Breach of s.179 Planning Enforcement Notice.

Jun 2019

Breach of s.179 Planning Enforcement Notice.

R v L: Harrow Crown Court.

This case is a good illustration of how a barrister needs to have a good grasp of the facts, the relevant law, and to have a poker face. And why people should find a lawyer who knows his or her stuff.

In this case, the local authority prosecuted my client for breach of a planning enforcement notice. The case related to an extension built on the roof of a commercial property owned by the client. The local authority had issued an enforcement notice requiring the client to remove the extension. The client had in fact obtained planning permission for a larger extension, but the extension built was not strictly in accordance with the permissisons.

Section 179(3) of the Town and Country Planning Act 1990 provides it’s a defence to show that the defendant did everything he or she could be expected to do to secure compliance with the notice. It’s for the defendant to prove the defence, on the balance of probabilities. That is not necessarily an easy task. In the case of R. v. Revitt and others [2006] it was said that a court should be “fairly rigorous in the proof which it expects or demands of a defendant and not allow itself to be hoodwinked by protestations of impecuniosity on behalf of any individual.”

The topic was considered in another case: in Sevenoaks District Council v. Harber [2008] EWHC 708 it was said that the relevant consideration is whether the defendant is incapable of compliance, not whether there is a reasonable excuse for noncompliance and the defence is concerned only with the ability to comply, not wider issues such as hardship or reasonableness of compliance.

In my case, R v L, we were able to show that:
– the client had a bona fide tenant in the property
– the client had asked the tenant for access to remove the extension
– the client refused because he was using the extension for his business
– the tenant could not be removed from the property.
My argument to the court therefore, was that he had done everything he reasonably could to comply with the notice. I relied on the case of R v Warwick County Court ex p. White [1997] where the court stated that the availability of the defence under s179(3) was dependent upon the question of the control of the defendant over the property and doing everything that it was reasonable to do in an effort to comply with the notice.

At trial in the Crown Court, the local authority refused to accept that my client had done everything he reasonably could. In pre-trial submissions I outlined the facts of the defence to the judge in an attempt to get judge to intervene in proceedings.

My ploy worked.

The prosecution began to argue that we could not prove there was in fact a tenant. This was despite a tenancy agreement, photographs of the business being run from the premises, and the fact that in all the years this had been going on the local authority never bothered to go and speak to the occupier or make any other inquiry.

The judge was not impressed.

Although the initial submissions were based on fact and law, what happened next was simply a question of bluff.

Having seen which way the wind was blowing, the prosecution offered to accept a guilty plea on a limited basis so that the defendant would receive very little by way of penalty, and on the understanding the local authority would reduce the costs they sought from the defendant by £2000.

My counter offer was that the prosecution should drop the case because if they did not and I won, I would not apply for all the defence costs to be paid by the local authority.

Though this was laughed off at first, I refused to consider advising my client to plead guilty.

After what I described to the judge as a “Mexican stand-off” the prosecution dropped the case on the understanding that I would not try to recover the defence costs from the local authority.

The client was more than happy with this outcome.

So, the prosecution offered no evidence. A not guilty verdict was recorded and the client is not at risk of a similar prosecution again whilst the tenant remains in occupation.