|Judgments - Reg. v. Wicks continued|
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Section 173 prescribes what an enforcement notice must contain:
The enforcement notice of which a copy was served on Mr. Wicks recited that it appeared to the council that there had been a breach of planning control by the erection of a two-storey building and that the council considered it expedient, having regard to the provisions of the development plan and to all other material considerations, to issue the enforcement notice. It required the removal of all parts of the building higher than 2.5 metres in order to alleviate the injury to amenity caused by the development. It specified 24 April 1990 as the date on which, in accordance with section 172(5), the enforcement notice would take effect. Finally, in accordance with section 173(5), it allowed one month for the work to be done. The Act calls this "the compliance period": see section 178(7). There is no dispute that the notice complied upon its face with all the provisions of the Act.
Section 174 gives a right of appeal against an enforcement notice to the Secretary of State. Subsection (2) lists eight grounds upon which appeals may be brought. Mr. Wicks appealed on four of them:
(The other four, (d), (e), (f) and (h), are, in brief, that the breach took place more than four years before the notice was served or, in the case of a change of use, before 1964, that copies of the notice were not properly served and that the compliance period is too short).
Section 175(4) provides that where an appeal is brought under section 174, the enforcement notice shall be of no effect pending the final determination of the appeal. Mr. Wicks was entitled under section 175(3) to ask for a public inquiry by one of the Department's inspectors but agreed to have the appeal determined on written submissions. Just over a year later, on 10 May 1991, the inspector dismissed the appeal on all four grounds.
Another year passed during which there were some negotiations between Mr. Wicks and the planning authority but he did not take the steps required by the notice. Section 179 provides as follows:
On 11 June 1992 the council caused a summons to be issued before the Ramsgate justices, alleging a breach of section 179(1). Mr. Wicks elected to be tried on indictment. An indictment was prepared on 2 February 1993 and the trial before His Honour Judge Rooke and a jury began on 27 September 1993.
After the jury had been sworn but before anything else had been done, there was a discussion between counsel and the judge about what Mr. Wicks's defence might be. The enforcement notice had been properly served and was, as I have said, formally valid. There was no dispute that he had failed to comply. He could not reopen the questions which had been decided against him by the inspector, because section 285(1) says:
Mr. Wicks's counsel said that he wanted to challenge the service of the enforcement notice on the grounds falling outside the eight statutory grounds of appeal. He said that whatever the planning merits of the enforcement notice, the council's decision to serve it had been improper. It had not genuinely considered, in accordance with section 172(1)(b), whether service of the notice was "expedient." The council had acted in bad faith and had been motivated by immaterial considerations. He proposed to adduce evidence on these matters and submitted that as they involved questions of fact, they should be decided by the jury.
Counsel for the prosecution did not dispute that in principle Mr. Wicks could challenge the validity of the enforcement notice on these grounds. But he submitted that they should have been raised by way of an application for judicial review. At the criminal trial, a notice which had not actually been quashed by the Secretary of State or the court should be treated as valid.
The judge accepted the prosecution's submission and gave a ruling that he would not allow the defence to question the propriety of the decision to issue the notice. He suggested that, as Mr. Wicks was now left with no defence, he should plead guilty and test the ruling on appeal. Mr. Wicks changed his plea to guilty and was bound over for 12 months to come up for judgment if called upon to do so. This meant that Mr. Wicks had to comply with the notice. If he did not do so, he would be liable to a daily fine on summary conviction under section 179(5). On a certificate granted by the judge, he appealed to the Court of Appeal.
The Court of Appeal (Lord Taylor of Gosforth C.J., Mantell and Keene JJ.) dismissed the appeal. Keene J., who gave the judgment of the court, referred to the well-known distinction which Upjohn L.J. had made in Miller-Mead v. Minister of Housing and Local Government  2 Q.B. 196, 226 between an enforcement notice which was a nullity ("waste paper") and one which was invalid only in the sense of being liable to be quashed. A notice which on its face failed to comply with some requirement of the Act was a nullity. A notice which could be quashed on the basis of extrinsic facts (for example, because in fact no breach of planning control had taken place) was invalid but not a complete nullity.
Miller-Mead v. Minister of Housing and Local Government concerned the power of the Secretary of State to amend or vary an enforcement notice under what is now section 176(2) of the Act of 1990. The Court of Appeal decided that he could amend a notice which was otherwise invalid but not one which was upon its face a nullity. The purpose for which the distinction was used was therefore different from the issue in this case. But, as Keene J. observed, a very similar distinction was employed by the Divisional Court in Bugg v. Director of Public Prosecutions  Q.B. 473 to describe the grounds upon which a defendant to a prosecution under a local byelaw could challenge the validity of the byelaw in the criminal proceedings.
Mr. Bugg was prosecuted for breach of a byelaw made under the Military Lands Act 1892. He claimed that on various grounds the byelaw was ultra vires and the question was whether he could raise these points before the magistrates. Woolf L.J. drew a distinction between "substantive invalidity", where, as he put it, the byelaw is:
and "procedural invalidity," in which the complaint is of some impropriety in the way the byelaw was made. Substantive invalidity could be raised as a defence before the magistrates but procedural invalidity could not. If the byelaw was valid on its face, it should be treated as valid until set aside by judicial review proceedings in the Divisional Court.
Keene J. said that the distinction between substantive and procedural invalidity corresponded with Upjohn L.J.'s distinction between nullity and invalidity. Defects on the face of the enforcement notice could be relied upon in the criminal proceedings but (procedural) invalidity was a matter either for the Secretary of State on appeal or the Divisional Court on judicial review. The learned judge went on to give reasons why it was appropriate to apply this distinction in the case of an enforcement notice, to which I shall in due course return.
Before your Lordships' House Mr. Speaight Q.C. on behalf of the appellant launched a sustained attack on the principle formulated in Bugg v. Director of Public Prosecutions He said, by reference to cases on prosecutions under byelaws going back many years, that the distinction between substantive and procedural invalidity was an entirely new invention, retrospectively imposed upon cases which had said in perfectly general terms that a defendant in criminal proceedings was entitled to challenge the vires of the byelaw under which he was being prosecuted. The most recent such general statement was by Lloyd L.J. in the Divisional Court in Reg. v. Reading Crown Court, Ex parte Hutchinson  Q.B. 384, another prosecution for breach of byelaws made under the Military Lands Act 1892. The Act provided, in section 14(1), that "no byelaws promulgated under this section shall authorise the Secretary of State to take away or prejudicially affect any right of common" and the defendants claimed that a byelaw prohibiting access to a military base at Greenham Common infringed this proviso. The Crown Court decided that as this was not a defect appearing upon the face of the byelaw and would have to be proved by evidence, it could not be raised as a defence to criminal proceedings. Lloyd L.J. disagreed and said in robust and general terms that:
Woolf L.J. distinguished Reg. v. Reading Crown Court, Ex parte Hutchinson on the ground that there the defence was one of substantive invalidity and could therefore properly be raised. The distinction between substantive and procedural invalidity had not been argued. However, if substantive invalidity means a defect apparent on the face of the byelaw, I confess to some difficulty in seeing how the Greenham Common defence came within this category. Evidence must have been needed to establish the existence and nature of the common rights which were prejudicially affected. It is true that in subsequent litigation Lord Bridge of Harwich said that certain of the byelaws were "ultra vires as they stand." But "as they stand" was being contrasted with what might be their effect if they were modified by some form of severance. It was necessary to have evidence from the Commons Register of the common rights which would be prejudicially affected.
On the other hand, it is certainly true that the Greenham Common defence cannot be said to have concerned a procedural matter. This suggests, as do some other authorities, that the line between the substantive and procedural in the normal sense of those words does not necessarily coincide with the distinction between matters which appear on the face of the instrument and those which need to be established from extrinsic facts. Woolf L.J. appears to have been conscious of this difficulty: he conceded the existence of a "grey area," occupied in particular by:
The breadth of the principle, which did not appear to be confined to byelaws, was also said to be inconsistent with the reasoning in cases like Wandsworth London Borough Council v. Winder  A.C. 461. There a tenant was sued for non-payment of rent. He was held entitled to raise as a defence in the county court an allegation that the council's decision to increase rents had been Wednesbury unreasonable. In Bugg v. Director of Public Prosecutions this case was also said to have involved substantive invalidity. As a matter of ordinary language, this seems to be right: the tenant's complaint was that "the [Council's] decisions to increase the rent were such as no reasonable man could consider justifiable." This appears concerned with the decision itself and not the way it was made. But the ground of invalidity would not have appeared upon the face of the resolution fixing the new rents. A good deal of detailed evidence would probably have been required.
Woolf L.J. also said that Winder was concerned with civil proceedings. He may have had in mind that a circuit judge could probably cope rather better with difficult questions of administrative law than magistrates. But there are other matters to be taken into account. Lord Fraser of Tullybelton said of the defendant in Winder:
It is reasonable to suppose that Lord Fraser would have regarded these sentiments as applying with even greater force to a defendant to a criminal prosecution.
There are two statements in cases in this House which are often cited in this context. One is by Lord Radcliffe in Smith v. East Elloe Rural District Council  A.C. 736, 769-770 and the other by Lord Diplock in F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry  A.C. 295, 366. In the former, Lord Radcliffe said of a compulsory purchase order:
These remarks were made specifically about the effect of a compulsory purchase order. They are not capable of being generalised so as to have any bearing on the question of whether, and to what extent, an ultra vires defence may be raised in criminal proceedings. All that can be gained from this citation is that it is conceptually possible to have an act which is entirely valid and effective until quashed in appropriate proceedings. Whether a particular exercise of statutory power should be regarded as such an act is an altogether different question.
In the other passage, Lord Diplock deprecated the use of terms like "voidable," "void" or "a nullity" as useful descriptions of the status of subordinate legislation "before its validity has been pronounced on by a court of competent jurisdiction":
The context of these remarks was the question of whether the Crown should be obliged to give a cross-undertaking in damages in return for an interlocutory injunction enforcing a statutory instrument which was alleged by the defendant to be ultra vires. The presumption of validity to which Lord Diplock referred was in my view an evidential matter at the interlocutory stage and the presumption existed pending a final decision by the court. Lord Diplock was not putting forward the sweeping proposition that subordinate legislation must be treated for all purposes as valid until set aside. He did not distinguish between substantive and procedural invalidity and such a proposition would have gone far beyond anything said in Bugg v. Director of Public Prosecutions.
As your Lordships will have gathered, I think that there is considerable force in Mr. Speaight's criticisms of the principle enunciated in Bugg. It is not necessary in these proceedings to express any concluded opinion on its application to byelaws. It does however seem to be the case, as Lloyd L.J. said in Reg. v. Reading Crown Court, Ex parte Hutchinson  1 Q.B. 384, 391, that defendants prosecuted for breaches of local byelaws have always in the past been allowed to challenge their vires without discrimination as to the grounds upon which they were doing so. I have some doubt as to whether this ancient jurisdiction of the local justices can be cut back in the manner suggested or whether it would be wise to do so. Like Lloyd L.J., I am impressed by the submission of the defendant before him in Reg. v. Reading Crown Court, Ex parte Hutchinson, which he recorded as follows:
I recognise that there is a good deal in the point that the issues which arise in modern judicial review proceedings are sometimes unsuited for decision by a magistrates' court. Ultra vires was a relatively unsophisticated doctrine in the days of Kruse v. Johnson  2 Q.B. 91; today it requires a good deal of specialised legal knowledge and a sensitivity to the proper boundaries between legislative, executive and judicial power. The distinction between substantive and procedural invalidity is presumably intended to confine magistrates' courts to points of law on which the justices can be advised by their clerk. It is meant to avoid them having to apply complicated rules of administrative law to their findings of fact. But, as the cases show, the distinction between substantive and procedural invalidity appears to cut across the distinction between grounds of invalidity which require no extrinsic evidence and those which do.
If the argument is that developments in judicial review have brought about a change in the old law about challenging byelaws, there is great difficulty in identifying when the change took place. I agree with Lloyd L.J. that it could hardly have been as a result of changes in the procedure for judicial review or the practice introduced by O'Reilly v. Mackman  2 A.C. 237. It may be that the problem cannot be solved by judicial creativity and that, as Lord Fraser of Tullybelton said in Wandsworth London Borough Council v. Winder  A.C. 461, 510, if it is thought inconvenient to have questions of ultra vires decided by magistrates, Parliament must change the law.