Smart Planning Ltd v Brentwood Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt,Mr Justice William Davis |
| Judgment Date | 19 July 2018 |
| Neutral Citation | [2018] EWHC 2372 (Admin) |
| Docket Number | CO/1085/2018 |
| Date | 19 July 2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2018] EWHC 2372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Leggatt
Mr Justice William Davis
CO/1085/2018
APPEARANCES
Mr W Beglan (instructed by Holmes and Hills) appeared on behalf of the Appellant.
Mr N Ham (instructed by Brentwood Borough Council Legal Department) appeared on behalf of the Respondent.
On 23 November 2017 the appellant, Smart Planning Limited, was convicted by the North Essex magistrates of an offence of wilfully obstructing a person acting in the exercise of a right of entry contrary to s.88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990. This is an appeal from that conviction by way of case stated. The respondent to the appeal is Brentwood Borough Council, which brought the prosecution in the magistrates' court.
The facts found by the magistrates are set out in the case which they have stated to this court, but can be summarised somewhat more shortly as follows. Mr Mark Bray, a planning officer employed by the respondent council, investigated a report that unauthorised works were being undertaken at a property at Ingatestone in Essex, which is a Grade II listed building. The property is owned by Mr and Mrs Fisher and occupied by a tenant called Mr Johnson. The appellant company was the planning agent acting for Mr and Mrs Fisher.
Mr Bray invited Mr and Mrs Fisher to attend an interview about the matter, but they refused. Through solicitors acting on behalf of Mr and Mrs Fisher, Mr Bray on 11 May 2016 made arrangements for a site inspection to take place on 27 May 2016. The appellant was made aware of the proposed inspection and instructed an employee, Mr Paul Clarke, to attend on that day.
As part of his investigation, Mr Bray traced a previous tenant of the property, a Mr Anthony Collins, and asked Mr Collins to attend the site visit. Mr Collins agreed to do so. His attendance was necessary, as the magistrates found, to advise whether any work observed during the inspection had post-dated his own occupation of the property. Mr Bray discussed the visit and who would be attending by telephone with the appellant's employee, Mr Clarke, before the visit, but did not tell Mr Clarke that Mr Collins would be attending.
On the day, that is 27 May 2016, Mr Bray attended the premises as arranged along with Mr Collins and two other council employees. Mr Clarke was present. He had been instructed by the appellant to attend the site inspection and, as the magistrates found, in so doing was acting in accordance with his duties as an employee.
When Mr Bray and Mr Collins arrived, Mr Clarke became aggressive. Mr Clarke then made a telephone call to the solicitors acting for Mr and Mrs Fisher, who advised him to tell Mr Collins to leave the property. While Mr Clarke was outside on the telephone, Mr Bray and Mr Collins, along with the two other council employees, were admitted to the property by the tenant, Mr Johnson, who confirmed that he was expecting them as he had been made aware by the owners of their intended visit. No demand for entry was made as access was afforded voluntarily by Mr Johnson.
Shortly after the visitors had entered the property, Mr Clarke also entered it and started shouting at Mr Bray and Mr Collins that Mr Collins must leave. Mr Collins went to leave. Mr Clarke then stood in his way with his arms across the threshold of the door, preventing Mr Collins from leaving. Mr Collins tried to push past Mr Clarke, at which point Mr Clarke pushed him back. Mr Bray asked what Mr Clarke was doing. Mr Clarke then let go of Mr Collins, who left the premises and did not return. As a result of this incident, Mr Collins told the council that he was no longer willing to assist them with their investigation.
It was on the basis of those findings that Mr Clarke and the appellant were convicted by the magistrates of an offence, as I have mentioned, under s.88B(3) of the 1990 Act of wilfully obstructing a local planning officer acting in the exercise of a right of entry. The basis on which the appellant was convicted was that, so the magistrates held, it was liable for the actions of its employee vicariously irrespective of whether he was given specific instructions to obstruct the inspection.
The legislation relevant for these purposes is contained in s.88, 88A and 88B of the 1990 Act. Section 88(2) provides:
“Any person duly authorised in writing by … a local planning authority … may at any reasonable time enter any land for any of the following purposes –
…
(c) ascertaining whether an offence has been, or is being, committed with respect to any building on the land [under any of certain specified sections of the Act]”
It is common ground, although it may not have been expressly found by the magistrates, that Mr Bray was a person duly authorised in writing by the respondent council in accordance with that section and that his purpose in wishing to enter on the land on the day in question was in order to ascertain whether one of the offences specified in s.88(2)(c) had been or was being committed.
Section 88A(1) provides:
“If it is shown to the satisfaction of a justice of the peace on sworn information in writing —
(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 88; and
(b) that —
(i) admission to the land has been refused, or a refusal is reasonably apprehended; or
(ii) the case is one of urgency,
the justice may issue a warrant authorising any person duly authorised in writing by the appropriate authority to enter the land.”
The appropriate authority is defined in subsection (2) and means the person who may authorise entry on the land under s.88 for the purpose in question. Subsection (3) provides that, for these purposes, admission to land should be regarded as having been refused if no reply is received to a request for admission within a reasonable period.
Section 88B provides as follows:
“(1) A person authorised under section 88 to enter any land shall not demand admission as of right to any land which is occupied unless twenty-four hours notice of the intended entry has...
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