QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE TREACY
|SEVENOAKS DISTRICT COUNCIL||Appellant|
|GEORGE ARTHUR HARBER||Respondent|
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Mr David Watkinson (instructed by Messrs Bramwell Browne Oderdra, Chesham Buckinghamshire HP5 1DE) appeared on behalf of the Respondent
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"a) Cease the use of the land as a residential caravan site.
b) Remove all touring caravans from the land.
c) Remove all hardstandings, structures, buildings, septic tank and fencing used for purposes ancillary to the use of the land as a residential caravan site.
d) Reinstate the land to its former condition before the development took place."
"(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."
Subsections (8) and (9) then deal with the penalties for the offence.
"(ii) The Respondent had failed to comply with a step required by the enforcement notice as alleged. However, the Respondent had taken reasonable steps to secure compliance.
(iii) Attempts were made by the Respondent to remove the mobile home from his land but neighbours refused access to their land, and the vehicle which was to remove the mobile home was unable to gain access to the Respondent's land via other means.
(iv) It was not reasonable for the Respondent to dismantle his mobile home in order to comply with the notice."
"It was similarly not reasonable for the Respondent to merely cease living in the mobile home and leave it on the site as he would still have no other home in which to live with his family, and would not have complied fully with the notice in any event."
Consequently, they found the respondent not guilty.
"1. Whether we were correct that the Respondent had established the statutory defence when he could merely have ceased living in the mobile home to comply with the enforcement notice having regard to the allegation in the summons.
2. Whether we were correct that the Respondent had established the statutory defence in Section 179(3) of the 1990 Act when we accepted that he could have complied with the notice by dismantling his mobile home.
3. Whether we were correct in finding that, in the circumstances, the Respondent had done all that he could reasonably be expected to do to comply with the notice."
"But, most importantly, subsection (3) uses the words 'everything he could be expected to do to secure compliance'. The argument of the appellant ignores these words and their necessary implication that the owner is having to secure that someone else comply with, or assist in the compliance with, the notice.
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."
"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."
"The only defence available at the enforcement stage, therefore, is the limited one afforded by section 179(3) as interpreted in Beard. Where it is within the power of the owner of the land to comply with the enforcement notice without the assistance of others, no question of a defence can arise under section 179(3)."
"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."
"There is no inconsistency between the scheme of the United Kingdom planning legislation and the convention. The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including at the stage of deciding whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with article 8."
By "enforcement" in that last sentence there, the Lord Justice clearly meant its enforcement by means of a prosecution.
"Those procedures provide for independent assessment and appeals from that assessment of the competing rights and interests of applicants for planning permission, and the interests of the community as a whole. These procedures include appeals against the issue of enforcement notices. The human rights of persons affected, whether gypsies or otherwise, are part of the equation which calls for consideration at those stages."