Sevenoaks District Council v Harber

Section 179(3) of the Town and Country Planning Act 1990 provides a limited defence to prosecution for breach of an enforcement notice. The question is whether the owner could comply with the notice without assistance from others. The defence concerns physical or practical incapacity to comply, not hardship, lack of alternative accommodation, or the reasonableness or proportionality of compliance at the prosecution stage. Those wider considerations must be addressed when the enforcement notice is issued or challenged before the Secretary of State. Article 8 does not require them to be reconsidered in criminal proceedings for breach of a valid notice.

Sevenoaks District Council appealed by way of case stated from the decision of the Kent Justices at Sevenoaks Magistrates’ Court. The respondent had been charged under section 179 of the Town and Country Planning Act 1990 with failing to cease using land as a residential caravan site in breach of an enforcement notice.

The justices accepted that he had not complied, but found that he had taken reasonable steps to secure compliance. They considered it unreasonable to require him either to leave the mobile home or dismantle it, given the absence of alternative accommodation and the consequences for his family. The questions concerned the proper scope of the statutory defence under section 179(3).

1. The appeal succeeded. The three questions posed in the case stated were answered in the negative, and the matter was remitted to the justices with a direction to convict. There was no order for costs.
2. The governing test under section 179(3) is whether it was within the owner’s power to comply with the enforcement notice without the assistance of others. The provision addresses inability to comply, rather than hardship or whether compliance would be reasonable.
3. The approach in R v Beard [1997] 1 PLR 64 was followed. The subsequent decisions in R v Wood [2001] EWCA Crim 1395, R v Clarke [2002] EWCA Crim 753 and Wycombe District Council v Wells [2005] EWHC 1012 (Admin) supported the same approach.
4. The charge concerned only the failure to cease residential use. The respondent could have ceased living in the mobile home without anyone else’s assistance. The hardship of having no alternative home was therefore irrelevant. Even if the charge had concerned removal of the mobile home, the relevant issue would have been whether he could dismantle and remove it, not the hardship caused by doing so.
5. Article 8 proportionality was already accommodated within the statutory planning procedures, including the decision to issue the notice and any appeal to the Secretary of State under section 174. It did not require a further proportionality assessment during prosecution. This reasoning was consistent with Chichester District Council v First Secretary of State [2004] EWCA Civ 1248 and the Strasbourg decision in Wells v United Kingdom, application no 37794/05.

• High Court (Administrative Court): the Kent Justices’ decision was reviewed on a case stated. The questions were answered in the negative and the matter was remitted with a direction to convict.
• Kent Justices, Sevenoaks Magistrates’ Court: the respondent was acquitted of the section 179 offence on the basis of the statutory defence.