Hodgetts v Chiltern District Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 17 March 1983 |
| Judgment citation (vLex) | [1983] UKHL J0317-4 |
| Date | 17 March 1983 |
| Court | House of Lords |
[1983] UKHL J0317-4
Lord Diplock
Lord Keith of Kinkel
Lord Roskill
Lord Bridge of Harwich
Lord Brandon of Oakbrook
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it and for the reasons he gives I would allow the appeal.
My Lords,
I agree that the appeal should be allowed for the reasons set out in the speech of my noble and learned friend, Lord Roskill.
My Lords,
On the 8th September 1980 the appellants laid informations against each of the respondents and on the same day summonses were issued. Each information alleged, as was the fact, that each respondent had on the 23rd January 1980 been served with an enforcement notice under section 87 of the Town & Country Planning Act 1971 ("the 1971 Act") requiring steps to be taken to discontinue the use of certain lands and buildings at Great Missenden in Buckinghamshire for certain stated purposes within three months from the 27th February 1980 and that that respondent had "on and since the 27th May, 1980" permitted that use contrary to section 89(5) of the 1971 Act in contravention of that notice. On the 27th November 1980 the first respondent was convicted by the Amersham Justices and so far as presently relevant fined £100 and ordered to pay £50 costs. The second respondent who did not appear was similarly convicted and the same penalty was imposed. On 1st December 1980 notices of appeal to the Crown Court were given. Five grounds of appeal were ultimately advanced of which the second alone is presently relevant. This alleged that "The information in this case was bad for duplicity and the conviction thereon by the magistrates was therefore wrong and cannot be upheld."
This submission was advanced for the first time in the Crown Court and was founded upon the decision of the Divisional Court in Parry v. Forest of Dean District Council (1976) 34 P. & C.R. 200. The Crown Court at Aylesbury (His Honour Judge Verney and justices) heard the appeal on the 22nd May 1981. By agreement, only the submission just referred to was advanced. The Crown Court, in my view rightly, decided that it was bound by Parry's case to hold that the information was bad for duplicity and accordingly allowed the appeal. A case was stated for the opinion of the High Court "whether we correctly decided in point of law that the said information was bad for duplicity".
On the 14th May 1982 the case stated came before the Divisional Court (Donaldson L.J. and Webster J.). The Divisional Court, also rightly as I think, felt that it was bound by Parry's case to reach the same conclusion. No argument was heard and the appeal was formally dismissed. But the Divisional Court certified this question as one of general public importance:
"Whether an information which alleges initial failure to comply with the provisions of an enforcement notice under section 89(5) of the Town and Country Planning Act, 1971 'on and since a certain date' is bad for duplicity."
Clearly the Divisional Court was doubtful of the correctness of the decision in Parry's case and therefore properly gave leave to appeal to your Lordships' House.
My Lords, whether or not Parry's case was rightly decided depends upon the true construction of section 89(5) of the 1971 Act. The question is a short one and, in common with all your Lordships, I am of clear opinion that Parry's case was wrongly decided. Your Lordships were told that the decision had caused considerable practical difficulty to planning authorities when carrying out their statutory duty of securing compliance with enforcement notices. As is not uncommon with decisions which cause practical difficulty, attempts, often unsatisfactory, are subsequently made to distinguish them. As a result fine distinctions are drawn and the law becomes uncertain and even obscure. Your Lordships' House now has the opportunity of removing the obscurities and simplifying the administration of this branch of the law.
In Parry's case the Divisional Court (Lord Widgery C.J. and Forbes and Slynn JJ.) undoubtedly held that the information there in question was bad for duplicity because it charged more than one offence. The relevant enforcement notice had been dated 8th November 1971 and the information complained that Parry had used the land in contravention of the notice "since January 8th 1972". It was argued that section 89(5) of the 1971 Act created what the learned Lord Chief Justice called "a continuing offence", by which he meant one which "repeats itself every day. In other words, a new offence is created every day." Accordingly it was successfully urged on Parry's behalf that not only did the information go back beyond the six months' period permitted by section 104 of the Magistrates Courts Act 1952 but "also charged a very large number of offences in one information."
My Lords, since it is Parry's case which is the source of the present difficulties, I do not find it necessary to consider either earlier or later cases, reported or unreported.
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