Case No: CO/679/2016
Neutral Citation Number: [2016] EWHC 1043 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/05/2016

Before:

THE HON. MR JUSTICE CRANSTON

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Between:

	LONDON BOROUGH OF NEWHAM	Appellant	
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	(1)	KHALIS MIAH
(2)	WALTHAM FOREST MAGISTRATES’ COURT	Respondents	

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Jonathan Wills (instructed by the London Borough of Newham) for the Appellant
Daniel Brayley (instructed by Direct Access) for the Respondent

Hearing date: 29/04/2016

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Judgment
Mr Justice Cranston:
Introduction
1.	The appellant, the London Borough of Newham (“the Council”), appeals by way of case stated against the decision of lay justices on 1 October 2015 to acquit the first respondent, Khalis Miah, of two offences of breaching an enforcement notice it had issued against the change of use of a property to two self-contained flats without planning permission, in Plaistow, East London (“the property”).
Background
2.	On 11 July 2007, Mr Miah became the registered proprietor of the property.  The property was mortgaged to a financier, Mortgage Express.  As a result of information from the finance department of the Council, which collects council tax, the planning department began an inquiry into whether the property had been subdivided.  Planning permission had never been sought or granted for the conversion.
3.	On 24 September 2010 the Council served an enforcement notice entitled “Material Charge of Use” (“the enforcement notice”).  It stated that it was a formal notice, issued by the Council because it appeared that there had been a breach of planning control under section 171A(1)(a) of the Town and Country Planning Act 1990 (“the 1990 Act”) at the property.  The Council considered it expedient to issue the notice, having regard to the provisions of the development plan and to other material considerations.  The breach of planning control alleged was that there was a change of use of the property, to two self-contained flats, without planning permission.  The reasons given were that there was a breach of planning policies, including the loss of a family home within the borough, and that the flats were undersized and did not provide adequate space for normal residential functions.  The recipient of the notice was required to cease the use of the property as self-contained flats and to reconvert the property into one home.  Compliance had to occur in five months.
4.	The enforcement notice was served on Mr Miah at the property’s address, on the occupants of the two flats there, and on Mortgage Express.  Mortgage Express appealed against the enforcement notice.  Mr David Richards, a planning inspector, dismissed the appeal on 12 April 2011.
5.	On 5 July 2012, the Council sent a letter to Mr Miah at an address in Docklands, London, entitled “Non-Compliance with Enforcement Notice”.  It stated that Mr Miah had not complied with the requirements of the enforcement notice and that the Council was considering whether to prosecute him for breach of it.  Letters of non-compliance had been sent earlier to Mr Miah at the property.
6.	On 13 September 2012, the Council laid an information before the justices to the effect that, on 10 November 2011, Mr Miah was in breach of the enforcement notice of 24 September 2010 in that being the freehold owner of the property he had failed to take the steps set out there.  That was contrary to section 179(2) of the 1990 Act.
7.	Section 179 of the 1990 Act provides in its relevant parts as follows:
“(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of 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.”
The enforcement notice was entered into the section 188 statutory register.
8.	When the prosecution came on before the Thames Magistrates’ Court on 7 May 2013, the justices allowed a submission of no case to answer and dismissed the charges.  The Council appealed by way of case stated to this court.  On 18 December 2014 Wilkie J held that the justices had erred in that they did not have sufficient evidence at half time to conclude that Mr Miah had a valid defence that he was unaware of the existence of the enforcement notice.  Moreover, they had erred in being led into considering the issue of whether the notice had been validly issued in time: Newham LBC v. Thames Magistrates' Court [2014] EWHC 4550 (Admin).
9.	On 21 January 2015 the Council laid a second information that between 12 July 2012 and 6 January 2015 Mr Miah, being the freehold owner of the property, was in breach of the enforcement notice issued on 24 September 2010 in that he failed to take the steps set out there.  That was contrary to section 179(2) of the 1990 Act.
The Magistrates’ findings
10.	The two charges were heard at Waltham Forest Magistrates’ Court by a bench of lay magistrates.  On 1 October 2015 they acquitted Mr Miah on both charges.  The court held that Mr Miah satisfied section 285(2) of the 1990 Act and that therefore he could challenge the validity of the enforcement notice before them under section 285(1).  Section 285 of the 1990 Act reads, in its relevant parts, as follows:
“(1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.
(2) Subsection (1) shall not apply to proceedings brought under section 179 against a person who…
(c) satisfies the court—
(i) that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and
(ii) that his interests have been substantially prejudiced by the failure to serve him with a copy of it.”
11.	Before the magistrates Mr Miah was successful in his challenge to the validity of the enforcement notice on two grounds, firstly because it had not been properly served on him.  That required service at his “usual or last or known place of abode”, as required by section 329(1) of the 1990 Act.  Section 329(4) provides that the section is without prejudice to section 233 of the Local Government Act 1972 (“the 1972 Act”), but there had not been service at his “last known address” either, as required by sections 233(2) and (4) of the 1972 Act.
12.	The background to this conclusion was that the justices had found as a fact that Mr Miah owned the property, that he had not responded to the enforcement notice, but that he did not know and could not have reasonably been expected to know that the enforcement notice had been served on him.  That was because the enforcement notice was served at the property itself.  The planning department of the council had searched the Land Registry, and the proprietorship register there showed Mr Miah’s address to be at the property.  Although Mr Miah accepted that he lived at the property for a period around 2007, visited it occasionally and paid council tax at times when there were gaps in the tenancies, the justices found as a fact that at the time of the enforcement notice he lived elsewhere, his home address, and not at the property.  In his evidence, Mr Miah stated that he did not know he had to update the land registry with his home address after he bought the property in 2007.  He also said that if he had known of the enforcement notice he would have appealed against it.
13.	The justices found that the Council had Mr Miah’s home address in Shoreditch, albeit that the planning department did not, because the finance department of the Council sent a council tax bill for the property there in 2010.  The justices found as a fact that the prosecution was being brought by the Council as a whole, not by the planning department.  Since the Council as a whole knew Mr Miah’s usual address, or his known place of abode, to put it in those terms, it should have served the enforcement notice there and not at the property.
14.	The prosecution submitted that Mr Miah had not been “substantially prejudiced” within the terms of section 285(2)(c)(ii) of the 1990 Act by the failure to serve him with a copy of Enforcement notice because it had been his failure, or the failure of the managing agents he employed, to make arrangements for his post to be forwarded.  Mr Miah’s counsel submitted that he had been prejudiced: as a result of not receiving the notice Mr Miah lost the right to appeal and faced damage to his professional standing and reputation if convicted.  The justices made no specific finding on prejudice.
15.	Turning to the letter of non compliance dated 5 July 2012, addressed to Mr Miah at his home address, the justices found as a fact that he had received it and did nothing to ensure compliance.  They “noted” that Mr Miah was in no position to challenge the enforcement notice after he received the non-compliance letter of July 2012.
16.	However, Mr Miah successfully invoked the time bar of four years in section 171B (2) of the 1990 Act applied.  Section 171B (2) provides:
“(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”
Mr Miah had called a witness, Mr Adbul Bashir, who gave evidence that he had lived at the property for three months May to August 2005 in the top floor flat; someone was living downstairs whom he did not know and he could give no evidence about either tenants.  On the basis of Mr Bashir’s evidence, the justices found that the conversion of the property into the two flats constituting the breach was before Mr Miah bought it, so more than four years had passed before the enforcement notice was served in September 2010.  The prosecution failed.
17.	The prosecution had submitted that Mr Miah was not entitled to challenge the validity of the enforcement notice because he had not demonstrated that there had been on-going use of the property as two flats over the four years.  Prior to the enforcement notice there had been periods, on Mr Miah’s own evidence, when the flats were unoccupied.  The justices did not address the issue.
The case stated   

18.	As a result of the magistrates’ findings, the Council requested that they state a case for this court.  The following are the questions posed by them:
“1. Were we correct to conclude that the leaving of the enforcement notice at [the property] on 24 September [2010] did not constitute service on Mr Miah at “his usual or last place of abode” given that the Council Tax Department of the [Council] had earlier sent correspondence to him at a different address to which the enforcement notice could have been delivered?
2. Were we entitled to conclude that the appellant satisfied 285(2) of the Town and Country Planning Act 1990 without specifying in our findings whether the [Council’s] (sic) interests had been substantially prejudiced?
3. Did we apply the correct test in concluding that it was too late for the [Council] to issue the enforcement notice on 24 September 2010?
4. Was there sufficient evidence on which a reasonable tribunal could have found that it was too late to issue the said notice on the said date?
5. In respect of the second charge only, were we entitled to conclude that [Mr Miah] did not know and could not have reasonably been expected to know that the enforcement notice had been issued?”
Discussion
Question 1
19.	As regards Question 1, Mr Brayley for Mr Miah submitted that it was a finding of fact by the justices that the enforcement notice was not served at his “usual or last or known place of abode” or his “last known address”.  The court should not interfere with that finding.  In any event, for the reasons given by the justices, they were entitled to find in the circumstance of his case that the enforcement notice was not served at his usual or last known address.  The Council as a whole was bringing the prosecution, and the Council as a whole knew Mr Miah’s current home address through payment of the council tax.  Moreover, submitted Mr Brayley, Mr Miah should not be prejudiced by the Council’s failure to have systems in place which allowed its different departments to cross-check addresses.  Indeed, there had been contact between the council tax and planning departments prompting the inquiry into the property’s conversion in the first place, and in 2012 somehow the planning department discovered through the Council’s systems Mr Miah’s home address to serve the notice of non-compliance.
20.	In my view the issue of a person’s usual place of abode or last known address is a question of mixed fact and law.  Under section 1(2) of the 1990 Act the council of a London borough is the local planning authority, however, under section 172 it is the “local planning authority” which issues an enforcement notice, to be served on the owner and occupier of land, and under section 173 it is the “local planning authority” which sets out in the notice the alleged breach, the steps to remedy it and the time in which that is to be done.  
21.	To my mind the statutory framework points clearly to the knowledge of the local planning department being relevant as regards service of an enforcement notice, not the Council as a whole.  That knowledge comes from the proprietorship register at the Land Registry.  That construction of the 1990 Act is supported by the policy context.  The planning department cannot be expected to trawl through the records of the Council as a whole to see whether the registered owners of property have another address in the borough for council tax purposes, by reason of having a market stall or other licence, because they receive some sort of welfare benefit or because their children are in local authority schools.  Moreover, even if the planning authority did find another address elsewhere in the Council it would not always be evident which would be the current address for the person on whom an enforcement notice is to be served.
22.	There is strong support for this conclusion in the Divisional Court’s decision in Newham LBC v. Ahmed [2016] EWHC 679 (Admin).  There this same local authority had served an enforcement notice on property owners at the address as it appeared on the Land Registry proprietorship register, which was outside the borough, but by ordinary post according to section 233(2) of the Local Government Act 1972 (“the 1972 Act”), not registered or recorded delivery as required by section 329(1)(c) of the 1990 Act.  The District Judge found as a fact that the owners lived at another address and that the Council knew that they did.  The District Judge held that the Council had been entitled to rely on the address in the land register but found that there had not been proper service as required by the 1990 Act.  The Divisional Court allowed the appeal.  Hamblen LJ (with whom Laws LJ agreed) said that, pursuant to section 233 of the 1972 Act, it had been open to the local authority to serve at the address in the land register by ordinary post if, as was found, it was the owners’ last known address: [21]-[22].
23.	For these reasons my answer to this first question is “No”.  The correct interpretation of the relevant statutory provisions is that if a local authority is not provided with a current address by the owner of property, it is entitled to use the address at the Land Registry as the proper address to serve an enforcement notice.  Thus in my view Mr Miah was properly served with the enforcement notice by this Council in September 2010.  Consequently, he did not satisfy section 285(2)(b) of the 1990 Act and could not challenge the validity of the enforcement notice because of section 285(1).  Moreover, he did not have a defence under section 179(7)(a) to the prosecution.
Question 2
24.	This question does not arise given my answer to Question 1.  However, I mention my approach to it briefly.  It turns on the failure of the justices to make a specific finding on whether Mr Miah suffered prejudice if the Council failed to serve the enforcement notice on him in the proper manner.  It seems to me that in raising this issue the Council is expecting too much of lay magistrates, delivering an ex tempore judgment at the end of a day’s hearing.  The justices cited the relevant provision, section 285(2) of the 1990 Act, heard submissions from the prosecution and from Mr Miah about whether or not he was prejudiced, and “noted” that Mr Miah was too late to appeal the notice given that in their view the enforcement notice was not properly served on him.  To my mind the justices should be given the benefit of the doubt that they had the issue of prejudice in mind and satisfied themselves on the factual issue that, like his mortgagee, Mr Miah would have appealed if he had known of the enforcement notice.  My answer to this question, if it had arisen, would have been “Yes, in the circumstances of this case”.
Questions 3 and 4
25.	These questions turn on section 171B(2) of the 1990 Act.  The justices found that no enforcement action could be taken because four years had lapsed after the conversion constituting the breach before the enforcement notice was served.
26.	In Swale BC v. First Secretary of State [2005] EWCA Civ 1568, a planning inspector granted a certificate of lawful use for the residential use of a barn (from agricultural use) and allowed an appeal against an enforcement notice.  The relevant four year period in the case was before March 2001.  There was no dispute between the parties that four years’ continuous residential use had to be demonstrated before that date: [11].  The inspector said that there was no evidence of any intention to abandon the residential use of the barn over that four years and that failure to occupy it for a period with no other use being introduced did not mean that residential use had ceased.
27.	Giving the judgment of the Court of Appeal, Keene LJ approved the approach of Newman J and the Court of Appeal (Schiemann and Chadwick LJJ, with whom Sir Christopher Staughton agreed) in Secretary of State for the Environment v. Thurrock BC [2002] EWCA Civ 226; [2002] JPL 1278.  Whether a building is used for a particular purpose is largely a question of fact but the correct question the inspector should have asked was whether the building had been used as a single dwelling throughout the whole of the four years so that the local authority could at any time over that period have taken enforcement action: [25].  In fact the inspector’s findings meant that during the four years there were substantial periods when the building was not occupied, and nowhere prior to his conclusion did he suggest that the non-occupation periods were de minimis: [29].  The inspector had been wrong to ask whether the barn had been put to a use other than residential use or whether residential use had been abandoned: [29]-[30].
28.	Sedley LJ agreed and added that the law has always recognised that an occupier did not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house: [34].  If by contrast a structure is not in established use as a dwelling-house at the start of the material period, such use had to be affirmatively established not merely at the start but over the whole period:  [35].  Chadwick LJ agreed that it was impossible to be confident that the inspector had applied the right test: [39].
29.	On Mr Miah’s behalf, Mr Brayley submitted that this is a factually different case from Swale.  There the change in use of the building was from non-residential to residential use.  In that case residential use had not been established at the date of the conversion and a continuous period of occupancy to establish residential use was required.  That, in his submission, was ordinarily the type of change in use which section 171(B)(2) is intended to cover.  Here the property had always been residential and remained so throughout the relevant period.  Mr Brayley cites in support the language of Sedley LJ in Swale.
30.	Mr Brayley highlighted that the justices accepted that Mr Bashir had resided in the upstairs flat between May and August 2005, that someone had occupied the downstairs flat at that time, that Mr Miah bought the property as two self-contained flats in June 2007, and that the flats had remained in that state after that.  In his submission, a period of vacancy over the four years from 24 September 2006 to 24 September 2010 would not be sufficient to constitute abandonment of the established use of the property as two self-contained flats.  The purpose of section 171(B)(2) was to prevent the circumvention of planning obligations by carrying out the work and leaving the development unoccupied and to ensure that the local authority is sufficiently active.  It was quite unrealistic for the Council to contend that once the conversion had been carried out the property was not being used as two self-contained flats.  Any periods of vacancy must be considered de minimis and the burden shifted to the Council to show abandonment of use.
31.	I cannot accept these submissions.  The breach of planning control alleged in the enforcement notice was the change of use of the property to two self-contained flats.  Clearly it was a change of use case, not a case in which the enforcement notice alleged unlawful conversion.  Swale is clear that where a person asserts that it was at the material time too late to take enforcement action in respect of a use of land that person must prove that the relevant use had been ongoing on a continuous basis throughout the relevant immunity period.  The rationale of the immunity is that throughout the relevant period of unlawful use, although the local planning authority had the opportunity to take enforcement action, it failed to do so and thus it would be unfair to permit enforcement afterwards.  As a corollary, if at any time during the relevant period the local planning authority would not have been able to take enforcement proceedings because no breach was taking place, that period cannot count towards the immunity period.  The onus is on the owner of a property to show that during the relevant period enforcement action was possible.
32.	Here the justices focussed on the date of conversion and did not address the extent to which the two flat use was occurring during the immunity period.  Mr Miah did not adduce evidence to satisfy the relevant test.  The tenant, Mr Bashir, was unable to give any evidence as to the use of any part of the property either before or after his three month tenancy in 2005.  The justices accepted that there had been times during Mr Miah’s ownership when the flats were vacant.  For some reason Mr Miah had no definite evidence of the use of the flats after he acquired the property in 2007.  In my judgment there was simply no evidence on which a reasonable tribunal could have found that it was too late for the Council to issue the enforcement notice on 24 September 2010.  Applying the correct test, no reasonable tribunal could have concluded that a two flat use had been ongoing at the property continuously for a four year period prior to 24 September 2010.
33.	The answers to questions 3 and 4 are “No” and “No” respectively.
Question 5
34.	For Mr Miah, Mr Brayley accepted that the answer to this question must be “No”.  However, he submitted that the justices did not in fact apply section 285(2) of the 1990 Act to the second offence because they did not need to.  They worked through the section in relation to the first offence and then, having found that the Council was not entitled to take enforcement action, dismissed the second charge along with the first.  Mr Brayley submitted that this was the correct approach.  If Mr Miah was not guilty of breaching an enforcement notice because it was invalid, he can not then be guilty of ongoing non-compliance with the same notice simply because he had notice of it by that stage.
35.	I reject these submissions.  For the purposes of the defence under section 179(7) of the 1990 Act, the relevant date for a defendant’s knowledge is the date of the alleged offence: Sanger v. Newham London Borough Council [2014] EWHC 1922 (Admin); [2015] 1 WLR 332, [33] – [44].  The same must be true in respect of the date for the state of knowledge of a defendant under section 285(2)(c)(i).  Section 285(2) is the only exception to section 285(1) and section 285(2) is only available to assist a property owner where there is a prosecution under section 179.  It is clear from Sanger that in order to use the section 179(7) defence, a defendant must not have known of the notice as at the date of the offence.  Where he cannot use section 179(7) because the notice was on the required register, as in this case, section 285(2) can be invoked by a defendant.  I accept the Council’s submission by Mr Wills that it would be strange if a defendant could use this different route to a successful defence merely by virtue of not having been aware of the enforcement notice at an early stage, when he did in fact know of it when the alleged offence took place.
36.	In this case the second offence is alleged to have commenced on 12 July 2012.  Mr Miah accepted that he received the non-compliance letter of 5 July 2012, addressed to him at this home address.  The letter gave details of the enforcement notice.  By this date he knew that the enforcement notice had been issued.  Thus in relation to the second offence he could not satisfy section 285(2)(c).  Accordingly he could not challenge the validity of the enforcement notice on the grounds proposed by him because of section 285(1).  The answer to question 5 is “No”.
37.	Mr Brayley raised as a new point whether bringing the second offence amounted to an abuse of process after the Council were already aware that Mr Miah was defending the action and challenging the validity of the notice.  The second offence includes the period of time after Mr Miah was first acquitted in the Magistrates’ Court and it was not appropriate for him to be held liable for alleged non-compliance during this period.
38.	With a case stated, this court is charged with answering the questions posed by the court below.  In any event, I cannot see how the prosecution of the second offence falls within any of the established categories of abuse of process.  I decline the temptation to consider abuse of process.
Conclusion
39.	For the reasons I have given, the questions are answered in the way I have indicated and the appeal is allowed.  The matter will be remitted to the Magistrates’ Court to be dealt with in accordance with this judgment.  It is appropriate that it be heard by a District Judge.