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 WC2
		4th April 2008

1. LORD JUSTICE KEENE: This is an appeal by way of case stated from a decision of the Crown Court at Derby, dated 24th June 2005. By that decision the Crown Court dismissed the appellant's appeal against his conviction by the Chesterfield Magistrates' Court on an offence under Section 179 of the Town and Country Planning Act 1990 of failing to comply with an enforcement notice.
2. The appellant's appeal to this court was lodged out of time because it was initially sent to the wrong court. There is no suggestion that the respondent, which is the local planning authority for the area in question, has been prejudiced in any way by the delay, and we therefore grant the necessary extension of time for this appeal. I should say that the respondent does not appear at today's hearing. A written statement from the Park Authority indicates this is for financial reasons rather than because of any belief that the decision of the Crown Court was wrong. We therefore deal with the appeal on its merits.
3. The facts of the case are not complicated. The appellant is the tenant and occupier of premises at Middleton by Youlgreave near Bakewell in Derbyshire, a site which falls within the Peak District National Park. For a number of years he had stored motor vehicles on his land without any express planning permission. The planning authority resolved to take enforcement action under Section 172 of the 1990 Act. Thus it was that in March 2003 an enforcement notice was served by recorded delivery on the appellant's premises and upon his landlord, the owner. It was due to come into effect on 15th April 2003; but, on 16th April, the appellant told an officer of the respondent authority that he had been out of the country and had not received the enforcement notice. Consequently the authority withdrew that enforcement notice.
4. A fresh notice in similar terms was duly issued and was served on 30th April 2003; that is to say, shortly after the conversation to which I have just referred and the withdrawal of the earlier notice. This second notice was served by an officer of the authority putting it through the letter box at the premises in an envelope marked "Important. This communication affects your property". It required the appellant to cease using the premises for the storage of motor vehicles by 6th September 2003. It stated that it was to take effect on 6th June 2003 unless an appeal was lodged before that date. As we shall see, that reflects the statutory provisions as to appeals against enforcement notices, because the Act provides that any appeal to the Secretary of State must be lodged before the date specified in the notice as to when the enforcement notice is to take effect. The Act requires that the enforcement notice be served not less than 28 days before the day it is to take effect (see Section 172(3)). As the Crown Court noted, the enforcement notice in this case allowed over 35 days before it came into effect and so that was the period available for lodging the appeal to the Secretary of State.
5. In the event no appeal was lodged with the Secretary of State before 6th June 2003. The Crown Court accepted that the appellant had been out of the country again from 28th April to 7th or 8th June, and that he had been unaware of the enforcement notice until his return a day or two after the notice became effective.
6. On 23rd March 2004 the respondent began prosecution proceedings against the appellant for failure to comply with the enforcement notice and he was in due course convicted at the Magistrates' Court, as I have indicated. On the appeal to the Crown Court it was found that the enforcement notice had been properly served. There was no dispute that the appellant had not complied with it. He contended that he would have had a good basis for an appeal against it, had he been aware of it. The Crown Court found that he had an arguable appeal on the ground of having used the relevant land for storing vehicles for a period in excess of 10 years. (A subsequent further enforcement notice was also served; an appeal in time was lodged; the same argument to which I have just referred was advanced but in the event that argument failed. That does not seem to me to have any significant effect upon the merits of the issue now being raised on this appeal.)
7. Before the Crown Court it was argued on the appellant's behalf that the prosecution amounted to a breach of his rights under Article 6 of the European Convention on Human Rights to a determination of his civil rights and obligation. Furthermore, it was an abuse of process, so it was said, to prosecute when he had been out of the jurisdiction and unaware of the notice during the time when an appeal could have been lodged against the notice.
8. The Crown Court did not accept those arguments. Giving its reasoned decision, His Honour Judge Wait said that the court found that the planning authority had acted in good faith in bringing the prosecution and were under no duty to withdraw the notice and serve yet another one. The judge went on to say this (page 26 of the judgment):

"The fact that we have found that the appellant was out of the country does not make the proceedings oppressive. In my judgment when a person is aware - as the appellant was - of enforcement proceedings, and could reasonably anticipate re-service of them, having once complained that he had not received them, when such a person could reasonably be expected to make arrangements to be informed about such re-service, either by having someone collect and open his post, which would be - was - as is agreed, clearly marked relating to his property, he could have notified the authority in advance of his extended absence from the country, or he could have made arrangements through other means, potentially through his landlord, or otherwise, to be notified where he was to be in Germany, either by telephone or otherwise."

9. The Crown Court also noted the legitimate public interest in dealing with such apparent breaches of planning control within a reasonable time and in the setting, therefore, of time limits.
10. It found that the statutory time limits on an appeal to the Secretary of State did not so restrict the right of access to a court as to impair the very essence of that right. The time allowed here for an appeal would be 35 or more days in a situation where the appellant was aware of the likelihood of an enforcement notice being served and both could and should have made arrangements for dealing with such matters in his absence.
11. The questions for this court posed in the case stated can be summarised as follows:

1. Was the Crown Court wrong in law to find that the appellant's Article 6 right to a fair hearing of his civil rights and obligations had not been breached?

2. Was it wrong of the Crown Court not to find that the prosecution involved such a breach when there was no evidence that the respondent's position on any appeal against an enforcement notice would have been prejudiced, save as to the passage of further time, had the respondent re-issued the enforcement notice when they were informed that the appellant had been out of the country?

3. Did the court err in approaching the question of whether there had been an abuse of process of the court on the ground of the appellant's human rights from the perspective of whether the respondents had been culpable in acting as they had rather than from the perspective of whether their actions had actually breached the appellant's human rights.

It will be seen that there is a considerable degree of overlap in those three questions.

12. On behalf of the appellant Mr Dee, in succinct submissions this morning, contends that the prosecution was unlawful because it deprived the appellant of his right to a determination of his civil rights and obligations. This, he says, is not an academic point because the Crown Court found, as I have indicated, that there was an arguable matter to be raised on an appeal against the enforcement notice.
13. Reliance is placed, as it was below, on the Strasbourg decision in Cavanilles v Spain 116/1997/900/1112, where it was said that time limits in rules should not prevent litigants from making use of an available remedy.
14. It is submitted by Mr Dee that the Crown Court erred, first of all by focusing on the issue of the good faith of the respondent which was irrelevant to the Article 6(1) issue; and secondly, by applying common law principles about abuse of process rather than considering the issue of proportionality under the European Convention. It is emphasised that the planning authority was aware when they began the prosecution that the appellant had not known of the enforcement notice until after the period for an appeal had expired.
15. For my part I do not find these arguments persuasive. First of all, the action of the respondents did not deprive the appellant of his right to a determination of his civil rights and obligations. The respondents started criminal proceedings against the appellant for breach of the enforcement notice. Of course that enforcement notice did itself involve issues concerning his right to use and develop his land in a particular way; and it could be said, therefore, that it did involve his civil rights and obligations. He could have had a hearing to determine the extent of those rights under the planning legislation, had he appealed against the enforcement notice in time. He did not do so. What, to my mind, deprived him of such a hearing was not the prosecution brought by the respondents, but a combination of Section 174(3) of the 1990 Act which requires any appeal to be made by the date when the enforcement notice is stated to take effect, and his own failure to lodge such an appeal.
16. It has not been suggested by the appellant that Section 174(3) and its time limits are incompatible with Article 6(1); and indeed if that issue had been raised the Secretary of State would have had to be represented here. The Strasbourg decision in Cavanilles does not render that statutory provision incompatible since the court there was dealing with an extremely short time limit of just a few days. And it has no relevance to a provision which stipulates, in effect, a period of at least 28 days after service for the lodging of an appeal. The court in Cavanilles was making the point that a domestic law time limit must not, in effect, remove the right of access to the courts altogether in a practical sense. That is a very long way from being the case under Section 174(3).
17. I have applied my mind to a question which has not been raised directly by the appellant but which may be relevant, namely: should section 174(3) be interpreted other than in the straightforward way in which the statutory words indicate? Is there any argument that Section 3(1) of the Human Rights Act 1998 requires those words to be read in some other way so as to avoid the breach of a person's Article 6 rights if he is ignorant of an enforcement notice until after the time for appeal has passed?
18. I cannot see that there is any such argument, certainly not a valid one on the facts of this case. The time for lodging an appeal is by most standards a generous one and in the present case it was exceeded, since the enforcement notice allowed over 35 days for an appeal. In addition, the appellant could have anticipated the service of a fresh enforcement notice, as I shall emphasise in a moment. It is also, perhaps, to be noted, that the statutory provisions in the 1990 Act clearly leave no scope for a defence to a prosecution under Section 179 simply because the defendant did not know of the enforcement notice during the period for lodging an appeal so long as the enforcement notice was properly served. I say that because Section 179(7) does provide a defence, but in much more restricted circumstances. It states:

"Where

(a) a person charged with an offence under the section has not been served with a copy of enforcement notice; and

(b) a notice is not contained in the appropriate register kept under Section 188

It shall be an offence for him to show that he was not aware of the existence of the notice."

It will be seen from that that Parliament was prepared to provide a defence only if the lack of knowledge of the enforcement notice is accompanied by a failure to serve it and a failure to put it into the appropriate register. Lack of knowledge by itself under the Act is no defence to a prosecution.

19. The appellant does not contend that there was a breach of his Article 6 rights to a fair trial on the criminal charge against him, and in my view he is right not to take that point. The Article 6 rights in respect of criminal proceedings are essentially concerned with procedural fairness, not with the substance of the criminal law in a domestic jurisdiction.
20. In the end, it seems to me that the appellant's arguments do amount to asserting that the prosecution involved an abuse of process because it should never have been brought. I do not see that the provisions of the European Convention on Human Rights actually add anything of real significance to that argument. The common law principles concerning abuse of process are what really matter here. Once one gets to that position, it can be seen that the issue of whether the planning authority acted in good faith or not was relevant. That is a material consideration in abuse of process applications and the Crown Court, in my judgment, was right to deal with it. The real issue is whether it was an abuse of process to prosecute the appellant in the circumstances of this case to which I have referred.
21. The Crown Court obviously considered all the factual circumstances very carefully. It laid particular emphasis on the fact that this appellant could in late April reasonably have anticipated the service of a fresh enforcement notice on him because the March notice had been withdrawn as he had been out of the country when it was served. In that situation, as the Crown Court said, he should have made arrangements to ensure that he was informed of the arrival of any substitute enforcement notice. He could not simply leave the country for six weeks or so and then rely upon his ignorance of the service of another enforcement notice.
22. Those factual circumstances would, I should add, also be relevant to any consideration of the appellant's rights under Article 6. The reality here is that he was to a large extent the author of his own misfortune. This court can only interfere if it is satisfied that the Crown Court made an error of law in its decision. I can see no such error and for my part I would dismiss this appeal and answer the questions posed in the case stated accordingly.
23. MR JUSTICE TREACY: I agree.
24. LORD JUSTICE KEENE: Thank you very much, Mr Dee. The respondents do not appear, they are not seeking any costs against you so we make no order as to costs.
25. MR DEE: Thank you, my Lord.
26. LORD JUSTICE KEENE: You were not legally-aided, I think.
27. MR DEE: We are legally-aided.
28. LORD JUSTICE KEENE: And you have lodged the certificate with the court?
29. MR DEE: The certificates should be lodged with the court, it will be dated 23rd June 2006.
30. LORD JUSTICE KEENE: And you would like an order for legal aid assessment?
31. MR DEE: I would.
32. LORD JUSTICE KEENE: You can have the usual order. Thank you very much, and thank you for putting your submissions in such a succinct fashion.