A defendant prosecuted for non-compliance with a planning enforcement notice, may secure an acquittal via the replication of lost appeal rights in the Town and Country Planning Act 1990. A recent case stated appeal was dismissed at the High Court in May 2024, in which the judgement illuminated the circuitous route to acquittal.

• Defence solicitors (Ashtons Legal LLP)
• Defence counsel (2 Bedford Row).

The case in brief

In July 2023, a defendant in a planning enforcement prosecution was acquitted at trial in the Magistrates’ Court. The defendant was alleged to have failed to take steps to comply with a planning enforcement notice (contrary to s179(2) Town and Country Planning Act 1990, the ‘Act’). The notice required the defendant to convert her house which she rented as a house of multiple occupation, back to a single dwelling house. At trial, the local authority prosecuting was unable to satisfy the Magistrates’ Court that proper service of the notice had been affected. The bench also found that the defendant could not reasonably have been expected to know that the notice had been issued despite it being contained on the s188 register.

The defendant was acquitted, and the local authority appealed, stating that the Magistrates’ decision was wrong in law.

The appeal was subsequently heard by way of case stated before the High Court (King’s Bench Division, Administrative Court), in which the Court was asked to consider if the acquittal for breach of a planning enforcement notice was correct in law. The appeal was dismissed by the High Court and the Magistrates’ ruling upheld.

In the judgement handed down by Fordham J on 21 May 2024, it was held that the Act offers a labyrinthine route to acquittal for one who has been prosecuted for breach of a planning enforcement notice, but they were not served with the notice and were genuinely and excusably unaware of its existence.

The replication of lost appeal rights

The full judgment can be found here.

For ease of reference, the road map of how a defendant may arrive at such an acquittal (derived from the ruling) is summarised as follows:

• s179 (2): A person is prosecuted with the criminal offence of non-compliance with an enforcement notice.
• s179(7): The defendant (‘D’) considers if the statutory defence is applicable:

If

• he was not served with the notice; and
• the notice was not on the s188 register
• it shall be a defence for him to show that he was not aware of the existence of the notice.

As per the recent case stated, if D was not served with the notice (as determined on the individual facts of the case), but the notice was contained on the register, the statutory defence fails.

How then, without the statutory defence being available to him, can such a defendant be acquitted?

In proceedings alleging a s179 (Part 7) criminal offence of non-compliance with an enforcement notice, the recent case-stated judgement confirms that s285 is a gateway through which the validity (i.e. enforceability) of the notice itself may be questioned.

First, D must meet the following criteria:

• s285(2): (a) he has held an interest in the land since before the enforcement notice was issued under that Part;
  • (b) he did not have a copy of the enforcement notice served on him under that Part; 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.

Secondly, the criteria above must chime with one of the s174 statutory grounds for appeal. In the recent case stated, this was ground s174(2)(e):

• s174(2)(e) that copies of the enforcement notice were not served as required by s172.
• s172 (1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them—
  • (a) that there has been a breach of planning control; and
  • (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

This means if the local authority knew that there had been a breach of planning control, then they should have issued an enforcement notice and served it correctly. (Sections 2) and 3) s172 (not repeated here) describe the service of such a notice.)

Thirdly, if both s174(2)(e) (including s172) and s285(2) above are satisfied, then a defendant has a defence to a charge brought under s179(2) and will be acquitted.

What is the position in respect of a person who appeals the notice?

Where a person is served a notice within the timeframe within which he may appeal, then an appeal may be allowed under s174 grounds.

If so, this is the basis for a quashing order under s176(2):

• s176(2) Where the Secretary of State determines to allow the appeal, he may quash the notice.

Finally, s176(5) must also be satisfied for the enforcement notice to quashed on appeal:

• s176(5) Where it would otherwise be a ground for determining an appeal under section 174 in favour of the appellant that a person required to be served with a copy of the enforcement notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

This means that D must have been prejudicially unserved as statutorily required to reach the finish line of the quashing order. (NB. Substantial prejudice can be taken to mean prosecuted for the offence and/or his interests affected in some other way.)

In conclusion, one can consider the route to acquittal as two sides of the same coin

If the person is an appellant, he has rights of appeal:

He would have complied with or contested the notice, had he been aware of the existence of it. Therefore, in a successful appeal against an enforcement notice, the notice could be quashed if he was prejudicially unserved and was genuinely and excusably unaware of it.

If the person is a defendant to s179 criminal proceedings, he has replicated lost rights of appeal:

In this situation (as per the recent case stated), the quashing of the notice becomes an acquittal (i.e. a defence); the logic being, if it were an appeal, the notice would have been quashed if it was prejudicially unserved and D was genuinely and excusably unaware of it.

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