London Borough of Newham v Thames Magistrates' Court

In a prosecution for breach of an enforcement notice, the prosecution must prove the statutory elements of the offence. Valid service of the notice is not itself an element of the offence. Defective service may support the limited defence under section 179(7) of the Town and Country Planning Act 1990, but the defendant must establish the statutory conditions for that defence.

The validity of an enforcement notice, including whether enforcement action was time-barred, cannot generally be challenged in criminal proceedings because of section 285. Such issues must ordinarily be raised by appeal under section 174. A submission of no case to answer cannot succeed on irrelevant or premature issues.

The London Borough of Newham prosecuted Khalis Miah for an offence under sections 179(1) and (2) of the Town and Country Planning Act 1990, alleging breach of an enforcement notice concerning the conversion of residential premises.

At the close of the prosecution case, the Thames Magistrates' Court upheld a submission of no case to answer. It considered the evidence concerning service of the enforcement notice to be vague and inherently weak, and also considered whether the alleged conversion had occurred within the statutory four-year period.

The council appealed by case stated. The central issues were whether service was an element of the offence, whether the enforcement notice's validity could be challenged in the criminal proceedings, and whether the magistrates had correctly applied the R v Galbraith test.

1. Appeal allowed and remitted. The magistrates had erred in law by dismissing the charge at the close of the prosecution case. The appeal was remitted to the Magistrates' Court.

2. The prosecution had to prove the four elements of the offence under section 179(1), together with the fact that the conduct constituted an offence under subsection (2). Service of the enforcement notice was not an element which the prosecution had to prove. It was relevant only to the defendant's possible defence under section 179(7).

3. The section 179(7) defence could not properly be used at the close of the prosecution case on the evidence then available. It required the defendant to establish the statutory conditions, including lack of service and lack of awareness where the notice was not in the appropriate register. The issue might have arisen if the defendant had given evidence and satisfied the magistrates that the statutory requirements were met.

4. Under section 285(1), the validity of an enforcement notice could not be questioned in those criminal proceedings on grounds capable of being raised by an appeal under section 174. Whether the development had been completed more than four years before the notice was issued was therefore not an issue for the magistrates. Section 285(2) provided only a narrow exception, requiring evidence of non-service, lack of knowledge or reasonable expectation of knowledge, and substantial prejudice.

5. The magistrates had also misapplied the R v Galbraith test. Their conclusion rested on issues which were irrelevant to the prosecution case or premature as matters of defence. The court therefore considered it unnecessary to decide whether service at the property was valid.

6. Mr Miah was ordered to contribute £2,000 towards the council's costs, reflecting preparation for and attendance at the substantive appeal.

• Thames Magistrates' Court: dismissed the charge after upholding a submission of no case to answer.
• High Court (Administrative Court): allowed the appeal by case stated and remitted the matter to the Magistrates' Court.