Enforcement Notices, Appeals, Prosecutions & Abuse of Process
February 14th, 2012 by Louise Humphreys
In Altunkaynak, R (on the application of) v Northamptonshire Magistrates' Court & Anor  EWHC 174 (Admin), the Courts have again considered the interplay between enforcement notices, prosecutions and s285 of the Town and Country Planning Act 1990 (which precludes people from challenging the validity of an enforcement notice otherwise than by way of an appeal). The case serves as yet another reminder to planning practitioners on the importance of appeals against enforcement notices and the difficulties that a failure to appeal can cause at a later date. It also serves as a reminder to planning authorities to ensure that any limitations to be applied to a planning permisison are properly conditioned.
The Claimant was prosecuted for non-compliance with an enforcement notice relating to the use of premises as a takeaway and the failure to remove a flue. At the Magistrates' Court the Claimant sought to stop the proceedings as an abuse of process. The Justices rejected the submission, following which the claimant changed his plea to guilty; he was fined and ordered to pay costs. The Justices then refused the Claimant's application to state a case on the grounds that the application was frivolous. Judicial Review proceedings ensued and having granted permission to make the application, the Administrative Court turned its attention to whether the Justices were correct in refusing to stay the proceedings.
The Claimant carried on a restaurant and hot food takeaway business in premises in which he had a leasehold interest which was covered by planning permission. In 2005 he acquired a leasehold interest in additional premises in the same road but separated by other premises in which he had no interest; his original and additional premises had a connecting passage at first floor level through these other premises. In 2005 an application for planning permission for change of use of the additional premise from class A1 retail use to a hot food takeaway use within class A5 was refused. A further application was made in July 2006 and this time planning permission was granted. It was the terms of this consent which were central to the issue before the court. The development for which permission was granted was described as:
"Conversion of shop to restaurant kitchen and hot food takeaway as an extension to the present premises at ..."
It was common ground between the parties that the premission covered the Claimant's additional premises. The only conditions of the grant related to (1) the time within which the development was to be begun and (2) implementation of a specified ventilation system before commencement of the permitted use.
At some point thereafter the Claimant's landlord refused to renew the lease for the original premises, leaving the claimant in a position where he could only operate his business from the additional premises.
In November 2008 the Council served enforcement notices on the Claimant. Only one of the notices was relevant to the case, in which the breach of planning control alleged was described as:
"Without planning permission the change of use of the property from retail shop to a use for the preparation and sale of hot food for consumption on or off the premises and the carrying out of works as part of the unauthorised change of use, namely the installation of an extraction system and flue through the rear slope of the property."
The Claimant did not exercise his right under section 174 of the Act to appeal against the enforcement notices. It was said at the Magistrates' Court on his behalf that he was advised by his planning agent and architect to make further applications for planning permission rather than to appeal the notices.
The Abuse of Process Argument
The Claimant's argument as to abuse of process was founded on the decision in Staffordshire CC v Challinor  EWCA Civ 864. That case involved both civil and criminal proceedings in respect of breaches of an enforcement notice. One of the matters relied on by the defendant in that case was an earlier certificate of lawful use. Hughes LJ said that if reliance was sought to be placed on a certificate of lawful use as a ground of challenge to an enforcement notice, it had to be raised by way of an appeal under section 285. But he continued:
76. It is certainly possible to envisage rare cases in which this law may work some injustice. They will be confined to those in which both: (a) there is a defect in the enforcement notice which can irrefutably be established; and (b) the landowner had an understandable reason for omitting to pursue a s.174 appeal. The coincidence of those factors will, I think, be rare. But it is not entirely unknown for administrative errors to lead to the issue of an enforcement notice when there is an existing planning permission, or Certificate of Lawful Use, and the chance of such error is no doubt increased if there are two different authorities concerned in the case. It is no doubt possible that a landowner might be absent abroad, ill, illiterate or simply may wrongly think that his CLU provides an answer and he need take no advice and do nothing. There is, we are told, no power even in an exceptional cease to extend time for bringing a s.174 appeal. So in such a case, rare as it may be, the landowner could perhaps find himself with a cast iron defence to a prosecution under an enforcement notice, which he is prevented by s.285 from advancing.
78. ...If such a case were to arise, then the courts do, as it seems to me, have limited capacity to address it. First, so long as the court retains the rarely exercised but important power to stay a prosecution on the grounds that it is an abuse of the process of the court, under the second limb of the law as explained by the House of Lords in R v Horseferry Road Magistrates' Court, Ex p. Bennett (No.1)  1 AC 42, the criminal court has available the means of preventing the gross injustice of a conviction. Secondly, the civil court plainly retains a discretion whether or not to grant an injunction if one is sought...
The Claimant sought to apply that reasoning, submitting that an appeal against the enforcement notice would inevitably have succeeded and that he had an understandable reason for omitting to pursue an appeal, having relied completely on a qualified architect.
Administrative Court's Decision
As to the first point that the appeal would inveitably succeeded, the Court applied the reasoning in I'm Your Man Limited v Secretary of State for the Environment(1999) 77 P&CR 251 and agreed with the Claimant that the words of apparent limitation in the 2006 planning permission did not have the effect in law of limiting the permission granted. Any such limitation could only have been achieved by the imposition of an appropriate condition. The Court therefore concluded that an appeal against the enforcement notice would inevitably have succeeded if it had been properly argued and the inspector had directed himself correctly in relation to it. The Magistrates Court was therefore in error in finding that an appeal was by no means certain to be successful.
As to the second point that he had an understandable reason for ommitting to pursue an appeal the Claimant was unsuccesfful. The Court concluded that it would not be an injustice to refuse a stay in circumstances where, as here, the local planning authority has acted reasonably and in good faith both in issuing the enforcement notice and in bringing the prosecution for breach of it, and the individual's failure to appeal the enforcement notice was not accidental or based on a simple misunderstanding of the legal position. In this case the failure to appeal was the result of a deliberate decision to act on the advice of a professional adviser in making a separate application for planning permission rather than pursuing an appeal. The fact that another professional adviser subsequently identified a ground on which an appeal would have succeeded was not a compelling reason for the grant of a stay.
Thus the Administrative Court concluded that the Magistrate's refusal to stay the proceedings was correct.