Challinor v R

In a prosecution for failing to comply with a planning enforcement notice, a defendant cannot rely on a Certificate of Lawful Use as a defence where it could have provided a basis to challenge the notice’s validity or scope on an appeal under section 174 of the Town and Country Planning Act 1990. Section 285 requires such challenges to be pursued through the statutory planning appeal process, rather than in criminal proceedings.

The criminal court is concerned with compliance with an enforcement notice which remains unquashed. This construction promotes prompt and effective planning control.

The appellant pleaded guilty at Stafford Crown Court to two offences of failing to comply with an enforcement notice under section 172 of the Town and Country Planning Act 1990. The alleged breaches consisted of bringing waste materials onto land subject to the notice.

Before the jury, the appellant sought to rely on a Certificate of Lawful Use relating to part of the affected land. The Recorder ruled that the certificate could not be relied upon as a defence. A later application to reopen that ruling was refused. The appellant appealed, contending that the rulings rendered his guilty pleas unsafe.

A related civil appeal between the parties raised the same legal issue. The central question in this criminal appeal was whether the certificate could be relied upon to challenge the enforcement notice in the prosecution.

1. Appeal dismissed. The appellant’s convictions were safe. The Recorder had correctly ruled that the Certificate of Lawful Use could not be relied upon in the criminal proceedings, and the later refusal to reopen that ruling was also correct.

2. The effect of section 285 of the Town and Country Planning Act 1990 was to preclude reliance on the certificate in the prosecution. If the certificate provided a basis for challenging the validity or scope of the enforcement notice, that challenge had to be made on an appeal to the Inspector under section 174. Although such an appeal had been brought, the relevant grounds had expressly been abandoned shortly before its hearing.

3. The court followed R v Wicks [1998] AC 92. A defendant charged with non-compliance with an enforcement notice cannot challenge the notice in the criminal proceedings, even on grounds falling outside section 174, such as bad faith. The offence concerns failure to comply with a notice which has not been quashed.

4. That conclusion accords with the statutory scheme. A criminal court is unsuitable for determining the legality of the notice; challenges must be determined promptly if planning control is to be effective; and criminal proceedings serve both punishment and compliance with planning control.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court upheld the rulings that the Certificate of Lawful Use could not be relied upon in the prosecution.
• Stafford Crown Court: The appellant pleaded guilty to two counts under section 172 of the Town and Country Planning Act 1990 after a ruling that the certificate was unavailable as a defence. A later application to reopen that ruling was refused.