Wycombe District Council v Wells

The statutory defence under section 179(3) of the Town & Country Planning Act 1990 concerns inability to secure compliance with an enforcement notice, not hardship or the absence of an alternative site. Personal circumstances may establish genuine incapacity, but they do not excuse non-compliance where the owner has the physical ability and resources to comply. A person required to leave land cannot rely on the lack of alternative accommodation alone. The relevant question is whether the defendant did everything reasonably expected to secure compliance, having regard to any genuine incapacity and the practical steps available, including seeking housing assistance where appropriate.

Wycombe District Council appealed by way of case stated against the dismissal by justices of an information alleging that Jesse Wells had failed to comply with an enforcement notice. The notice required him to cease using land as a caravan site and to remove moveable and temporary structures.

The justices accepted that the notice had been breached but held that Mr Wells had established the statutory defence because he had done all that could reasonably be expected to find suitable alternative accommodation. The central issue was whether those steps constituted a valid defence under section 179(3) of the Town & Country Planning Act 1990.

1. Appeal allowed. The justices’ answer to the stated question was “No”. Their conclusion was flawed because they treated the absence of an alternative site as sufficient to establish the defence.

2. Section 179(3) is concerned with whether the defendant was unable to secure compliance, despite doing everything reasonably expected. It does not create a general defence based on hardship, impecuniosity, cultural preference or the unavailability of another site. Otherwise, planning enforcement could be defeated whenever an alternative location was unavailable.

3. Kent County Council v Brockman was explained as deciding that personal circumstances may be considered when establishing genuine incapacity. It did not establish that personal circumstances could provide an excuse for non-compliance or that compliance could be rejected because it caused hardship. The warning against accepting a defence based essentially on impecuniosity was material.

4. The respondent was physically able to leave the site with his family. Selling the mobile home might have caused financial hardship and provided accommodation only temporarily, but it did not prevent compliance. Issues concerning the shortage of authorised gypsy sites and the hardship of leaving had also been considered, or ought to have been considered, in the planning appeal and were not matters for the justices to reopen.

5. R v Beard was applied. Where compliance lies within the owner’s own power, no section 179(3) defence arises. The defence is relevant where compliance requires the defendant to secure action by others or undertake work beyond his unaided capacity, provided he has taken every reasonably expected step.

6. The court noted that, following service of the enforcement notice, the respondent and his family could apply to the local authority housing department for consideration of their eligibility under the statutory housing requirements. Costs were ordered to be assessed for public funding, with enforcement of any costs order subject to the court’s leave.

• High Court (Administrative Court): Appeal by way of case stated allowed. The justices’ answer was held to be legally incorrect.
• Justices for the Thames Valley Commission Area: On 28 September 2004, dismissed the information and found the respondent not guilty.