Sanger & Anor v London Borough of Newham

An offence of breaching an enforcement notice under Town and Country Planning Act 1990, section 179, is continuing after the compliance period expires. The statutory defence that the defendant did everything reasonably expected to secure compliance remains available for conduct undertaken after that period. Service by recorded delivery is sufficient under section 329, subject to statutory knowledge defences. An incomplete enforcement-notice register entry may still satisfy section 188 where it gives sufficient notice of the notice’s existence. The validity of an enforcement notice cannot generally be challenged in criminal proceedings or recast as an abuse-of-process argument. A stay requires either an unfair trial or protection of the integrity of the criminal justice system. Appellate courts should respect trial-court factual findings unless they are unsupported or perverse.

The appellants, joint owners of a property converted into two flats without planning permission, were convicted by the Thames Magistrates’ Court of breaching an enforcement notice under section 179(2) of the Town and Country Planning Act 1990. The Crown Court dismissed their appeal and separately refused a stay for abuse of process.

By case stated, the appellants challenged the Crown Court’s conclusions on the continuing nature of the offence, statutory knowledge and service defences, the enforcement-notice register, the four-year limitation period, disclosure failures, abuse of process and the sufficiency of the evidence. The central issue was whether any of those matters undermined the convictions.

1. Appeal dismissed. All 11 questions in the case stated were answered in the affirmative.
2. Section 179(2), read with section 179(1), creates a continuing offence. The offence crystallises after the compliance period expires, but may be committed at any time thereafter while the breach continues. Section 179(6), permitting charges by reference to any day or longer period and subsequent prosecutions, supports that construction.
3. The defence under section 179(3) is not limited to steps taken within the original compliance period. It may be relied on where the defendant did everything reasonably expected to secure compliance, including after that period. The statutory purpose is to secure compliance with planning control rather than criminalise conduct where compliance has been achieved before prosecution.
4. Service under section 329 was properly effected by sending the enforcement notice by recorded delivery to each appellant’s usual or last known abode. Whether the notice was actually received was relevant to the statutory defences in sections 179(7) and 285(2), not to the validity of service itself. R v London County Quarter Sessions Appeals Committee, ex p Rossi [1956] 682 and Hewitt v Leicester Corporation [1969] 1 WLR 855 concerned notices proved to have been returned undelivered and did not govern these facts.
5. An entry may remain contained in the section 188 register despite omission of some particulars required by article 26 of the Town and Country Planning (General Development Procedure) Order 1995, provided the entry gives sufficient notice that an enforcement notice exists in respect of the relevant land. The four-year limitation point could not otherwise be raised because section 285(1), as explained in R v Wicks [1998] AC 92, barred collateral challenges to the notice’s validity.
6. The Crown Court was entitled to reject the section 285(2) defence and the four-year limitation argument on the evidence. Questions of reasonableness, knowledge and substantial prejudice were matters of fact, degree and opinion. The Crown Court’s conclusions were neither perverse nor unsupported.
7. The disclosure failures did not require a stay. Applying the principles in R v Maxwell (Paul) [2011] 1 WLR 1837, Warren v Attorney General of Jersey [2012] 1 AC 22 and R v Crawley & Others [2014] EWCA Crim 1028, the appellants could receive a fair trial and a stay was unnecessary to protect the integrity of the criminal justice system. R v Clayton and Dockerty [2014] EWCA Crim 1030 provided further support for refusing to recast an invalidity challenge as an abuse-of-process application.

• High Court (Administrative Court): The Divisional Court answered all 11 questions in the affirmative and dismissed the appeal by way of case stated.
• Crown Court at Inner London: Dismissed the appeal from the Thames Magistrates’ Court and refused a stay of the prosecution for abuse of process.
• Thames Magistrates’ Court: Convicted the appellants on 26 March 2012 of breaching an enforcement notice contrary to section 179(2) of the Town and Country Planning Act 1990.