London borough loses appeal over acquittal of landlord who said she had not been served with enforcement notice

The London Borough of Barking and Dagenham has lost an appeal after a landlord was acquitted by magistrates of failing to observe an enforcement notice.

The respondent had convinced North East London Magistrates that she had not complied because she was genuinely unaware of the notice’s existence.

Magistrates found the notice was on the statutory register but was not served on the respondent.

She did not therefore know it had been issued and so could not reasonably have been expected to know of it, and her interests were substantially prejudiced by the failure to serve her with a copy of the enforcement notice.

This came before Mr Justice Fordham as a case stated with three questions posed by the magistrates for the opinion of the High Court. He said these all turned on sections of the Town and Country Planning Act 1990.

The first was whether magistrates were correct to acquit on the basis they were not satisfied the respondent was adequately served with a copy of the enforcement notice, and she could not be reasonably have been expected to have known about the enforcement notice, if the other conditions of s.285 of the own and Country Planning Act 1990 were satisfied?

Fordham J answered “yes”, as he also did to a question on whether it was still open to the court to find that the defendant “could not reasonably have been be expected to know that the enforcement notice had been issued” even if this was contained on the s.188 register.

The remaining question was whether the failure to serve a copy of an enforcement notice rendered the original notice invalid, or did non-service simply open up a challenge to its validity under s.285?

“Non-service is a necessary element to open the gateway under s.285(2)(b),”the judge said.

“But it is also a defence, if the other elements of s.285(2) are satisfied, if an enforcement notice would be quashed under s.176(2), on an appeal relying on s.174(2)(e).”

Fordham J then dismissed all three of Barking & Dagenham’s grounds. The first argued that s.285(2) Town and Country Planning Act 1990 is only a 'gateway' to a challenge to the validity of an enforcement notice, which is otherwise prohibited by s.285(1).

The council said meeting the tests in s.285(2) enabled a challenge to the validity of the enforcement notice but did not automatically render the enforcement notice invalid and that magistrates erred in treating the conditions in s.285(2) as a defence.

Fordham J said: “This ground fails. Yes, s.285(2) is a gateway. Provided the tests in s.285(2) are met, the validity of the enforcement notice can be challenged as a defence in proceedings under s.179, on the grounds in Part 7. But since that includes s.174(2)(e), as a basis for a quashing under s.176(2), the court did not err.”

The council’s second ground was whether failure to serve a copy of an enforcement notice made the original enforcement notice invalid. It argued that something more is required to demonstrate this and the court erred in finding the original invalid because no copy was served.

This ground fell because, Fordham J explained: “In proceedings under s.179, where the tests in s.285(2) are met, the validity of the enforcement notice can be challenged as a defence, on the grounds in Part 7. Again, since that includes s.174(2)(e), which was satisfied as a basis for a quashing under s.176(2), the court did not err.”

Barking & Dagenham also said the magistrates erred in finding the respondent could not reasonably have been expected to know that the enforcement notice had been issued when the notice on the statutory s.188 enforcement register.

But Fordham J said: “Where the court is satisfied that an enforcement notice is contained on the s.188 register, it is still open to the court to find that the defendant could not reasonably have been be expected to know that the enforcement notice had been issued as per s.285(2)(c)(i).”

Mark Smulian