Judgments - Reg. v. Wicks  continued

(back to preceding text)

     Furthermore, I have read in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and I agree that the implications of Director of Public Prosecutions v. Bugg, in particular its generalisation of the passages from the speeches of Lord Radcliffe and Lord Diplock to which I have referred, go wider than questions of procedure. They suggest that someone who contravenes a bye law commits an offence even if the bye law is afterwards quashed for procedural invalidity. For my part, I would (in the absence of specific legislation) find their conclusion unacceptable.

     But, my Lords, while I am willing for the sake of argument to accept Mr. Speaight's submission that there is a wide right for anyone prosecuted under a local byelaw to challenge its validity, the point at which we absolutely part company is when he submits that this right can be extrapolated to enable a defendant to challenge the vires of every act done under statutory authority if its validity forms part of the prosecution's case or its invalidity would constitute a defence. In my view no such generalisation is possible. The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.

     The correct approach is in my view illustrated by the decision of the Divisional Court in Quietlynn Ltd. v. Plymouth City Council [1988] Q.B. 114. This case arose out of a prosecution under paragraph 20(1) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 for using premises as a sex establishment without a licence. The Act had introduced a system of licensing. By paragraph 28(1) of the Schedule a person who was using premises as a sex establishment before the Schedule came into force and who had applied for a licence was entitled to continue so to use the premises "until the determination of his application." The local council, as licensing authority, refused the application but the defendants continued the business. When prosecuted, they wished to argue that the decision to refuse had been vitiated by the council having regard to irrelevant considerations and failing to observe rules of natural justice. Consequently, they said that there had not yet been a "determination" of their application and their right to use the premises under paragraph 28(1) continued. The question for the Divisional Court was whether it was a defence that the refusal was in this sense ultra vires or whether, for the purposes of paragraph 28(1), the application was "determined" when the Council gave what purported to be its decision, notwithstanding that it might be liable to be quashed in proceedings for judicial review.

     Webster J. said, at p. 129: "it is open to us to treat the question before this court as one which can be determined by the proper construction of [the licensing] code."

     He referred to the case of The Queen v. Davey [1899] 2 Q.B. 301, in which a woman was charged with obstructing the execution of an order of a magistrate under section 124 of the Public Health Act 1875, made ex parte on the application of a local council official, which required the removal of her child, who had scarlet fever, to the local hospital. The question was whether, as a defence to the prosecution, she was entitled to say that the order should never have been made. The Divisional Court held that she could not. Darling J. said:

     ". . . the subject-matter with which this legislation deals is the spread of infection among people who have cases of infectious disease in their own homes; and if the proceedings to be taken by a local authority are of a dilatory character the legislation becomes nugatory. The object of the legislation is to get people so suffering into hospitals, and if the removal of the patients may be obstructed and the whole question of their removal argued de novo before the justices, the summary remedy is gone altogether, and the danger to the neighbourhood continues until the justices give their decision. Such a result was certainly never intended. . . ."

Webster J. likewise came to the conclusion that

     ". . . some of the results which the [sex establishment licensing] code achieves, with clarity and certainty, would be frustrated if [the defendants'] contention were correct".

He gave examples of various anomalies which might arise and said, at p. 129: "Results of this kind would, in our view, frustrate the clear policy of the statutory code." He said, at p. 131, that although it had:

     ". . . long been the practice for justices to decide for the purposes of a case immediately before them upon the validity of byelaws and, before the Town and Country Planning Act 1971, of enforcement notices,"

these practices had grown up before judicial review had been given statutory recognition in section 31 of the Supreme Court Act 1981. He went on to say:

     "The law relating to judicial review has become increasingly more sophisticated in the past few decades, and in our view justices are not to be expected to have to assume the functions of the Divisional Court and consider the validity of decisions made by a local authority under [the Act of 1982] in the light of what is now a complex body of law. . . .In our view, therefore, except in the case of a decision which is invalid on its face, every decision of the licensing authority under [the Act of 1982] is to be presumed to have been validly made and to continue in force unless and until it has been struck down by the High Court; and neither the justices nor the Crown Court have power to investigate or decide on its validity." (Emphasis added).

I have emphasised the references to the 1982 Act because in Reg. v. Reading Crown Court, Ex parte Hutchinson [1988] Q.B. 384, 394-396 Lloyd L.J. criticised the Quietlynn case on the basis that it laid down a general principle applicable to all statutory powers--in particular, to local byelaws. This is not the case. The judgment makes it clear that the court is concerned only with the construction of the Act of 1982; indeed, strictly speaking, only with the meaning of the word "determination" in paragraph 28(1) of Schedule 3 to the Act of 1982, read in the light of the scheme of the relevant parts of the Act.

     In my view the question in this case is likewise one of construction. What is meant by "enforcement notice" in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words "enforcement notice" are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed.

     In my view, when one examines Part VII of the Town and Country Planning Act 1990, the scheme of enforcement of planning control which it exhibits and the history of its provisions, one is driven to the conclusion that "enforcement notice" means a notice issued by the planning authority which is formally valid and has not been quashed.

     I start with a brief history of the enforcement notice provisions. These have been recast by Parliament on several occasions since they were first introduced in sections 23 and 24 of the Town and Country Planning Act 1947. Originally there was a right of appeal on limited grounds to the local justices and from them to quarter sessions. In some cases the method of dealing with non-compliance was for the planning authority to do the work and claim the cost from the owner. In others, non-compliance was a summary offence. At that time there was plainly no restriction on the way in which the validity of an enforcement notice could be challenged by an owner in criminal proceedings.

     A radical change was made by the Caravan Sites and Control of Development Act 1960, when the right of appeal to the justices was abolished and a right of appeal to the minister on wider grounds was substituted. Section 33(8) of that Act provided for the first time that, save by means of the appeal procedure, the validity of an enforcement notice could not be questioned in any proceedings on certain of the grounds on which an appeal could be brought.

     The enforcement notice code was further amended and re-enacted by the Town and Country Planning Act 1968 which was consolidated in the Town and Country Planning Act 1971. The latter Act also for the first time made the offence of failure to comply triable on indictment. The code was again amended and re-enacted in the Local Government and Planning (Amendment) Act 1981. It is the provisions substituted by this last Act which are now consolidated in the Town and Country Planning Act 1990.

     The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject-matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest.

     First, then, the suitability of the subject-matter. The Caravan Sites and Control of Development Act 1960 recognised that the planning merits of the enforcement notice were unsuitable for decision by a magistrates' court. It not only transferred the right of appeal to the minister (now the Secretary of State) but excluded challenge on most such grounds in any other proceedings. The present position is that no challenge is possible on any ground which can form the subject-matter of an appeal.

     On the other hand, there remain residual grounds of challenge lying outside the grounds of appeal in section 174(2) of the Act of 1990, such as mala fides, bias or other procedural impropriety in the decision to issue the notice. I shall call these "the residual grounds." Mr. Speaight says that the fact that the residual grounds were not swept up in the appeal procedure supports his argument. If section 285(1) says that the notice cannot be questioned on certain grounds, it follows that it can be questioned on any other grounds. But the fact that the residual grounds are not altogether excluded does not necessarily mean that they can be raised as a defence to a prosecution. They may be available only by some other means. One has to ask why they were not included in the appeal procedure. The reason, as it seems to me, is obvious. Questions of whether the planning authority was motivated by mala fides or bias or whether the decision to issue the notice was based upon irrelevant or improper grounds are quite unsuitable for decision by a planning inspector. The question then is whether Parliament regarded them as suitable for decision by a criminal court.

     In deciding this question one is (and here I echo the words of Webster J. in Quietlynn) entitled to take into account the complexity and sophistication of the law relating to the residual grounds; a matter of which Parliament would have been aware when the legislation last received substantive consideration in 1981. I think it no criticism of lay justices to say that many would not find it easy to apply the distinction, which comes so easily to the Divisional Court, between the legality of an administrative act and its substantive merits. It would in practice be difficult to prevent the hearing from turning into a reassessment of the planning merits and thereby subverting the whole scheme of the Act.

     In the case of a trial on indictment, which was first introduced by the Act of 1971, Mr. Speaight submits that these questions would have to be decided by the jury after being given proper directions as to the law. Although on my view of the construction of section 179(1) the question does not arise for decision, I think that this is probably wrong. The vires of the enforcement notice is a question of law and should be decided by the judge, even if he has to hear evidence on the point: compare Reg. v. Goldstein [1982] 1 W.L.R. 804; [1983] 1 W.L.R. 151. But if Mr. Speaight is right, the point about the unsuitability of the subject-matter gains added force.

     Then there is the question of timing. The enforcement of planning control obviously does not have the same urgency as the measures to prevent the spread of infectious diseases considered in The Queen v. Davey [1899] 2 Q.B. 301. But one is entitled to say that the institution and extension of the appeal procedure shows a policy of having challenges to enforcement notices decided as soon as possible after they have been served. It is not only a question of avoiding undue delay. The policy must be seen against the background of the timetables laid down by the Act. An enforcement notice in respect of a breach of planning control by carrying out building operations without planning permission (such as occurred in this case) must be served within four years from the date of the breach: section 172(4). That may seem a long time but the facts of this case show that if the validity of the enforcement notice is left to be determined in the criminal prosecution, there may not be time to serve another. The breach took place in January or February 1990 and the notice was served with commendable rapidity on 13 March 1990. Despite the case being a relatively simple one and the waiver of any public inquiry, the appeal was not determined until 10 May 1991. There were then negotiations and the summons was not issued until 11 June 1992. Election for trial on indictment had the effect of delaying the trial until 27 September 1993. By that time there would have been less than six months in which to serve a fresh notice and if Mr. Wicks's appeal had been allowed by the Court of Appeal on 11 April 1995 it would have been too late. This was, as I say, an extremely straightforward case and (apart from the period of negotiation in 1991-92) there is nothing to show that the planning authority could have progressed the matter more quickly. Thus the exclusion of the residual grounds from the appeal procedure in section 174(2) would harmonise better with the scheme of the Act if they had to be raised by judicial review within the time limits prescribed for that procedure than if they could be relied upon in a criminal prosecution.

     Thirdly, there is the purpose of the provisions for enforcement by criminal proceedings. The provisions of section 179(5), by which failure to comply after a first conviction gives rise to a fresh offence punishable by a daily fine, show that the criminal law is being used not merely to punish for a past act but as an instrument of coercion to encourage compliance in the future. The criminal proceedings thus form part of the general scheme of enforcement of planning control contained in Part VII of the Act and should in my view be interpreted to give effect to the overall policy of the enforcement procedures.

     I do not think that construing the Act in this way involves any inroad upon the principle that criminal statutes should be clear and in case of ambiguity construed in favour of the defendant. The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it. It was submitted that the power of the Divisional Court to quash an enforcement notice is discretionary and that criminal liability should not depend upon judicial discretion. As Sir William Wade has said in a passage in his book on Administrative Law, 6th ed. (1988), at p. 354 which was cited in Bugg v. Director of Public Prosecutions [1993] Q.B. 473, 499-500:

     "There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion. 'To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from rock to sand.' The true scope for discretion is in the law of remedies, where it operates within narrow and recognised limits and is far less objectionable. If the courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess or abuse of power could be sure that the law would protect him."

In my view this passage, with which I entirely agree, has no application to the present case. The fact that the decision not to quash the notice was an exercise of discretion (for example, because the court was satisfied that although one councillor should not have taken part in the decision, the notice would certainly have been served in any case) does not mean that any discretion enters into the question of whether the owner has committed an offence. The original decision to serve the notice was also a matter of discretion. But the offence is to disobey an enforcement notice which has not been quashed and the fact that the decision to issue it or not to quash it involved the exercise of discretion is irrelevant. On the contrary, it seems to me that the discretion which the Divisional Court has to refuse to quash when it is satisfied that a procedural impropriety would have made no difference is a reason why Parliament would not have intended this question to go to the justices or jury, who would obviously have no such discretion.

     I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings. The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is "expedient" (section 172(1)(b)) is vitiated by some impropriety. As Keene J. said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.

     All these reasons lead me to conclude that "enforcement notice" in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review. There was no dispute that Mr. Wicks had failed to comply with such an enforcement notice and he was therefore guilty of the offence. The matters which he proposed to raise at his trial were irrelevant.

     The Court of Appeal certified the following points as being of general public importance:

     "(1) Is a defendant, who is prosecuted for an offence contrary to section 179(1) of the Town and Country Planning Act 1990, entitled as a matter of right to put forward in such proceedings the defence that the enforcement notice relied upon by the prosecution is invalid on the grounds that the decision to issue it was ultra vires?

     "(2) If a defendant is not permitted to raise such a defence as of right in criminal proceedings and can only challenge the validity of such notice on such grounds in proceedings for judicial review, are there any exceptions to such a rule, such as where it is contended by the defendant that the invalidity arises as a result of mala fides on the part of the authority issuing the enforcement notice?

     "(3) If it is open to a defendant to raise such a defence in criminal proceedings on indictment, is the validity of the enforcement notice to be determined by the judge as a matter of law, having heard evidence in the absence of the jury, or is the jury to decide relevant issues of fact in the light of a direction as to the law by the judge, the burden being on the defendant to prove such invalidity on the balance of probabilities?"

I would answer them (1) No; (2) No: (3) Does not arise; and dismiss the appeal.


My Lords,

     For the reasons given in the speech of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann, which I have read in draft and with which I agree, I too would dismiss this appeal. I also agree that the certified questions should be answered as my noble and learned friend Lord Hoffmann has proposed.


Lords Parliament Commons Search Contact Us Index

© Parliamentary copyright 1997
Prepared 21st May 1997