Angus Heron Ltd v Kirklees Metropolitan Borough Council

An enforcement notice which has not been successfully challenged stands on its terms. A magistrates’ court determining an alleged breach cannot reopen the planning issues decided by the notice or go behind an unchallenged assertion of a change of use.

The court must instead determine whether the prohibited use continued, whether there was compliance, and whether later activity was genuinely ancillary to a lawful use. That may require consideration of whether the prohibited use ceased, the scale and intensity of subsequent activity, and whether it became the main or a mixed use. Where the relevant evidence and factual findings are unavailable or inadequate, the proper course is a full rehearing before the tribunal that hears the evidence.

Angus Heron Limited appealed by way of case stated against its conviction by District Judge Mallon for five breaches of enforcement notices concerning the storage and dismantling of scrap and disused vehicles, plant and machinery, and old tyres at Hillside Works.

The matter had previously been remitted by the High Court after the magistrates had approached the planning issues incorrectly and had failed to make the necessary findings about compliance. On reconsideration, District Judge Mallon convicted the appellant largely on the basis of photographs and material said to have been before the original magistrates, without hearing evidence afresh.

The central issue was whether she was entitled to conclude that the offences were made out and that the relevant uses breached the enforcement notices.

1. Appeal allowed. The decision and convictions of District Judge Mallon, including the fine and costs order, were quashed. The matter was remitted for a full de novo hearing before a newly constituted bench. The costs of the earlier hearing were left for determination by the court hearing the rehearing.

2. An enforcement notice which has not been quashed or successfully appealed is binding in its terms. The criminal court cannot go behind the notice’s unchallenged finding that a change of use occurred, or reconsider the planning issue underlying that finding. It must begin with the wording of the notice.

3. The proper questions were whether the prohibited use had ceased and the notice had been complied with; whether subsequent activity amounted to a further breach; and whether that activity remained ancillary to a lawful general industrial use or had become the principal use or a mixed use. The significance of ancillary use depended on its scale and intensity and on the factual evidence.

4. District Judge Mallon was not entitled to determine guilt on an uncertain and incomplete record of evidence from the earlier proceedings. The parties’ agreement that no further evidence would be called placed her in an impossible procedural position, particularly because the original magistrates had failed to answer the relevant factual questions. The same tribunal should hear the evidence and determine the legal and factual issues together.

• High Court (Administrative Court): On 12 July 2011, Langstaff J allowed an earlier appeal by case stated, quashed the magistrates’ acquittals and remitted the matter for reconsideration.
• High Court (Administrative Court): The present court allowed the appeal against District Judge Mallon’s convictions, quashed her decision, fine and costs order, and remitted the matter for a full rehearing before a newly constituted bench.