Sanger v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh,Sir Brian Leveson P |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWHC 1922 (Admin) |
| Docket Number | Case No: CO/459/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2014 |
[2014] EWHC 1922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
and
Mr Justice Singh
Case No: CO/459/2014
Philip Coppel QC and Daniel Janner QC (instructed by Khakar & Co) for the Appellants
Richard Barraclough QC and Emmaline Lambert (instructed by Director of Legal and Governance, London Borough of Newham) for the Respondent
Hearing dates: 20–21 May 2014
Introduction
This is an appeal by way of case stated from the Crown Court at Inner London (HHJ Rowe QC sitting with the justices) dated 19 April 2013. The Crown Court dismissed an appeal from the Thames Magistrates' Court. Before the Magistrates' Court a trial took place before a District Judge which led to the conviction of the defendants on 26 March 2012 for an offence of breach of an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990, as amended ("the 1990 Act").
There are 11 questions stated for the opinion of this Court. I will turn to each of those questions at the appropriate juncture during the course of this judgment.
Factual Background
The two appellants are brothers and are the joint owners of a freehold property at 97 Sheridan Road, Manor Park, London, E12 ("the property"). They became joint freeholders of the property in 2001. At some point between that time and 2006 the property was converted into two self-contained flats. This constituted a material change of use and was therefore development and required planning permission. No planning permission was in fact sought or obtained.
In December 2006, having learned of the conversion, the London Borough of Newham (which is the local planning authority and the respondent to these proceedings) sent a Planning Contravention Notice addressed to the appellants at 201 Clayhall Avenue, Ilford, Essex.
In January 2007 an application for retrospective planning permission for the conversion was made by a Mr Jaffa of Hutton Enterprises stated to be on behalf of the appellant Gurmokh Singh Sanger. In April 2007 the council refused that application and a subsequent appeal to the Secretary of State was dismissed by a planning inspector in a decision dated 21 September 2007.
On 5 October 2007 the council issued an enforcement notice. On 9 October 2007 Mr Jaffa submitted an appeal against that enforcement notice on behalf of the appellant Jagninder Singh Sanger. There is a dispute between the parties as to whether that appeal was in fact made by Jagninder Singh Sanger: it is submitted on his behalf that he did not instruct or authorise Mr Jaffa to lodge the appeal in his name but that his father had done so. This is a dispute to which I will return. In any event there was an appeal to the Secretary of State. There was only one ground advanced in support of that appeal, namely that the time given for compliance with the enforcement notice was too short: this ground is available under section 174(2)(g) of the 1990 Act. The appeal was dismissed by a planning inspector on 3 March 2008.
At para. 6 of the appeal decision the inspector said:
"I have considered all the points put forward during the appeal. I appreciate the appellant's wish for sufficient time to serve notice on the tenants and complete the required alterations, but against this must be balanced the Council's understandable concern to remedy what the notice identifies as a breach of local planning policies and a cause of harm to the residential amenities of both the tenants and the neighbouring properties. I am also aware that, following the Inspector's decision refusing permission in September 2007, it would have been clear to the appellant, once the enforcement notice had been issued on 5 October 2007 that it would have to be complied with. I would therefore have reasonably expected notice to be given to the occupiers of the flats when the enforcement notice was issued in October. I am aware that the occupiers will have to look for alternative accommodation; but, in view of the time that has already elapsed, I consider that a further four months is a reasonable and adequate period in which to do so. Bearing all these points in mind, I do not consider that any extension to the compliance period would be justified in this case, given the apparent planning objections to the development which the notice has identified. The ground (g) appeal fails accordingly."
That appeal having been dismissed on 3 March 2008, the date for compliance with the enforcement notice was therefore 3 July 2008.
There was in fact no enforcement action taken until May 2010, when the council contacted the appellants.
The appellants submitted two separate applications for a Certificate of Lawful Use (CLEUDS) in December 2010 and September 2011. Each of those applications was refused by the respondent planning authority.
On 11 November 2010 the respondent served the appellants with summonses for breach of the enforcement notice.
The trial before the Magistrates' Court took place over five days in February and March 2012.
The appeal before the Crown Court took place over nine days in October 2012, December 2012 and March 2013. The Crown Court gave two lengthy judgments, the first in relation to an application to stay the prosecution on grounds of abuse of process ("the abuse judgment"), the second in relation to the appeal itself ("the main judgment"). The Crown Court had a large amount of documentation before it, including legal arguments, and heard oral evidence from a number of witnesses for each side.
The Statutory Regime
Section 179 of the 1990 Act in its current form was inserted by the Planning and Compensation Act 1991. Later in this judgment it will be necessary to refer to the original version of that section.
Section 179 of the 1990 Act, as amended, provides:
"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence."
Subsection (5) creates a similar offence in respect of persons who are not owners of the land in question, so it is not directly relevant in the present case.
By virtue of subsection (8) a person guilty of an offence under section 179 shall be liable on summary conviction, to a fine not exceeding £20,000.
Subsection (3) provides that, in proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
Subsection (6) provides that an offence 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 by reference to any period of time following the preceding conviction for such an offence.
Subsection (7) provides a further defence in certain circumstances. Where (a) a person charged with an offence under section 179 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.
Section 188 of the 1990 Act, so far as material, provides:
"(1) Every district planning authority, every local planning authority for an area in Wales and the council of every metropolitan district or London borough shall keep, in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect –
(a) to enforcement notices; …
(3) Every register kept under this section shall be available for inspection by the public at all reasonable hours."
The matters required to be kept in that register are prescribed by the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995 No. 419) ("the 1995 Order"), article 26. I will make reference to the details of that provision at the appropriate juncture in this judgment.
Section 172(2) of the 1990 Act requires the local planning authority which issues an enforcement notice to serve a copy of that notice on the owner of the land to which it relates: see subparagraph (a). Subsection (3) requires that the service of the notice shall take place not more than 28 days after its date of issue and not less than 28 days before the date specified in it as the date on which it is to take effect.
Section 55(3)(a) of the 1990 Act deems the division of a single dwelling house into two or more separate dwelling houses to constitute a material change of use in the building and of each part of it which is so used. Being a material change of use, it therefore constitutes development and in principle requires planning permission. However, the carrying out of development without planning permission is not in itself a criminal offence. The criminal law only becomes involved once an enforcement notice has been served and has not been complied with by the due date.
Section 171B(2) provides the time limit for such cases: where there has been a breach of planning control consisting in the change of use of any building to use as a single...
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