Validity of notice no defence

LAW REPORT: 11 May 1995

Regina v Wicks. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Mantell and Mr Justice Keene).

11 April 1995.

A defendant charged with failing to take the steps required by an enforcement notice which was valid on its face cannot by way of defence in the criminal proceedings challenge the lawfulness of the decision to issue the notice.

The Court of Appeal dismissed an appeal by Peter Edward Wicks from his conviction under section 179 of the Town and Country Planning Act 1990 of failing to take steps required by an enforcement notice.

In 1989 the appellant, who had been refused planning permission to demolish a two-storey storage building in a residential area and build a bungalow, carried out building works which he said were necessary because of storm damage. Thanet District Council, the local planning authority, informed him that his proposed works required planning permission and that work should stop immediately. In March 1990 an enforcement notice was issued, followed by a stop notice. The appellant's appeal to the Secretary of State for the Environment on the grounds that there was no breach of planning control and the steps required were excessive was dismissed. He did not suggest that the enforcement notice was invalid.

The appellant was subsequently charged under section 179. At his trial, the appellant changed his plea to guilty when the defence challenge to the validity of the enforcement notice on the grounds of unreasonableness and bad faith was rejected by the trial judge.

Keith Hornby (Registrar of Criminal Appeals) for the appellant; Richard Humphreys (Council Solicitor) for the Crown.

LORD TAYLOR CJ, giving the court's judgment, said that the law relating to enforcement notices had long recognised a distinction between a notice which was a nullity because of a basic defect on the face of the document and a notice which was invalid for some reason. In the case of a notice which was a nullity, the document was not an enforcement notice but a mere piece of paper. There was no doubt that nullity could be raised by a defendant if a prosecution was brought for an alleged breach of such an "enforcement notice". The defect was evident on the face of the document. It arose as a matter of law and no evidence was required to establish it.

The position was different where an allegation was made that an enforcement notice was invalid because there had been no breach of planning control or because the decision to issue it was for an improper purpose or made in bad faith. Some evidence was required to support the allegation.

Having carried out an extensive review of the authorities, there was no previous decision which clearly determined the issue of whether such challenges to the validity of enforcement notices could operate as a defence in criminal proceedings.

The starting point must be section 179(2) which dealt with offences arising from non-compliance with such notices. So long as the notice was not a nullity, patently defective on its face, it was an enforcement notice and would remain so until it was quashed. There was no requirement on the prosecutor to call evidence to establish that the decision of the local planning authority to issue the notice was within its powers.

The enforcement notice had to be served on the people affected. They had the opportunity to challenge it by judicial review. Only the High Court had the jurisdiction to quash an enforcement notice. No criminal court had that power.

In the present case, the appellant did challenge the notice by way of appeal. He did not, however, raise any question of mala fides at that time. Had the trial judge allowed the proposed challenge, it would have involved issues of planning policy and unreasonableness, as well as any contention of mala fides. The inquiry would not have been appropriate for the jury or for the determination of a Crown Court judge in a criminal trial with a jury.

It was not proper to challenge the decision to issue an enforcement notice on grounds of irrelevant considerations, perversity and bad faith by way of defence to an indictment alleging an offence under section 179.

Ying Hui Tan, Barrister