London Borough of Barking and Dagenham v Zannat Ara Aziz

In proceedings for breach of a planning enforcement notice, the statutory protection for an unserved pre-existing landowner is a gateway to the statutory appeal grounds, rather than a freestanding defence. If its conditions are met, the criminal court may consider any applicable appeal ground and acquit where the notice would have been quashed on appeal.

Registration of the notice under section 188 is expressly fatal to the separate defence in section 179(7), but it is not fatal to the protection in section 285(2). The question whether the defendant could reasonably have been expected to know of the notice remains evaluative and fact-sensitive.

The local planning authority appealed by way of case stated against the respondent’s acquittal by North East London Magistrates. The respondent, the pre-existing owner of land subject to an enforcement notice, had not been served with it and was found genuinely unaware of its existence. The notice was nevertheless entered on the statutory register.

The Magistrates found that the respondent could not reasonably have been expected to know of the notice and that her interests had been substantially prejudiced. The appeal concerned the interrelationship between the statutory appeal grounds in section 174(2), the defence in section 179(7), and the disapplication of the preclusive clause in section 285(2) of the Town and Country Planning Act 1990.

1. Appeal dismissed. The Magistrates had not erred in acquitting the respondent.
2. The section 285(2) protection applies to a pre-existing interest-holder who was not served, was genuinely unaware of the enforcement notice, could not reasonably have been expected to know of its issue, and suffered substantial prejudice. It disapplies the preclusive clause and gives access in the section 179 proceedings to the statutory appeal grounds.
3. Registration under section 188 is expressly fatal to the section 179(7) defence, but Parliament did not make registration fatal to section 285(2). Registration is one relevant factor in deciding whether knowledge could reasonably have been expected; it is not conclusive.
4. The gateway leads to all applicable statutory appeal grounds. It is not confined to grounds said to invalidate the notice in a narrow or technical sense. The section 174(2)(e) ground, concerning failure to serve as required by section 172, may itself justify quashing under section 176(2), subject to substantial prejudice under section 176(5).
5. The result is that the defendant is acquitted because the notice would have been quashed if the defendant had been able to bring the statutory appeal. The notice is not formally quashed in the criminal proceedings.
6. The argument that the Magistrates’ finding about reasonable knowledge was unreasonable was outside the stated questions and grounds. In any event, the material before the court could not establish that the evaluative conclusion was wrong or unreasonable.
7. The statutory defence and the section 285(2) protection overlap. The former is available only where the notice is unregistered; the latter remains available to a qualifying Non-Newcomer even where the notice is registered.

• North East London Magistrates’ Court: acquitted the respondent on 18 July 2023.
• High Court (Administrative Court): dismissed the authority’s case stated appeal and answered all three questions in the affirmative or, for Question 2, in accordance with the gateway analysis.