R v Mirza

Town and country planning – Enforcement notice – Non-compliance – Local authority issuing enforcement notice to appellant property owner – Appellant relying on husband to ensure compliance with notice – Husband giving evidence about actions taken to comply – Appellant appealing – Whether appellant doing everything she could be expected to do to secure compliance with notice – Whether husband’s evidence being admissible – Appeal dismissed From 2006, the appellant owned a property at 175 Shakespeare Crescent, Manor Park in East London, a two-storey Victorian property with two rooms and a kitchen on the ground floor and two rooms on the first floor. The planning use was as a residential dwelling for a single household. In September 2012, the local authority became aware that there had been a material change of use in that the property had been divided into four self-contained flats. Each of the four parts had their own separate bathroom and kitchenette. The planning department served upon the appellant an enforcement notice in respect of the property, requiring her to carry out works by which the property would revert to being a single dwelling. When the appellant failed to comply with notice, she was charged with breach of an enforcement notice contrary to section 179(1) of the Town and Country Planning Act 1990. The appellant argued that she had a defence under section 179(3) of the 1990 Act, namely that she had done everything that she could be expected to do to comply with the notice. In particular, she relied upon the evidence of her husband in that she had delegated the task of the management of the property to him. She could do nothing about the breach because she did not know about it. The prosecution case was that the appellant failed to cease using the property as self-contained flats. The requirement was permanent. If there was compliance initially but thereafter the property was used as self-contained flats it would still constitute an offence. The person whose actions or inactions fell to be considered were those of the appellant, not her husband. The issue for the jury was whether the appellant had a valid defence under section 179(3).  The appellant’s husband gave evidence about the actions which he had taken in consequence of receipt of the enforcement notice. However, the trial judge directed the jury to disregard the husband’s evidence on the basis that it was inadmissible in relation to the defence under section 179(3). The defendant was subsequently convicted. She appealed against conviction on the ground that the judge should not have directed the jury to disregard her husband’s evidence. Held: The appeal was dismissed. (1) The meaning of section 179 was clear and unambiguous. Where it was within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arose. Before a defence could arise under that subsection, the owner had to show that compliance with the notice was not within his own unaided powers, otherwise no question of his having to secure compliance with the notice could arise. Thus, if there were other persons in occupation of the land, it was enough if he had done everything he could reasonably be expected to do to secure that they complied with the notice. The defence was not available to an owner who had the power to comply with the notice without the assistance of others. The defence under section 179(3) had two stages: first, was it within the owner’s power to comply with the notice without the assistance of others? If so, the owner had to do so and no defence of doing everything the owner could reasonably be expected to do arose. If not, had the owner shown on a balance of probabilities that he did everything he could be expected to do to secure compliance with the notice. It followed that an inability or incapacity for the owner to comply with the notice unaided was not the end off the defence, rather it was the gateway to the defence: R v Beard [1997] 1 PLR 64 considered. The present case was unusual because of the very limited role and knowledge of the appellant in relation to compliance with the notice. Although it was her property, her husband took full responsibility for managing it. She was aware of the enforcement notice but her husband took responsibility for dealing with it. He was an experienced landlord and she trusted him. He told her that he had dealt with the notice and asked no more. In those unusual circumstances, the judge was correct to direct the jury to focus on what the appellant did or did not do. She had no knowledge beyond that. The duty to comply rested on her as the owner of the property. She knew nothing about what had or had not been done to comply with the notice. She left everything to her husband. Therefore, all she could rely upon to show that she had done all that could reasonably be expected of her to secure compliance with the notice was the reasonableness of her decision to entrust everything to her husband because that was all she had done and she knew nothing further. Stuart Jessop (instructed by Direct Access) appeared for the appellant; Kate Round (instructed by the Solicitor to Newham London Borough Council) appeared for the Crown. Eileen O’Grady, barrister Click here to read a transcript of R v Mirza