Altunkaynak, R (on the application of) v Northamptonshire Magistrates' Court & Anor

A prosecution for breach of an enforcement notice may be stayed as an abuse of process only in rare cases involving both an irrefutable ground of challenge and an understandable reason for failing to appeal the notice. A planning permission granted pursuant to an application cannot be limited by wording alone; any limitation must be imposed by an appropriate condition. A deliberate decision to rely on professional advice and pursue a fresh planning application will not ordinarily constitute an understandable reason for omitting the statutory appeal.

The claimant sought judicial review of the Northamptonshire Magistrates’ Court’s decision to reject an abuse-of-process application in prosecutions brought by Kettering Borough Council for breach of enforcement notices issued under the Town and Country Planning Act 1990. He argued that a 2006 planning permission authorised the relevant use of the premises and that he had reasonably relied on planning advice instead of appealing the enforcement notice.

The claimant originally challenged the justices’ refusal to state a case. Following permission to apply for judicial review, the challenge was amended to target the substantive decision. The central issue was whether the prosecution fell within the rare category identified in Staffordshire County Council v Challinor [2007] EWCA Civ 864, where a prosecution for breach of an enforcement notice may amount to an abuse of process.

1. The court dismissed the application for judicial review. Although the justices had erred in concluding that an appeal against the enforcement notice was by no means certain to succeed, they were entitled to find that the claimant lacked an understandable reason for failing to appeal. That independently defeated the abuse-of-process submission.

2. The relevant test, drawn from Staffordshire County Council v Challinor [2007] EWCA Civ 864, required both an irrefutable defect in the enforcement notice and an understandable reason for omitting the statutory appeal. The test reflected the exceptional nature of a stay, which should be granted only where conviction would produce a gross injustice.

3. The 2006 planning permission was construed by reference to the permission itself. Under R v Ashford Borough Council, ex p Shepway District Council [1999] 1 PLCR 12, extrinsic material such as planning history could not be used because the permission was clear and unambiguous. The words describing use of the premises as an extension to existing premises did not themselves impose a legally effective limitation.

4. Following I’m Your Man Limited v Secretary of State for the Environment (1999) 77 P&CR 251, a limitation on planning permission granted pursuant to an application had to be imposed by condition. The principle was not confined to temporal limitations. The absence of an appropriate condition meant that the claimant had a cast-iron ground of appeal against the enforcement notice.

5. The claimant had deliberately chosen to rely on his professional adviser and make further planning applications rather than appeal. The local authority had acted reasonably and in good faith. Reliance on subsequent advice identifying a successful ground of appeal did not make the failure to appeal understandable in the exceptional sense required for a stay.

6. The original challenge to the refusal to state a case was well founded because the justices had wrongly treated the application as frivolous. After considering the substantive issue, however, the court rejected the amended challenge and dismissed the judicial review application.

• Northamptonshire Magistrates’ Court: rejected the claimant’s application to stay the prosecutions as an abuse of process, convicted him following his guilty plea, imposed a fine and ordered costs. The justices later refused to state a case, treating the application as frivolous.
• High Court (Administrative Court): held that the refusal to state a case was legally unsound, but dismissed the substantive judicial review challenge because the second condition for a stay was not satisfied.