Mirza v London Borough of Newham

An owner charged with breach of a planning enforcement notice may invoke the defence in section 179(3) of the Town and Country Planning Act 1990 only where compliance was not within the owner’s unaided power. The defence then requires proof, on the balance of probabilities, that the owner did everything reasonably expected to secure compliance.

The inquiry is objective, although personal circumstances may be relevant. Delegating management does not transfer the owner’s statutory duty. Where an owner knew only that responsibility had been entrusted to another, the relevant question is whether that entrustment was reasonable. Evidence of steps taken by the delegate, but unknown to the owner, does not establish that the owner did all that could reasonably be expected.

The appellant owned a residential property which was subject to an enforcement notice requiring its use as self-contained flats to cease. It was accepted that, in late 2015, the property was again being used and rented as four self-contained flats.

At Snaresbrook Crown Court, the appellant was acquitted on one count but convicted on a second count of breach of an enforcement notice contrary to section 179(1) of the Town and Country Planning Act 1990. She relied on the defence in section 179(3), asserting that she had entrusted all management and compliance matters to her experienced landlord husband.

The trial judge excluded, for the purpose of that defence, evidence of steps taken by the husband in connection with the later letting and his response after discovering subletting. The appeal challenged that ruling and the resulting directions to the jury.

1. Appeal dismissed. The conviction was safe. The trial judge correctly confined the jury’s consideration of the statutory defence to what the appellant knew and did.

2. Section 179 creates strict-liability offences, subject to its statutory defences. Following R v Beard [1997] 1 PLR 64, the court held that the section 179(3) defence has two stages. First, the owner must show that compliance was outside his or her unaided power. If compliance was within that power, the defence does not arise. Secondly, where assistance was necessary, the owner must prove on the balance of probabilities that he or she did everything reasonably expected to secure compliance.

3. The second-stage inquiry is objective. Personal circumstances may be relevant, but the standard is more demanding than a reasonable excuse. The Crown accepted that the appellant could not comply unaided, so the only live question was whether she had done everything reasonably expected to secure compliance.

4. On the appellant’s evidence, her sole relevant act was to give the notice to her husband, trust him to deal with it, and make no further enquiry. She neither knew nor sought to know what he had done, the terms on which the property was later let, or the steps he took after discovering the breach. Evidence of those unknown matters could not demonstrate that she had done all that was reasonably expected of her.

5. Accordingly, the jury could assess only the reasonableness of her decision to entrust all compliance and management to her husband. The judge’s evidential ruling and directions were correct. No separate complaint that the jury should have been discharged was pursued.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction.

• Crown Court at Snaresbrook — on 9 November 2016, HHJ Sanders convicted the appellant of breach of an enforcement notice on count 2 by an 11:1 majority and acquitted her on count 1.