Altunkaynak v Northamptonshire Magistrates Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE SIMON |
| Judgment Date | 05 October 2011 |
| Neutral Citation | [2011] EWHC 3163 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 October 2011 |
| Docket Number | CO/3399/2011 |
[2011] EWHC 3163 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Simon
CO/3399/2011
MR KIMBLIN appeared on behalf of the Claimant
This is an adjourned application for permission to seek judicial review of the decision of the Northampton Magistrates' Court made on 22 February 2011 by which they declined to state a case for the opinion of this court in relation to the claimant's conviction for breach of an enforcement notice. The judicial review application went before Lindblom J on the papers on 23 June 2011. He adjourned it into court for oral argument.
I should briefly explain the background. The claimant has had a leasehold interest in 15 and 15B Silver Street, Kettering. Numbers 15 and 15B were separated at ground floor level by 15C, in which at the material time the claimant had no interest, but he had access between 15 and 15B at the first floor level.
Since 1999 he had had a takeaway business in Silver Street. In 2006, as I understand it, the business was operated only out of number 15. On 8 July 2006 the claimant applied to the local planning authority for a planning permission, naming the application site as 15 B Silver Street, and describing the proposed development as:
"conversion of shop to restaurant, kitchen and hot food takeaway as an extension to the present premises at number 15."
On 23 October 2006 the local planning authority granted permission, expressing the grant in exactly the same terms. Two conditions were attached to the permission, but—and this is important—neither is relevant for present purposes. Thereafter, it seems that the claimant's landlord declined to renew his lease of number 15. In the result, he could only carry on the takeaway business at number 15B. He was advised that he needed to apply for a planning permission for that purpose, and did so. That application was, however, refused on 17 February 2008. His appeal against that refusal was dismissed on 12 November 2008. However he continued to carry on his takeaway business at number 15B.
On 28 November 2008 the local planning authority served two enforcement notices. We need only be concerned with one. It identifies the land affected as 15B Silver Street. This is how it describes the breach of planning control alleged:
"Without planning permission, the change of use of the property from retail shop to a use for the preparation and sale of hot food for consumption on or off the premises."
And then there is a reference to the installation of an extraction system and flue. We need not go further into the details about that.
The steps required by the notice to be taken within 6 months of the date of the notice were in effect to stop using the premises for the takeaway business and remove the flume. There is no dispute that no such steps were taken by the claimant within the time specified.
On 23 March 2010 informations were laid in the Northampton Magistrates' Court alleging breach of the enforcement notices. The claimant made a further application for planning permission for a change of use at 15B, which was refused on 20 July 2010. His appeal against that refusal was subsequently dismissed. The prosecution for breach of the enforcement notices was heard on 17 January 2011. It was submitted for the claimant that the prosecution was an abuse of the process. I will explain that submission in a moment. It was rejected, however, by the court and the complainant changed his plea to guilty. The magistrates proceeded to impose fines totalling £15,000 and an order for costs. The sentence thus passed is the subject of a separate appeal in the Crown Court, which, as I understand it, is presently stayed.
The abuse argument, which in these proceedings the claimant said should have been accepted by the magistrates, was, briefly, to the following effect: the enforcement notices of 28 November 2008 could, under the planning legislation, have been appealed to the Secretary of State, whose inspector would in the ordinary way have proceeded to hold an inquiry at which the merits of all points sought to be raised would have been gone into. The claimant says that such an appeal would inevitably have been successful on the grounds provided for by section 174(1)(c) of the Town and Country Planning act 1990, namely:
"that those matters [that is to say the facts said to amount to a breach of planning control] do not constitute a breach of planning control."
The argument is that this would have afforded a cast iron appeal the enforcement notices under section 174(1)(c) because the claimant was perfectly entitled to carry on the takeaway business at number 15 B by force of the planning permission of 23 October 2006. The permission, it is said, allowed that business use at number 15B. The permission had not been abandoned, nor could it be; see Pioneer Aggregates [1985] 1 AC 32. Mr Kimblin submits that no planning condition attached to the permission limited the use so that it might only be enjoyed in conjunction with number 15. The only lawful means of restricting what would otherwise be the scope of a planning permission is by the imposition of a lawful condition; see the decision of Mr Robin Purchas QC sitting as an additional Queen's Bench judge in I'm Your Man Limited [1999] Volume 77 Property and Compensation Reports 251.
The claimant by Mr Kimblin accepts that the validity of an enforcement notice cannot be challenged on any of the grounds provided for by section 174 by way of a...
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