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Prosecutions


Breach of advertising regulations - costs

BPS Advertising Ltd v London Borough of Barnet
[2006] EWHC 3335 (Admin)


Introduction

This case will be of particular interest to local authorities as it gives them some guidance re the costs that are likely to be recoverable when exercising their planning enforcement powers.

Facts

The facts of the case are straightforward. The Company, BPS, was prosecuted for erecting an advertisement without having obtained consent under the Advertising Regulations and the Town and Country Planning Act 1990.

The Company pleaded guilty three days before the trial, having previously expressed its intention to maintain a defence to the offence. Given the late stage at which the plea was made, the Magistrates decided not to give any credit for this plea and fined the Company the maximum amount of £1000. The Magistrates also awarded the Council its costs of the prosecution in the sum of £7495.67. In respect of that the Magistrates stated:
    "We were of the opinion that the guilty plea to a serious offence was entered at the last moment therefore no discount would be given. We imposed a fine of £1,000. We were of the opinion after hearing the appellant on the issue of costs and giving the appellant the opportunity of
    obtaining details of income and assets that the costs were properly incurred by the respondent in anticipation of a full trial. We therefore ordered the appellant to pay £7,495.67 costs."
The appeal

The Court held that the costs award was disproportionate to the amount that Parliament had allowed to be the maximum penalty. Collins J:
    “As Lord Bingham indicated, [referring to R v Northallerton Magistrates' Court, ex parte Dove (1999) 163 JP 657] there is no question of an arithmetical relationship. On the other hand, one does inevitably look askance at an award of costs which is so much greater than the amount of the fine. I must bear in mind that the maximum fine in this case is £1,000. It may be that in a given case the cost of investigating and of prosecuting may be significantly greater than the maximum penalty that can be imposed. That should not in principle mean that an individual can get away with what otherwise is a criminal offence simply because it is too expensive to prosecute. The fact is that in most of these cases there is unlikely to be any issue that arises which can give rise to a significant complication and a significant outlay so far as costs are concerned. However, one has to recognise that Parliament has decided that a relatively small sum of money is the maximum penalty that can be imposed. Although the justices refer to this as a serious offence, one has to put that in the context of what the penalty for it can be.”

Enforcement notices

Offence – breach of enforcement notice - defence

Sevenoaks District Council v Harber
[2008] EWHC 708 (Admin)

Summary

In determining whether a defence under s179(3) Town and Country Planning Act 1990 is established, the question to be considered is whether it had been within the defendant’s power to comply with the enforcement notice without the assistance of others. Issues of hardship and the reasonableness of compliance are irrelevant at the prosecution stage as those matters are considered at the time that action is taken by the local authority in respect of breach of planning control which includes the service of the notice and the subsequent appeal against the notice.

Facts

The Council appealed by way of case stated against the decision of a magistrates' court to acquit the respondent, Mr Harber, of an offence of being in breach of the requirements of an enforcement notice.

The Council had served an enforcement notice requiring Mr Harber and his family to cease the use of land situated in the Metropolitan Green Belt as a residential caravan site, to remove from the site a caravan in which he and his family lived, to remove hard-standing and to reinstate the site to its former condition as an agricultural site. An appeal against the enforcement notice was unsuccessful and following this Mr Harber failed to carry out any of the steps that the notice required of him.

The Council laid an information against him alleging that a step required of him by the notice, namely to cease to use the site as a residential caravan site, had not been taken contrary to the Town and Country Planning Act 1990 s.179. Subsection (3) provides a defence if the defendant can show that he did everything he could be expected to do to secure compliance with the enforcement notice.

Decision of the Magistrates

The magistrates accepted Mr Harber’s evidence that the only way he could remove the caravan from the site was to dismantle it because his neighbours would not let him cross their land with the caravan. The court held that this provided a defence to Mr Harber pursuant to subsection (3) because it was not reasonable for him to dismantle the caravan to comply with the notice as he would have been unable to rebuild it afterwards. The court further held that it was not reasonable for Mr Harber to comply with the step in the notice by simply ceasing to live in the caravan and leave it on the site as he would have no other home in which to live with his family.

Arguments on appeal

On appeal to the Divisional Court, the Council contended that the magistrates' court had erred in law by finding that hardship caused by compliance with the enforcement notice gave rise to a valid defence under s179 (3). The authorities make it clear that such matters are not relevant at the prosecution stage as these factors had been considered during the earlier stages in the planning process.

Mr Harber contended that s179(3) had to be construed in a proportionate way and that hardship could be had regard to and in that context he had done everything reasonable to secure compliance with the notice. He also sought to distinguish his case by contending that the previous cases had involved gypsies who had been able physically to remove their caravans from the sites.

Held

The divisional court allowed the appeal and held that the magistrates' court had erred in law in respect of the scope of the defence under s179 (3). In determining whether a defence under s179(3) was established, the question that had to be considered was whether it had been within the defendant’s power to comply with the enforcement notice without the assistance of others. (R v Beard (John) (1997) 1 PLR 64 CA (Crim Div) and Wycombe DC v Wells (2005) EWHC 1012 (Admin), (2005) JPL 1640 applied).

The court held that issues of hardship and the reasonableness of compliance were irrelevant at the prosecution stage as those matters were considered at the time that action was taken by the local authority in respect of breach of planning control which included the service of the notice and the subsequent appeal against the notice. (Wells v United Kingdom (Admissibility) (37794/05) (2007) 44 EHRR SE20 ECHR applied).

As it was clear that Mr Harber was able to leave the caravan on the site and thereby cease to use the site for residential caravan purposes, he had not done everything he could reasonably be expected to do to secure compliance with the notice and the defence could not have been made out. The same conclusion applied even if the issue of removing the caravan was considered since Mr Harber was capable of doing so.


Gypsies

Wycombe District Council v Jesse Wells
[2005] EWHC 1012 (Admin)

The local authority appealed by way of case stated against a decision dismissing an information it had laid against the respondent. The local authority had served an enforcement notice that had required the respondent, a gypsy, to cease using the land as a caravan site and to remove all moveable and temporary structures from the land. The respondent advanced the defence under section 179(3) of the Town and Country Planning Act 1990 that he had done everything that he could reasonably be expected to do to secure compliance with the notice.
The magistrates found that the respondent had done all that he could reasonably have been expected to have done to find suitable alternative accommodation. The question for the opinion of the Court was whether, in the light of the evidence, the steps that the Respondent had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under s.179(3) of the Act.

The Court held that the magistrates had erred in their approach. A defence under s.179(3) could not be established by demonstrating that the reason for non-compliance with an enforcement notice was that no alternative site had become available where the activity in question could be continued. There could be no defence under s.179(3) where it was within the power of the owner of land to comply with a notice without the assistance of others. A defence could only arise if the owner showed that compliance was not within his own unaided powers. In this case, the reason the respondent did not comply was not because he was unable to comply with the enforcement notice through lack of capacity or inability. Whether or not he had an alternative site to go to, he was physically able to leave. The respondent had not been incapacitated by impecuniosity.

The judge applied the decision in R v Beard 1997 1 PLR 64. He held:
    "In that case, the appellant, a gypsy, appealed against his conviction on the ground that he had a defence because his decision not to move to the official site was reasonable. It was submitted that he had searched for an alternative accommodation without success and, if forced to comply with the enforcement notice, he would not be able to follow the traditional lifestyle of a gypsy. Laws J., as he then was, had rejected this defence on the basis of a preliminary ruling. The Court of Appeal did not approve of the adoption of this procedure. However, the correctness of his reasons for rejecting the defence was confirmed by the Court of Appeal. The court stated, see page 70 G-H:
      We consider that the submissions made on behalf of the prosecution are correct. The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of subsection (3)."
    As Hobhouse LJ stated in Beard, so the facts of this case can be so categorised:
      "The alleged facts relied upon by the appellant do not relate to any lack of capacity or inability of the appellant to comply with the enforcement notice. His compliance does not involve his securing that any other person do or desist from doing anything. He himself has the resources and the power to comply with the notice.
    For these reasons, too, I am satisfied that the magistrates erred and that this appeal must be allowed. The question for the opinion of the High Court is:
      'Whether in the light of the evidence the steps that the Justices found the respondent had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under section 179(3) Town & Country Planning Act 1990.'
    The answer to the question is No."

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