![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sanger & Anor v London Borough of Newham [2014] EWHC 1922 (Admin) (12 June 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/1922.html Cite as: [2015] WLR 332, [2014] JPL 1218, [2014] 2 P &CR 16, [2015] 1 WLR 332, [2014] EWHC 1922 (Admin), [2014] WLR(D) 269, [2014] ACD 126, [2014] 2 Cr App R 27 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2015] 1 WLR 332] [View ICLR summary: [2014] WLR(D) 269] [Help]
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(SIR BRIAN LEVESON)
and
MR JUSTICE SINGH
____________________
Gurmokh Singh Sanger Jagninder Singh Sanger |
Appellants |
|
- and - |
||
London Borough of Newham |
Respondent |
____________________
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
____________________
Crown Copyright ©
Mr Justice Singh :
Introduction
Factual Background
"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."
The Statutory Regime
"(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."
"(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 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."
"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."
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"?
"(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."
"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)."
"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."
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?
"(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;…"
"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."
"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."
"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."
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?
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?
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?
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?
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?
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?
"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."
"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."
"… 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."
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?
Conclusion
Sir Brian Leveson P