Clayton & Anor v R

A criminal court cannot determine a challenge to an enforcement notice by treating it as an application to stay a prosecution where the alleged abuse depends upon establishing that the notice was invalid. Under section 285(1) of the Town and Country Planning Act 1990, a challenge available by statutory appeal must be pursued by that route. Where the statutory appeal route does not provide the ground of challenge, judicial review is the appropriate route.

A stay for abuse of process protects the integrity of the criminal justice system. It is not a disciplinary remedy for official misconduct. Prejudice is not essential, but its absence is an important consideration. Official concealment which does not affect a properly made enforcement notice cannot itself make a prosecution for breach abusive.

The appellants pleaded guilty in the Crown Court at Preston to failing to comply with an enforcement notice, contrary to section 179 of the Town and Country Planning Act 1990. The notice required the discontinuance of the permanent residential use of flats which planning permission allowed only for holiday or short lettings.

Before sentence, the appellants learned of an allegation that the Council's former solicitor had concealed evidence which might have shown that the use pre-dated the notice by more than four years. They applied to stay the prosecution as an abuse of process. The judge held that the Crown Court lacked jurisdiction to entertain that challenge. On appeal, the issue was whether the alleged concealment permitted a stay application notwithstanding section 285 and R v Wicks [1998] AC 92.

1. Appeal dismissed. The judge correctly refused to investigate the alleged conduct of the Council's solicitor within the criminal proceedings.

2. Section 285(1) of the Town and Country Planning Act 1990 clearly prevents the validity of an enforcement notice being questioned in proceedings other than the statutory appeal route where the asserted ground could have been raised on appeal. The appellants' proposed stay depended on proving that the notice was invalid because material information had been concealed. It was therefore, in substance, an impermissible collateral challenge to the notice.

3. The reasoning in R v Wicks [1998] AC 92 independently led to the same result. In a prosecution under section 179, the statutory scheme requires proof of an apparently valid notice which has not been quashed. Even where the complaint cannot be pursued by statutory appeal, the proper forum for a public-law challenge is judicial review. A defendant cannot avoid that allocation of jurisdiction by recasting a validity challenge as abuse of process.

4. The Court rejected the suggested analogy with White and White v South Derbyshire District Council [2012] EWHC 3495. There, the authority sought to found a prosecution by asserting the invalidity of a licence which it had itself granted. Here, the Council relied on an enforcement notice that was apparently valid and remained binding unless set aside.

5. The wider formulation of abuse of process also failed. A stay may protect the integrity of criminal justice even without prejudice to the accused, but it is not a means of disciplining official wrongdoing. If the alleged concealment had no effect on the notice, it could not make enforcement of a properly made notice abusive. If it affected the notice's validity, the challenge had to be made outside the criminal proceedings.

• Court of Appeal (Criminal Division): Dismissed the appellants' appeals against conviction: [2014] EWCA Crim 1030.
• Crown Court at Preston: The appellants pleaded guilty on 2 August 2013 to failing to comply with an enforcement notice. The judge rejected their application to stay the prosecution for abuse of process.