DIVISIONAL COURT ALLOWS APPEAL BY WAY OF CASE STATED ON INTERPRETATION OF STATUTORY DEFENCE TO THE BREACH OF AN ENFORCEMENT NOTICE

Sevenoaks District Council v. George Arthur Harber [2008] EWHC 708 (Admin)

The Divisional Court has allowed a challenge to the decision of the magistrates court in respect of the ambit of section 179 (3) of the Town and Country Planning Act 1990.

Keene LJ and Treacy J held that the magistrates had had regard to irrelevant considerations when wrongly acquitting the defendant.

The enforcement notice issued by Sevenoaks District Council required the use of the site as a residential caravan site to cease. The question for the magistrates was whether it was within the defendant's power to comply with the notice. The Divisional Court held that as the defendant was able to leave the site and thereby cease its use for residential purposes he had not made out the statutory defence that he had done everything he could reasonably be expected to do to secure compliance with the notice.

The Court held that matters of reasonableness of compliance and hardship caused can not constitute a defence to the breach of an enforcement notice.

In reaching its decision the Court applied the decision of the Divisional Court in Wycombe DC v. Wells (2005) EWHC (Admin), (2005) JPL 1640 and Wells v. United Kingdom (admissibility) (37794/05) (2007) 44 EHRR SE20 ECHR.

Saira Kabir Sheikh represented the appellant, Sevenoaks District Council. She also represented Wycombe District Council in the case of Wycombe DC v. Wells applied by the Divisional Court.