Nafeena Beg v Luton Borough Council

This case raises the issue of whether the justices for the County of Bedfordshire erred in law by rejecting the Appellants' contention that an enforcement notice served by the Respondent, the Luton Borough Council, was a nullity.

The enforcement notice was dated 29 ^th November, 2013. It specified a breach of planning control at 25 Mill Street, Luton, namely the use of a detached outbuilding as a dwelling or dwellings. It specified the reasons for issuing the enforcement notice. It then specified the steps which the parties served with the notice were required to take and also a time within which those requirements should be satisfied, namely six months from the date when the notice took effect. The notice was stated to take effect on 10 ^th January, 2014 unless in the meantime an appeal against the notice was made to the Secretary of State under s.174 of the Town and Country Planning Act 1990. No issue has been raised about the proper service of the notice and the court has been told that no valid appeal was brought within the time limit specified by the 1990 Act, and accordingly the notice took effect.

The four Appellants, Nafeena Beg, Muzzafar Beg, Neelam Beg and Mohammed Baig Nasser, became the registered owners of the property on 9 ^th May, 2011. They were summonsed to appear before the Magistrates' Court to answer a single information alleging that between 25 ^th November, 2015 and 21 ^st April, 2016 they failed to comply with that enforcement notice in that they had failed to cease the use of the detached outbuilding as a dwelling, contrary to s.179(2) of TCPA 1990. Each of the Appellants pleaded not guilty to the offence and a trial was fixed for one day on 17 ^th October, 2016. However, the trial did not proceed on that date and it was further listed for a two-day trial on 1 ^st and 2 ^nd February, 2017. It concluded on 15 ^th February, 2017.

The Appellants submitted to the justices that the enforcement notice was a nullity, which was dealt with as a preliminary issue. Having decided that the notice was “valid” the justices then continued to hear the case. The Appellants unsuccessfully relied upon the defence in s.179(3) of TCPA 1990, and all four were convicted. Fines and victim surcharges were imposed and each defendant was ordered to pay prosecution costs.

The decision challenged in the appeal by way of case stated is whether the justices were correct to find that the enforcement notice was “valid”. The court was told that this should be taken to refer solely to the nullity issue. Paragraph 14 of the case stated lists the issues which were raised on behalf of the Appellants in this respect, namely:

(i) The scheme of delegation within the constitution of the planning authority provided that the Development Control Manager had delegated authority to “issue and serve” planning enforcement notices.

(ii) The Development Control Manager was Jacqueline Barnell and not the late June Kelly, who was the Deputy Development Manager.

(iii) The issue of the enforcement notice was a two-stage process comprising firstly, the decision to issue, and secondly, the signing of the enforcement notice, both of which had to be completed by the Development Control Manager.

(iv) The enforcement notice could not be issued by a legal assistant.

Nullity

The Court drew the aprties' attention to Koumis v Secretary of State for Communities and Local Government [2014] EWCA (Civ) 1723, [2015] JPL 682 in which the Court of Appeal stated that the Miller-Mead approach to nullity should be confined to those cases where the failure to comply with the statutory requirements in s.173 is apparent on the face of the enforcement notice itself. The errors which are said in this case to have amounted to a nullity were the issuing of a notice by an officer who did not have authority to take that action and the signing of the enforcement notice by another officer, i.e. an officer different from the one authorised to take the decision to issue the enforcement notice.

There is no dispute on behalf of the Appellants that the planning legislation does not contain any requirement for an enforcement notice to be signed. In my judgment even if there was such a requirement, an error as to whether the person taking an action is or is not authorised to do so is not an error on the face of the notice. That depends upon looking at material outside the notice. The points taken by the Appellants in this case could not fall within the scope of what can amount to a nullity argument as defined in para.80 of Koumis. The effect of that judgment is that the type of error which could amount to a nullity argument is that a notice fails to say anything about what the alleged breach of planning control is, or anything about what steps are required to remedy a breach of planning control, or fails to specify a time for compliance, ie. statutory requirements as to what must be said on the face of the notice.

I understand that this was not an issue between the parties before the justices, but it is not a point which this court can properly ignore. The upshot of my conclusion that the arguments raised do not fall within the ambit of what can properly be regarded as a ground for treating an enforcement notice as a nullity, is that the points of law which the Appellants were seeking to raise were instead matters of invalidity. They are points which could have been pursued before a planning inspector on an appeal against the enforcement notice to the Secretary of State if such an appeal had been issued in time. Alternatively, they could have been pursued by an application for judicial review in the High Court.

The effect of the decision of the House of Lords in R v Wicks [1998] AC 92 is that the points which the Appellants sought to raise in this instance could not properly be raised by way of a defence to an allegation under s.179 of TCPA 1990. That provision simply requires the prosecution to show that an enforcement notice has been issued which appears on its face to comply with the requirements of the 1990 Act. A subsequent decision of the Court of Appeal, R v Clayton [2014] 1 WLR 3994, applied the principle in Wicks. The court also decided that an Appellant's inability to pursue such an argument by way of a defence to a prosecution cannot be circumvented by raising the matter as an abuse of process argument (see para.16).

Evidence before the Court

The Respondent has drawn attention to the decision of the Divisional Court in DPP v Radziwilowicz [2014] EWHC 2283 (Admin) and in particular para.6 where the President restated the familiar principle that an appeal by way of case stated must be argued by reference to the material forming part of the case. Extraneous material may not be taken into account. However, in this case the relevant extracts from the council's scheme of delegation had been annexed to the case.

The point arose because the Appellant's bundle does contain some evidential matters including copies of witness statements produced before the magistrates. However, Ms Lambert (who appeared on behalf of the Appellants) confirmed that no ground of appeal was raised in the drafting of the case seeking to challenge any of the factual findings made by the justices. It therefore follows from Rule 81(2) and (3) of the Magistrates' Court Rules 1981 that there is no warrant for this court to delve into evidential matters and certainly not ones outside the ambit of the case stated.

There has been and remains no dispute that the council's constitution did delegate to the Development Control Manager authority to issue and serve enforcement notices (see para.2/12). The council also pointed to other delegations in the authority's constitution. First, para.1/34 empowered the Head of Planning and Transport, an officer above the Development Control Manager in the council's hierarchy:

“To arrange for another Officer in her/his Service to carry out any power delegated to that Head of Service, either under Schedule 1 or under Schedule 2.”

Sch.1 includes the delegation in respect of enforcement notices to which I have already referred. Para.1/35 authorises the same officer:

“To exercise any power delegated under this Scheme to an officer who reports to the relevant Head of Service.”

That authorisation is subject to conditions, but the argument before the justices and certainly the argument in this court today did not turn upon the application of those conditions. The council says that para.1/35 enabled the Head of Planning and Transport to exercise the power delegated to the Development Control Manager...