Kirklees Metropolitan Council v Angus Heron Ltd

In proceedings for failure to comply with an enforcement notice, a magistrates’ court must ordinarily take the notice at face value, subject only to proper construction. It cannot reconsider whether the notified activity amounts to a breach of planning control where that issue could have been raised on an enforcement appeal. The court may consider whether conduct falling outside the prohibited use is a lawful ancillary or permitted use, but only after compliance with the notice has been established. Planning merits belong to the statutory appeal process, not the criminal court. An inspector’s reasoning may be disregarded as non-binding factual or legal opinion, but the inspector’s decision upholding the notice cannot be disregarded. Where magistrates apply the wrong legal approach and fail to decide whether the notice was obeyed, the appellate court should quash and remit rather than direct a conviction.

Angus Heron Limited was acquitted by West Yorkshire justices of five allegations of failing to comply with enforcement notices issued by Kirklees Metropolitan Council under the Town and Country Planning Act 1990. The notices required the cessation of specified storage and dismantling uses and the removal of vehicles, plant, machinery, tyres and related materials.

The justices concluded that the respondent’s primary plant and machinery business was a Class B2 use and that storing non-operational equipment for parts was a lawful ancillary use. They stated a case asking whether they were entitled to go behind the notices and the planning inspector’s decision upholding the second notice, and whether the activities fell within Class B2 use.

1. The appeal was allowed. The justices’ determination was quashed and the case was remitted for reconsideration.
2. Under sections 174 and 285 of the Town and Country Planning Act 1990, the validity of an enforcement notice cannot be challenged in criminal proceedings on grounds capable of being raised by an enforcement appeal. The statutory scheme requires planning merits and the validity of the notice to be determined through the designated appeal process.
3. Following Reg v Wicks [1998] AC 92, where an enforcement notice has not been quashed, the landowner must obey it. The criminal court must determine whether the prohibited use continued or the required steps were performed, taking the notice as its starting point.
4. The notice remains open to proper construction. A defendant may show that conduct which appears to involve prohibited material is in fact of a different order and constitutes a lawful ancillary or permitted use. The authorities concerning ancillary use, including Mansi v Elstree Rural District Council [1964] 16 P&CR 153 and Duguid v Secretary of State for the Environment, Transport and the Regions [2001] 82 P&CR 6, did not permit the notices to be sidestepped.
5. The justices had made no findings on actual compliance with either notice. They had wrongly treated themselves as entitled to decide whether the prohibited activities were within Class B2 use and to depart from the inspector’s decision that the second notice was valid. They could disregard the inspector’s reasoning as another person’s opinion, but not the decision upholding the notice.
6. The incomplete and misdirected findings did not justify a direction to convict. The case was therefore remitted to the justices to determine, applying the notices as construed, whether the prosecution had proved the alleged breaches to the criminal standard.

1. High Court (Administrative Court): [2011] EWHC 2393 (Admin) allowed the council’s appeal by way of case stated, quashed the acquittal and remitted the case to the magistrates for reconsideration.
2. West Yorkshire magistrates sitting at Dewsbury: acquitted Angus Heron Limited of five allegations of failing to comply with enforcement notices on 10 November 2010.