England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 March 2010

1. LORD JUSTICE TOULSON: I will ask Owen J to give the first judgment.
2. MR JUSTICE OWEN: This is an application for judicial review arising out of an appeal against conviction and sentence by the interested party, Mohammed Asif Hussain, to the Snaresbrook Crown Court. The appeal related to an enforcement notice served on the interested party on 11 July 2006, requiring him to stop using land defined as the rear part of 815 Lea Bridge, Walthamstow for the purpose of washing, cleaning or valeting motor vehicles.
3. On 19 April 2007, he was served with a summons alleging breach of the enforcement notice contrary to section 179(1) of the Town and Country Planning Act 1990. The summons alleged that the interested party was the tenant of 815 Lea Bridge Road, and that the breach had occurred between 6 October 2006 and 31 January 2007. On 21 July 2008 the interested party was convicted at the Waltham Forest Magistrates' Court, fined £5,500 and ordered to pay costs of £500.
4. In due course, he appealed against both conviction and sentence. The appeal was heard by Mr Recorder Aaronberg and two lay Justices on 19 May 2009. They allowed the appeal.
5. The appeal was opened on the basis of the particulars in the summons, namely that the interested party was the tenant of the premises. Documentary evidence from the Land Registry showed that in fact he became the owner of the premises on 29 August 2007, some seven months after the last of the dates within which the offence was alleged to have been committed. But the summons charged him with an offence contrary to section 179(1) of the Act. It is in the following terms:

"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."

6. Sub-section (2) provides that if the owner of the land is in breach of an enforcement notice he will be guilty of an offence. Then, importantly, sub-section 3 is in the following terms:

"In proceedings against any person for an offence under sub-section (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."

7. Sub-sections (4) and (5) relate to a person who is not the owner of the premises in question. They are in the following terms:

(4) A person who has control of or an interest in the land to which the enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes sub-section (4) shall be guilty of an offence."

8. The summons was correct in alleging that the interested party was the tenant of the premises, but was incorrect in alleging an offence contrary to section 179(1) and (2); it ought to have alleged an offence contrary to section 179(4) and (5).
9. The point was taken by the learned Recorder at the conclusion of the prosecution case. There was then a discussion between the learned Recorder and counsel for the claimant. The question which was debated was whether the court had power to proceed as if the summons had been drafted to allege an offence under section 179(4) and (5) instead of 179(1). It was accepted that the Magistrates' Court would have had such a power when hearing the original trial.
10. In the course of those discussions, the learned Recorder put certain questions to the interested party, who accepted that he was the tenant of the premises at all material times, and became their owner at a later date. But the learned Recorder nevertheless declined to proceed as if the summons had been laid under the correct sub-section of the Act, and in consequence allowed the appeal against conviction. The reason for his decision was that, if the court proceeded as if the summons alleged an offence under section 179(4) and (5), the interested party would be deprived of the statutory defence under sub-section (3). That was confirmed by a letter to this court dated 21 August 2009 from Her Majesty's Court Service Customer Service Unit, which contained comments made by the learned Recorder as to the basis for his decision. But the belief upon which the decision was based, namely that the interested party would be deprived of a defence were the court to treat the summons as alleging an offence under sub-sections (4) and (5), was erroneous. As was clear from the evidence before the court, the interested party was not the owner of the premises during the relevant period, and accordingly the statutory defence afforded by sub-section (3) could not have been available to him.
11. In his helpful skeleton argument, Mr Ivill, who appeared for the claimant, also invited our attention to the decision of the Divisional Court in R v Swansea Crown Court ex parte Stacey [1990] RTR 183, which confirmed that the Crown Court does not have jurisdiction to amend an information on an appeal by way of re-hearing against conviction from a Magistrates' Court, but that the Crown Court does have the same power as the magistrates to proceed on the information as it stood, where the error was slight and would not result in any injustice. The court held in Stacey that:

"The factual situation in the present case is ... that the mistake as to the date was upon all sides conceded to be of no materiality whatsoever. It was a clerical error which escaped notice until this matter went to the Crown Court on appeal. It did not affect the resolution of any of the issues. It presented no injustice to this applicant. Accordingly, if it had been noticed and dealt with by the justices it would have warranted them saying that they had no need to amend the information. They could, using the power given to them by section 123, have proceeded with the information as it stood. Likewise, the Crown Court may proceed, in circumstances such as this, using the same power. On appeal they have the same power as the justices and no more."

12. The error in the drafting of a summons in this case was of a similar nature to that in Stacey. Given that the summons expressly and correctly asserted that the interested party was the tenant of the premises at the material time, and that that was accepted by him as being the case in the course of the hearing, the error, to adopt the phraseology of the court in Stacey, was of no materiality whatsoever. It could not give rise to any injustice to the interested party. In those circumstances, it was open to the Crown Court to proceed on the information as it stood.
13. I am therefore satisfied that in allowing the appeal, the learned Recorder plainly proceeded on a false premise. For that reason I would quash the decision and remit the appeal to the Snaresbrook Crown Court for re-hearing.
14. LORD JUSTICE TOULSON: I agree.