England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2005

Mr Justice NEWMAN :

1. This is an appeal by way of case stated from justices for the Thames Valley Commission Area, acting in and for the petty sessions area of Central Buckinghamshire in the County of Buckingham. On 28^th September 2004 the justices dismissed an information laid by the Wycombe District Council (the appellant) against the respondent alleging a failure, contrary to section 179 of the Town & Country Planning Act 1990 ("the 1990 Act"), to comply with an enforcement notice

The Facts

2. On 26^th April 2002 the appellant, acting as planning authority, served an enforcement notice on the respondent as the owner of Ashbrook Farm, requiring him to cease use of the land as a caravan site and to remove all moveable and temporary structures from the land. On 25^th March 2004 an information was laid against the respondent alleging that, at the 11^th February 2004, he had failed to comply with the notice. Having heard the evidence, the justices found that there had been a breach of the order, but they concluded:

"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."

3. Section 179 of the 1990 Act provides:

"(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. Following service of the enforcement notice in April 2002, the respondent, who is a gypsy, appealed against the enforcement notice. The appeal was considered by an inspector and dismissed. An appeal against an enforcement notice is a deemed application for planning permission. There was no application to the High Court in respect of the rejection of the appeal but, by a letter dated 18^th December 2003, the respondent purported to apply for planning permission for two caravans at Ashbrook Farm. The application was not in the prescribed form, but after 11^th February 2004, namely the date laid in the information as the date at which there had been a failure to comply, a planning application was received which was refused and that refusal was appealed.
5. Among the facts and matters which the magistrates found, which are central to the issue arising on this appeal, are the following:

(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.

6. The magistrates were referred to R v Thomas George Clarke [2002] EWCA Crim 753 and R v Wood [2001] EWCA Crim 1395 and rightly concluded that, on the basis of the authorities, the word "reasonably" should be read into section 179(3) of the 1990 Act before the words, "be expected". Further, they noted correctly that:

"…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."

7. It is apparent the magistrates concluded that the statutory defence had been made out because the respondent "had done all that he could reasonably be expected to do to find suitable alternative accommodation" (see paragraph 2 above). On this ground alone the conclusion of the magistrates must be regarded as flawed. A defence under section 179(3) is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site has become available, where the activity in question could be continued. On that basis, a whole range of activities, which take place contrary to planning control, and are commonly enforced against, could continue simply because nowhere else was available for them to be carried on. For example, the use of land for the whole range of industrial and commercial activities to which land can be put, could be continued, despite the service of an enforcement notice, so long as the owner or user demonstrated that an alternative site, where the activity could continue, had not become available. The enforcement procedures, essential to proper planning control, would be wholly undermined.
8. It can also be seen that the magistrates placed some weight upon an approach to the appellant's housing authority before he purchased Ashbrook Farm. It is not clear why the position prior to ownership of Ashbrook Farm was relevant, but it seems likely the magistrates concluded that the respondent's ownership of a mobile home meant that he would not be regarded as "homeless". The service of an enforcement notice requiring the respondent and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family (including the respondent) for the provision of housing accommodation provided by the local authority to be considered by the housing department of the appellant. There had been no application to the housing authority by the respondent and his family after the service of the enforcement notice. Had the magistrates realised the true position I doubt that they would have come to the conclusion that the respondent had done everything reasonably possible to find alternative accommodation. In the course of argument on the appeal and in response to the court, counsel for the appellant local authority accepted that the position of the respondent and his family arising from their need to comply with the enforcement notice, meant that the issue was fit to be taken up by the housing department of the appellant local authority as soon as any application was made to it.
9. Having regard to the magistrates' flawed approach to the meaning of section 179(3) of the Act, it is plain that the appeal must be allowed but, in fairness to the magistrates, who considered the law, it is necessary to say something about how, as it appears to the court, they were led into the erroneous conclusion to which they came.
10. There have been a number of cases where consideration has been given to the statutory defence under section 179 of the 1990 Act:

(1) Kent County Council v Brockman heard in the Divisional Court on October 11^th, 1993 and reported in 1996 1 PLR at page 1.

(2) R v Beard heard on May 10^th, 1996 in the Court of Appeal Criminal Division reported 1997 1 PLR 64.

(3) R v Wood [2001] EWCA Crim 1395 heard in the Court of Appeal Criminal Division May 25^th, 2001; and

(4) A judgment on a renewed application for permission to appeal to the Court of Appeal Criminal Division given on 5^th March 2002 in the case of R v Thomas George Clark [2002] EWCA Crim 753.

11. As to the case of Brockman, it is not clear from the judgment what the enforcement notice required the respondent, Mr Brockman, to do, but he was incapacitated physically by reason of a heart attack from exerting himself and the magistrates had found as a fact that, whatever it was he was required to do, he could not do it himself. Further, the magistrates had concluded that his financial circumstances did not permit him to employ anybody else to do the work. That fact was not in issue on the appeal. It was not a case in which Mr Brockman himself was required to vacate the site. The relevant question, posed by the magistrates in the case stated, was whether the magistrates were correct to take the respondent's personal and financial circumstances into account when determining whether he did have a defence under section 179(3). The court concluded that it was plain that the words did permit the personal circumstances of a defendant to be taken into account. But the question of what may be taken into account for the purposes of deciding whether the statutory defence has been made out is not the same as deciding what, upon the true meaning of section 179(3), has to be made out to establish a defence, about which there appears to have been no contention. In dealing with the submission advanced on the appeal that it was a case in which nothing had been done by the defendant, Buckley J. observed (page 4 B-L):

"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…".

12. The court decided that personal circumstances were admissible to establish incapacity, not that personal circumstances were admissible to establish an excuse or explanation for non-compliance or that compliance would give rise to particular hardship. It is clear the court was holding that for a defence to be made out, it must be established that, despite doing everything that could be reasonably expected, the defendant was nevertheless incapable of complying with the notice. Simon Brown LJ in his short judgment following Buckley J., foresaw the risk that arguments on the basis of impecuniosity could lead to magistrates upholding defences, which were outside the contemplation and true meaning of the statutory defence. He stated that he would:

"… 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."

13. In my judgment Brockman provides no support for the factual conclusion reached by the magistrates in this case being treated as a defence. The respondent was not incapable of leaving the site. Whether or not he had an alternative site to go to, he was physically able to leave the site with his family. Further, as to his financial circumstances, although in selling the mobile home he might only be able to provide himself with a home for a limited period of time, estimated at ten months, the hardship that that created for himself and the family did not establish that he was incapacitated by any impecuniosity. His "impecuniosity" did not prevent him from leaving the site, but plainly the requirement for them to go was capable of creating a measure of hardship. It has to be said, in the light of their "homelessness" and the statutory duty upon housing authorities, it is likely to be substantially less than the magistrates had in mind. Further, it has to be said that the hardship in having to vacate the site was among the issues which had already been considered by the inspector on the appeal against the enforcement notice. As a result, he gave the respondent time to comply with the notice. Issues such as the lack of availability of authorised gypsy sites gave rise to planning issues, which had already been considered on the appeal. As such, they were outside the jurisdiction exercised by magistrates in connection with an enforcement notice.
14. The case of Beard, to which the magistrates were not taken (but which is considered in detail in both the cases of Clarke and Wood to which they were taken), is very much in point. In that case, the appellant, a gypsy, appealed against his conviction on the ground that he had a defence because his decision not to move to the official site was reasonable. It was submitted that he had searched for an alternative accommodation without success and, if forced to comply with the enforcement notice, he would not be able to follow the traditional lifestyle of a gypsy. Laws J., as he then was, had rejected this defence on the basis of a preliminary ruling. The Court of Appeal did not approve of the adoption of this procedure. However, the correctness of his reasons for rejecting the defence was confirmed by the Court of Appeal. The court stated, see page 70 G-H:

"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)."

15. As Hobhouse LJ stated in Beard, so the facts of this case can be so categorised:

"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."

16. For these reasons, too, I am satisfied that the magistrates erred and that this appeal must be allowed. The question for the opinion of the High Court is:

"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".

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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.