. As he is the owner of a mobile home he was not deemed to be homeless and therefore none was available.
(5) The respondent was willing to change his culture and consider living in a house with his family.
(6) The sale of the respondent's mobile home would have rendered him intentionally homeless and local authority accommodation would not have been available. He was advised by the appellant to go to letting agents.
(7) The sale of the respondent's mobile home would have realised sufficient funds to enable him to rent accommodation, but only for a short period based on current market rental values and therefore he did not go to any letting agents or attempt to obtain rental accommodation. Once the funds realised were used the respondent would not be able to maintain rental payments.
(8) The sale of the mobile unit would have realised in the region of £10,000.
(9) The respondent was in work.
"…it is a matter for the tribunal of fact whether or not the respondent had done all that he can "reasonably be expected" to do to secure compliance with the enforcement notice."
(1) Kent County Council v Brockman heard in the Divisional Court on October 11th, 1993 and reported in 1996 1 PLR at page 1.
(2) R v Beard heard on May 10th, 1996 in the Court of Appeal Criminal Division reported 1997 1 PLR 64.
(3) R v Wood  EWCA Crim 1395 heard in the Court of Appeal Criminal Division May 25th, 2001; and
(4) A judgment on a renewed application for permission to appeal to the Court of Appeal Criminal Division given on 5th March 2002 in the case of R v Thomas George Clark  EWCA Crim 753.
"It seems to me to follow from the construction I have already put on section 179(3); in other words, on the premises that any particular defendant is genuinely incapacitated, it seems to me to follow that even if he has done nothing he can still make out a defence, because if he is genuinely incapacitated, surely he cannot be expected to do anything. "
Buckley J was referring back to a passage at page 3 D-E:
"It seems to me that the plain meaning of those words does indeed permit the personal circumstances to be taken into account. … To hold someone guilty of a criminal offence for not doing something which they are genuinely incapable of doing, would be quite contrary to any tenets of criminal law…".
"… echo Buckley J's words of caution to magistrates not too readily to accept the section 179(3) defence when advanced essentially on the basis of impecuniosity. It is clearly imperative that land should not be left in an unsatisfactory state, perhaps as a public eyesore, unless a landowner has taken every practical step to overcome his financial problems in complying with the requirements of the enforcement notice, to the extent if need be of selling his land, if that is possible, to ensure that it will be put into a proper state."
"We consider that the submissions made on behalf of the prosecution are correct. The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of subsection (3)."
"The alleged facts relied upon by the appellant do not relate to any lack of capacity or inability of the appellant to comply with the enforcement notice. His compliance does not involve his securing that any other person do or desist from doing anything. He himself has the resources and the power to comply with the notice."
"Whether in the light of the evidence the steps that the Justices found the respondent had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under section 179(3) Town & Country Planning Act 1990".
The answer to the question is "No".
MISS SHEIKH: My Lord, there is an application for costs. I am aware that the defendant is legally aided in this matter and therefore there cannot be any question of summary assessment. I would simply ask for Wycombe District Council's costs to be assessed for the purposes of legal funding.
MR JUSTICE NEWMAN: Yes, and there should be no order for costs against them which cannot be enforced without the leave of the court?
MISS SHEIKH: Without the leave of the court, my Lord, yes.
MR JUSTICE NEWMAN: Do you ask for that?
MISS SHEIKH: My Lord I think it has changed recently. I think the form of words has altered recently.
MR JUSTICE NEWMAN: It has. It used to be called a Sainsbury's order but I am not so sure it has not moved from that now. What are you asking for? Do you want an order for costs against them which is not to be enforced until such time as they win the lottery, or do you want in fact no order for costs at all?
MISS SHEIKH: No, my Lord, one that should not be enforced unless they win the lottery.
MR JUSTICE NEWMAN: All right. Somebody can draft that up into the appropriate words. All right. Mr McLeish, what do you want to say?
MR MCLEISH: My Lord, I would like to apply for an order for detailed assessment of his publicly funded costs.
MR JUSTICE NEWMAN: You need that, certainly.
MR MCLEISH: And also, my Lord, the respondent would like to apply for permission to appeal for a certificate of general public importance. Trial counsel unfortunately cannot be here today. I have his dates to avoid and I have consulted with my learned friend. There is one date within the two week period which would be possible for both parties on 2nd June.
MR JUSTICE NEWMAN: We do not need a date, Mr McLeish. If Mr Willers would be as good as to put the point that he says is fit to be certified down on a piece of paper and put it to me in writing and give a copy to Miss Sheikh, then I will look at it on the papers and there need not be a hearing.
MR MCLEISH: I have certainly been instructed to request a half hour hearing.
MR JUSTICE NEWMAN: I know you have been instructed to ask for one, but I am just telling you you are not getting one. You just send in the suggested point to be certified and I shall be very interested to see it in the light of the judgment, but I give the opportunity to Mr Willers to suggest a point which is fit to be certified, submit it to Miss Sheikh and then it can come to me in writing. If I have any difficulty in dealing with it, if I am in doubt either way, I will either give Miss Sheikh an opportunity by way of a short oral hearing or if I am in any doubt on your side I will give you an opportunity, but if I am sure either way then there is no need for another hearing.
MR MCLEISH: Thank you.
MR JUSTICE NEWMAN: One thing you can tell me, and I know that the Wells are here, have they got accommodation? I would like to know whether they have applied for accommodation to the local authority yet. Could you take instructions?
MR MCLEISH: I am informed that the situation has remained unchanged. Mr Wells has applied to join a list for a caravan site but has been told that the waiting list will take about three years for a place to become available.
MR JUSTICE NEWMAN: Have you read the judgment, Mr McLeish?
MR MCLEISH: Perhaps not as fully as I should have done.
MR JUSTICE NEWMAN: I made it as clear in the judgment, and I will say it now for the Wells since they are here, and they will have heard on the last occasion, and I do not think there was any room for misunderstanding. I said then, and it was accepted by counsel Miss Sheikh for the local authority, Wycombe District Council, that in this case having regard to the existence of the Enforcement Order, the terms of which in my judgment have got to be complied with, that they are in a position where they can apply to the local authority for their eligibility as a family to be considered by the local authority in accordance with statutory requirements they being on the face of it homeless people as a result of this order. I made it plain in the course of the hearing, and I have repeated it in the judgment, that their course is to apply to the local authority as homeless people and as I understand it they have made it plain from beginning to end in this case that despite Mr Wells' gypsy origin he is not one who is seeking to assert that to live in bricks and mortar would be contrary to his cultural background. Therefore it is a case in which he should apply to the local authority, who are here represented as the successful party in this appeal, to the housing department. They will consider whether the family should be rehoused or housed in accommodation provided by the local authority. Now I cannot say it more clearly than that. It is in their interest to do it. It is not in their interest to speculate, although they are entitled to do so, upon the prospect of this case going any further than it has gone. The law is clear and the matter is closed. Their way forward is to apply to the local authority as homeless people. Now, I do not think I want to say any more. I have said it as firmly and as clearly as I hope can be apparent to them. That is what should happen. I hope you will read the judgment not only for your illumination, education and anything else that it might provide, but could you read it, and in particular perhaps paragraph 8, which, it has been acknowledged in the comments which I received from Mr Willers on the judgment when it was sent to him, accurately reflects the law on homelessness. Will you please confirm to them that that is the law on homelessness and that that is their way forward.
Thank you very much, Mr McLeish.