Failure to serve
This month’s case is a High Court appeal by way of case stated from a decision of Magistrates to acquit a defendant on a charge of failing to comply with an enforcement notice. The case illustrates the breadth of the points which can be raised before the Magistrates if the defendant is not served with the notice.
We don’t know the full background to the case; it is not recorded in the judgment and the court only had a summary. However, the Magistrates found, as facts, that the defendant had an interest in the property at the time of the notice but she was not served and did not otherwise know of the notice. While the notice was on the s188 register, the defendant could not reasonably have been expected to know of its existence and, having been unaware of its existence, she was prejudiced by being unable to bring an appeal in time (or at all).
The normal rule under s285 TCPA 1990 is that the validity of an enforcement notice can only be challenged on appeal before an inspector. If not challenged, it can’t be challenged in court. However, this is subject to an exception (the “statutory disapplication”) in s285(2) where the defendant was not served, did not know of the notice and suffered prejudice as a result.
Failure to serve a notice properly is a ground of appeal (ground (e)). If upheld, the notice is quashed and cannot form the basis of a prosecution. The Magistrates found that was the case here. and acquitted the defendant. The council challenged the decision to acquit.
The council argued that, since the notice was on the statutory register and since there was a duty of vigilance on landowners to be aware of registered matters affecting their land, it could not be said that the defendant was unaware of the existence of the notice. This was rejected by the court. The legislation is clear that registration is not fatal to the statutory disapplication (in contrast to the s179 defence). It is not reasonable to expect a landowner to constantly check the s188 register. It is, however, reasonable to expect an incoming purchaser to check that register.
The council also argued that, as the defendant had applied for an HMO licence sometime after the notice was issued, she should then have checked the s188 register. The court said that this was not one of the questions asked by the Magistrates but that, on the limited facts before the court, it did not seem unreasonable for the Magistrates to have discounted this in coming to their conclusion that the defendant was unaware of the existence of the notice.
The appellant argued that, the statutory disapplication having been made out, that was a complete defence. However, the court held that it was merely the gateway to a challenge to the validity of the notice on one of the grounds of appeal (a) to (g).
The council argued that a challenge based on ground (e) was not a challenge to the “validity” of a notice; only grounds (c) and (d) appeal grounds “went to the heart of the notice” in a manner sufficient to be a challenge to validity for s285 purposes. This was rejected by the court. If the statutory disapplication applies, then the defendant can make any points that would have been made at inspector appeal i.e. anything in grounds (a) to (g).
The defendant makes these ground (a) to (g) points at before the Magistrates, rather than an inspector. So the trial becomes a mini-inquiry, which is unusual. Nevertheless, that is the way the legislation works.
What happens if the Magistrates find in favour of the defendant, as they did here? The decision, the court confirmed, is simply that the defendant is acquitted. The notice itself still stands.
The defendant is acquitted because the notice would have been found invalid had it been appealed before an inspector but, as it wasn’t appealed, it remains in force. It is an interesting question whether the notice is a true chocolate teapot on which no-one could be prosecuted or whether there are circumstances in which a different defendant (one who had knowledge of the notice) could still be prosecuted despite the substantial prejudice to the current defendant.
The problem with this decision is a point which was not, it seems, fully considered. The court seems to have accepted that, had the defendant made a ground (e) appeal, she would automatically have been successful and the notice would have been quashed. It was not necessary for her to demonstrate that failure to serve resulted in invalidity of the notice because, while under ground (e) an inspector can disregard failure to serve, that is only where there is no substantial prejudice. Here, the court said, substantial prejudice was “built in”. This part of the court’s decision does not quite ring true; many inspectors, faced with an appellant who claimed not to have been served, would say that since the appeal has in fact been made, there is no prejudice. There is no obvious reason why the Magistrates could not consider whether there is actual prejudice when conducting their mini inquiry under ground (e). Sadly, it seems that the point was not taken before the Magistrates so was not available in the High Court.
The facts of the case are perhaps unusual; few prosecutions would be brought against someone who appears truly to have been unaware of a notice. It is more likely that such a person would be informed of the notice, asked to comply and, if they failed to do so, prosecuted only for the period after being informed. Nevertheless, the court was clear that, where a defendant is truly unaware of the notice, the council can expect the trial to cover anything that could be raised at appeal.
One final point to remember is that this decision does not apply to those who become landowners after the notice; they are expected to check the s188 register so will have knowledge of the notice.
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