LAW REPORT 4 June 1997: Validity of notice to be challenged by judicial review

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Regina v Wicks; House of Lords (Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Nicholls of Birkenhead, Lord Hoffman and Lord Hope of Craighead) 21 May 1997

A defendant prosecuted for an offence of failing to comply with an enforcement notice issued under the Town and Country Planning Act 1990 was not entitled, in the criminal proceedings, to rely on the defence that the enforcement notice was invalid because the decision to issue it was ultra vires. Such a challenge to the validity of the notice could only be made by way of judicial review.

The House of Lords affirmed the decision of the Court of Appeal, dismissing the appellant's appeal against conviction of an offence under section 179(1) of the Town and Country Planning Act 1990.

The appellant had begun rebuilding works for which the local council decided that planning permission was required. After warning the appellant that he was in breach of planning control, the council issued an enforcement notice. The appellant's appeal against the enforcement notice was dismissed, but he failed to comply with the terms of the notice. A summons was issued, alleging a breach of section 179(1) of the Town and Country Planning Act 1990.

At the appellant's trial in the Crown Court he wished to challenge the service of the enforcement notice on the grounds that the council had acted in bad faith and had been motivated by immaterial considerations. The judge accepted the Crown's submission that such grounds should have been raised by way of an application for judicial review, and that at a criminal trial a notice which had not been quashed should be treated as valid. The appellant thereupon changed his plea to guilty.

Anthony Speaight QC and Francis Macleod Matthews (S.J. Burton & Co) for the appellant; Richard Humphreys (Sharpe Pritchard for Peter W. Borley, Margate) for the Crown.

Lord Hoffman said that the Court of Appeal had referred to the distinction between substantive and procedural invalidity of an enforcement notice. The former could be relied on in criminal proceedings, but the latter was a matter either for the Secretary of State or judicial review.

The appellant had attacked that distinction, and had submitted that a defendant to criminal proceedings could challenge the vires of every act done under statutory authority if its validity formed part of the prosecution's case or its invalidity would constitute a defence.

No such generalisation was, however, possible. The question must depend entirely upon the construction of the statute under which the prosecution was brought. It was impossible to construct a general theory of the ultra vires defence which applied to every statutory power, whatever the terms and policy of the statute.

The correct approach was illustrated by the decision in Quietlynn Ltd v Plymouth City Council [1988] QB 114, in which it was held that the court should treat the question before it as one which could be determined by construction of the statutory system of licensing premises for use as a sex establishment.

The question in the present case was likewise one of construction. What was meant by "enforcement notice" in section 179(1) of the 1990 Act?

When one examined Part VII of the 1990 Act, the scheme of enforcement of planning control which it exhibited, and the history of its provisions, one was driven to the conclusion that "enforcement notice" meant a notice which was issued by the planning authority which was formally valid and had not been quashed.

The history showed that over the years there had been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice could raise when prosecuted for failing to comply.

The reasons for the policy were clear: they related, first, to the unsuitability of the subject-matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings were part of the mechanism for securing the enforcement of planning control in the public interest.

There was no dispute in the present case that the appellant had failed to comply with an enforcement notice issued by the planning authority which on its face complied with the requirements of the Act and had not been quashed. He was therefore guilty of the offence and the matters he proposed to raise at his trial were irrelevant.