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High Court upholds conviction for failure to comply with enforcement notice despite council losing Article 4 direction

A mislaid Article 4 direction did not invalidate an enforcement notice served by planners at Stoke-on-Trent City Council, the High Court has found.

Local resident Aneel Zafar appealed against his conviction by Staffordshire Justices for an offence contrary to s179 of the Town and Country Planning Act 1990 of failing to comply with an enforcement notice served by a local planning authority under Part 7 of that Act.

The notice concerned a property at which Mr Zafar had without planning permission installed upvc double glazed front windows and doors and re-painted the rendering dark grey.

This was not allowed as the house is in the Victoria Park Conservation Area and an Article 4 Direction removed permitted development rights. Stoke required Mr Zafar to restore the house to its previous condition.

Mr Zafar had argued before the justices that the council had been unable to prove removal of permitted development rights because it could not produce the Article 4 Direction.

The council admitted that it had lost the Direction, probably when it moved to electronic from paper records.

Planning enforcement officer Kerry Mee told the justices she had investigated the matter and was satisfied that a relevant Article 4 Direction had been made.

The justices heard there had been 14 planning applications for replacement windows in the area, indicating that local residents were aware of the Article 4 Direction.

Further checks revealed 13 cases of applications on the road where Mr Zafar’s house stands, three of which had resulted in enforcement notices being issued and one appeal, and in none of these had any doubt been raised about the Article 4 Direction.

The justices concluded that although the original could not be found “the Article 4 Direction was more likely in place than not” and convicted Mr Zafar.

In the High Court case Mr Zafar argued that the justices had applied the wrong standard of proof and should have been satisfied beyond reasonable doubt that an Article 4 Direction had been made.

They should then not have convicted him as in the absence of at least a certified copy of the original Article 4 Direction, they could not be satisfied to the criminal standard that it existed.

Giving judgment in Zafar v Stoke-On-Trent City Council [2020] EWHC 3249 (Admin), Mr Justice Julian Knowles said that the authorities he consulted “make clear that it was not open to the appellant to argue by way of defence to a criminal charge contrary to s179 that he had not breached the enforcement notice because the council could not prove the existence of an Article 4 Direction for the conservation area in question.

“That was, in substance, an argument that the work which the appellant had carried out was not a breach of planning control [but] that was a matter which could only be challenged by way of an appeal to the Secretary of State under Part VII of the 1990 Act, a step which the appellant did not take.”

Knowles J said Mr Zafar had “plainly” breached the enforcement notice and “in any event the evidence before the justices clearly proved the existence of the Article 4 Direction”.

Mark Smulian