Marjolein Russnak-Johnston v Reading Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Coulson |
| Judgment Date | 26 January 2021 |
| Neutral Citation | [2021] EWHC 112 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/886/2019 |
| Date | 26 January 2021 |
and
[2021] EWHC 112 (Admin)
Lord Justice Coulson
Mr Justice Holgate
Case No: CO/886/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr W Robert Griffiths QC and Ms Nicola Strachan (instructed by ABV Solicitors) for the Claimant
The Defendant and Interested Party were not represented
Hearing date: 15/12/2021
Approved Judgment
Introduction
The Claimant, Marjolein Russnak-Johnston, challenges by way of judicial review the preliminary decision of the Reading Magistrates' Court on 10 December 2018 that it had jurisdiction to hear an information in respect of four alleged offences under s. 171D (1) and (5) of the Town and Country Planning Act 1990 (“TCPA 1990”) relating to non-compliance with two planning contravention notices served by the Royal Borough of Windsor and Maidenhead (“the Council”) under s. 171C on 30 March 2016 and 14 July 2016 (referred to as “PCN1” and “PCN2” respectively).
The single offence alleged under s.171D(1) is that the Claimant failed to provide copies of certain documents required by PCN2. The three offences alleged under s.171D(5) are that the Claimant made statements purporting to comply with PCN1 and PCN2, but which were knowingly or recklessly false or misleading.
The claim raises two issues:-
(i) Whether a requirement to provide a document is ultra vires the power under s.171C TCPA 1990 to serve a planning contravention notice;
(ii) Whether the prosecution of the four alleged offences was time-barred by s.127 of the Magistrates' Courts Act 1980 (“MCA 1980”).
The Defendant filed an acknowledgment of service, but, following the normal practice for a court added as a defendant in proceedings of this kind, indicated that it would not be contesting the claim. Instead, the Defendant filed “submissions” which explain how it reached its decision that it had jurisdiction to try all four offences, because (i) the term “information” includes documents and (ii) the prosecution of all four offences complied with the time limit laid down by s.127. The Council, which had been served as an interested party, did not file an acknowledgment of service.
On 8 July 2019 Mostyn J granted the Claimant permission to apply for judicial review. On 9 September 2019 the Council sent an email to this Court stating that it supported the Defendant's position. However, the Council did not file detailed grounds of defence and did not appear at the substantive hearing.
Statutory framework
Section 171C of TCPA 1990 is entitled “Power to require information about activities on land” and provides:-
“(1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land, they may serve notice to that effect (referred to in this Act as a “planning contravention notice”) on any person who—
(a) is the owner or occupier of the land or has any other interest in it; or
(b) is carrying out operations on the land or is using it for any purpose.
(2) A planning contravention notice may require the person on whom it is served to give such information as to—
(a) any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and
(b) any matter relating to the conditions or limitations subject to which any planning permission in respect of the land has been granted,
as may be specified in the notice.
(3) Without prejudice to the generality of subsection (2), the notice may require the person on whom it is served, so far as he is able—
(a) to state whether or not the land is being used for any purpose specified in the notice or any operations or activities specified in the notice are being or have been carried out on the land;
(b) to state when any use, operations or activities began;
(c) to give the name and [postal] address of any person known to him to use or have used the land for any purpose or to be carrying out, or have carried out, any operations or activities on the land;
(d) to give any information he holds as to any planning permission for any use or operations or any reason for planning permission not being required for any use or operations;
(e) to state the nature of his interest (if any) in the land and the name and [postal] address of any other person known to him to have an interest in the land.
(4) A planning contravention notice may give notice of a time and place at which—
(a) any offer which the person on whom the notice is served may wish to make to apply for planning permission, to refrain from carrying out any operations or activities or to undertake remedial works; and
(b) any representations which he may wish to make about the notice,
will be considered by the authority, and the authority shall give him an opportunity to make in person any such offer or representations at that time and place.
(5) A planning contravention notice must inform the person on whom it is served—
(a) of the likely consequences of his failing to respond to the notice and, in particular, that enforcement action may be taken; and
(b) of the effect of section 186(5)(b).
(6) Any requirement of a planning contravention notice shall be complied with by giving information in writing to the local planning authority.
(7) The service of a planning contravention notice does not affect any other power exercisable in respect of any breach of planning control.
(8) In this section references to operations or activities on land include operations or activities in, under or over the land.”
Section 171D entitled “Penalties for non-compliance with planning contravention notice” provides:-
“(1) If, at any time after the end of the period of twenty-one days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.
(2) An offence under subsection (1) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence.
(3) It shall be a defence for a person charged with an offence under subsection (1) to prove that he had a reasonable excuse for failing to comply with the requirement.
(4) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(5) If any person—
(a) makes any statements purporting to comply with a requirement of a planning contravention notice which he knows to be false or misleading in a material particular; or
(b) recklessly makes such a statement which is false or misleading in a material particular,
he shall be guilty of an offence.
(6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
So far as is material, section 127 of the MCA 1980 provides:-
“(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.
(2) Nothing in—
(a) subsection (1) above; or
(b) ……
shall apply in relation to any indictable offence.”
The offences created by s.171C are summary only offences.
Factual background
The PCNs related to Fairview Stables. This site lies on the western side of Darlings Lane, Maidenhead. It is in the Green Belt and to the west lies open countryside.
The site has the benefit of a planning permission for a ménage and stable building, subject to conditions restricting the number of stables to six and prohibiting any commercial activity.
PCN1 was issued by the Council on 30 March 2016. In accordance with s.171C(1) the notice identified the breach of planning control which the Council thought may have occurred, namely “the use of buildings on the land for residential purposes and the erection of new buildings without planning permission.” The notice was served on the claimant as an owner or occupier of, or with an interest in, the land or as a person carrying out operations on the land or using it for any purpose (see s.171C(1)). The notice required the Claimant to provide within 21 days of receipt information in response to a list of questions. It stated:-
“If you wish to make an offer to apply for planning permission, or to refrain from carrying out any operations or activities, or to undertake remedial work; or any representations about this Notice, contact [the relevant planning officer] on …… or write to arrange a meeting.”
This reflected the provisions of s.171C(4). The notice also warned the Claimant about the offences which may be committed under s.171D(1) and (5) and that a failure to respond to the notice could also result in the Council taking enforcement action. In that context the notice drew the Claimant's attention to implications for compensation under s.186(5)(b) of TCPA 1990.
The notice asked questions inter alia about who was the owner of the land, for copies of any lease or tenancy agreement to which the Defendant was a party, and the current use of the land. Specific questions were also asked to identify any residential use of the land and whether any buildings had been...
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