London Borough of Newham v Khalis Miah and Another

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date06 May 2016
Neutral Citation[2016] EWHC 1043 (Admin)
Docket NumberCase No: CO/679/2016
CourtQueen's Bench Division (Administrative Court)
Date06 May 2016

[2016] EWHC 1043 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Cranston

Case No: CO/679/2016

Between:
London Borough of Newham
Appellant
and
(1) Khalis Miah
(2) Waltham Forest Magistrates' Court
Respondents

Jonathan Wills (instructed by the London Borough of Newham) for the Appellant

Daniel Brayley (instructed by Direct Access) for the Respondent

Hearing date: 29/04/2016

Mr Justice Cranston

Introduction

1

The appellant, the London Borough of Newham ("the Council"), appeals by way of case stated against the decision of lay justices on 1 October 2015 to acquit the first respondent, Khalis Miah, of two offences of breaching an enforcement notice it had issued against the change of use of a property to two self-contained flats without planning permission, in Plaistow, East London ("the property").

Background

2

On 11 July 2007, Mr Miah became the registered proprietor of the property. The property was mortgaged to a financier, Mortgage Express. As a result of information from the finance department of the Council, which collects council tax, the planning department began an inquiry into whether the property had been subdivided. Planning permission had never been sought or granted for the conversion.

3

On 24 September 2010 the Council served an enforcement notice entitled "Material Charge of Use" ("the enforcement notice"). It stated that it was a formal notice, issued by the Council because it appeared that there had been a breach of planning control under section 171A(1)(a) of the Town and Country Planning Act 1990 ("the 1990 Act") at the property. The Council considered it expedient to issue the notice, having regard to the provisions of the development plan and to other material considerations. The breach of planning control alleged was that there was a change of use of the property, to two self-contained flats, without planning permission. The reasons given were that there was a breach of planning policies, including the loss of a family home within the borough, and that the flats were undersized and did not provide adequate space for normal residential functions. The recipient of the notice was required to cease the use of the property as self-contained flats and to reconvert the property into one home. Compliance had to occur in five months.

4

The enforcement notice was served on Mr Miah at the property's address, on the occupants of the two flats there, and on Mortgage Express. Mortgage Express appealed against the enforcement notice. Mr David Richards, a planning inspector, dismissed the appeal on 12 April 2011.

5

On 5 July 2012, the Council sent a letter to Mr Miah at an address in Docklands, London, entitled "Non-Compliance with Enforcement Notice". It stated that Mr Miah had not complied with the requirements of the enforcement notice and that the Council was considering whether to prosecute him for breach of it. Letters of non-compliance had been sent earlier to Mr Miah at the property.

6

On 13 September 2012, the Council laid an information before the justices to the effect that, on 10 November 2011, Mr Miah was in breach of the enforcement notice of 24 September 2010 in that being the freehold owner of the property he had failed to take the steps set out there. That was contrary to section 179(2) of the 1990 Act.

7

Section 179 of the 1990 Act provides in its relevant parts as follows:

"(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

(7) Where —

(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under section 188,

it shall be a defence for him to show that he was not aware of the existence of the notice."

The enforcement notice was entered into the section 188 statutory register.

8

When the prosecution came on before the Thames Magistrates' Court on 7 May 2013, the justices allowed a submission of no case to answer and dismissed the charges. The Council appealed by way of case stated to this court. On 18 December 2014 Wilkie J held that the justices had erred in that they did not have sufficient evidence at half time to conclude that Mr Miah had a valid defence that he was unaware of the existence of the enforcement notice. Moreover, they had erred in being led into considering the issue of whether the notice had been validly issued in time: Newham LBC v. Thames Magistrates' Court [2014] EWHC 4550 (Admin).

9

On 21 January 2015 the Council laid a second information that between 12 July 2012 and 6 January 2015 Mr Miah, being the freehold owner of the property, was in breach of the enforcement notice issued on 24 September 2010 in that he failed to take the steps set out there. That was contrary to section 179(2) of the 1990 Act.

The Magistrates' findings

10

The two charges were heard at Waltham Forest Magistrates' Court by a bench of lay magistrates. On 1 October 2015 they acquitted Mr Miah on both charges. The court held that Mr Miah satisfied section 285(2) of the 1990 Act and that therefore he could challenge the validity of the enforcement notice before them under section 285(1). Section 285 of the 1990 Act reads, in its relevant parts, as follows:

"(1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.

(2) Subsection (1) shall not apply to proceedings brought under section 179 against a person who…

(c) satisfies the court—

(i) that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and

(ii) that his interests have been substantially prejudiced by the failure to serve him with a copy of it."

11

Before the magistrates Mr Miah was successful in his challenge to the validity of the enforcement notice on two grounds, firstly because it had not been properly served on him. That required service at his "usual or last or known place of abode", as required by section 329(1) of the 1990 Act. Section 329(4) provides that the section is without prejudice to section 233 of the Local Government Act 1972 ("the 1972 Act"), but there had not been service at his "last known address" either, as required by sections 233(2) and (4) of the 1972 Act.

12

The background to this conclusion was that the justices had found as a fact that Mr Miah owned the property, that he had not responded to the enforcement notice, but that he did not know and could not have reasonably been expected to know that the enforcement notice had been served on him. That was because the enforcement notice was served at the property itself. The planning department of the council had searched the Land Registry, and the proprietorship register there showed Mr Miah's address to be at the property. Although Mr Miah accepted that he lived at the property for a period around 2007, visited it occasionally and paid council tax at times when there were gaps in the tenancies, the justices found as a fact that at the time of the enforcement notice he lived elsewhere, his home address, and not at the property. In his evidence, Mr Miah stated that he did not know he had to update the land registry with his home address after he bought the property in 2007. He also said that if he had known of the enforcement notice he would have appealed against it.

13

The justices found that the Council had Mr Miah's home address in Shoreditch, albeit that the planning department did not, because the finance department of the Council sent a council tax bill for the property there in 2010. The justices found as a fact that the prosecution was being brought by the Council as a whole, not by the planning department. Since the Council as a whole knew Mr Miah's usual address, or his known place of abode, to put it in those terms, it should have served the enforcement notice there and not at the property.

14

The prosecution submitted that Mr Miah had not been "substantially prejudiced" within the terms of section 285(2)(c)(ii) of the 1990 Act by the failure to serve him with a copy of Enforcement notice because it had been his failure, or the failure of the managing agents he employed, to make arrangements for his post to be forwarded. Mr Miah's counsel submitted that he had been prejudiced: as a result of not receiving the notice Mr Miah lost the right to appeal and faced damage to his professional standing and reputation if convicted. The justices made no specific finding on prejudice.

15

Turning to the letter of non compliance dated 5 July 2012, addressed to Mr Miah at his home address, the justices found as a fact that he had received it and did nothing to ensure compliance. They "noted" that Mr Miah was in no position to challenge the enforcement notice after he received the non-compliance letter of July 2012.

16

However, Mr Miah successfully invoked the time bar of four years in section 171B (2) of the 1990 Act applied. Section 171B (2) provides:

"(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."

Mr Miah had called a witness, Mr Adbul Bashir, who gave evidence that he had lived at the property for three months May to August 2005 in the top floor flat; someone was living downstairs whom he did not know and he could give no evidence about either tenants. On the basis of Mr...

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  • Oldham Metropolitan Borough Council v Tanna
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    • Court of Appeal (Civil Division)
    • February 10, 2017
    ...part of the register indicates that its use is not necessarily confined to internal administrative purposes. 25 In Newham LBC v Miah [2016] EWHC 1043 (Admin), [2016] PTSR 1082 officers in Newham's planning department served an enforcement notice on Mr Miah, relating to a breach of planning......

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