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Divisional Court rejects reasons given by magistrates for finding prosecution in planning enforcement case was within time limits

Reasons given by Reading Magistrates’ Court for deciding that the prosecution in a planning enforcement case had complied with the six months' time limit in s127 of Magistrates Courts Act 1980 cannot be upheld, the Divisional Court has ruled.

In Russnak-Johnston v Reading Magistrates' Court [2021] EWHC 112 (Admin) Lord Justice Coulson, agreeing with Mr Justice Holgate, said: “That is unfortunate, because [Reading Borough] Council bent over backwards to give the claimant every opportunity to provide the necessary information, whilst it appears that she had a very different agenda.

“But that meant that a good deal of time went by without the matter being resolved and by the time the council laid the information before the magistrates, it was too late for offences 2-4.”

The claimant, Ms Russnak-Johnston, challenged the magistrates' court’s decision that it had jurisdiction to hear an information in respect of four alleged offences under s171D (1) and (5) of the Town and Country Planning Act 1990 relating to non-compliance with two planning contravention notices served by the Royal Borough of Windsor and Maidenhead under s171C.

The offence (offence 1) alleged under s171D(1) was that she failed to provide copies of certain documents and the three under s171D(5) (offences 2-4) that she made statements purporting to comply with two planning contravention notices that were knowingly or recklessly false or misleading.

Holgate J said the case raised two issues: whether a requirement to provide a document is ultra vires the power under s171C TCPA 1990 to serve a planning contravention notice; and whether the prosecution of the four alleged offences was time-barred by s127 of the Magistrates' Courts Act 1980.

The contravention notices related to Fairview Stables, a Green Belt site with planning permission for a ménage and stable building.

It identified breaches by the residential use of buildings and erection of new ones without planning permission.

Ms Russnak-Johnston replied that Fairview Stables was owned by her husband, and she was not a party to any lease or tenancy of the land but stayed on-site to provide 24-hour supervision for horses and did not use any building for accommodation.

The council issued a contravention notice requiring answers to questions within 21 days.

She argued that a planning contravention notice can only require provision of information and does not allow a local planning authority to require any document to be disclosed.

To support this she relied on some Australian authorities for definitions of ‘information’.

Holgate J said the Australian cases were “of no real assistance” as they had been “decided in the context of a statutory regime for dealing with refugee protection claims and the specific issues which fell to be decided”.

He said: “There is no justification for giving the claimant's narrower interpretation to ‘information' so as to exclude any request for a document. That could result in unnecessary litigation.”

This meant it had not been ultra vires to issues the notice under s171C and the magistrates' conclusion on the point was correct.

But on the time limit, Holgate J said s127 did not allow the start of the six months time limit to be deferred based on when the prosecuting authority obtained information sufficient to bring proceedings.

“Accordingly, it follows that the reasons given by the magistrates' court for rejecting the claimant's case that the prosecution of all four offences was time-barred were wrong in law and cannot be upheld.”

However, the judge added that the prosecution in respect of the alleged offence under s.171D(1) did comply with the relevant time limit.

It followed that the prosecution could proceed in respect of offence 1 but not the other offences.

Mark Smulian