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||Neutral Citation Number:  EWHC 1922 (Admin)
||Case No: CO/459/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE SINGH
|| Gurmokh Singh Sanger
Jagninder Singh Sanger
||- and -
||London Borough of Newham
Philip Coppel QC and Daniel Janner QC (instructed by Khakar & Co) for the Appellants
Richard Barraclough QC and Emmaline Lambert (instructed by Director of Legal and Governance, London Borough of Newham) for the Respondent
Hearing dates: 20-21 May 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Singh :
- This is an appeal by way of case stated from the Crown Court at Inner London (HHJ Rowe QC sitting with the justices) dated 19 April 2013. The Crown Court dismissed an appeal from the Thames Magistrates' Court. Before the Magistrates' Court a trial took place before a District Judge which led to the conviction of the defendants on 26 March 2012 for an offence of breach of an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990, as amended ("the 1990 Act").
- There are 11 questions stated for the opinion of this Court. I will turn to each of those questions at the appropriate juncture during the course of this judgment.
- The two appellants are brothers and are the joint owners of a freehold property at 97 Sheridan Road, Manor Park, London, E12 ("the property"). They became joint freeholders of the property in 2001. At some point between that time and 2006 the property was converted into two self-contained flats. This constituted a material change of use and was therefore development and required planning permission. No planning permission was in fact sought or obtained.
- In December 2006, having learned of the conversion, the London Borough of Newham (which is the local planning authority and the respondent to these proceedings) sent a Planning Contravention Notice addressed to the appellants at 201 Clayhall Avenue, Ilford, Essex.
- In January 2007 an application for retrospective planning permission for the conversion was made by a Mr Jaffa of Hutton Enterprises stated to be on behalf of the appellant Gurmokh Singh Sanger. In April 2007 the council refused that application and a subsequent appeal to the Secretary of State was dismissed by a planning inspector in a decision dated 21 September 2007.
- On 5 October 2007 the council issued an enforcement notice. On 9 October 2007 Mr Jaffa submitted an appeal against that enforcement notice on behalf of the appellant Jagninder Singh Sanger. There is a dispute between the parties as to whether that appeal was in fact made by Jagninder Singh Sanger: it is submitted on his behalf that he did not instruct or authorise Mr Jaffa to lodge the appeal in his name but that his father had done so. This is a dispute to which I will return. In any event there was an appeal to the Secretary of State. There was only one ground advanced in support of that appeal, namely that the time given for compliance with the enforcement notice was too short: this ground is available under section 174(2)(g) of the 1990 Act. The appeal was dismissed by a planning inspector on 3 March 2008.
- At para. 6 of the appeal decision the inspector said:
"I have considered all the points put forward during the appeal. I appreciate the appellant's wish for sufficient time to serve notice on the tenants and complete the required alterations, but against this must be balanced the Council's understandable concern to remedy what the notice identifies as a breach of local planning policies and a cause of harm to the residential amenities of both the tenants and the neighbouring properties. I am also aware that, following the Inspector's decision refusing permission in September 2007, it would have been clear to the appellant, once the enforcement notice had been issued on 5 October 2007 that it would have to be complied with. I would therefore have reasonably expected notice to be given to the occupiers of the flats when the enforcement notice was issued in October. I am aware that the occupiers will have to look for alternative accommodation; but, in view of the time that has already elapsed, I consider that a further four months is a reasonable and adequate period in which to do so. Bearing all these points in mind, I do not consider that any extension to the compliance period would be justified in this case, given the apparent planning objections to the development which the notice has identified. The ground (g) appeal fails accordingly."
- That appeal having been dismissed on 3 March 2008, the date for compliance with the enforcement notice was therefore 3 July 2008.
- There was in fact no enforcement action taken until May 2010, when the council contacted the appellants.
- The appellants submitted two separate applications for a Certificate of Lawful Use (CLEUDS) in December 2010 and September 2011. Each of those applications was refused by the respondent planning authority.
- On 11 November 2010 the respondent served the appellants with summonses for breach of the enforcement notice.
- The trial before the Magistrates' Court took place over five days in February and March 2012.
- The appeal before the Crown Court took place over nine days in October 2012, December 2012 and March 2013. The Crown Court gave two lengthy judgments, the first in relation to an application to stay the prosecution on grounds of abuse of process ("the abuse judgment"), the second in relation to the appeal itself ("the main judgment"). The Crown Court had a large amount of documentation before it, including legal arguments, and heard oral evidence from a number of witnesses for each side.
The Statutory Regime
- Section 179 of the 1990 Act in its current form was inserted by the Planning and Compensation Act 1991. Later in this judgment it will be necessary to refer to the original version of that section.
- Section 179 of the 1990 Act, as amended, 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."
- Subsection (5) creates a similar offence in respect of persons who are not owners of the land in question, so it is not directly relevant in the present case.
- By virtue of subsection (8) a person guilty of an offence under section 179 shall be liable on summary conviction, to a fine not exceeding £20,000.
- Subsection (3) provides that, 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.
- Subsection (6) provides that an offence may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction for such an offence.
- Subsection (7) provides a further defence in certain circumstances. Where (a) a person charged with an offence under section 179 has not been served with a copy of the enforcement notice; and (b) the notice is not contained in the appropriate register kept under section 188, it shall be a defence for him to show that he was not aware of the existence of the notice.
- Section 188 of the 1990 Act, so far as material, provides:
"(1) Every district planning authority, every local planning authority for an area in Wales and the council of every metropolitan district or London borough shall keep, in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect –
(a) to enforcement notices; …
(3) Every register kept under this section shall be available for inspection by the public at all reasonable hours."
- The matters required to be kept in that register are prescribed by the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995 No. 419) ("the 1995 Order"), article 26. I will make reference to the details of that provision at the appropriate juncture in this judgment.
- Section 172(2) of the 1990 Act requires the local planning authority which issues an enforcement notice to serve a copy of that notice on the owner of the land to which it relates: see subparagraph (a). Subsection (3) requires that the service of the notice shall take place not more than 28 days after its date of issue and not less than 28 days before the date specified in it as the date on which it is to take effect.
- Section 55(3)(a) of the 1990 Act deems the division of a single dwelling house into two or more separate dwelling houses to constitute a material change of use in the building and of each part of it which is so used. Being a material change of use, it therefore constitutes development and in principle requires planning permission. However, the carrying out of development without planning permission is not in itself a criminal offence. The criminal law only becomes involved once an enforcement notice has been served and has not been complied with by the due date.
- Section 171B(2) provides the time limit for such cases: where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
- In the present case, the enforcement notice came into effect on 6 November 2007. Accordingly, if by 6 November 2003 the use of the property had already changed to use as two dwelling houses, the local planning authority could not lawfully commence enforcement action in respect of that change.
- Section 285 of the 1990 Act deals with the circumstances in which the validity of an enforcement notice can be questioned in legal proceedings. Subsection (1) provides that 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. However, subsection (2) provides that subsection (1) shall not apply to proceedings brought under section 179 against a person who (a) has held an interest in the land since before the enforcement notice was issued; (b) did not have a copy of the enforcement notice served on him; and (c) satisfies the court – (i) that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and (ii) that his interests have been substantially prejudiced by the failure to serve him with a copy of it.
- The leading authority in this area of law is the decision of the House of Lords in R v Wicks  AC 92. In that case the House of Lords held that, on its true construction, section 179(1) of the 1990 Act meant that an enforcement notice was simply a notice issued by the local planning authority that was formally valid and had not been set aside on appeal or quashed on judicial review. In giving the two main speeches, both Lord Nicholls of Birkenhead and Lord Hoffmann stated that the 1990 Act is an elaborate statutory code with detailed provisions regarding appeals. The consequence is that, even if the decision to issue an enforcement notice is alleged to have been influenced by bias or improper motives, that is not a contention which can be raised before a criminal court by way of defence to proceedings for breach of an enforcement notice.
- At p.119 Lord Hoffmann considered the history of the enforcement notice provisions from the Town and Country Planning Act 1947 onwards. He said:
"The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest."
- At p.121 Lord Hoffmann also said that:
"I do not think that construing the Act in this way involves any inroad upon the principle that criminal statutes should be clear and in case of ambiguity construed in favour of the defendant. The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it."
- Before the Crown Court in the present proceedings, there was no dispute that the four factual ingredients which the prosecution must prove in such a case were present: (1) that an enforcement notice was issued by the council relating to the relevant land and which on its face complied with the requirements of the 1990 Act, had not been quashed and required some steps to be taken within a certain time; (2) that the time for complying with the enforcement notice had expired; (3) that the appellants owned the land during the period covered by the charge and that period was after the period for complying with the enforcement notice had expired; and (4) that on the dates covered by the summons the appellants had not complied with the requirements of the enforcement notice. However, the appellants submitted that there were a number of defences available to them and also that the continuation of the prosecution was an abuse of process. The Crown Court rejected those arguments.
- I will now turn to the questions which have been stated for the opinion of this Court. As was apparent from the hearing before this Court it will be convenient to take some of the questions together, as in substance they raise the same issues.
Question 1: Was the Crown Court correct to conclude that the relevant date for the determination of the availability of the defence under Section 179(7) of the Town and Country Planning Act 1990 ("It shall be a defence for him to show that he was not aware of the existence of the [enforcement] notice") was the date of the offence given in the summons (27 July 2010)?
Question 2: Was the Crown Court correct to determine that "Defendants who learn of the EN after the time for compliance [here, 3 July 2008] but prior to charge can still take the identified steps; the prosecution would then be unable to make out the s179(2) offence"?
- On behalf of the appellants it is submitted that the relevant date was the date on which the enforcement notice took effect (6 November 2007); alternatively the last date for compliance with the enforcement notice (3 July 2008). The Crown Court found as a fact that the appellants were probably not aware of the enforcement notice by 3 July 2008 (para. 47 of the main judgment). Accordingly, it is submitted, the appellants could not have been guilty of the offence charged.
- On behalf of the appellants Mr Coppel QC submits that the interpretation given to section 179 by the Crown Court is wrong. He submits that it is non-compliance with the requirements of an enforcement notice within the period permitted by it which defines the offence. The offence is complete at that stage. Therefore, he submits, even if the appellants had carried out all the requirements of the enforcement notice on or after 4 July 2008, that would not undo or lessen the offence, which would already have been committed.
- I would readily accept that the offence created by section 179(2), read with subsection (1), is not complete until the date specified in an enforcement notice for steps to be taken or for an activity to cease has passed. That much is clear from the use of the words in subsection (1) "after the end of the period for compliance with an enforcement notice". However, Mr Coppel's conclusion does not follow from that premise. That simply establishes that there can be no offence committed until that date has passed. It does not follow that the offence cannot continue to be committed after that date.
- I would accept the submission made by Mr Barraclough QC on behalf of the respondent that the offence under section 179(2) is only complete and crystallises (subject to the various "knowledge defences") once the period for compliance has expired but that thereafter the offence is a continuing one. As the words of subsection (1) themselves make clear, the offence is committed "at any time" after the end of the period for compliance with an enforcement notice. Furthermore, the words of subsection (1) refer to the person who is "then" the owner of the land which is the subject of the enforcement notice. It is plain that that could be on a date which is after the date specified in the notice for compliance has long since passed. It is also plain that the legislation contemplates that the owner at that time may well be a person who did not own the land at the time specified in the enforcement notice.
- That interpretation of section 179 also derives support from the provisions of subsection (6). That subsection contains two material provisions. First, it provides that an offence under subsection (2) or (5) can be charged by reference to "any day or longer period of time". Secondly, it allows for a second or subsequent prosecution where, despite a first conviction, a defendant continues to fail to comply with the requirements of an enforcement notice. In this context it is significant that the closing words of subsection (6) are "any period of time following the preceding conviction". Those words make clear that an offence can be committed at a time which may be long after the date specified in the enforcement notice has passed.
- Furthermore, the interpretation given to section 179 by the Crown Court derives some support from the presence of the defence which is set out in subsection (3). That enables a defendant to show, by way of defence, that he did everything he could be expected to do to secure compliance with the enforcement notice. Mr Coppel did not shrink from submitting that a defendant would not be able to rely on that defence if he did everything he could reasonably be expected to do but did so only after the date specified in the enforcement notice has expired.
- I am unable to accept that submission. First, there is nothing in the wording of subsection (3) to restrict its operation in that way. Secondly, it must be recalled that this is a defence which Parliament has made available to persons who are otherwise at risk of conviction for a criminal offence: I can see no reason to read such a provision in a restrictive way. It should be available to all persons who find themselves charged under section 179, not just a sub-category of such persons. Thirdly, I can see no reason why the policy of the legislation should be to make the defence available only in a limited class of case. To the contrary, the primary objective of the legislation is to ensure compliance with planning controls. As I have already mentioned, the role played by the criminal law is a secondary one, in support of that primary objective. Very often in practice the threat or potential risk of criminal proceedings will have the salutary effect of concentrating the mind of a person, who will then take steps to ensure that a breach of planning control comes to an end. On Mr Coppel's interpretation, such a person would still be guilty of an offence and could never undo the effect of that because he had not complied with the enforcement notice within the time specified in it. However, I can see no reason why the legislation should wish to criminalise such conduct when the underlying objective of securing compliance with planning control has been achieved by the date of any prosecution. Fourthly, Mr Coppel's interpretation would have the effect that a subsequent owner could never rely on the defence in section 179(2). Mr Coppel readily conceded this but said that it would be difficult to see why in practice a person would buy land in such circumstances. That may be so but the scope and meaning of provisions of the criminal law can be tested by reference to such examples. Again, I can see no good reason why Parliament should have intended to deprive a subsequent owner of the defence that would otherwise be available under subsection (3).
- Mr Coppel further submits that the Crown Court's reasoning is inconsistent with the decision of the Divisional Court in Maltedge Ltd v Wokingham District Council  3 PLR 136. That case concerned the original version of section 179 of the 1990 Act, which was the successor to section 89 of the Town and Country Planning Act 1971. Section 179 as originally enacted was different in its language and structure from the current version. So far as material, it provided that:
"(1) Where –
(a) a copy of an enforcement notice has been served on the person who at the time when the copy was served was the owner of the land to which the notice relates, and
(b) any steps required by the notice to be taken (other than the discontinuance of a use of land) have not been taken within the compliance period,
then … that person shall be guilty of an offence.
(6) Where, by virtue of an enforcement notice –
(a) a use of land is required to be discontinued …
then, if any person uses the land or causes or permits it to be used … in contravention of the notice, he shall be guilty of an offence."
- The main judgment in that case was given by Laws J, with whom Beldam LJ agreed. At pp.138-9 he said that:
"It will be seen that the date by which an enforcement notice falls to be complied with is a defining factor in the offence created by section 179(1) because that section is drafted by reference to the compliance period. Implicitly the same is true of the offence created by section 179(6)."
- Later in the same passage Laws J said that:
"It is part of the very definition of the offence created by section 179(1) and it is inherent implicitly in the terms in which the offence in section 179(6) is created that the compliance period be alleged and proved so that the court can see whether the facts alleged to constitute a breach have occurred at the time and the only time with which the statute is concerned."
- I would not accept the submission advanced by Mr Coppel on the basis of that authority, for two reasons. First, the ratio of the case is that the informations in that case were defective because they did not aver, nor was it ever proved before the magistrates' court, that there had been a failure to comply with the requirements of the enforcement notice by the date specified in it. That was an essential element of the offence charged, yet it had not been averred or proved, as it should have been. Secondly, and fundamentally, the case was concerned with a different version of section 179. In particular, it should be recalled that the words of subsection (1) now apply to "any time" after the end of the period for compliance with an enforcement notice. The reasoning of Laws J, that the only time with which the statute was concerned was the end of the period for compliance, is simply not applicable to the current wording of section 179.
- Accordingly, I would answer Questions 1 and 2 in the affirmative.
Question 3: Was the Crown Court correct in their determination that the appellants were each served with the enforcement notice in accordance with the provisions of Section 329 of the Town and Country Planning Act 1990?
- Section 329 of the 1990 Act, so far as material, provides:
"(1) Any notice or other document required or authorised to be served or given under this Act may be served or given either – (a) by delivering it to the person on whom it is to be served or to whom it is to be given; or (b) by leaving it at the usual or last known place of abode of that person or, in a case where an address for service has been given by that person, at that address; or (c) by sending it in a prepaid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode or, in a case where an address for service has been given by that person, at that address;…"
- For the appellants it is submitted that the Crown Court was wrong in law to conclude that the enforcement notice was served on the appellants in accordance with section 329.
- Mr Coppel relies on earlier authorities in support of his submission that it is not sufficient for the respondent simply to have sent an enforcement notice by recorded delivery but that it must also prove that it was received. In particular he relies on the decision of the Court of Appeal in R v London County Quarter Sessions Appeals Committee, ex p. Rossi  682. That case concerned section 3 of the Summary Jurisdiction (Appeals) Act 1933. Under that provision notice of the hearing of an appeal could be "sent by post in a registered letter addressed to [a person] at his last or usual place of abode." On the facts of the case the letter was returned to its sender marked "Undelivered … No response." In those circumstances the Court held that the notice had not in truth been given and so the proceedings should be quashed.
- At p.694 Denning LJ said:
"when service of process is allowed by registered post, without more being said on the matter, it is assumed to have been delivered in the ordinary course of post and any judgment or order by default obtained on the faith of that assumption is perfectly regular. … But if the letter is returned undelivered, and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside."
- At p.697 Morris LJ made reference to section 26 of the Interpretation Act 1889 (there is an equivalent provision now in section 7 of the Interpretation Act 1978) and said that:
"the sending of the notice was deemed, unless the contrary was proved, to have been effected, at the time at which the letter would have been delivered in the ordinary course of post. But here the contrary was proved. It was proved, not merely that the letter was not delivered in the ordinary course of post but that it was not delivered at all. Service cannot in this case be deemed 'to have been effected' at some particular time, i.e. in the ordinary course of post: service was proved not to have been effected at all."
- At p.700 Parker LJ said that:
"Whether the dispatch of this letter, though undelivered, constituted the giving of a notice depends on the true construction of section 3(1) read with section 26 of the Interpretation Act 1889. The latter section … is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second part provides that unless the contrary is proved that service is effected on the day when in the ordinary course of post that document would be delivered. This second part, therefore, concerning delivery as it does, comes into play and only comes into play in a case where under the legislation to which the section is being applied the document has to be received by a certain time. If in such a case 'the contrary is proved', that is, that the document was not received by that time or at all, then the position appears to be that though under the first part of the section the document is deemed to have been served, it has not been proved that it was served in time."
- In my judgment there is no direct analogy to be drawn with Rossi. Each case must be considered by reference to the particular legislation which falls to be construed: see R v Secretary of State for the Home Department, ex p. Yeboah  1 WLR 1586, at pp.1593-4, where Sir Nicolas Browne-Wilkinson V-C distinguished Rossi and held that, in the context of the immigration appeal notices regulations which fell to be construed in that case, the word "sent" meant despatched by post and no more. Furthermore, in my view, what was critical in the reasoning of each member of the Court in Rossi, although they expressed themselves in different ways, is that on the facts it had been proved that the letter giving notice of the hearing had not been delivered. It had been returned to its sender to say that there had been no response and so it was undelivered. Those are not the facts of the present case.
- The same can be said of another decision relied upon by Mr Coppel: Hewitt v Leicester Corporation  1 WLR 855. In that case a notice to treat under compulsory purchase legislation was sent to a landowner by recorded delivery to the last known address but was returned undelivered and marked "gone away." Section 169(1) of the Housing Act 1957 provided that a notice could be served by sending it in a prepaid registered letter to a person's usual or last known place of abode. The Court of Appeal followed Rossi and held that in the circumstances of the case the notice had not been duly served but again that was because it was proved on the evidence that it never been received at all, since it had been returned undelivered: see pp.857-8 in the judgment of Lord Denning MR, with whom the other members of the Court agreed.
- In the present context, in my judgment, service of the enforcement notice was properly effected in accordance with the requirements of section 329 of the 1990 Act. In particular the notice was sent by the recorded delivery service and addressed to each defendant at his usual or last known place of abode. That was 201 Clayhall Avenue. Insofar as it was then relevant to consider whether the notice was in fact received by each defendant, that was a matter to be considered by asking whether any of the defences which are in principle made available by the Act were made out: in particular section 179(7) and section 285(2). Under those provisions it was open to the appellants to prove (and it is common ground that the burden of proof in this regard lies on a defendant) that the enforcement notice was not in fact received by him.
- In the light of the conclusion which I have reached on this point, it is not necessary to address in detail an interesting debate that was conducted before this Court as to whether Mr Jagninder Singh Sanger was entitled to rely on this defence in any event. For the respondent it is submitted that the position of each appellant is different in this regard because, on the face of it, Jagninder Singh Sanger appealed against the enforcement notice. If that is right, the effect of section 175(5) of the 1990 Act is that he is not entitled in any other proceedings instituted after the making of the appeal to claim that the notice was not duly served on him. Mr Coppel submits that the appeal was in fact lodged by Mr Jaffa on the instructions of the appellants' father, Mr Bachan Singh Sanger, and not on behalf of Jagninder Singh Sanger. I do not consider it necessary in the circumstances to resolve this dispute, which is essentially one of fact. Suffice to say that I see considerable force in the submissions made by Mr Barraclough for the respondent. In particular, there was evidence before the Crown Court that would support its finding that the appeal was lodged by Mr Jaffa on behalf of Jagninder Singh Sanger: that is precisely what the documentation said on its face.
- Accordingly, I would answer Question 3 in the affirmative.
Question 4: Was the Crown Court correct to conclude that the provisions of Section 188 of the Town and Country Planning Act 1990 and Article 26 of the Town and Country Planning (General Development Procedure) Order 1995 had been complied with by the respondent, or that, the omission of certain prescribed information was irrelevant?
- For the appellants it is submitted that there were seven relevant requirements as to the information which ought to have been included in the register kept by the respondent under section 188, pursuant to article 26 of the 1995 Order: (a) the address of the land to which the notice relates or a plan by reference to which its situation can be ascertained; (b) the name of the issuing authority; (c) the date of issue of the notice; (d) the date of service of copies of the notice; (e) a statement or summary of the breach of planning control alleged and the requirements of the notice, including the period within which any required steps are to be taken; (f) the date specified in the notice as the date on which it is to take effect; (g) information on any postponement of the date specified as the date on which the notice will take effect by reason of section 175(4) of the Act and the date of the final determination or withdrawal of any appeal.
- Mr Coppel submits that the enforcement notice entry in the register in the present case failed to include three of those matters: the date of service of copies of the enforcement notice under subparagraph (d); a statement of the requirements of the enforcement notice, including the period within which the required steps were to be taken, under subparagraph (e); and information on the postponement of the date specified as the date on which the notice would take effect and the date of the final determination of the appeal, in accordance with subparagraph (g).
- Mr Coppel submits that these omissions were not insignificant nor did the Crown Court suggest that they were. Nevertheless the Crown Court concluded that an enforcement notice could be contained in the section 188 register even though material entries were missing from it. Mr Coppel submits that it was wrong in law to do so.
- The first thing to note is that this issue only arises if the Crown Court was wrong on Questions 1 and 2. This is because it concluded that the material date was 27 July 2010 and that by that date the appellants were aware of the enforcement notice. As I have already indicated, in my view, the Crown Court was correct on Questions 1 and 2. Therefore, even if the enforcement notice had not been contained in the register kept under section 188 at all, the appellants could not have availed themselves of this defence.
- However, turning to the merits of Mr Coppel's submission, I would reject it in any event. I would accept Mr Barraclough's submission for the respondent that, on the true construction of the 1990 Act, an entry which is incomplete because it does not set out all the particulars required by article 26 of the 1995 Order may still be said to be contained in the register kept under section 188.
- It is important to recall that the purpose of the defence in section 179(7) is to protect the position of a person who is both himself unaware of the existence of an enforcement notice in respect of the land in question and cannot obtain notice of the existence of that enforcement notice by checking the public register which is to be kept under section 188. However, in the present case, if anyone had checked the register he would immediately have been put on notice that there was an enforcement notice in respect of the property. He or his advisers could then reasonably be expected to take steps to find out what exactly that notice required. Although not all of the particulars of the notice which should have been on the register in accordance with article 26 of the 1995 Order were there, the crucial information which was needed to see that there was an enforcement notice in existence in respect of the relevant address was present. As Mr Barraclough readily accepted, it would have been different if the entry on the register had omitted even reference to the address of the land concerned: then it could have been said that inspection of the register would not put a person on notice even of the existence of an enforcement notice. However, those are not the facts of the present case.
- In his written submissions Mr Coppel relied upon the decision of the House of Lords in R v Soneji  AC 340, to suggest that the breach of the requirements of article 26 of the 1995 Order in this case was so serious that it rendered the register entry invalid. I would not accept that the analogy is apt. Each case depends on the particular piece of legislation that falls to be construed. I would accept the respondent's submission that Soneji was a very different kind of case, concerned with the regime relating to confiscation orders in criminal proceedings.
- Accordingly, I would answer Question 4 in the affirmative.
Question 5: Was the Crown Court correct to conclude that the defence contained within the provisions of section 179(3) of the Town and Country Planning Act 1990 was unavailable to the appellants?
- For the appellants Mr Coppel submits that the Crown Court erred in its approach to this question. He submits that the defence in section 179(3) is available to a person who has done everything he could be expected to do within the period for compliance specified in an enforcement notice. He goes on to submit that, since the period for compliance with the enforcement notice in this case ended on 3 July 2008 and since the Crown Court found as a fact that the appellants did not know of the enforcement notice by that date, they clearly had done everything they could by that time.
- In my judgment, this question in substance raises the same issue of construction which is raised by Questions 1 and 2, as to the relevant date. Since I have already held that the Crown Court was correct in its interpretation of section 179 as to the relevant date, I would reject Mr Coppel's submissions on this question too.
- Accordingly, I would answer Question 5 in the affirmative.
Question 6: Was the Crown Court correct to conclude that the defence contained within the provisions of Section 285(2) of the Town and Country Planning Act 1990 was unavailable to the appellants, and that Section 285(1) of the Town and Country Planning Act 1990 had not been disapplied?
- This part of the case was addressed by the Crown Court at paras. 51-61 of its main judgment. Strictly speaking, the issue did not arise, since the Court found that the appellants were served with the enforcement notice: see para. 52. As I have already held, the Court was correct in its approach to that finding. However, the Court went on to consider the other questions raised under section 285(2) and reached conclusions of fact which were adverse to the appellants.
- At para. 56 of its main judgment the Crown Court addressed the question whether the defendants could not reasonably have been expected to know of the issue of the enforcement notice. The Court was not satisfied of that matter and set out its reasons in seven subparagraphs. Some of those matters related to what might be regarded as factors that were structural features of the planning system rather than factors that were specific to these appellants. In particular, subparagraph (c) pointed out that the planning authority could do no more to serve the defendants than to serve them at their correspondence address by the recorded delivery system; subparagraph (f) was that the policy of the 1990 Act is to encourage vigilance on the part of landowners through the imposition of absolute liability; and subparagraph (g) was that planning legislation would be ineffective if the courts were to allow a defendant to establish a family arrangement for the management of his property but then hide behind that arrangement from any external responsibility. However, in my view, these matters were not irrelevant as a matter of law to the overall question of reasonableness which the Court had to ask itself.
- Furthermore, the other matters, set out in subparagraphs (a), (b), (d) and (e) were plainly specific to these appellants themselves. In summary, the Court found that (a) the appellants both knew that they owned the property and that it was let for their financial benefit; (b) they did nothing to alert anyone outside the family that they had ceded day to day management of it to a third party; (d) their father plainly knew of the issue of the enforcement notice, as he instructed Mr Jaffa to appeal against it shortly afterwards; and (e) the appellants should have taken steps to keep acquainted with formal issues concerning their property. Elsewhere in its judgment the Crown Court noted that both of these appellants are professional men: see para. 84.
- Questions of reasonableness are classically questions of fact, degree and opinion. In the present context, that question is entrusted by Parliament to the judgment of the trial court but, since an appeal to the Crown Court is by way of rehearing, the appellants were able to and did receive a full hearing on the merits before the Crown Court also. At the end of the day the Crown Court found against them, having carefully considered the evidence before it. In my judgment, it cannot be criticised as to the approach it took. Nor can it said that its conclusion was perverse.
- At para. 59 of its main judgment the Crown Court turned to another issue which did not strictly arise on the finding it had just made: that was the question whether there had been any substantial prejudice to the appellants.
- Again it is important to recall that the burden of proof on this rested upon the defence. The Crown Court had to consider a hypothetical situation very different from the one which in fact it had found to exist. It then properly asked itself the question whether the position in which the defendants now found themselves would have been different if they had been properly served with copies of the enforcement notice. It found that, in that hypothetical situation, their father would have resisted intervention by either of them in a planning matter over which he retained control and that they may well have left the matter to him at that stage, as it was still a planning matter rather than a potentially criminal one.
- Mr Coppel submits that that finding was perverse, since the evidence before the court was that, when Gurmokh Singh Sanger did eventually find out about the enforcement notice, he took charge. However, it is important to recall that this Court is not rehearing the case on its merits. Nor has this Court had the benefit, as the Crown Court did, of hearing live evidence from witnesses, including both appellants and their father. Elsewhere in the main judgment, the Crown Court made significant findings of fact as to the kind of man the appellants' father is. For example, at para. 87 it noted that he is a man of strong character who is shrewd and does what he considers to be best for his family members. At para. 88 the Court noted that he was prepared to depart from the "normal rules" when he considered that was in the best interests of his family, when for example a document had to be signed by a member of the family who was not available. In the light of the evidence which was before the Crown Court as a whole, I am unable to accept Mr Coppel's submission that the findings of fact which the Court made about substantial prejudice were not open to it.
- Accordingly, I would answer Question 6 in the affirmative.
Question 7: Was the Crown Court correct not to stay the prosecution as an abuse of the process of the court in the light of the acknowledged failures of the prosecution to make proper disclosure in accordance with the Criminal Procedure and Investigations Act 1996 and the Attorney General's Guidelines 2005, both before and during the hearings at first instance or on appeal?
Question 8: Was the Crown Court correct not to conclude that the acknowledged failures of the prosecution to make proper disclosure in accordance the Criminal Procedure and Investigations Act 1996 and the Attorney General's Guidelines 2005, both before and during the hearings at first instance and on appeal rendered its conclusions on material aspects of the evidence unsafe?
- Questions 7 and 8 can be taken together since in substance they concern the same issue: whether the acknowledged failures in relation to disclosure were such that the prosecution should have been stayed on the ground of abuse of process.
- As I have already mentioned, the Crown Court considered this issue both in its detailed judgment rejecting the application to stay the prosecution (the abuse judgment) and in its main judgment.
- The submissions on this part of the appeal before this Court were made by Mr Janner QC. He submits that the Crown Court erred because it reached a conclusion which was perverse in all the circumstances of this case.
- The Crown Court considered the application to stay the prosecution after the close of the prosecution case but before there had been any evidence on behalf of the defence: paras. 13 and 45 of the abuse judgment. It considered that application in detail: the abuse judgment alone consists of 74 paragraphs. The Crown Court set out the applicable legal principles accurately at paras. 41-43 of the abuse judgment, referring as appropriate to the principal authorities in the field, in particular the decision of the Supreme Court in R v Maxwell (Paul)  1 WLR 1837 and the decision of the Privy Council in Warren v Attorney General of Jersey  1 AC 22. Those principles have very recently been re-affirmed by the Court of Appeal (Criminal Division) in R v Crawley & Others  EWCA Crim 1028, at paras. 17-19, 21-23 and 32.
- At para. 45 of its abuse judgment the Crown Court reminded itself (correctly) that a stay of proceedings is a remedy of last resort. In the same paragraph it also set out succinctly (and again correctly) the two questions which the Court had to address: (a) could the defendants have a fair trial; and (b) was a stay necessary to protect the integrity of the criminal justice system?
- Before this Court it was not submitted by Mr Janner that the Crown Court erred as a matter of principle in the approach to be taken to the application to stay the prosecution. He did not suggest, for example, that it misdirected itself in law. However, he submits that the conclusion to which the Crown Court came was perverse in all the circumstances of this case, particularly having regard to the serious failures of disclosure which had taken place.
- The Crown Court was well aware of the seriousness of the failings in this case on the part of the prosecuting authority, which was a local authority rather than the Crown Prosecution Service. For example, at para. 66 of the abuse judgment, the Court noted that Mr Luke Cadman plainly had no idea about the duties of a disclosure officer and had not even heard of such a role, even though it had been allocated to him in this case. At para. 67 the Court rejected a number of the submissions that had been made on behalf of the prosecution. It concluded in that paragraph that the documents which had been disclosed eventually should have been disclosed much earlier and that, in particular, emails which had been disclosed only after the trial before the magistrates' court and on the first day of the appeal hearing before the Crown Court should have been disclosed much earlier.
- However, the Crown Court was not prepared to accept that the respondent was holding back documents deliberately: there was no evidence before the Court of that. Rather the evidence was of a lack of awareness of the prosecution's duties of disclosure: see para. 68 of the abuse judgment.
- At para. 69 the Crown Court returned to the two questions it had to address. At paras. 70-71 it concluded, in relation to the first of those questions, that the defendants could have a fair trial. At para. 72 it concluded, in relation to the second of those questions, that the integrity of the criminal justice system did not require the prosecution to be stayed. This was particularly because it had found no deliberate misconduct or bad faith on the part of the prosecuting authority.
- At para. 73, again reflecting the care with which the Crown Court approached its task, the Court stood back from the separate strands of the abuse argument and reviewed the case as a whole. Having done so, it still concluded that the prosecution should not be stayed on the ground of abuse of process.
- In its main judgment, the Crown Court returned to the issue of abuse of process and the acknowledged failures in disclosure: see paras. 70-76 of that judgment. The argument was now advanced on the additional basis of a tenancy agreement which had been given to the defence only in December 2012 at their request: see para. 71. At para. 72 the Court repeated its criticisms of the disclosure process and was pleased to see that training of planning officers in the rules on disclosure in criminal cases was now taking place. However, the Court remained of the view that the deficiencies in disclosure did not require the prosecution to be stayed: see paras. 73-76 of the main judgment.
- In my judgment, the Crown Court cannot be criticised in relation to the way in which it approached the issues of abuse and disclosure. It directed itself correctly as to the relevant principles in a careful and detailed judgment and returned to the issues again with care in its main judgment. The Crown Court had a discretion to exercise. I am unable to accept the suggestion by Mr Janner that the conclusion to which the Crown Court came was perverse. Far from it: in my view, it was a considered and balanced decision and cannot possibly be upset by this Court. The Crown Court was entitled to reach the conclusion that it was possible for the appellants to have a fair trial. It was also entitled to conclude that the integrity of the criminal justice process did not require the prosecution to be stayed. This case was far removed from the sort of cases in which such an argument has been accepted, which have tended to involve very serious cases of malpractice and unlawfulness: see the summary set out in R v Crawley & Others, at paras. 21-23.
- Accordingly, I would answer Questions 7 and 8 in the affirmative.
Question 9: Was the Crown Court correct to reject reliance upon the defence available under Section 171B(2) of the Town and Country Planning Act 1990?
- This question relates to the contention made on behalf of the defence that the four year limitation period for taking enforcement action had already expired by the time it was first taken in 2007. This was a potential ground of appeal to the Secretary of State under section 174(2)(d) of the 1990 Act. In fact there was no appeal on this ground.
- Mr Coppel accepts that, ordinarily, the point cannot then be advanced by way of defence in criminal proceedings: that is the effect of section 285(1) of the 1990 Act. However, as Mr Coppel submits and is not disputed in principle by the respondent, it can be raised in certain circumstances where the conditions in section 285(2) are met. In the present case, the Crown Court had already found that those conditions were not met. Nevertheless, quite properly, and out of deference to the large amount of evidence and the submissions made before it, the Court considered the question whether the four year limitation period had already expired in this case. It concluded that it had not, for the reasons set out in detail at paras. 82-99 of the main judgment.
- At para. 82 of that judgment, the Crown Court reminded itself that the burden of proof on this issue lay upon the defence and that the standard of proof was the balance of probability.
- There was a large amount of evidence, both documentary and oral, which was before the Crown Court on this question. Some of it pulled in different directions. There was certainly some evidence which tended to support the contention for the defence, that the material change of use in this case had taken place more than four years before enforcement action was taken. In particular there was evidence about a tenancy which had been taken by a Mrs Maldeno.
- However, there was plenty of other evidence which pointed in the other direction. In particular there was a letter which had been written by Mr Jaffa on the instructions of the appellants' father, Mr Bachan Singh Sanger, in response to a letter accompanying the Planning Contravention Notice, in which the respondent planning authority asked when the conversion to two flats had taken place. In his response Mr Jaffa said that: "the property was converted to self-contained flat units in April 2005." That would have been less than four years before enforcement action was taken in this case. At paras. 95-96 of its main judgment, the Crown Court considered this evidence and the oral evidence given before it by Mr Jaffa and Mr Bachan Singh Sanger. It found that the four year rule would have been raised by Mr Jaffa, a professional adviser. It also found that, if it had been raised, Mr Sanger, whom it regarded as "a shrewd and intelligent man", would have instructed Mr Jaffa to advance the defence. It was therefore telling that the defence was not raised.
- Furthermore, the evidence of Mr Bachan Singh Sanger was of central importance and was rejected: see paras. 94 and 97 of the main judgment. The Crown Court had the opportunity to observe the witness for itself and to assess his evidence accordingly. The Court clearly found him to be an impressive man in many ways (para. 86) but concluded that: "there are circumstances in which [he] will act as he thinks best for the family, even if that involves deviating from the truth" (para. 88). The Court's assessment of Mr Bachan Singh Sanger as a witness was of fundamental importance to its assessment of the evidence more generally about the four year point.
- The Court's conclusion on the four year point was essentially one of fact. Mr Coppel did not shrink from submitting that the conclusion reached by the Court on that question was perverse. I would reject that submission. In my judgment, there was ample evidence to support the finding of fact which was made by the Court on this issue.
- Accordingly, I would answer Question 9 in the affirmative.
Question 10: Was the Crown Court correct to conclude that were it to accede to the appellants' contention that, if in fact there was sufficient evidence to establish the four year rule, the result should at least be a stay of the proceedings, the court would be acting contrary to the specific provisions of the legislation, and thereby undermining the intention of Parliament?
- This aspect of the case was addressed by the Crown Court at paras. 77-81 of its main judgment. There was before the Court evidence from Mr Cadman that the respondent planning authority would not enforce the enforcement notice if satisfied at any time that immunity under the four year rule was established. Accordingly, the four year point arose not only directly by way of a defence under section 285(2) but also indirectly, as part of the defence submission that the prosecution should be stayed on the ground of abuse of process. In my judgment, there are several difficulties with that way of approaching the matter.
- First, this question has to be approached on the footing that the Court has already considered the evidence for itself and rejected the defence that the four year immunity has been made out. If the Court has already found that that defence is made out, then there would be no need to consider what the view of the prosecution is. On the premise that the Court has already rejected that defence according to its own assessment of the evidence, it is difficult to see how the issue can then arise as a separate argument under the heading of abuse of process. By definition the prosecution will not have accepted that the four year immunity has been made out, which is why it will have sought to persuade the court to reject the defence and indeed will have succeeded in doing so.
- Secondly, the argument does not come within either of the two bases on which a prosecution can be stayed on the ground of abuse of process. I have already sought to summarise the applicable legal principles when considering Questions 7 and 8 above. In essence, the defence would have to show either that they could not receive a fair trial or that a stay is necessary in order to protect the integrity of the criminal justice process. I cannot see how the argument in the present case could come within either of those. In my view, arguments of this sort need to be discouraged in the firmest possible way, otherwise there is a risk that there will be satellite litigation in criminal proceedings of a wholly inappropriate kind.
- Thirdly, the Crown Court had already concluded that the section 285(2) defence was not available to the defence in this case: see para. 79 of the main judgment. In those circumstances, it was right to point out that there is mandatory legislation – in section 285(1) – which has the effect that the four year point cannot be raised by way of defence in criminal proceedings, since that would be to "question" the validity of an enforcement notice when it could have been the subject of an appeal under section 174(2)(d) of the 1990 Act or possibly the subject of a claim for judicial review. Where there has been no appeal on that ground within time and there has been no claim for judicial review, the clear effect of the decision of the House of Lords in Wicks is that the point cannot be raised by way of defence in criminal proceedings.
- In those circumstances, the Crown Court was entirely correct, in my judgment, to state at para. 81 of its main judgment:
"were we to accede to the Defendants' argument … we ourselves would be acting contrary to the specific provisions of the legislation, and thereby undermining the intention of Parliament."
- Two days after the hearing in the present case had finished, the Court of Appeal (Criminal Division) gave judgment in R v Clayton and Dockerty  EWCA Crim 1030, to which Mr Coppel has quite properly drawn our attention. In that case the appellants appealed against their convictions for breach of an enforcement notice under section 179 of the 1990 Act. They had pleaded guilty but argued that the judge had been wrong not to stay the criminal proceedings as an abuse of process. The Court of Appeal dismissed the appeal. At para. 16, Elias LJ said:
"In our judgment, if the Order itself cannot be challenged in the criminal proceedings by way of defence to the prosecution for breach, that limitation cannot be overcome by seeking to recast the claim as a stay of proceedings when the argument for a stay depends for its success on establishing the invalidity of the Order."
- At para. 20 Elias LJ said that that was the consequence of section 285(1). At para. 42, after a detailed consideration of the speeches in Wicks, Elias LJ concluded that that was also the effect of the decision in that case. At para. 45 Elias LJ concluded in this way:
"… Once it is recognised that the validity of the order lies at the heart of the abuse of process complaint, the provisions in section 285 and the principles enunciated in Wicks are applicable. However inconvenient it may be to have to challenge the order in proceedings other than the criminal process itself, that is in our view the effect of the law by which this court is bound."
- Mr Coppel suggests that the decision in Clayton and Dockerty may be distinguishable on the ground that the submission which he has advanced in the present case, that on the evidence the respondent confirmed that it would not continue a prosecution where it learnt that a material change of use had continued for more than four years, was not made in that case. However, it does not seem to me that the reasoning of the Court of Appeal turned on that suggested distinction. In the present case I would reject Mr Coppel's submissions for reasons I have already set out earlier. However, in my view, the decision and reasoning of the Court of Appeal in Clayton and Dockerty lend further support to the conclusion I would have reached in any event.
- Accordingly, I would answer Question 10 in the affirmative.
Question 11: Was the Crown Court correct to conclude that the evidence in the case was such that a reasonable tribunal properly directing itself could convict either or both of the appellants?
- This is really a "catch all" question. In the light of the answers which I would give to the first 10 questions it can be dealt with very briefly. There was ample evidence before the Crown Court upon which it could make the findings which it did, having properly directed itself.
- Accordingly I would answer Question 11 in the affirmative.
- For the reasons I have given I would answer all of the questions in the case stated in the affirmative and would dismiss this appeal.
Sir Brian Leveson P
- I agree with the comprehensive analysis provided by Singh J of the questions posed. I only add a tribute to the detailed and comprehensive judgments that Judge Rowe provided both in relation to the question of abuse of process and as to the general merits of the case.
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