Bracken v East Hertfordshire District Council
Council serving enforcement notice upon appellant alleging change of use of agricultural land – Notice erroneously including dwelling house as land affected – Justices finding appellant in contravention of notice – Appellant appealing – Whether justices erred in finding enforcement notice not a nullity – Appeal dismissed
The appellant owned a field to the rear of his dwelling house. The respondent council served an enforcement notice upon the appellant, alleging a breach of planning control by the “change of use from agriculture to use of the land for the storage of building materials and waste and agriculture”. The notice required the appellant to remove materials and to stop using the land for such storage within 30 days after the notice had taken effect. The land affected was described in the notice as “the land at rear of 1, Mount Pleasant, shown edged red on the attached plan”. On the attached plan, however, the red edging enclosed not only the field, but also the appellant’s dwelling house and its curtilage.
The council laid an information against the appellant, alleging contravention of the enforcement notice. The justices found, inter alia, that while it was not clear from the plan how far the curtilage of the dwelling house extended, the discrepancy was not sufficient to amount to a material error causing an injustice; the notice was therefore enforceable. Furthermore, on three specific dates items at the site amounted to building materials and waste, and were deposited on the land in contravention of the enforcement notice. Accordingly, the justices convicted the appellant of an offence under section 179(2) of the Town and Country Planning Act 1990.
Council serving enforcement notice upon appellant alleging change of use of agricultural land – Notice erroneously including dwelling house as land affected – Justices finding appellant in contravention of notice – Appellant appealing – Whether justices erred in finding enforcement notice not a nullity – Appeal dismissed The appellant owned a field to the rear of his dwelling house. The respondent council served an enforcement notice upon the appellant, alleging a breach of planning control by the “change of use from agriculture to use of the land for the storage of building materials and waste and agriculture”. The notice required the appellant to remove materials and to stop using the land for such storage within 30 days after the notice had taken effect. The land affected was described in the notice as “the land at rear of 1, Mount Pleasant, shown edged red on the attached plan”. On the attached plan, however, the red edging enclosed not only the field, but also the appellant’s dwelling house and its curtilage.
The council laid an information against the appellant, alleging contravention of the enforcement notice. The justices found, inter alia, that while it was not clear from the plan how far the curtilage of the dwelling house extended, the discrepancy was not sufficient to amount to a material error causing an injustice; the notice was therefore enforceable. Furthermore, on three specific dates items at the site amounted to building materials and waste, and were deposited on the land in contravention of the enforcement notice. Accordingly, the justices convicted the appellant of an offence under section 179(2) of the Town and Country Planning Act 1990.
The appellant appealed by way of case stated. Two questions were raised: (i) were the justices correct in finding that the enforcement notice was not a nullity; and (ii) were the justices entitled to find that the items on the site amounted to building materials or waste.
The appellant submitted that the enforcement notice failed to comply with the requirements of the 1990 Act and, in particular, the Town and Country Planning (Enforcement Notice and Appeals) Regulations 1981 Regulation 3(b), in that it did not specify the precise boundaries of the land to which the notice related. The appellant also submitted that the accuracy of the justices’ findings, based upon the evidence before them, was doubtful.
Held: The appeal was dismissed.
The enforcement notice was still an enforcement notice within the meaning described in R v Wicks [1988] AC 92; namely, it was issued by a local planning authority, was, on its face, formally valid and had not been quashed. The fact that the notice was intended to apply to the field alone was made abundantly clear by the breach of planning control alleged, which could not have applied to the house. The appellant could have been in no doubt as to what he was required to do. The fact that the red edging on the plan had been drawn, in error, to include the dwelling house was a matter which the appellant could have raised on an appeal under section 174 of the Act and which the Secretary of State could have decided to correct under section 176, if satisfied that the correction would not cause injustice to the appellant. Wiesenfeld v Secretary of State for the Environment [1992] 1 PLR 32 and Hammond v Secretary of State for the Environment [1997] JPL 724; [1997] PLSCS 18 considered. The justices were correct to find it was not a nullity.
For an offence under section 179(2) to have been established, it was sufficient for the justices to have been satisfied that, on at least one occasion between the dates stated in the information, building materials and waste were deposited on land to the rear of the house. The evidence before the justices that the appellant had been in breach of the notice on at least three occasions was overwhelming and established the case against him beyond a reasonable doubt.
Michael Druce (instructed by Pellys) for the appellant; Justin Levinson (instructed by Vizard Oldham) appeared for the respondents.
