Breach of advertising regulations - costs
BPS Advertising Ltd v London Borough of Barnet
 EWHC 3335 (Admin)
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.
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:
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 Court held that the costs award was disproportionate to the amount that Parliament had allowed to be the maximum penalty. Collins J:
Offence – breach of enforcement notice - defence
Sevenoaks District Council v Harber
 EWHC 708 (Admin)
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.
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.
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.
Wycombe District Council v Jesse Wells
 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:
Back to top