Prosecution for failure to comply with enforcement notice; admissibility of hearsay evidence; prosecution process

Salem and another v London Borough of Camden  2021 EWHC 2530 https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2021/2530.html&query=(salem)+AND+(london)+AND+(borough)+AND+(of)+AND+(camden)

The case was an appeal by way of case stated against the decision of Highbury Magistrates to admit hearsay evidence during the prosecution of the appellants under section 179 of the Town and Country Planning Act 1990. for failing to comply with a planning enforcement notice.   The judgment related to the exercise of the district judge’s discretion under sections 114 to 117 of the Criminal Justice Act 2003 and the exceptions to the rule against the admission of hearsay evidence in criminal proceedings.

I also found the case interesting because it illustrated to me the difficulties for a planning lawyer when a client’s enforcement case transitions from the planning system into the criminal justice system.  I could not advise in detail about the criminal justice process and it is good to know that colleagues on the other side occasionally have some difficulty interpreting planning law.  For example paragraph 30 exemplifies the difficulties with understanding the lawful development certificate system if you are not familiar with it as follows:

“30     Secondly, Mr Butler submitted that the evidence of what was said in the application by Mr Salem for a certificate of lawful development was not an admission by him, but only a “proposal” of what was envisaged.  As I have mentioned earlier, in the application it was stated that: 

 

                “The house has been converted to seven self-contained flats more than seven years ago and its [sic] been occupied since.” 

 

                In my view, that submission rests on a misunderstanding of the nature of an application for a certificate of lawful development.  It is not an application for planning permission for pro-posed development.  It is instead an application for it to be recognised by a local planning authority that no planning permission is required for development.  It will be recalled that un-der the planning legislation there are two types of development for which, in principle, planning permission is required: operational development and a material change of use.  In this case, what was being said by Mr Salem was that the change of use had already occurred for more than four years and so planning permission was not required and the development was already lawful.  It was not therefore merely a “proposal” for future use, but made clear statements as to the historic position.”

There are two main types of lawful development certificates.  One which establishes  that proposed development would be  lawful because it has planning permission which is still extant or  it can rely on permitted development or for some other reason and the other which certifies that an existing development is lawful for a number of potential reasons including that the planning authority is statute-barred from enforcing therefore entitling the developer to a lawful development certificate.

The case was also useful for another question which is, during the criminal proceedings, how relevant is evidence relating to the process of issuing and serving the enforcement notice.   It’s fair to say that the general view  is that the time for bringing up those matters is during the enforcement appeal.  This is because failure to comply with an enforcement notice is a largely a strict liability offence with specified defences.  

However, when I worked with a lawyer who prosecuted planning offences, she stressed to me that this fact did not override the need to prove every element of the offence to the criminal standard of beyond a reasonable down.  The court quoted the district judge as dealing with this element:

“On the basis of the evidence I have seen and heard, I am satisfied so that I am sure that both defendants were the freehold owners of the land throughout the period in question, that the EN was lawfully issued and served pursuant to s.172 of the Act and that it addressed the matters required by s.173…..”

Ah…’satisfied so that I am sure’   –  that phrase makes me nostalgic for my bar school days.  I don’t think I’ve heard it much in my planning practice!

 

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