QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
1 Bridge Street West,
Manchester, M60 9DJ
B e f o r e :
MR JUSTICE JULIAN KNOWLES
| ANEEL ZAFAR
|- and -
|STOKE-ON-TRENT CITY COUNCIL
Freddie Humphreys (instructed by Council Solicitor) for the Respondent
Hearing dates: 23 November 2020
Crown Copyright ©
Mr Justice Julian Knowles:
" … failed to comply with a planning enforcement notice which became effective on 5 December 2018 and required compliance on or before 5 June 2019 in that he failed to undertake the steps required in that notice contrary to s 179 of the Town and Country Planning Act 1990."
"Without planning permission, the installation of upvc double glazed windows/door to all openings on the front elevation and the re-painting of the render on the front elevation in a dark grey colour (within Victoria Park Conservations Area and Article 4 Direction in place removing permitted develop rights).
"174 Appeal against enforcement notice.
(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds—
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;
(e) that copies of the enforcement notice were not served as required by section 172;
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.".
"Validity of enforcement notices and similar notices.
(1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
"(2) If the appropriate local planning authority is satisfied that it is expedient that any particular development described in paragraph (5) below should not be carried out within the whole or any part of a conservation area unless permission is granted for it on an application, they may give a direction under this paragraph that the permission granted by article 3 shall not apply to all or any particular development of the Class in question within the whole or any part of the conservation area, and the direction shall specify the development and conservation area or part of that area to which it relates and that it is made under this paragraph."
"(8) In deciding whether to confirm a direction made under article 4(2), the local planning authority shall take into account any representations received during the period specified in the notice referred to in paragraph (2)(d).
(9) The local planning authority shall not confirm the direction until a period of at least 28 days has elapsed following the latest date on which any notice relating to the direction was served or published."
The issues before the justices
a. KM3, a Council document dated 21 December 2006 listing the development rights which were removed by the Article 4 Direction;
b. KM6, a letter dated 20 June 2018 sent to the Appellant informing him the work he had carried out was in breach of the Article 4 Direction;
c. KM11, the Enforcement Notice; KM21, a generic letter dated 21 December 2006 generated by the Council's Planning Team and Heritage Team sent to residents notifying them about the Article 4 Direction which had come into force on 20 December 2008;
d. KM22, a Notice of Confirmation of Direction Under Article 4(2) dated 22 June 2007. This stated, pursuant to Article 6(7) of the 1995 Order, that the Council had confirmed the Article 4(2) Direction;
e. KM23, the Council's Register of Documents Sealed, containing an entry for 19 June 2008 showing Victoria Park as a conservation area;
f. KM24, a letter dated 22 June 2008 sent to the Occupier of 157 Victoria Park Road stating,
"You may recall that on 21 December 2006 the Council introduced extra controls for a provisional period over certain works which previously had not required planning permission.
This letter and the attached Notice now confirm these controls as a permanent measure. Planning permission is now required to carry out any of the following works ..
- enlargement, improvement or alteration to elevations fronting the street, including alterations to external doors, windows, and porches
- painting the exterior of dwelling houses and curtilage of building fronting the street
The new controls were approved by the Council on 27 March 2007, under Article 4 of the Town and Country Planning (General Permitted Development) Order. They apply to all those parts of the building which front the highway.
I infer that the Notice which was enclosed with this letter was the Notice exhibited by Ms Mee as KM22;
g. KM25, an extract from the Land Registry records showing that the Victoria Park Conservation Area and the Article 4 Direction are registered as local land charges.
The justices' decision and the issues on this appeal
" … the Article 4 Direction was more likely in place than not. We were satisfied that exhibit KM22 details the development works not to be carried out under the Article 4 Direction without permission and that this is the information which would have been contained in the missing signed Article 4 Direction. We were therefore satisfied on the balance of probabilities that the Article 4 Direction has been properly made and was therefore in effect, thus removing the Permitted Development Rights at the Defendant's property. Accordingly, we convicted the defendant."
"133 Proof of statements in documents
Where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either—
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material part of it,
authenticated in whatever way the court may approve."
"The Council contend, in our opinion correctly, that the provisions of section 133 Criminal Justice Act 2003 were not a bar to the consideration of other forms of evidence before the court. We considered that evidence to determine on a balance of probabilities (a standard accepted as appropriate by the defence) whether or not the Article 4 Direction covering the development in question had been properly made and applied at the relevant time."
"a. Was it open to us to consider forms of evidence out-with the terms of section 133 [of the Criminal Justice Act 2003] in determining the existence of the Article 4 Direction ?
b. Were we correct in applying the civil standard of proof to this discreet (sic) aspect of the case?
The parties' submissions on the appeal
a. there was no evidence of a valid Article 4 Direction;
b. hence there was no proof that generally permitted development rights (including replacement of windows and exterior painting) had been removed for the Appellant's property;
c. hence the work carried out by the Appellant did not require planning permission;
d. and hence the Appellant had not breached planning controls and not breached the enforcement notice.
"… A[n enforcement] notice has to specify certain matters. If it does not so specify, the notice is plainly inoperative as a notice under the Act … the notice may require such steps as may be specified in the notice to be taken within such period as may be specified for restoring the land to its earlier condition or for securing compliance with conditions. To be operative, therefore, the notice must specify these things, and if, for example, it does not specify what is to be done or within what period it is to be done, it will fail to have effect as an enforcement notice and the owner or occupier need not comply with it. Subsection (3) [of s 27 of the 1947 Act] also lays down positively (and that I think is important) that the notice shall take effect at the expiration of a specified period and that period must be not less than 28 days after service. Plainly, therefore, if there is no such statement of a specified period or if it is expressed to take effect within 28 days of service, subsection (3) will not be satisfied and the notice will not operate …
Now, what happens if a notice does not comply exactly with those sections? As a matter of common sense, if it does not specify the steps to be taken to remedy the alleged breach of planning permission or the alleged failure to comply with the conditions with proper and sufficient particularity, the notice will not be operative. So, too, if subsection (3) is not complied with. Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a). The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that he failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. the notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity."
"So if an appeal might have been brought or has been brought and has failed on any of the grounds of appeal contained in s 174 then, at any later stage, and particularly if there be a prosecution of the defendant for failing to comply with the Enforcement Notice, he may not seek to show that the Enforcement Notice was invalid on any of those grounds. He is however still entitled to argue that the Enforcement Notice is a nullity. Section 285 is a provision that dates back to the amendments introduced into the Enforcement Notice part of the planning legislation by the Caravan Sites and Control of Development Act 1960. So it has been part of the law now for a considerable period of time."
"… I would like to say a word about the reason for section 243 of the Act of 1971. It is the successor of a similar provision which was first introduced in 1960 in section 33(8) of the Caravan Sites and Control of Development Act 1960 . Before that Act, the procedure by enforcement notices had become greatly hampered by technical objections. I explained it in Miller-Mead v. Ministry of Housing and Local Government  2 QB 196. The Act of 1960 was passed especially to do away with these technical objections and to abolish all the formalities which had surrounded enforcement notices. The object was to enable planning control to be enforced according to the merits of the case. For this purpose, it was enacted that the validity of an enforcement notice was not to be questioned by proceedings in the courts. It enacted that the only way to question the validity was an appeal to the Minister. This was a much better procedure, because it meant that planning merits and the law were considered by one and the same tribunal. If there was any technical defect in the enforcement notice, it could be amended. Moreover, if there was any breach of planning control — and yet there was a good case on the planning merits — the Minister could give planning permission in those very proceedings. Nevertheless, if there was a point of law, there was an appeal from the Minister to the High Court. This procedure was so greatly to be preferred that the legislature enacted that the validity of an enforcement notice should not be questioned in the courts, but only in the proceedings on appeal to the Minister."
"I note in passing that, although section 243(1)(a) provides that the 'validity' of an enforcement notice is not to be questioned except as therein provided, the word 'validity' is evidently not intended to be understood in its strict sense. It is used to mean merely enforceability. That appears from a consideration of the grounds on which an appeal may be brought under Part V of the Act of 1971, which are not limited to matters affecting the validity of the notice. The relevant grounds are set out in section 88(2), part of which I have already quoted, and it is apparent that paragraph (a) (at least) goes to the merits rather than to the validity (in the strict sense) of the notice. Accordingly, the fact that the respondent is not questioning the 'validity' of the notice is immaterial. In fact, of course, the respondent now accepts the notice as perfectly valid and, as at the date of instituting the present proceedings, unappealable; indeed, that is the essential basis of his claim for damages.
But in my opinion, the respondent's claim for damages is not barred by section 243(1)(a). That paragraph provides that the validity of an enforcement notice shall not be questioned in any proceedings whatsoever 'on any of the grounds on which such an appeal may be brought.' The words 'such an appeal' are a reference back to an appeal under Part V of the Act of 1971, and they mean in effect the grounds specified in section 88(2). But section 243(1)(a) does not prohibit questioning the validity of the notice on other grounds. If, for example, the respondent had alleged that the enforcement notice had been vitiated by fraud, because one of the appellants' officers had been bribed to issue it, or had been served without the appellants' authority, he would indeed have been questioning its validity, but not on any of the grounds on which an appeal may be brought under Part V. So here, the respondent's complaint that he acquiesced in the enforcement notice because of negligent advice from the appellants is not one of the grounds specified in section 88(2), and it would not have entitled him to appeal to the Secretary of State under Part V of the Act of 1971. Accordingly, even on the assumption that the validity of the enforcement notice is being questioned in the present proceedings (an assumption which in my opinion is open to serious doubt), it is certainly not being questioned on any of the grounds referred to in section 243(1)(a) and the proceedings are not barred by that subsection. In my opinion, therefore, the appellants' first contention fails."
"… We start from the position that the offences of failing to comply with the requirements of an Enforcement Notice and of acting in contravention of a Stop Notice are criminal offences, the ingredients of which must be proved in the same way as any other, with the burden of proof resting on the prosecution in respect of all the factual and legal ingredients of the offence, save to the extent that statute may provide to the contrary. Such contrary statutory provision has only been made in respect of challenges to the validity of Enforcement Notices. The effect of the authorities referred to at paragraphs 22 and 23 above is that in any criminal proceedings the validity, in the sense of the enforceability, of an Enforcement Notice may not be questioned on the grounds, inter alia, that at the date of issue of the notice the breach of planning control, in this case, the operation of a waste recycling and transfer facility, had not in fact occurred. Again, in this case, that means (by reason of the definition contained in the notice) it cannot be challenged that, as at the date of the notice, the land was being used for the importation of assorted waste, the storage of such waste, its sorting and processing and the distribution and exportation of unprocessed and processed material from the land. However, that is the full extent of the limitation placed on the defence. Further, it is a limitation only in respect of the counts relating to the Enforcement Notice and not in respect of the Stop Notice counts."
Lady Justice Macur DBE: