Kirklees Metropolitan Council v Angus Heron Ltd

On 10 November 2010 the justices from the county of West Yorkshire sitting at Dewsbury acquitted the respondent, Angus Heron Limited, of five informations that alleged failures to comply with enforcement notices which had been respectively served on 13 August 2007 and 15 September 2009. The magistrates stated a case for determination by this court on 9 February 2011 at the request of the prosecutor, Kirklees Council.

An enforcement notice may be issued under the Town and Country Planning Act 1990 to enforce planning control. Section 179 of the Act provides that where an enforcement notice is not complied with that constitutes an offence. By Section 285, headed "Validity of Enforcement Notices and Similar Notices", the following, so far as material, is provided:

It is thus plain that the validity of an enforcement notice may not be challenged before a magistrates’ court or a crown court hearing an allegation that enforcement notice has not been provided if and insofar as it was open to the person subject to the notice to appeal against it under Part VII.

The material provision in Part VII is Section 174, headed "Appeal against enforcement notice". It provides, so far as material, as follows:

It is common ground that no issue arises here as to the formal validity of the enforcement notices. Section 174 does not deal with formal validity in the sense that there may be occasions when enforcement notice is fraudulently procured or has not been properly made by the body otherwise entitled to make it. None of those issues arise here, though they are open to challenge before a magistrates’ court if there is a proper ground for challenging them.

Here the first enforcement notice was dated 13 August 2007. It alleged a breach of planning control as follows:

By Section 5 of the notice it required the respondent to:

As to that notice, an appeal was entered by the respondent, but negotiations followed, essentially as to providing a timetable for compliance. That having been agreed, the appeal was withdrawn, and so it is common ground that the notice stands as it is.

On 15 September 2009 a second notice was issued. This again affected land at Hillside Works, Whitehall Road, Unsworth, Heaton in West Yorkshire, but in this case a different part of that land from the part which had been referred to in the first notice. The wording was similar but not identical. It alleged a breach of planning control in that there had been a material change of use from general industrial use [B2] to a mixed use for the storage of operational vehicles, plant and equipment, and for the storage and dismantling of scrap and disused vehicles and the storage of old tyres. Under Part 5 it required the respondent within three months to cease the use of the land for the storage and dismantling of scrap and of disused vehicles and the storage of old tyres and to remove from the land all scrap and disused vehicles and all old tyres being stored on the land.

There was an appeal on this occasion which was heard by a planning inspector appointed by the Secretary of State for that purpose. He gave his decision in a letter of 28 January 2010. He rejected the appeal and upheld the enforcement notice. He explained his reasoning in a little over one page of text. He recorded there that there had been an appeal on ground C that the matters did not constitute a breach of planning control. He founded part of his dismissal of that appeal on the basis that the respondents operate a plant hire business from Hillside Works. He took the view that a plant hire use did not fall within any class of use permitted by Class B2 of the Town and Country Planning (Use Classes) Order 1987 and therefore thought it unnecessary to enquire as to whether the storage and dismantling of scrap and tyres was incidental to that use. He appeared to think that it was that use which the respondents were contending was the use for which they had bought the land.

He also dealt with an appeal which was on the question of the time and saw no reason why the full requirements of the notice should not be complied with within three months. There was no further appeal from his decision, as there might have been to this court under Section 289 of the Act. Accordingly, at the conclusion of any time for appealing the enforcement notices were and remain valid.

In the informations which were laid before the magistrates it was alleged that the terms of those notices had been broken. Thus the issue for the magistrates was, as Mr Owen who appears for the respondents accepts, the issue of whether the respondents were doing on the land that which the enforcement notices prohibited them from doing within their terms, or/and had failed to do that which the notices required them to do. In practical terms that means that the magistrates should have looked to see whether, in respect of the land the subject of the first enforcement notice, it had been proved so they were sure, this being a criminal case, that the land was being used for the storage of scrap vehicles, plant and machinery for the parking of unroadworthy vehicles, and whether the council had proved that the respondent had not removed from the land all the scrap vehicles, plant and machinery and all old tyres, disused engine parts and parts of old vehicles and all unroadworthy vehicles; and likewise, in respect of the second enforcement notice, whether the respondents had ceased use of the land for the storage and dismantling of scrap and disused vehicles and the storage of old tyres and whether they had been satisfied, so that they were sure, that the defendants had remove d from the land all the scrap and disused vehicles and all tyres being stored on the land.

The issue was simple. As Lord Hoffman said in the case of Reg v Wicks [1998] AC 92 at page 121: “The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it”. At page 122, between letters C and D, he said this:

Between letters F and G on the same page:

“All these reasons lead me to conclude that "enforcement notice" in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review.”

There was in that particular case no dispute that Mr Wicks had failed to comply with such an enforcement notice and he was therefore guilty of the offence.

He had commented earlier (see page 120 between letters A and B) in respect of the Act of 1960, which was the Act he considered, that:

That was in the context (see 119 of G to H) that over the years there had been a consistent policy progressively restricting the kind of issues which a person served with an enforcement notice could raise when he prosecuted for failing to comply. The reasons for that policy restriction were, said Lord Hoffman, clear:

Those observations, derived as they are from the statutory predecessor of the statute with which I am concerned here, indicated clearly to the magistrates the task which they had to fulfil. I turn, after that introduction, to the case as stated.

The case set out the procedural and factual background in respect of which there was no contention, but found as facts at paragraphs 2(k) and (l) as follows:

The appellant’s contentions, as prosecutor before the court, were simplicity itself. The enforcement notice meant what it said but it had not been complied with.

The respondent set out arguments which were represented by the justices as follows, at paragraph 4:

The findings in paragraph 5 were that the respondent's business was to provide services to local authorities and other businesses in clearing and gritting roads, removing spillages on roads, clearing drains and gullies, et cetera. All those services were provided by the supply of vehicles, plant machinery and equipment with the provision of drivers and operators. The bench found the use of the land at Hillside Works was for the storage, maintenance and repair of the respondent's operational vehicles, plant machinery and equipment. They then said this:

The magistrates posed three questions. The terms of the questions are, in my view, important in understanding what the magistrates thought that they were doing in coming to the decisions they did:

These observations arise. First, it is plain that the justices thought that they were "going behind" the enforcement notices. It is plain that in using the expression “were the activities complained of at trial and set out in the said enforcement notices…” the justices were indicating, on paper at any rate, that the activities which were set out in the enforcement notices as those which had to stop were matters which they could consider in order to determine whether they were or were not within general industrial use B2. It is plain from the third question that the magistrates thought that they were departing materially from the view and approach which the planning inspector had taken.

It is accepted by Mr Owen that justices are not entitled to go behind enforcement notices; that is the effect of the provision of Section 285, at least insofar as that is relevant to this case. There was no dispute here that the council had a power to issue enforcement notices; there is no challenge to their formal validity. If the justices thought they were going behind the enforcement notices it must, it would appear, have been on some basis which they thought justified them taking a view that the enforcement notices should not be applied as they stood to the actions of which they had evidence before them.

It is accepted by Mr Owen that insofar as question number 2 detailed activities complained of at trial “and as set out in the said enforcement notices” [emphasis supplied] it was in error if it is suggested that the magistrates were not obliged to take the enforcement notice at face value, though open to proper construction, and it seems to me that he was right so to accept. He does submit, however, that the law is not quite as simple and as straightforward in its application in this case, as Mr Holroyd's arguments for the council would suggest. Thus he develops his argument by reminding me of the decision in Mansi to which the magistrates were referred and to which they referred in their questions.

Mansi was a case in which the matter which came before a divisional court in 1964 arose under the Town and Country Planning Act 1962. Counsel have not suggested that there is any material difference in the legislationthen applicable to that with which this hearing is concerned, but it is plain that the appeal which the divisional court considered was an appeal against the notice itself. The court was not considering the question of enforcement action based upon the enforcement notice, once held valid and once any appeal route was excluded. The factual situation was that land occupied by the appellant had been used for many years as a plant nursery for which on part of the land some retail sales of nursery produce and other articles took place. In 1959, however, the use for retail sales intensified until the glass house concerned became primarily a shop. An enforcement notice was served reciting that there had been a change of use from use for agricultural purposes to use for the sale of goods, requiring the appellant to discontinue the latter use. The appeal, first to the Minister which was dismissed but then to the divisional court, was eventually allowed in part. The relevant passage in the judgment of Widgery J, as he was, was this:

That authority, in my view, is of no direct assistance in construing an enforcement notice in respect of which there is no further appeal. It does not say that provisions within an enforcement notice should not be observed, and it does not permit those provisions to be sidestepped.

The planning encyclopaedia to which the magistrates were referred under a passage headed "construing enforcement notices in criminal proceedings P179.17" says:

It gives an example as where the breach to which notice is directed is the repair of motor vehicles in a commercial basis from a private garage. A requirement to cease using the garage for motor vehicle repairs may be construed as not extending to the maintenance of the defendant's own vehicle; plainly, anyone normally would be entitled to repair their own vehicle in their own garage, not on a commercial scale and that would not be precluded.

It is commented that that approach has been confirmed by the Court of Appeal in the case of Duguid v Secretary of State for the Environment of Transport and the Regions [2001] 82 Planning and Compensation Reports 6. In that case the appellant owned part of a disused airfield where he held Sunday markets and car boot sales. He was served with an enforcement notice requiring him, amongst other things, to cease using the land for the purposes of markets and/or car boot sales. The enforcement notice was upheld, but it was not amended so as to safeguard what were permitted use rights under the Town and Country Planning General Community Development Order 1995 which permitted temporary use of the land for the holding of markets for not more than 14 days in total in any calendar year.

When the matter came before the Court of Appeal the court dismissed the appeal, again in respect of the terms of the notice, under what is effectively Section 176. It was not necessary to amend expressly an enforcement notice in order to safeguard an occupier's lawful use rights. The purpose of the Act was to define the activity which was to cease - the activity which constituted a breach of the planning permission - and not to encompass any activity which could lawfully be carried on. An occupier is entitled to use an enforcement site for permitted development purposes once he has indicated that he has ceased to use it for and has in fact discontinued the permanent purposes prohibited by the enforcement notice. As Ward LJ observed, paragraph 33:

What is argued by Mr Owen is that the prosecution, who had the burden of proof, did not here prove that the respondents had broken the terms of the enforcement notice properly construed. Properly construed, those notices would not prohibit use which was lawfully ancillary to Class B2 use and that, as a matter of fact, was what the magistrates found had been carried on. Accordingly, he submits that the questions, despite their infelicities, which he accepts to exist, should be answered in each case by “yes”.

As Lord Hoffman observed, the purpose of an enforcement notice is to provide clarity as to what is required in order to comply with planning control. If an enforcement notice is not amended or appealed within the detailed statutory provisions permitted, then it stands in its terms and it cannot be attacked on any basis in respect of which an appeal under Section 174 would run. Any argument, therefore, to the effect that what the respondents were doing on the site at Hillside Works affected by the enforcement notice of 13 August 2007 and on that other part of the site affected by the notice of 2009 could be said not to constitute a breach of planning control by the magistrates must fail, if that is what the enforcement notice itself said. Thus the magistrates were bound to accept the terms of the enforcement notice, in the first case that the change of use had occurred, and the description of the use to which the enforcement notice related. It was open to the respondent to show that it had ceased the use of the land for the storage of scrap vehicles et cetera and it would be open to the respondent to show that if there was a scrap vehicle or unroadworthy vehicle on the land that its presence, and what the respondent did with or to it, was of a different order from the acts which were prohibited by the enforcement notice, such that it was in fact an ancillary use which was lawful, as in the case of the private garage owner and as in the case of the land owner who was permitted on a few occasions to use his land for the temporary market purposes which the GPDO permitted.

Upon a construction of the enforcement notice, however, the starting point is the terms of the notice. What the prosecution had to prove was that the land was still being used for storage of scrap vehicles plant and machinery, and whether the respondents had removed all the scrap vehicles plant and machinery, and all unroadworthy vehicles, (subject only to the point as to ancillary use to which the cases refer) was that which the magistrates had to investigate

What the magistrates court did, however, was make no findings as to whether or not there had been compliance with the enforcement notice. It made no findings in the terms of Duguid that the respondent had ceased to use the land for the prescribed purpose and had discontinued the permanent purposes prohibited by the enforcement notice but was now using it for the purposes for which he had always been entitled to use it lawfully. It made no finding as to whether the respondent had complied with the clear terms of the enforcement notice. It appears that the justices were influenced by a passage in the Town and Country Planning Encyclopaedia into thinking that they were entitled to make findings for themselves as to whether the matters which had been prohibited by the enforcement notice were matters which could nonetheless lawfully have been carried out within the planning law. It is not for the justices to consider planning issues; that is for other parties in the system provided for by the Town and Country Planning Act: in the first place for the Secretary of State through his inspector, and in the second place for this court if there should be any appeal about it.

The justices appear to think in question number 1 that they were “going behind” the enforcement notice. They had no right to do so. If that is what they were doing then the decision was flawed. I accept Mr Owen's submission that the justices were entitled to disregard the reasoning of the inspector as being the opinion of another person in respect of the facts placed before him, but they could not go behind his decision, which was to hold the enforcement notice valid. The form of the questions suggests that here the justices thought that they might not comment directly as to the validity of an enforcement notice but could disregard effectively what it required. It should be clear from the law which I have recited that they could not do so and that that was an error of law.

In my view, therefore, the answer to the first question was no.

The answer to the second question -- were the activities complained of at the trial and set out in the said enforcement notices within general industrial use B2 classification notwithstanding the decision of the inspector? -- would be unexceptional if it omitted the words “and set out in said enforcement notices”, but it does not. The question effectively asks whether what was set out as prohibited by the enforcement notice was actually within general industrial use B2? That was not a question which the magistrates had any right to ask. They could ask whether the respondents had complied with the enforcement notice; they could ask, having complied with it, whether what still might appear to be a breach, in the sense that there were unroadworthy vehicles or tyres on the site, was in truth use ancillary to what, it was common ground, was a general industrial use. But they did not analyse the case in that way, and therefore it follows that the second question also must be answered no.

As to the third matter, the justices were entitled to conclude that the respondent's use of the land was lawful in general terms, but it would be a question which would be, in this context, meaningless. Again the problem arises from the first four words of the third question. The magistrates drew a link between their decision and the inspector's and thought, or appeared to think, that their decision was contrary to the decision which the inspector had reached. If so, it was contrary to a decision that the enforcement notice was valid; the justices were not entitled to conclude the opposite.

I am not convinced that the third question requires an answer given the answers to the first two questions, but, insofar as it does, I would answer the question no; the premise is wrong.

The findings to which this court has come are that the magistrates proceeded on a wrong footing in the law; they had the wrong focus; they did not ask themselves the right factual questions. As I have observed in their determination in the case the magistrates do not appear to have answered whether there was or was not compliance in fact with the enforcement notices, and although there is a heavy hint that the enforcement notices had not been complied with this is, in my view, insufficient in any criminal case to justify this court in exercising its powers to remit the case with a direction to convict.

It follows that what I have said thus far is that this appeal must be allowed and I shall hear counsel as to any consequential orders which need to be made.