| PLANNING – Enforcement notice – Time limit for appealing – Defendant not receiving notice in time to enter appeal against it – Planning authority brining prosecution for breach – Whether infringing Convention right to fair trial – Whether prosecution abuse of process of court – Town and Country Planning Act 1990, s 174(3) – Human Rights Act 1998, Sch 1, Pt I, art 6(1)
Goodall v Peak District National Park Authority; [2008] WLR (D) 99
QBD: Keene LJ and Treacy J: 4 April 2008
The 28 day time limit for appealing against an enforcement notice prescribed by s174(3) of the Town and Country Planning Act 1990 was not incompatible with the right to a fair trial guaranteed by art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Divisional Court of the Queen’s Bench Division so held when dismissing an appeal by the defendant, Graham Goodall, by way of case stated from a decision of the Crown Court at Derby on 24 June 2005 to dismiss his appeal against his conviction at Chesterfield Magistrates’ Court for an offence of contravening an enforcement notice contrary to s179 of the 1990 Act.
The defendant was the subject of enforcement proceedings to remove motor cars stored on his land, which was within the area of the prosecutor, the Peak District National Park Authority. A first enforcement notice had been withdrawn after the defendant said that he had not received it. A fresh enforcement notice had been duly served at the defendant’s address on 30 April 2003, to be effective on 6 June 2003 unless an appeal had been entered, requiring compliance by 6 September 2003. The defendant, who had been out of the country from 28 April until after 6 June, had not appealed. The defendant had not complied. Prosecution proceedings had been started on 23 March 2004.
KEENE LJ said that the defendant had been deprived of the opportunity to appeal because of a combination of the 28-day time limit for appealing provided by s174(3) of the 1990 Act and his failure to lodge an appeal. It was impossible to construe s174(3) other than in a straightforward way. The 28-day time limit was generous and was not incompatible with art 6; Peres de Rada Cavanilles v Spain (2000) 29 EHRR 109 involved a very short time limit and was to be distinguished. It was clear from s179(7) that non-receipt of an enforcement notice did not on its own provide a defence. The issue of whether the authority’s decision to start the prosecution, knowing that the defendant had not received the notice by 6 June, was an abuse of process did not raise human rights arguments, but depended on common law principles. The authority had acted in good faith. There had been no abuse of process. The defendant had known that a fresh enforcement notice was likely to be served and he should have made arrangements to keep himself informed; he could not leave for six weeks and rely on ignorance; he was the author of his own misfortune.
TREACY J concurred.
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