Regina v Wicks

The House of Lords held that, for the purposes of section 179 of the Town and Country Planning Act 1990, an "enforcement notice" means a notice which on its face complies with the statutory requirements and has not been set aside on appeal or by judicial review. The court rejected the submission that an accused prosecuted under section 179(1) may, as of right in criminal proceedings, challenge the decision to issue the enforcement notice on residual public law grounds such as mala fides, bias or consideration of immaterial factors. The decision turned on statutory construction of the enforcement code (Part VII) and the legislative history showing a deliberate scheme of appeals and time limits designed to secure timely and effective planning enforcement.

This was an appeal from the Court of Appeal (Criminal Division) concerning a prosecution under section 179(1) of the Town and Country Planning Act 1990 for failure to comply with an enforcement notice. The appellant, Mr Wicks, had been served with an enforcement notice requiring remedial works; he appealed to the Secretary of State by written representations and the appeal was dismissed. Later he was prosecuted for non-compliance and, after the trial judge ruled that certain challenges were not open in the criminal proceedings, he pleaded guilty and appealed.

The appellant sought to rely, as a defence in the criminal proceedings, on allegations that the local planning authority acted improperly in issuing the notice: that they did not genuinely consider whether service was "expedient" under section 172(1)(b) and that the decision was vitiated by bias or mala fides. The central issue before the House was whether such "residual" public law grounds could be raised as of right in criminal proceedings under section 179(1), or whether they were matters which had to be pursued by the appellant in judicial review (or on the statutory appeal) before they could operate as a defence.

The House analysed the statutory scheme in Part VII, its history and policy objectives: the progressive confinement of challenges to the statutory appeal route, the unsuitability of criminal courts (and lay magistrates) to decide complex public law issues, the need for prompt and effective enforcement within statutory timetables and the coercive role of criminal sanctions in securing compliance. On this construction, "enforcement notice" in section 179(1) denotes a notice formally valid and not quashed; residual public law grounds are not available as of right in the criminal proceedings. The House dismissed the appeal, answering the certified questions that a defendant is not entitled as of right to raise ultra vires or mala fides grounds in such criminal proceedings and that there were no exceptions allowing these residual grounds to be raised there.

Appeal dismissed. The House held that section 179(1) must be read in the context of the enforcement code in Part VII and its history so that an "enforcement notice" for the purposes of criminal liability is one which is formally valid and has not been set aside on appeal or by judicial review; residual public law challenges such as mala fides or bias are not available as of right in a prosecution under section 179(1) and should be pursued by the appropriate review or appeal procedures.

Trial on indictment before His Honour Judge Rooke and a jury; after a pre-trial ruling the defendant pleaded guilty and was bound over. The defendant obtained a certificate and appealed to the Court of Appeal (Criminal Division) where the appeal was dismissed (judgment of Keene J. delivering the court). The matter proceeded to the House of Lords (this decision) [1997] UKHL 21.