When you lose an Article 4 direction

The Administrative Court recently upheld a conviction for failure to comply with an enforcement notice despite the council losing an Article 4 direction. Roderick Morton looks at the lessons to be learned.

The prosecution case of Zafar vs Stoke on Trent Council [2020] EWHC 3249 (Admin) demonstrated the full effect of s285 Town and Country Planning Act 1990. Readers will recall that s285 provides that the validity of an enforcement notice cannot be challenged except by appeal to an inspector; it cannot be challenged in court. It is possible to challenge in court on grounds of nullity but, if a the challenge falls within the grounds of appeal (ie a challenge to validity of the notice), the only challenge is by way of an appeal to the inspector.  

So it was that Mr Zafar had his conviction for failure to comply with an enforcement notice upheld, despite the fact that the Council could not prove that what he had done had breached planning control.

The case related to an enforcement notice against uPVC windows and external paint colour at a house in Stoke on Trent. The house was in a Conservation Area and an Article 4 direction had been adopted to remove certain PD rights, including the right to make these changes. Mr Zafar did not appeal the notice.

When prosecuting Mr Zafar for failure to comply, the Council was unable to supply a copy of the Article 4 direction. It had been lost in a move to electronic record keeping. Nevertheless, there was other evidence of its existence and terms (not least several other successful prosecutions for breach). Mr Zafar was found guilty and appealed to the High Court.

His case at the High Court was formulated on the basis that, if the Council could not provide even a copy of the Article 4 direction (let alone the original), it was difficult to understand how the Magistrates could have determined that he was guilty beyond reasonable doubt.

The Council said that Mr Zafar’s argument was effectively saying that there was no evidence of a valid Article 4 direction and therefore no proof that the works carried out by Mr Zafar breached planning control. But this, said the Council, was a point which could have been raised under ground (c) at appeal before an inspector. As it had not been, Mr Zafar was not entitled to raise it in court in his defence so his conviction could not be faulted.  

In other words, although the Council may have lost a ground (c) appeal before the inspector for lack of evidence of the Article 4 direction, as the point was not taken at the time, the Court must now assume that the enforcement notice was valid. As it was common ground that Mr Zafar had not complied with the enforcement notice, it followed that he was guilty.

This is of course entirely correct. The prosecution was not for breach of planning control, the prosecution was for failure to comply with an enforcement notice. The forum to determine breach of planning control is the appeal process, the forum to determine failure to comply is the court.  

The case demonstrates the reach of s285. It also demonstrates the sophistry that can result from the distinction between invalidity and nullity of enforcement notices.  

But the moral of the story is simpler. Don’t lose Article 4 directions.

Roderick Morton is a partner at Ivy Legal.