Smart Planning Ltd v Brentwood Borough Council

On 23 November 2017 the appellant, Smart Planning Limited, was convicted by the North Essex magistrates of an offence of wilfully obstructing a person acting in the exercise of a right of entry contrary to s.88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990. This is an appeal from that conviction by way of case stated. The respondent to the appeal is Brentwood Borough Council, which brought the prosecution in the magistrates' court.

The facts found by the magistrates are set out in the case which they have stated to this court, but can be summarised somewhat more shortly as follows. Mr Mark Bray, a planning officer employed by the respondent council, investigated a report that unauthorised works were being undertaken at a property at Ingatestone in Essex, which is a Grade II listed building. The property is owned by Mr and Mrs Fisher and occupied by a tenant called Mr Johnson. The appellant company was the planning agent acting for Mr and Mrs Fisher.

Mr Bray invited Mr and Mrs Fisher to attend an interview about the matter, but they refused. Through solicitors acting on behalf of Mr and Mrs Fisher, Mr Bray on 11 May 2016 made arrangements for a site inspection to take place on 27 May 2016. The appellant was made aware of the proposed inspection and instructed an employee, Mr Paul Clarke, to attend on that day.

As part of his investigation, Mr Bray traced a previous tenant of the property, a Mr Anthony Collins, and asked Mr Collins to attend the site visit. Mr Collins agreed to do so. His attendance was necessary, as the magistrates found, to advise whether any work observed during the inspection had post-dated his own occupation of the property. Mr Bray discussed the visit and who would be attending by telephone with the appellant's employee, Mr Clarke, before the visit, but did not tell Mr Clarke that Mr Collins would be attending.

On the day, that is 27 May 2016, Mr Bray attended the premises as arranged along with Mr Collins and two other council employees. Mr Clarke was present. He had been instructed by the appellant to attend the site inspection and, as the magistrates found, in so doing was acting in accordance with his duties as an employee.

When Mr Bray and Mr Collins arrived, Mr Clarke became aggressive. Mr Clarke then made a telephone call to the solicitors acting for Mr and Mrs Fisher, who advised him to tell Mr Collins to leave the property. While Mr Clarke was outside on the telephone, Mr Bray and Mr Collins, along with the two other council employees, were admitted to the property by the tenant, Mr Johnson, who confirmed that he was expecting them as he had been made aware by the owners of their intended visit. No demand for entry was made as access was afforded voluntarily by Mr Johnson.

Shortly after the visitors had entered the property, Mr Clarke also entered it and started shouting at Mr Bray and Mr Collins that Mr Collins must leave. Mr Collins went to leave. Mr Clarke then stood in his way with his arms across the threshold of the door, preventing Mr Collins from leaving. Mr Collins tried to push past Mr Clarke, at which point Mr Clarke pushed him back. Mr Bray asked what Mr Clarke was doing. Mr Clarke then let go of Mr Collins, who left the premises and did not return. As a result of this incident, Mr Collins told the council that he was no longer willing to assist them with their investigation.

It was on the basis of those findings that Mr Clarke and the appellant were convicted by the magistrates of an offence, as I have mentioned, under s.88B(3) of the 1990 Act of wilfully obstructing a local planning officer acting in the exercise of a right of entry. The basis on which the appellant was convicted was that, so the magistrates held, it was liable for the actions of its employee vicariously irrespective of whether he was given specific instructions to obstruct the inspection.

The legislation relevant for these purposes is contained in s.88, 88A and 88B of the 1990 Act. Section 88(2) provides:

"Any person duly authorised in writing by ... a local planning authority ... may at any reasonable time enter any land for any of the following purposes –

...

(c)

ascertaining whether an offence has been, or is being, committed with respect to any building on the land [under any of certain specified sections of the Act]"

It is common ground, although it may not have been expressly found by the magistrates, that Mr Bray was a person duly authorised in writing by the respondent council in accordance with that section and that his purpose in wishing to enter on the land on the day in question was in order to ascertain whether one of the offences specified in s.88(2)(c) had been or was being committed.

Section 88A(1) provides:

"If it is shown to the satisfaction of a justice of the peace on sworn information in writing -

(a)

that there are reasonable grounds for entering any land for any of the purposes mentioned in section 88; and

(b)

that -

(i)

admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii)

the case is one of urgency,

the justice may issue a warrant authorising any person duly authorised in writing by the appropriate authority to enter the land."

The appropriate authority is defined in subsection (2) and means the person who may authorise entry on the land under s.88 for the purpose in question. Subsection (3) provides that, for these purposes, admission to land should be regarded as having been refused if no reply is received to a request for admission within a reasonable period.

Section 88B provides as follows:

"(1)

A person authorised under section 88 to enter any land shall not demand admission as of right to any land which is occupied unless twenty-four hours notice of the intended entry has been given to the occupier.

(2)

A person authorised to enter land in pursuance of a right of entry conferred under or by virtue of section 88 or 88A (referred to in this section as "a right of entry") -

(a)

shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering;

(b)

may take with him such other persons as may be necessary; and

(c)

on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.

(3)

Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale."

The case stated by the magistrates poses six questions for the opinion of the High Court. I will not recite all of those questions as it does not seem to me necessary for us to answer them all in order to decide whether the conviction of the appellant had a sound basis in law.

The two critical questions raised by this appeal are, first, whether on the facts found by the magistrates Mr Clarke was acting in the exercise of a right of entry conferred by s.88 of the Act when he told one of the persons present to leave and thereby, on the magistrates' findings, wilfully obstructed a planning officer; and second, whether there was a basis in law for finding the appellant vicariously liable for an offence committed by Mr Clarke.

On the first question, the essence of the argument made by Mr Ham who represents the respondent is that, if a planning officer has a right to enter premises pursuant to s.88 of the Act and if the officer enters on the premises having been admitted to them voluntarily, as happened in this case, the officer must necessarily be exercising a right of entry under s.88. There is no need, Mr Ham submitted, for an officer positively to assert such a right or make any reference to the power conferred by s.88. It is sufficient that he has that power and enters on the premises.

In support of that construction of the Act, Mr Ham relies on the fact that there is no requirement specified in any of the relevant statutory provisions which says that a notice of any kind must be served in order to exercise a right of entry, whether a notice that refers to s.88 or otherwise.

Furthermore, Mr Ham places particular reliance on s.88B(1), which says that a person authorised under s.88 to enter any land shall not demand admission as of right to any land which is occupied unless twenty-four hours' notice of the intended entry has been given to the occupier. That, Mr Ham submits, indicates that the intention is that any request or demand to enter property in order to carry out one of the purposes specified in s.88(2) will be an exercise of a right of entry or admission to land and that there is a requirement then in s.88B(1) that twenty-four hours' notice must be given. There is then a machinery provided for in s.88A which operates if admission to the land is refused whereby a warrant can be obtained.

All that indicates, Mr Ham argues, that by whichever route a planning officer authorised under s.88 gains entry to a property for the purpose of carrying out a relevant inspection, he is exercising a right of entry conferred either by s.88 or under s.88A.

For my part, I am unable to accept that, as a matter of interpretation of the statute, the rights of entry conferred by s.88 and s.88A are exhaustive in the sense that they preclude any other means by which a planning officer may lawfully enter premises in order to ascertain whether an offence has been committed. It seems to me perfectly possible in principle for a planning officer to ask if the owner or occupier will allow him to enter premises in order to ascertain whether an offence has been committed without demanding entry as of right or even requesting entry as of right. If entry is to be requested or demanded as of right, then it is necessary for some communication to take place in order to assert that right and make it clear that it is on that basis that entry is sought by the officer.

That, in my view, is reinforced as the correct interpretation of the statutory scheme by the fact that where a right of entry is being exercised, it may result, where obstruction ensues, in a person being charged and convicted of a criminal offence. In other words, as it seems to me, there are two ways in which an officer may enter on the property: by an informal agreement which does not assert any right of entry, in which case prima facie the owner can simply ask the officer to leave at any time and, if he does so, there will be no offence of obstruction committed. Alternatively, the officer can go down the formal route, which requires a communication which positively asserts the right to enter premises under s.88 of the Act. The occupier is then on notice that, if he refuses admission, a warrant may be sought and also that, if entry takes place and, for example, a person is asked to leave as occurred in this case, an offence is liable to be committed.

On the facts found by the magistrates, there was no finding of any assertion or communication of a request or demand by Mr Bray or any other council officer to enter the premises in this case as of right. It follows, in my view, that when Mr Clarke ordered or demanded that one of those present, namely Mr Collins, should leave, he was not guilty of an offence under s.88B(3) because none of those present on the property was acting in the exercise of a right of entry.

That is sufficient to justify quashing the conviction of the appellant, but it is right that I should also deal, as it has been argued, with the second key question raised on this appeal – namely, whether a company can be convicted of an offence under this provision on the basis that it is vicariously liable for the act of its employee.

The contention that an offence can be established on the basis of vicarious liability under this provision is, in my view, an untenable one. The general principle is that in criminal law, in contrast to the law of tort, there is no doctrine of vicarious liability. In other words, the fact that an employee acting in the course of his employment commits a criminal offence does not render the employer liable for that offence vicariously.

There are circumstances in which a company can be guilty of a criminal offence without that liability depending on any doctrine of vicarious liability. As Moses LJ explained in the case of St Regis Paper Company Ltd v R [2011] EWCA Crim 2527, to which we were referred, the conventional approach to attributing liability to a corporate body for a criminal offence which requires proof of mens rea, as does an offence under s. 88B of the 1990 Act, is that the company can only be held liable where it is proved that a controlling officer of the company performed the relevant conduct with the relevant guilty intention.

I would accept that in principle the appellant could have been convicted of an offence here on that basis, but only if those requirements were satisfied. That is to say, it would have been necessary for the magistrates to find that a controlling officer of the appellant had done an act of obstruction or had aided and abetted such an act with the requisite intention, i.e. knowing or intending that the consequence of the act would be to make it difficult or more difficult for the planning officer to perform his duty.

That was not, however, the basis on which the appellant was prosecuted and convicted. The basis of the prosecution and conviction, as is clear from the case stated to us, was simply a supposed principle of vicarious liability. There is nothing in the wording of the 1990 Act which suggests that, by way of very rare exception to the general rule, some principle of vicarious liability is intended to be sufficient to result in a conviction. In particular, there is no reason why the purpose of the statute would otherwise be defeated.

The answer to the submission to that effect made by Mr Ham, who argued that it must be possible for the company to be liable if it operates a policy of obstructing officers, is that the company can indeed be liable. However, the company cannot simply be liable on the basis that it is vicariously responsible for whatever its employee does acting in the course of his employment. It can only be liable if it is demonstrated that a controlling officer of the appellant committed an act capable of giving rise to the offence with the necessary intention.

That interpretation is, furthermore, reinforced by s.331 of the Town and Country Planning Act 1990 and s.89(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, to which Mr Ham referred, which are consistent with the understanding that the circumstances in which a body corporate may commit a relevant offence coincide with those in which a director, manager, secretary or other similar officer of the body corporate has committed such an offence.

For those reasons, I would answer the questions posed by the magistrates, so far as we need to answer them in order to dispose of this appeal, by indicating in answer to question 1 that, in order to exercise a right of entry under s.88(1) of the Act, it is necessary to assert such a right, which, on the findings of the magistrates, did not occur here. In answer to question 6, the magistrates were not entitled to find the appellant vicariously liable for the actions of Mr Clarke on the facts found. I do not consider it necessary for us to answer the other questions.

If my Lord agrees with those answers, it must follow that the appellant's conviction should be quashed.

I agree. I add only this. In deference to the reliance by Mr Ham on the decision of the Privy Council in Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] 2 AC 500, Mr Ham relied particularly on a passage in Lord Hoffmann's opinion at p.507E as follows:

"There will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule."

I make these observations. First, it is perfectly plain that Lord Hoffmann identified the essential principle that vicarious liability does not apply in criminal law.

Second, the special rule of attribution that he identified would be necessary only if the ordinary rules of attribution would defeat the intention of Parliament. For the reasons my Lord has identified, that does not apply in this case.

Third, the decision in Meridian was entirely concerned with the doctrine of attribution, namely attributing the state of mind of a particular party within the company as the state of mind of the company as opposed to vicarious liability, which may in general terms be described as a doctrine of delegation.

I entirely agree with my Lord that vicarious liability has no place in criminal law, particularly in this context.