London Borough of Newham v Miah & Anor

For service of a planning enforcement notice, a local authority may use the owner’s address recorded in the Land Registry where the owner has not supplied a current address. The relevant knowledge is that of the local planning authority, not every department of the council.

The four-year immunity period for a change-of-use breach requires the owner to prove continuous use throughout the whole period. Periods during which no breach existed cannot count towards the immunity period. For an offence under an enforcement notice, the defendant’s knowledge is assessed at the date of the alleged offence.

The Council appealed by case stated against the acquittal of Khalis Miah on two charges under section 179(2) of the Town and Country Planning Act 1990. The charges alleged continuing breach of an enforcement notice requiring the conversion of a property used as two flats back into one home.

The magistrates had held that the notice was not properly served, that Mr Miah could challenge its validity under section 285, and that enforcement action was time-barred under section 171B(2). The questions concerned service, substantial prejudice, the correct four-year test, the evidential basis for the time-bar finding, and Mr Miah’s knowledge when the second offence began.

1. Appeal allowed and matter remitted. The case was remitted to the Magistrates’ Court, preferably before a District Judge.
2. The question whether an address is a person’s usual place of abode or last known address is one of mixed fact and law. Under sections 1(2), 172 and 173 of the Town and Country Planning Act 1990, the relevant knowledge is that of the local planning authority responsible for issuing the notice. The planning department was entitled to rely on the address in the Land Registry proprietorship register. It was not required to search all council records for another address. The notice was therefore properly served, and Mr Miah could not invoke section 285(2) or section 179(7)(a).
3. The question on substantial prejudice did not arise. If it had arisen, the magistrates’ failure to make a specific finding would not necessarily have invalidated their decision where their reasons showed that they had considered the issue.
4. Under section 171B(2), an owner relying on the four-year immunity period must prove that the relevant use continued throughout the whole period. The rationale is that enforcement must have been available throughout the period. If no breach existed at any time, that time cannot count. The evidence did not establish continuous use of the property as two flats for the four years before the notice. The magistrates had applied the wrong approach. The court relied on Swale BC v First Secretary of State and the approach approved there from Secretary of State for the Environment v Thurrock BC.
5. For section 179(7) and section 285(2)(c), knowledge is assessed at the date of the alleged offence. Mr Miah had received the July 2012 non-compliance letter before the second offence began, so he could not challenge the notice’s validity under section 285(2)(c).
6. The court declined to determine the newly raised abuse-of-process argument. A case stated appeal is concerned with answering the questions posed by the lower court, and no established category of abuse had been shown.

• High Court (Administrative Court): The appeal by case stated was allowed and the matter remitted to the Magistrates’ Court.
• Waltham Forest Magistrates’ Court: The respondent was acquitted on two charges under section 179(2) of the Town and Country Planning Act 1990.
• Earlier proceedings: A previous appeal concerning the initial prosecution was decided in [2014] EWHC 4550 (Admin); that decision concerned the sufficiency of evidence at half time and is part of the same litigation.