House of Lords
Published date | 01 November 1997 |
DOI | 10.1177/002201839706100403 |
Date | 01 November 1997 |
Subject Matter | Article |
HOUSE
OF
LORDS
DEFENDANT'S
RIGHT
TO CHALLENGE NOTICE
RvWicks
Where criminal proceedings are instituted for failure to comply with an
enforcement order issued under s 87 of the Town and Country Planning
Act
1971
(now s 172 of the 1996 Act), is the defendant permitted to rely
on a challenge to the validity of the notice as a defence? In R v Wicks
[1997]
2 All ER 801, the defendant's dispute with the local authority arose
from a difference of opinion as to the effect of building work which he
had carried out on an existing building without planning permission. The
local authority was of opinion that the work had had the effect of
producing a building which was different from that which had previously
existed and that, in consequence, planning permission was necessary.
It
issued a notice under the Act, followed by a summons under s 179(1),
charging him with failing to carry out the work required by the notice. He
asserted that the reason for his failure was that planning permission was
not necessary and that the notice was therefore invalid. Before the courts,
he alleged that the local authority had been motivated by bad faith and
that they had taken irrelevant matters into consideration,
but
those
allegations seem to have been regarded as subsidiary to the main issue,
namely whether a successful challenge to the validity of the notice could
be a defence. The prosecution claimed that this was not a matter within
the jurisdiction of the criminal court, but one which could be raised only
by application to the High Court for judicial review of the decision to
issue the notice. The Crown Court accepted this argument and held that
it was not open to the defendant to question the propriety of the local
authority's decision. The appellant thereupon changed his plea to guilty
and was bound over. The Court of Appeal dismissed the appeal on the
ground that, unless a notice is invalid on its face and, so, a nullity, it is
never open to a defendant to question the power of the local authority to
issue it, as it is prima facie a valid notice which remains valid until it is
set aside.
Where a public body is authorised by statute to make an order or a
bye-law or issue a notice, a failure to comply with which is a criminal
offence, and a defendant is charged with that offence, he may wish to
advance in his defence either or both of the propositions (1) that it was
not within the powers of the public body to make the 'impugned order'
(Lord Nicholls's term), and (2) that it was not validly made because the
public body was motivated by irrelevant considerations and therefore
made the order for an unauthorised purpose (see p 803g-j). How the
defendant is to proceed is a matter of the proper interpretation of the
precise terms of the authorising statute, which will have indicated, by
implication if not expressly, in which court and by what procedure the
challenge to the validity of the order is to be made. The Court of Appeal
426
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