CO/643/2008 
Neutral Citation Number: [2008] EWHC 708 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 3rd April 2008
 
B E F O R E:

LORD JUSTICE KEENE 

MR JUSTICE TREACY 

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SEVENOAKS DISTRICT COUNCIL
Appellant

‑v‑ 

GEORGE ARTHUR HARBER
Respondent 
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Ms Saira Sheikh (instructed by Sevenoaks District Council, Argyle Road, Sevenoaks, Kent TN13 1HG) appeared on behalf of the Appellant
Mr David Watkinson (instructed by Messrs Bramwell Browne Oderdra, Chesham Buckinghamshire HP5 1DE) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE KEENE:  This appeal concerns the breach of an enforcement notice served under the Town and Country Planning Act 1990 ("the 1990 Act").  It comes to this court by way of a case stated by the Kent Justices sitting at Sevenoaks Magistrates' Court.  On 1st November 2007 they found the respondent not guilty of an offence under section 179 of the 1990 Act because he had, in their judgment, established a defence under subsection (3) of that section.  The appellant, which was the prosecuting authority before the magistrates, is the local planning authority for the area in question.
2.	The appellant had served an enforcement notice dated 7th January 2005 on the respondent, the owner of the land to which the notice related.  It alleged a breach of planning control by making a material change of use from agriculture to use as a residential caravan site.  It spelt out the relevant planning considerations which led to the decision to enforce, including the fact that the land lay within the Metropolitan Green Belt, in an area of outstanding natural beauty and in an area designated as a special landscape area.  The notice then went on to require the respondent to take certain steps within a specified period.  Those steps were four in number:
"a) Cease the use of the land as a residential caravan site. 
b)  Remove all touring caravans from the land.
c)  Remove all hardstandings, structures, buildings, septic tank and fencing used for purposes ancillary to the use of the land as a residential caravan site.
d)  Reinstate the land to its former condition before the development took place."
3.	The respondent appealed to the Secretary of State, as he was entitled to, but his appeal was dismissed by an inspector appointed by the Secretary of State to determine the appeal.  That right of appeal arose under section 174 of the 1990 Act, which provides a number of potential grounds of appeal, including one to the effect that planning permission ought to be granted for the development in question.  Mr Harber appealed on that ground and also on the ground that time should be extended for compliance.  He was thus raising grounds (a) and (g).  In the event, this enforcement notice was upheld, though the time for compliance with it was extended to 27th March 2007.
4.	There is no dispute that the respondent failed to comply with the notice, as indeed the justices found, by the specified date.  As a result the appellant authority laid an information charging the respondent with an offence under section 179, the relevant parts of which are subsections (1), (2) and (3):
"(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."
Subsections (8) and (9) then deal with the penalties for the offence.
5.	In the present case the respondent was charged with not having taken the first of the four steps required by the enforcement notice, namely to cease the use of the land as a residential caravan site.  He accepted that he had failed to cease that use but he relied on the statutory defence under section 179(3), saying that he had done everything he could be expected to do to secure compliance with the notice.  It is, I note, well established that that subsection is to be read as if the word "reasonably" appears before the words "be expected".
6.	The respondent's case before the justices was that he was a gypsy and that there was inadequate provision in the area of gypsy sites.  He said that he had sought to comply with the enforcement notice by asking his neighbours if he could move his mobile home across their land, so as to remove it from the enforcement notice land, but they had refused.  His own land was a strip of land without immediate access to a road, though there does seem from the plan accompanying the enforcement notice to be a path or track adjoining the respondent's land.  Consequently, he could not remove the mobile home from his land without dismantling it.  He contended that he was not able to cease the use as such because there was nowhere else for his children to sleep.
7.	The justices found certain facts, amongst which were the following:
"(ii) The Respondent had failed to comply with a step required by the enforcement notice as alleged.  However, the Respondent had taken reasonable steps to secure compliance.
 (iii) Attempts were made by the Respondent to remove the mobile home from his land but neighbours refused access to their land, and the vehicle which was to remove the mobile home was unable to gain access to the Respondent's land via other means.
 (iv)  It was not reasonable for the Respondent to dismantle his mobile home in order to comply with the notice."
8.	The justices also expressed the opinion that it was not reasonable for the respondent to dismantle his home in order to comply with the enforcement notice, as he would have been unable to reconstruct it afterwards.  They went on to say this:
"It was similarly not reasonable for the Respondent to merely cease living in the mobile home and leave it on the site as he would still have no other home in which to live with his family, and would not have complied fully with the notice in any event."
Consequently, they found the respondent not guilty.
9.	The questions posed for this court are as follows:
"1. Whether we were correct that the Respondent had established the statutory defence when he could merely have ceased living in the mobile home to comply with the enforcement notice having regard to the allegation in the summons.
2.  Whether we were correct that the Respondent had established the statutory defence in Section 179(3) of the 1990 Act when we accepted that he could have complied with the notice by dismantling his mobile home.
3.  Whether we were correct in finding that, in the circumstances, the Respondent had done all that he could reasonably be expected to do to comply with the notice."
10.	There is a certain amount of case law now available as to the meaning of section 179(3) and how the defence under that provision should be approached.  The earliest is Kent County Council v Brockman [1993] 1 PLR 1, a Divisional Court decision.  The main issue there was whether and to what extent the personal circumstances of a defendant to a section 179 charge could be taken into account under subsection (3).  The court held that they could if those circumstances meant that he was "genuinely incapable" of complying with the notice (see pages 3E and 4C).  The defendant in that case had been found to be physically incapable of complying with the notice because of a heart attack and financially incapable of paying others to do the required work.
11.	The leading case, which has been followed ever since, is that of R v Beard [1997] 1 PLR 64.  Like the present case that decision concerned a gypsy using land as a residential caravan site.  He argued that it was reasonable of him not to move to a council site because he had previously been attacked there, and he had searched exhaustively for alternative accommodation without success.  Thus, he had done everything he could reasonably be expected to do to secure compliance.
12.	The Court of Appeal (Criminal Division) rejected that line of argument.  Hobhouse LJ, giving the judgment of the court, said this at page 70F‑H:
"But, most importantly, subsection (3) uses the words 'everything he could be expected to do to secure compliance'.  The argument of the appellant ignores these words and their necessary implication that the owner is having to secure that someone else comply with, or assist in the compliance with, the notice.
We consider that the submissions made on behalf of the prosecution are correct.  The meaning of section 179 is clear and unambiguous.  Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises.  Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise."
13.	There then followed a succinct summary of the correct approach at page 71E‑F:
"The alleged facts relied upon by the appellant do not relate to any lack of capacity or inability of the appellant to comply with the enforcement notice.  His compliance does not involve his securing that any other person do or desist from doing anything.  He himself has the resources and the power to comply with the notice."
14.	That approach was followed in another decision of the Court of Appeal (Criminal Division), R v Wood [2001] EWCA Crim 1395 and again by the same court in R v Clarke [2002] EWCA Crim 753.  In that latter case, again one involving a gypsy and land being used for the stationing of a caravan for residential use, the court found that the fact that the defendant had nowhere else to station his caravan, in which his family lived, did not go towards establishing a defence under section 179(3).  The crucial paragraph of the judgment is paragraph 22, which reads as follows:
"The only defence available at the enforcement stage, therefore, is the limited one afforded by section 179(3) as interpreted in Beard.  Where it is within the power of the owner of the land to comply with the enforcement notice without the assistance of others, no question of a defence can arise under section 179(3)."
15.	Finally on this aspect of the case, there is the decision of Newman J in Wycombe District Council v Wells [2005] EWHC 1012 (Admin), another gypsy caravan site case.  It again followed Beard and also emphasised that the issue is one of incapability of compliance with the enforcement notice, not whether there was a reasonable excuse for non‑compliance, such as the lack of an alternative site or hardship to the defendant (see especially paragraph 7).
16.	In reliance on those cases, Ms Sheikh, for the appellant authority, submits that the justices in the present case erred in law.  She submits that, first, it is clear that the respondent was physically able to leave the site with his family and to cease using the site for residential purposes.  He required no assistance to achieve that.  She emphasises that the charge against the respondent related only to his failure to cease that use, step (a) as set out in the enforcement notice.  That in itself did not require the removal of the mobile home as such.  Whether or not there was alternative accommodation for the family was not relevant at this late stage of the process, as the authorities demonstrate.  Ms Sheikh points in particular to a passage in Newman J's judgment in Wells, where at paragraph 13 he said this:
"The respondent was not incapable of leaving the site.  Whether or not he had an alternative site to go to, he was physically able to leave the site with his family."
17.	Moreover, in so far as the mobile home itself is concerned, the justices' findings show, it is submitted, that the respondent was physically capable of removing it from the site by dismantling it.  The appellant contends that the justices erred, in that they had regard to what they considered would be a measure of hardship to the respondent.  They were persuaded that the defence was made out because he would not be able to reconstruct the mobile home after complying with the requirements of the notice.  They also thought, says Ms Sheikh, that it was unreasonable for him to comply with the notice by merely ceasing to live in the mobile home, something that he was physically capable of, because he would still have no other home in which to live with his family.
18.	In fact, it is contended, the issue for the magistrates was not whether it was desirable for the respondent to have to leave the site, having regard to the inconvenience and hardship that it would cause him and his family, including whether or not he had another home to live in.  All that the magistrates were required to do was to consider whether the respondent was capable as a matter of fact of complying with the notice.  It is said that from the case stated it is abundantly clear that the justices found that he was capable of complying with the notice, but that they did not think that he should have to do so because of the hardship caused to him by so doing. 
19.	For the respondent, Mr Watkinson argues, first of all, that all cases are fact‑sensitive and whether a defendant has done all that he could reasonably be expected to do to secure compliance is in the ordinary way a matter for the tribunal of fact, in this case the justices.  For that proposition he relies, amongst other authorities, on the Brockman case.
20.	Pausing there, I agree.  But that proposition is subject to the condition, as Mr Watkinson acknowledges, that the tribunal of fact has approached the question properly as a matter of law.  If it is evident that it has adopted the wrong legal approach, this court can (and indeed should) intervene.
21.	Mr Watkinson, however, submits that the justices here asked themselves the right question, that is to say whether the respondent had done all that he reasonably could so as to comply.  He emphasises that this mobile home was occupied by the respondent, his wife and their four children, aged between five and 19.  Moreover, the respondent had tried to find alternative accommodation.  We are told by Mr Watkinson that he had made some 11 attempts to find an alternative site that would be acceptable to the planning authority, but all without success.
22.	It is submitted that the respondent's rights under Article 8 of the European Convention on Human Rights, in particular the right to respect for the home, are important in this case.  The impact of those rights on the interpretation of section 179(3) must be taken into account because of section 3 of the Human Rights Act 1998.  It is contended on behalf of the respondent that this means that section 179(3) should be construed in a proportionate way, so as not to impose an excessive burden on a defendant to establish the defence.  There may be steps that could be taken that would lead to compliance with the enforcement notice, but in certain circumstances, such as the present, it would be unreasonable and disproportionate to require him to do that in order to make out the defence.
23.	In so far as the justices found that it would be unreasonable for the respondent to have to dismantle the mobile home and remove it, because he would be unable to reconstruct it, they were holding, it is said, that such a course of action would be disproportionate.  In addition, it is also submitted that the justices' findings show that it would be disproportionate to comply by vacating the land and leaving the mobile home behind, again resulting in the loss of the respondent's home.
24.	Mr Watkinson submits that the respondent in the present case is in a different position from the parties in the various cases cited.  The position is that the respondent here, because of the lack of co‑operation with his neighbours, could not remove the mobile home from the land, certainly not in one piece, and the justices were entitled to find, therefore, that he had done everything that he could reasonably be expected to do in order to secure compliance.
25.	In the other cases relied upon by the appellant, the defendant was able to move the caravan off the site.  Here the respondent cannot do so, save by dismantling it, which would leave him without that caravan.  This, submits Mr Watkinson, distinguishes it in particular from the case of Wells in the Strasbourg court, a decision upon which the appellant relies.
26.	For my part, I cannot accept the argument advanced by the respondent about the effect of Article 8 in relation to section 179(3).  While it is right that the decision in Beard antedated the Human Rights Act 1998, the court there did consider the impact of Article 8 because this country was a signatory to the Convention at that time and Article 8 was relied upon by the defendant in that case.  The point made by the court in rejecting the argument has been echoed in subsequent decisions.  What Hobhouse LJ stressed in Beard was that the considerations which come into play under the concept of proportionality are allowed for in the United Kingdom's legislative scheme dealing with enforcement notices.  At page 72H of his judgment, he said this:
"There is no inconsistency between the scheme of the United Kingdom planning legislation and the convention.  The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including at the stage of deciding whether or not an enforcement notice should be upheld.  Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with article 8."
By "enforcement" in that last sentence there, the Lord Justice clearly meant its enforcement by means of a prosecution.
27.	Unsurprisingly, therefore, Beard has been followed in cases which have been decided since the Human Rights Act came into force, namely Wood, Clarke and Wycombe District Council v Wells.
28.	In Clarke the Court of Appeal (Criminal Division), in following Beard, put the point in these terms at paragraph 8(iii), referring to the statutory procedures about enforcement notices:
"Those procedures provide for independent assessment and appeals from that assessment of the competing rights and interests of applicants for planning permission, and the interests of the community as a whole.  These procedures include appeals against the issue of enforcement notices.  The human rights of persons affected, whether gypsies or otherwise, are part of the equation which calls for consideration at those stages."
29.	That proposition is borne out by the decision in Chichester District Council v First Secretary of State [2004] EWCA Civ 1248.  In other words, the balancing exercise required by the concept of proportionality is relevant, but it is taken into account in this country's planning system, where enforcement is concerned, at the stage: (a) where the local planning authority in its discretion decides to issue an enforcement notice because there is a breach of planning control in its judgment; and (b) at the stage of any appeal which is lodged by the recipient of the notice to the Secretary of State.  Proportionality therefore does not need to be taken into account when an authority seeks to apply an enforcement notice by means of a criminal prosecution.
30.	That approach has now received the endorsement of the Strasbourg court when the case of Wells was taken to it by Mr Wells.  In its decision of 16th January 2007 on application no 37794/05, the European Court of Human Rights found Mr Wells' complaint manifestly ill‑founded, saying that it is at the stage of the appeal against the enforcement notice itself that the individual's interests are balanced against those of the community in planning controls in the system operated by the United Kingdom.  They concluded that Mr Wells' Article 8 rights were not violated by the approach adopted by Newman J in the case to which I have earlier referred.
31.	Consequently, the test to be applied under section 179(3) is that spelt out in Beard and followed in the later cases to which I have referred.  It is whether it is within the power of the owner of the land to comply with the notice without the assistance of others.  The subsection is concerned with his ability to comply, not with wider issues of hardship or the reasonableness of compliance.  Those were indeed issues raised by the respondent on his appeal against the enforcement notice to the Secretary of State in this case because, as I have indicated, he appealed on ground (a), amongst others, which enables a wide range of considerations to be taken into account.  He specifically relied on Article 8 at that stage of the process.
32.	It seems to me that the justices in the present case did err in law in their approach to the statutory defence.  First of all, the charge against the respondent related solely to his failure to cease using the site as a residential caravan site.  The justices' first question for this court clearly implies that he could have complied with this requirement under the enforcement notice by ceasing to live in the mobile home.  That would seem to be right, given the other quite separate requirements in the notice.  However, the justices regarded such a step as being unreasonable, because he had no other home to go to.  In my judgment that was an incorrect approach.  Whether such a step would cause him and his family hardship was not a proper consideration at this stage of a prosecution for breach of a valid enforcement notice.  He patently could have ceased living in the mobile home and required no one else's assistance to achieve that end.
33.	Secondly, even if the charge for which the respondent was prosecuted had related to removal of the mobile home itself by means of dismantling it, the hardship involved in so doing would not have been a relevant consideration at that stage.  It was never suggested that the respondent was unable to dismantle the mobile home and remove it, and that would be the issue, had that been the charge which he faced.
34.	Consequently, for my part, I would answer all three questions posed in this case stated in the negative because of the authorities to which I have referred, and I would remit this matter to the justices with a direction to convict.
35.	MR JUSTICE TREACY:  I agree.
36.	LORD JUSTICE KEENE:  Yes, Ms Sheikh. 
37.	MS SHEIKH:  I am grateful, my Lord.  My Lord, there is no application for costs, I am instructed. 
38.	LORD JUSTICE KEENE:  Very well, there will be no order for costs. 
39.	MR WATKINSON:  I am obliged.  I appear under a representation order. 
40.	LORD JUSTICE KEENE:  You want the usual legal aid order for assessment.  Yes, of course.
41.	MR WATKINSON:  I am obliged.
42.	My Lord, I do have an application for you to certify a point of law of public importance. 
43.	LORD JUSTICE KEENE:  Yes.  (Handed) 
44.	MR WATKINSON:  Of course it is made under the Administration of Justice Act, section 61.  The question is in my handwriting. (Pause) 
45.	LORD JUSTICE KEENE:  I am just trying to read the last bit, Mr Watkinson, "in particular, it is required to consider whether any step" ‑‑ 
46.	MR WATKINSON:  "or cessation of any activity which could be taken by the Defendant to comply with the notice is proportional in the circumstances of the case." 
47.	LORD JUSTICE KEENE:  Yes.
48.	MR WATKINSON:  It is a proportionality issue.
49.	LORD JUSTICE KEENE:  Yes, it is.
50.	MR WATKINSON:  The reason I ask for your Lordships to certify is that the (inaudible) has not dealt with this matter so far is their Lordships' House.  In my submission, there is an issue there to be looked at, for the reasons I have developed and I would ask your Lordships to certify. 
51.	LORD JUSTICE KEENE:  Thank you.
52.	Ms Sheikh?
53.	MS SHEIKH:  My Lord, the decision in the Wells v United Kingdom decision addresses this point.  This matter was sought to be taken up to the House of Lords in the Wells case before Newman J, but he refused to certify it.  The matter was then taken up, as your Lordship knows, to Strasbourg.
54.	LORD JUSTICE KEENE:  You say he refused to certify.
55.	MS SHEIKH:  He refused to certify it.  It went up to Strasbourg and that point was looked at specifically in this decision, not only Article 8, Article 14, but also the question of whether or not by Newman J's decision to not certify it the appellant had been deprived of a right to a fair hearing under Article 6.  That is at paragraph 3 on the very last page of this Wells decision.
56.	My Lord, the matter is absolutely clear.  It has been looked at by the domestic courts, not once but a number of times.  It has been looked by the Court of Appeal.  It has now been looked at by Strasbourg as well.  There simply is not, in my submission, any case to answer on the point raised by my learned friend at this stage, not to mention, my Lord, your judgment is of course extremely clear as well on the point.
57.	LORD JUSTICE KEENE:  Yes.
58.	Mr Watkinson? 
59.	MR WATKINSON:  My Lord, the findings in Wells are on the facts relating to that particular case.  The court's finding is there was no breach of the Article 8 rights in that case.  That was a perfectly understandable decision to make in the light of the facts in that, which are to be distinguished from the facts in this for the reasons that I have given.  The Strasbourg court does not operate a precedent system to the same rigour as these courts.  The matter has been before this court.  It has been before the Court of Appeal (Criminal Division) on permission to appeal.  It is fit, I suggest, to be considered by their Lordships' House.  All I am asking for is a certificate, which their Lordships would then consider (inaudible) is fit to go to the House. 
60.	LORD JUSTICE KEENE:  You are presumably asking for leave to appeal as well, are you not, from this court? 
61.	MR WATKINSON:  That would be my next application.
62.	LORD JUSTICE KEENE:  All right, thank you.  (The Bench conferred) 
63.	No, Mr Watkinson.  We are not prepared to certify.  We take the view that the law on this is too clearly established and does not merit saying that there is an undecided point of law for their Lordships to consider here.  We therefore will not certify.
64.	MS SHEIKH:  I am grateful, my Lord.
65.	LORD JUSTICE KEENE:  Thank you both very much indeed.  Thank you for your very helpful skeletons and a very comprehensive bundle of authorities.