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Nelson
says: "Demand information & complain"
VISITATIONS
Council's will come on to your land and demand
information from you hoping you will give it to them free and help them
to prosecute you, your family or your business. They will do this
without cautioning you, or advising you of your rights. Don't let
them get away with it! You are entitled to peaceful
enjoyment. My main concern here is to keep your right to a fair
hearing intact.
Demand to see their authorization - not the
little plastic badge they carry around their necks - that is just
identification. According to the Planning and Compensation Act, if
a council official seeks to enter your land (even under warrant), you
are then entitled to see his or her authorization. This is your
opportunity to find out at grass roots level, the nature and cause of
the complaint against you - to include the identity of the
complainant. (Note: sometimes the council invent complaints - this
is termed soliciting and is unlawful). According to Article 6 of
the Human Rights Act, you are entitled to know the details. Hence,
you can now ask for the reports these guys don't want you to see.
If they refuse or do not have the information you have requested, it is
most likely the visit is designed to harass you. But, harassment
is illegal and if you suspect this, report it immediately to your local Police,
firstly on the telephone and follow this up in writing. Don't
forget to get a Crime Number. Also mark down the time and date the
council officers visited, together with numbers and names. The
Police have a duty to protect you. However, the Police will try
and worm their way out of taking any action. So don't mention
Article 8 or Protocol 1 Article 1 to them - they will use these Acts to
suggest you take out a civil action. The fact is that they should
protect you from harassment in any event.
If the council officers went away without
giving you the information you asked for, write to their Chief Executive
to insist he or she copies it to you. If their C.E. refuses to
provide the information such as to qualify the purpose of the visit and
the expenditure of ratepayers money, consider a complaint to the Local
Government Ombudsman. If the LGO finds maladministration, then you
can insist on a Report to every member by the council's Monitoring
Officer - See: Local Government and Housing Act 2000, Schedule 5.
according to Section 92 of this Act you may be entitled to
compensation. At this point you should be lobbying your
councillors. Use the web to get the members email addresses or ask
the council for a list of their members - they will post this to
you. You must go on the offensive, or they will beat you. If
you put up a good fight, the matter will most probably be resolved in
your favour, with the help of a good local councillor. If you
chicken out, they will probably abuse
your rights.
CONTRAVENTION NOTICES
Never, ever, fill in one of these. The
council are trying to force you to provide information to help them
convict you or otherwise harm your rights. That is coercion.
Any information obtained by this means may not be relied on in Court. It
is the same as physically beating out a confession.
Instead, write back to the council asking them
to explain why they are writing to you. Ask them for the identity
of the claimant and for sight of the, or any closed session reports, or
other information they rely on. Don't forget that any council
committee is a quasi-court. As such they should be bound by the
rules of evidence, and the council' solicitors, as officers of the Court
are bound to act honorably and disclose any information, even if it
should harm their own case. Of course pigs might fly.
However, insist that you need them to provide this information to enable
you to consider their Notice properly. If they provide the
information fully and completely, this will help you to decide what to
do next - but as you will see, you are now in a better position - one
you should have been in before they tried to bamboozle you to signing
your own death warrant.
Mostly, when properly challenged thus,
council's run away. This is for a number of reasons, and usually
because they are acting unreasonably. The most common cause of
complaint is a neighbour with a grudge. Obviously, you need to know if
your neighbour is telling the truth or otherwise obtaining favours from
your council - corruption is rife, because most councillors do not know
how their administration is supposed to work. Council officers
treat them like idiots, and worse, they just seem to accept being fobbed
off with some inaccurate quote or other!
Don't forget that most council's now record
their meetings. You are entitled to a copy of any meeting
recorded. This is so under the Local Government Access to
Information Act(s) A recording is a document and as such a public
document.
ENFORCEMENT NOTICES
My main worry here is to prevent people
becoming homeless or burdened with debt. Fortunately, there is new
hope here via the Human Rights Act which seeks to prevent discrimination.
TO BE CONTINUED..........
THANKS
I would just like to say to the growing number of affected members
of the public who telephone or email me, that I am so very pleased
if anything we have published can be used to further just decision
making. The encouragement is mutual! Lastly, if you
cannot find what you are looking for on these pages and need some
help, please help me to help others by emailing first. Please reserve the telephone for emergencies only.
Local
Government Lawyer how to prosecute a breach of an enforcement notice
IS
THE NOTICE DEFECTIVE - The rules regarding service of an enforcement
notice are strict. If no notice is served within a four year period,
then for example, residential occupation become immune from enforcement
to the extent that the development becomes unchallengeable as to
lawfulness. A Notice must accurately identify the area or building the
subject of the Notice. If the accompanying plan fails to show the
buildings for which a use is claimed, the Notice is ultra vires. If a
material factor was fraudulently portrayed as being correct, but later
proves to be incorrect, or worse still the correct procedure that should
have been followed by the Council concerned, was not followed, then
there is a procedural irregularity that renders the prosecution an abuse
of process.
You
will find that the law of appeal relating to enforcement notices, to the
High Court carries with it no right to challenge a finding of fact based
on incorrect facts. This then brings into the frame the competency of
the Court under Article 5 and the right to a fair hearing under Article
6 of the Human Rights Act 1998 - and if that fails because of Article 13
being missing from domestic legislation, the only remedy for an
Effective Remedy is before the Human Rights Court in Strasbourg, France.
Good luck here, because the European Court is also a law unto itself
with absolutely no transparency in their refusal to accept claims.
DEFENCES
AGAINST PROSECUTION
It
is useful when considering mounting a defence against issue of a summons
for Breach of an Enforcement Notice to take a look at how barristers
advise councils to proceed when mounting a prosecution.
The most common criminal offence which is encountered in the planning realm is the failure to comply with an enforcement notice. Section 179 of the Town and Country Planning Act 1990
is as follows:
(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence.
(6) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.
(7) Where—
(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and
(b) the notice is not contained in the appropriate register kept under section 188, it shall be a defence for him to show that he was not aware of the existence of the notice.
(8) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £20,000; and
(b) on conviction on indictment, to a fine.
(9) In determining the amount for any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.
It is an either way offence which may be tried in the Crown Court if this is the defendant’s
election but usually begins in a Magistrates Court.
In R v Collett [1994] 2 All E.R. 372 the Court of Appeal held that the use of land in contravention of an enforcement notice was an offence of strict liability. This is a great help to prosecutors as the local planning authority does not have to establish that the defendant knows of the enforcement notice before he could be convicted of an offence, provided that the notice is properly registered.
It can be seen that the section provides two separate offences: the owner offence (sub-section 2) and the occupier offence (sub-section 4). An important distinction must be drawn between the two. The owner may be guilty of the offence if he fails to cease any step required by the notice or any activity required by the notice. In contrast, the occupier may only be guilty of the offence if he fails to cease the prohibited activity required by the notice.
Compliance with a notice does not discharge it and any requirement in a notice to discontinue a use of land operates as a requirement that it be discontinued permanently; so that any subsequent resumption of the use is to commit a further offence. In Prosser v Sharp [1985] J.P.L. 717, the Divisional Court held that where an enforcement notice required a landowner to remove a caravan from land, he had failed to comply with it when he removed the caravan but replaced it with another.
In respect of the owner offence, the person liable is the person who is the owner “at any time” after the end of the period for compliance. The liable person is the owner at the time in relation to which the offence is charged. Entry of the enforcement notice in the enforcement register means that an intending purchaser should know of it, and proceeds with the acquisition at his own risk. If the notice is not in the register, the purchaser may rely upon on this fact as a defence under sub-section 7.
It is incumbent upon the local planning authority to prove that the defendant is or has been the owner of the land at the time of the alleged offence. Where the land is registered this is entirely straightforward. However, problems arise for prosecutors when the land has been sold and the new owner has not registered his interest.
In R v Ruttle Ex p. Marshall [1989] J.P.L. 681, the information laid against the defendant did not allege, nor did the prosecution prove, that he was the owner of the land when the enforcement notice was served. The Divisional Court held that the fact that he had appealed against the notice did not absolve the prosecution from proving ownership. A statement reported in the inspector’s report on the enforcement appeal as having been made by the defendant, to the effect that he had admitted buying the relevant property, was hearsay and inadmissible. It would have been admissible only if somebody present at the planning inquiry had produced the inspector’s decision letter and then stated that the relevant passage was an accurate account of the evidence given by the defendant at the inquiry.
However, in Walton v Sedgefield BC [1999] J.P.L. 541 the court held that Magistrates had been entitled to treat as admissible and to rely upon as indicating ownership, an application by the defendant for a certificate of lawful use, in which his interest had been stated to be as “owner”.
Next, the prosecution must prove that as a matter of fact the enforcement notice has not been complied with. This would commonly be evidenced by way of dated colour photographs of the offending structure.
DEFENCES
- There are two principal defences available.
Firstly, the owner may show that he did everything he could be expected to do to secure compliance. This defence acknowledges that there may be inescapable restrictions on an owner’s ability to comply with the notice. The premises may be let, or the breach may be the responsibility of third parties over whom the owner has no control. In R v Beard (John) [1997] 1 P.L.R. 64 the Court of Appeal accepted that the phrase “everything he could be expected to do” must implicitly be read as “reasonably expected”. This defence is not one of reasonable excuse: it is a different defence, and one that imposes a far higher burden on the defendant. The court may be entitled to take into account the personal and financial circumstances of the defendant, on the ground that if he is genuinely incapacitated he could not be expected to do anything (Kent CC v Brockman [1994] J.P.L. B27), although the courts should not too readily accept such a defence when advanced essentially on the basis of impecuniosity.
In R v Wood [2001] EWCA Crim 1395; [2002] J.P.L. 219 Buckley J. noted that the offence made no provision for any discovery or inquiry as to the financial means of the defendant, and the prosecution would have no notice of this defence and not readily be able vigorously or satisfactorily to challenge it. However, it was a matter for the court concerned to take a sensible but reasonable attitude: the onus was on the defendant, and he would be very surprised if magistrates were to be satisfied “simply by a defendant waving a bank statement in front of them showing an overdraft or with a mere assertion by him that he was impecunious”.
It is a trite principle of planning that the planning merits are the exclusive domain of the local planning authority and the Secretary of State, not the courts. Accordingly, it is not open to the defendant to challenge the validity of the enforcement notice by way of defence to a prosecution, on any of the grounds upon which appeal may be made to the Secretary of State. A defendant cannot therefore, in an enforcement notice prosecution, claim that the land was being used at the time the notice took effect other than as alleged in the notice (although the defendant could do so in a stop notice prosecution).
However, subject to that, the defendant may admit or challenge the evidence of the prosecution without constraint. The defendant may not challenge the factual allegations in the notice, but may challenge whether the activities which formed the basis of the prosecution were actually covered by the wording of the notice, even if they were the same activities. The formal validity of an enforcement notice is a matter which can be put in issue by the defence and which must, once it is in issue, be proved by the prosecution. This derives from the fundamental principle of criminal process, that no one is to be deprived of the opportunity of advancing, by way of defence to a criminal charge, any facts or arguments that are legally relevant to the question of his guilt. It means that the prosecution must prove that, for example, the enforcement notice had been issued pursuant to a resolution of the Council and that, where it was required, consent had been given by the appropriate authority on behalf of the Crown.
However, the defendant may not challenge the validity of the enforcement notice on any of the grounds on which appeal may be made to the Secretary of State or on any ordinary judicial review grounds (R v Wicks (Peter Edward) [1998] A.C. 92) or on grounds that the notice is a nullity.
It follows that the court must, if the matter is put in issue, examine the extent to which an alleged failure to comply with a valid notice consists of the carrying on of an activity which the defendant is otherwise entitled to carry on without further planning permission, and to construe the notice as not extending to that activity. Thus if the breach to which the notice is directed is the repair of motor vehicles on a commercial basis from a private garage, a requirement simply to cease using the garage for the repair of motor vehicle repairs may be construed as not extending to the maintenance of the defendant’s own vehicle, because that is an activity ancillary to the primary use of the planning unit. This approach was confirmed by the Court of Appeal in R v Harfield [1992] 2 P.L.R. 23.
SENTENCING
The launching of a prosecution is usually undertaken after an enforcement investigation and extensive negotiation with the defendant. Whilst a history of intransigence, rudeness to officers and a failure to heed repeated warnings to obey the notice and abate the breach are likely to have little relevance to the strict liability offence, it should be brought to the attention of the court at the sentencing stage.
It is noted that local authorities are chiefly concerned with remedying the breach of planning control rather than prosecuting for prosecuting sake. Criminal prosecution often provides somewhat of a blunt instrument, as upon conviction the Court has no power to require that the breach is put right. Fines, particularly in the Magistrates, are notoriously modest for offences of this sort. If the breach of planning control remains uncorrected up until the sentencing hearing, the following course may be advisable. The Court may be invited to adjourn the sentencing hearing for a period of time to allow the defendant to remedy the breach, in the full knowledge that if he does so this would represent good mitigation and if he fails to it will be viewed as an aggravating feature. In this way, local authorities can seek to use the conventional criminal proceedings to compel the defendant to obey the notice.
CONFISCATION
ORDERS
It will often be cheaper, easier, quicker and more effective for a local authority to seek an injunction to remedy the breach of planning control pursuant to section 187B of the Town and Country Planning Act 1990. There is no requirement on a local authority to first prosecute the defendant for the offence of failing to obey the enforcement notice.
However, one significant benefit of pursuing the criminal route is that the local authority may seek a confiscation order under Part 2 of the Proceeds of Crime Act 2002 (“ POCA”). For these provisions to apply there must have been a successful prosecution for the offence and the prosecution must have asked for the order or the court believes it is appropriate to make it. The order will not be made unless the defendant has benefited from the conduct.
The order must be made in the Crown Court. Before making the order the Court must consider on the balance of probabilities whether the defendant has a criminal lifestyle or has benefited from particular criminal conduct. The tests for deciding this question is found in section 75(2) and in the planning context will frequently mean “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence” (section 75(2)(c)).
The confiscation order is in addition to any other penalty (e.g. fine) which may have been imposed. Indeed the Supreme Court has held that, even if the defendant has been given an absolute or conditional discharge, there should be a confiscation order if the criteria in section 6 are satisfied: R v Magro [2012] UKSC 42.
This is likely to represent an attractive remedy for local authorities when they are faced with a business which accrues a substantial financial benefit from a breach of planning control, which is likely to exceed that imposed by way of a fine.
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