Zafar v Stoke-On-Trent City Council

Section 285(1) of the Town and Country Planning Act 1990 prevents a defendant prosecuted for failing to comply with an enforcement notice from challenging its validity on a ground available under section 174. This includes an argument that the alleged works did not constitute a breach of planning control because an Article 4 direction had not removed permitted development rights. Such a challenge must be made by appeal to the Secretary of State. The distinction between an invalid notice and a nullity remains material: a notice that is defective only because of facts proved outside its face is invalid, whereas a notice that fails on its face to satisfy statutory requirements may be a nullity. The appeal was dismissed. In any event, direct evidence established the existence of the Article 4 direction and section 133 of the Criminal Justice Act 2003 did not govern that issue.

The appellant was convicted by Staffordshire Justices of failing to comply with an enforcement notice, contrary to section 179 of the Town and Country Planning Act 1990. The notice required reinstatement of wooden window frames and repainting of the front of a house in a conservation area. The appellant argued that the Council could not prove the existence and validity of the Article 4 direction which had removed permitted development rights, and that the justices had applied the wrong standard and admissible evidence rules. The Council relied on section 285(1), contending that the challenge could only be made on an appeal against the enforcement notice under section 174. The central issue was whether the appellant could raise the Article 4 direction point as a defence to the criminal charge.

1. Appeal dismissed. The appellant’s challenge was, in substance, an assertion that the works did not amount to a breach of planning control because the Article 4 direction had not lawfully removed permitted development rights. That was a ground available under section 174(2)(c) of the Town and Country Planning Act 1990. By section 285(1), the validity or enforceability of the enforcement notice could not be questioned on that ground in the criminal proceedings. The appellant had not appealed to the Secretary of State.
2. The authorities, including Miller-Mead v The Minister of Housing and Local Government, South Hams District Council v Halsey, Square Meals Frozen Food Limited v Dunstable Corporation, Davy v Spelthorne Borough Council and Badcock v Hertfordshire County Council, confirmed the distinction between invalidity and nullity. A notice is invalid where its apparent terms are operative but facts outside the notice show that it is defective, such as where no planning permission was needed. A notice may be a nullity where it fails on its face to satisfy statutory requirements or is hopelessly ambiguous. Section 285 does not prevent a challenge on a ground which is not available under section 174.
3. The questions stated by the justices therefore did not arise. Their task was limited to deciding whether the appellant had failed to comply with the enforcement notice, and he plainly had.
4. In any event, the evidence established the Article 4 direction to the criminal standard. The direct evidence of the Council’s officer showed that the direction existed for the relevant conservation area and period. Section 133 of the Criminal Justice Act 2003 was concerned with proving statements in documents and did not govern proof of the legislative act itself.

The appeal was brought by way of case stated from the appellant’s conviction by Staffordshire Justices on 20 January 2020. The High Court held that the challenge could not be raised in the criminal proceedings and dismissed the appeal.