Palacegate Properties Ltd v Camden London Borough Council

Council resolving to issue enforcement notice – Notice issued and subsequently withdrawn – Second notice issued – Failure to comply with notice – Criminal proceedings – Appellant challenging validity of notice – Whether challenge lawful – Magistrate convicting appellant – Appeal dismissed The appellant entered into occupation of land adjacent to, and forming part of, the Roundhouse in Chalk Farm, London, pursuant to a lease of May 1993. The site was Crown land held in the name of the receiver for the Metropolitan Police Division (the receiver). In July 1981 the respondent council issued planning permission permitting the continued use of the site as a car park for the Roundhouse. Conditions were attached that specifically limited the use of the car park to the period up to 30 November 1986, and to use by Roundhouse staff and patrons, no other use being permitted without the prior written permission of the council. In June 1994 the council resolved to issue an enforcement notice requiring use of the site as a car park to be discontinued. In July 1994 a notice was issued to that effect, alleging a breach of planning control by the change of use of the site to use as a public car park and the erection of portacabins ancillary to that use. The notice allowed one month for compliance. However, it was subsequently withdrawn as no consent had been sought or secured from the receiver. In May 1996 the receiver gave his consent “to issue such enforcement notice as the council considered appropriate”, and the council issued a second enforcement notice in identical terms to the first. The appellant was subsequently charged with failing to comply with the enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990. At the hearing, the appellant submitted that: (i) the resolution of June 1994 authorised the issue of one enforcement notice only, and there was no resolution authorising the issuing of a second notice; (ii) the notice was a nullity for uncertainty; and (iii) the consent of the receiver was unlawful because it was contrary to the terms of the lease. The stipendiary magistrate, applying R v Wicks [1998] AC 92, held that it was not open to the appellant to make the defence raised and, accordingly, he convicted the appellant. An appeal against conviction to the Crown Court was dismissed. The appellant appealed by way of case stated, contending that anything that went to show the enforcement notice was a nullity might be raised as a defence to a criminal prosecution. It was submitted that the words of Lord Hoffman in R v Wicks, that an “enforcement notice” in planning legislation meant “a notice… which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review”, did not merely mean an enforcement notice that bore no patent defect on its face, but meant a notice that was immune from judicial review except on grounds of bad faith, consideration by the local planning authority of irrelevant matters, or procedural impropriety. Held: The appeal was dismissed. Where the source of the actual or putative legal power to prosecute was being impugned by a defendant as being unlawful, the law required that he be allowed to make such an assertion in the criminal court (see Boddington v British Transport Police [1999] 2 AC 143). However, in the instant case the complaint was as to the legality of an enforcement notice. Proceedings against a defendant pursuant to such a notice required the prosecution to prove all the elements of the offence, and, specifically, to prove that the notice was an “enforcement notice” for the purposes of section 179 of the Act. That was to be done by identifying, first, the factors that were legally relevant to whether the notice was a properly-constituted section 179 notice, and, second, by determining whether, on the evidence, the notice was within section 179. Accordingly, the appellant was not entitled to rely on potential defects in the notice that were neither within the statutory grounds of appeal to the Secretary of State (for in that case it was barred from deployment before the criminal court by section 285 of the Act), nor one of the common law grounds of challenge as articulated in the Wednesbury principles, nor procedural impropriety (see R v Wicks). Malcolm Spence QC (instructed by Barker Gillette) appeared for the appellant; Peter Harrison (instructed by the solicitor to Camden London Borough Council) appeared for the respondents.