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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kirklees Metropolitan Council v Angus Heron Ltd [2011] EWHC 2393 (Admin) (12 July 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2393.html Cite as: [2011] EWHC 2393 (Admin)

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IN THE HIGH COURT OF JUSTICE
LEEDS ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		12th July 2011

Mr Justice Langstaff:

1. On 10 November 2010 the justices from the county of West Yorkshire sitting at Dewsbury acquitted the respondent, Angus Heron Limited, of five informations that alleged failures to comply with enforcement notices which had been respectively served on 13 August 2007 and 15 September 2009. The magistrates stated a case for determination by this court on 9 February 2011 at the request of the prosecutor, Kirklees Council.

The Law

2. An enforcement notice may be issued under the Town and Country Planning Act 1990 to enforce planning control. Section 179 of the Act provides that where an enforcement notice is not complied with that constitutes an offence. By Section 285, headed "Validity of Enforcement Notices and Similar Notices", the following, so far as material, is provided:

"(1) the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."

There are then provisions which do not apply to the present case.

3. It is thus plain that the validity of an enforcement notice may not be challenged before a magistrates' court or a crown court hearing an allegation that enforcement notice has not been provided if and insofar as it was open to the person subject to the notice to appeal against it under Part VII.
4. The material provision in Part VII is Section 174, headed "Appeal against enforcement notice". It provides, so far as material, as follows:

"1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2) An appeal may be brought on any of the following grounds:

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

5. It is common ground that no issue arises here as to the formal validity of the enforcement notices. Section 174 does not deal with formal validity in the sense that there may be occasions when enforcement notice is fraudulently procured or has not been properly made by the body otherwise entitled to make it. None of those issues arise here, though they are open to challenge before a magistrates' court if there is a proper ground for challenging them.
6. Here the first enforcement notice was dated 13 August 2007. It alleged a breach of planning control as follows:

"Without planning permission:

The material change of use of the land from an industrial estate, primarily General Industrial (B2) to use for the storage of scrap, un-roadworthy vehicles, old tyres, disused engines and parts of vehicles."

7. By Section 5 of the notice it required the respondent to:

"(i) Cease the use of the land for storage of scrap vehicles, plant and machinery, and for the parking of un-roadworthy vehicles

(ii) Remove from the land all scrap vehicles, plant and machinery and old tyres, disused engine parts and parts of old vehicles

(iii) Remove from the land all unroadworthy vehicles"

Three months was given for compliance.

8. As to that notice, an appeal was entered by the respondent, but negotiations followed, essentially as to providing a timetable for compliance. That having been agreed, the appeal was withdrawn, and so it is common ground that the notice stands as it is.
9. On 15 September 2009 a second notice was issued. This again affected land at Hillside Works, Whitehall Road, Unsworth, Heaton in West Yorkshire, but in this case a different part of that land from the part which had been referred to in the first notice. The wording was similar but not identical. It alleged a breach of planning control in that there had been a material change of use from general industrial use [B2] to a mixed use for the storage of operational vehicles, plant and equipment, and for the storage and dismantling of scrap and disused vehicles and the storage of old tyres. Under Part 5 it required the respondent within three months to cease the use of the land for the storage and dismantling of scrap and of disused vehicles and the storage of old tyres and to remove from the land all scrap and disused vehicles and all old tyres being stored on the land.
10. There was an appeal on this occasion which was heard by a planning inspector appointed by the Secretary of State for that purpose. He gave his decision in a letter of 28 January 2010. He rejected the appeal and upheld the enforcement notice. He explained his reasoning in a little over one page of text. He recorded there that there had been an appeal on ground C that the matters did not constitute a breach of planning control. He founded part of his dismissal of that appeal on the basis that the respondents operate a plant hire business from Hillside Works. He took the view that a plant hire use did not fall within any class of use permitted by Class B2 of the Town and Country Planning (Use Classes) Order 1987 and therefore thought it unnecessary to enquire as to whether the storage and dismantling of scrap and tyres was incidental to that use. He appeared to think that it was that use which the respondents were contending was the use for which they had bought the land.
11. He also dealt with an appeal which was on the question of the time and saw no reason why the full requirements of the notice should not be complied with within three months. There was no further appeal from his decision, as there might have been to this court under Section 289 of the Act. Accordingly, at the conclusion of any time for appealing the enforcement notices were and remain valid.
12. In the informations which were laid before the magistrates it was alleged that the terms of those notices had been broken. Thus the issue for the magistrates was, as Mr Owen who appears for the respondents accepts, the issue of whether the respondents were doing on the land that which the enforcement notices prohibited them from doing within their terms, or/and had failed to do that which the notices required them to do. In practical terms that means that the magistrates should have looked to see whether, in respect of the land the subject of the first enforcement notice, it had been proved so they were sure, this being a criminal case, that the land was being used for the storage of scrap vehicles, plant and machinery for the parking of unroadworthy vehicles, and whether the council had proved that the respondent had not removed from the land all the scrap vehicles, plant and machinery and all old tyres, disused engine parts and parts of old vehicles and all unroadworthy vehicles; and likewise, in respect of the second enforcement notice, whether the respondents had ceased use of the land for the storage and dismantling of scrap and disused vehicles and the storage of old tyres and whether they had been satisfied, so that they were sure, that the defendants had remove d from the land all the scrap and disused vehicles and all tyres being stored on the land.
13. The issue was simple. As Lord Hoffman said in the case of Reg v Wicks [1998] AC 92 at page 121: "The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it". At page 122, between letters C and D, he said this:

"…the offence is to disobey an enforcement notice which has not been quashed and the fact that the decision to issue it or not to quash it involved the exercise of discretion is irrelevant… "

14. Between letters F and G on the same page:

"All these reasons lead me to conclude that "enforcement notice" in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review."

There was in that particular case no dispute that Mr Wicks had failed to comply with such an enforcement notice and he was therefore guilty of the offence.

15. He had commented earlier (see page 120 between letters A and B) in respect of the Act of 1960, which was the Act he considered, that:

"… the planning merits of the enforcement notice were unsuitable for decision by a magistrates' court. [The Act] not only transferred the right of appeal to the minister (now the Secretary of State) but excluded challenge on most such grounds in any other proceedings. The present position is that no challenge is possible on any ground which can form the subject-matter of an appeal."

16. That was in the context (see 119 of G to H) that over the years there had been a consistent policy progressively restricting the kind of issues which a person served with an enforcement notice could raise when he prosecuted for failing to comply. The reasons for that policy restriction were, said Lord Hoffman, clear:

"…they relate, first, to the unsuitability of the subject-matter for decision by the criminal court; secondly, to the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest."

17. Those observations, derived as they are from the statutory predecessor of the statute with which I am concerned here, indicated clearly to the magistrates the task which they had to fulfil. I turn, after that introduction, to the case as stated.
18. The case set out the procedural and factual background in respect of which there was no contention, but found as facts at paragraphs 2(k) and (l) as follows:

"(k) The respondent owns and operates a number of vehicles, plant machinery and equipment, all of which are of a specialist nature and of high value. The respondent has facilities for carrying out maintenance, repairs and refurbishment in four garages, three with pits and employs mechanics and fitters for this purpose.

(l) When vehicles, plant machinery and equipment are no longer operational and it is not economic to repair them for use, they are kept on site for some time, so the specialist parts may be reused on the respondent's operational fleet. Once the vehicles etc have been cannibalised the remains are scrapped. The respondent disposes of scrap or waste every six to eight months. The respondents do not buy in scrap from others nor do they supply scrap to third parties."

19. The appellant's contentions, as prosecutor before the court, were simplicity itself. The enforcement notice meant what it said but it had not been complied with.
20. The respondent set out arguments which were represented by the justices as follows, at paragraph 4:

"It was contended by the respondent that:

The acts complained of in the enforcement notices are ancillary to the respondent's main use, so the enforcement notices are still valid, however they cannot apply to ancillary use.

It is stated in the Town and Country Planning Encyclopaedia of Planning by Sweet and Maxwell under the heading 'Construing enforcement notices in criminal proceedings' that at paragraph (3) 'an enforcement notice may not take away the defendant's lawful use rights. Although the Secretary of State on an enforcement appeal may, under s176, vary an enforcement notice so as to protect such rights, there is no obligation upon him to do so in the case where such rights have an independent existence, such as ancillary use rights, or permitted development rights. It follows that the court must, if the matter is put in issue, examine the extent to which an alleged failure to comply with a valid notice consists of the carrying on of an activity which the defendant is otherwise entitled to carry on without further planning permission, and to pursue the notice for not extending to that activity."

It was agreed that the permitted use of the land fell within use Class B2.

21. The findings in paragraph 5 were that the respondent's business was to provide services to local authorities and other businesses in clearing and gritting roads, removing spillages on roads, clearing drains and gullies, et cetera. All those services were provided by the supply of vehicles, plant machinery and equipment with the provision of drivers and operators. The bench found the use of the land at Hillside Works was for the storage, maintenance and repair of the respondent's operational vehicles, plant machinery and equipment. They then said this:

"We are of the opinion that this primary use falls within the classification 'general industrial Class B2 use' for the carrying on an industrial process as defined in the Town and Country Planning (use classes) Order 1987. We have considered the appeal decision of PS Rogers, the Inspector appointed by the Secretary of State for the Local Government given on 28 January 2010. However, from the evidence we have considered we do not find that the use of the land detailed in the enforcement notice served on 15 September 2009 as 'a plant hire use' as found by the Inspector. Neither do we find that this particular piece of land has been used as a 'business for the hire of motor vehicles'. We find the vehicles, plant machinery equipment and respondents operational fleet are specialist items for which parts are not obtainable and not readily available. We find the storage of the non-operational vehicles etc, so their specialist parts may be used to repair the respondent's operational fleet, is an ancillary use of the respondent's primary use of the land outlined in the enforcement notices. We consider the enforcement notices cannot prevent the respondent from carrying on their lawful ancillary use rights. Accordingly, we find the respondent not guilty and dismiss all five allegations."

22. The magistrates posed three questions. The terms of the questions are, in my view, important in understanding what the magistrates thought that they were doing in coming to the decisions they did:

"1) In acquitting the Respondent, were the Justices entitled to go behind the said enforcement notices and the Appeal Decision of Mr B. S. Rogers, Inspector, appointed by the Secretary of State for Communities and Local Government, dated 28 January 2010, and find that storage within the site was lawfully ancillary to the Respondent's primary business? The justices are invited to take into account, inter alia, Section 285 of the Town and Country Planning Act 1990 and the Mansi doctrine as stated in Mansi v Elstree Rural District Council [1964] 16 P7CR 153, wherein, in relation to ancillary use, there must be lawful use of the said land, and the Inspector found there was not a lawful use within the classification 'general industrial use B2', as defined in the Town and Country Planning (Use Classes) Order 1987?

2) Given that the land in question was classified for general industrial use B2, were the activities complained of at the trial and set out in the said Enforcement Notices, within the general industrial use B2 classification, notwithstanding the decision of the Inspector Mr Rogers, dated 28 January 2010?

3) Following the Inspector's Decision, dated 28 January 2010, were the Justices entitled, in law, to conclude that the Respondent's use as set out was lawful?"

23. These observations arise. First, it is plain that the justices thought that they were "going behind" the enforcement notices. It is plain that in using the expression "were the activities complained of at trial and set out in the said enforcement notices…" the justices were indicating, on paper at any rate, that the activities which were set out in the enforcement notices as those which had to stop were matters which they could consider in order to determine whether they were or were not within general industrial use B2. It is plain from the third question that the magistrates thought that they were departing materially from the view and approach which the planning inspector had taken.
24. It is accepted by Mr Owen that justices are not entitled to go behind enforcement notices; that is the effect of the provision of Section 285, at least insofar as that is relevant to this case. There was no dispute here that the council had a power to issue enforcement notices; there is no challenge to their formal validity. If the justices thought they were going behind the enforcement notices it must, it would appear, have been on some basis which they thought justified them taking a view that the enforcement notices should not be applied as they stood to the actions of which they had evidence before them.
25. It is accepted by Mr Owen that insofar as question number 2 detailed activities complained of at trial "and as set out in the said enforcement notices" [emphasis supplied] it was in error if it is suggested that the magistrates were not obliged to take the enforcement notice at face value, though open to proper construction, and it seems to me that he was right so to accept. He does submit, however, that the law is not quite as simple and as straightforward in its application in this case, as Mr Holroyd's arguments for the council would suggest. Thus he develops his argument by reminding me of the decision in Mansi to which the magistrates were referred and to which they referred in their questions.
26. Mansi was a case in which the matter which came before a divisional court in 1964 arose under the Town and Country Planning Act 1962. Counsel have not suggested that there is any material difference in the legislationthen applicable to that with which this hearing is concerned, but it is plain that the appeal which the divisional court considered was an appeal against the notice itself. The court was not considering the question of enforcement action based upon the enforcement notice, once held valid and once any appeal route was excluded. The factual situation was that land occupied by the appellant had been used for many years as a plant nursery for which on part of the land some retail sales of nursery produce and other articles took place. In 1959, however, the use for retail sales intensified until the glass house concerned became primarily a shop. An enforcement notice was served reciting that there had been a change of use from use for agricultural purposes to use for the sale of goods, requiring the appellant to discontinue the latter use. The appeal, first to the Minister which was dismissed but then to the divisional court, was eventually allowed in part. The relevant passage in the judgment of Widgery J, as he was, was this:

"Counsel for the appellant's other point of course was on very much stronger ground. Indeed it seems to me quite unanswerable when he alleges that the notice and the form in which it was served went too far. On Minister's own finding there was a very old established use affecting these premises for the sale of goods by retail. True, that use is a limited and restricted one, but nevertheless the planning Act gave no power to the local planning authority to restrict or remove that use, such as it was. It seems to me that when this matter went before the Minister, the Minister should have recognised that a notice requiring discontinuance of all sale of goods went too far and that he ought to have amended the notice under the powers given to him so as to make it perfectly clear that the notice did not prevent the appellant from using the premises for the sale of goods by retail, provided that such sale was on this scale and in the manner to which it was entitled in 1959 as the Minister himself had found. True, that use was a subsidiary one, but nevertheless it should be protected, and in my judgment this appeal should be allowed to the extent that the decision in question should be sent back to the Minister with a direction that he ought to amend the notice so as to safeguard the appellant's established right as found by the Minister to carry on retail trade in the manner and to the extent to which the Minister has found it was carried on in 1959."

27. That authority, in my view, is of no direct assistance in construing an enforcement notice in respect of which there is no further appeal. It does not say that provisions within an enforcement notice should not be observed, and it does not permit those provisions to be sidestepped.
28. The planning encyclopaedia to which the magistrates were referred under a passage headed "construing enforcement notices in criminal proceedings P179.17" says:

"The practical implications of the Mansi doctrine [as it is called] appear to be:

[…]

(3) an enforcement notice may not take away the defendant's lawful use rights. Although the Secretary of State on an enforcement appeal may, under s.176, vary an enforcement notice so as to protect such rights, there is no obligation upon him to do so in cases where such rights have an independent existence, such as ancillary use rights, or permitted development rights. It follows that the court must, if the matter is put in issue, examine the extent to which an alleged failure to provide the valid notice consists of the carrying on of an activity which the defendant is otherwise entitled to carry on without further planning permission, and to construe the notice if not extending to that activity."

29. It gives an example as where the breach to which notice is directed is the repair of motor vehicles in a commercial basis from a private garage. A requirement to cease using the garage for motor vehicle repairs may be construed as not extending to the maintenance of the defendant's own vehicle; plainly, anyone normally would be entitled to repair their own vehicle in their own garage, not on a commercial scale and that would not be precluded.
30. It is commented that that approach has been confirmed by the Court of Appeal in the case of Duguid v Secretary of State for the Environment of Transport and the Regions [2001] 82 Planning and Compensation Reports 6. In that case the appellant owned part of a disused airfield where he held Sunday markets and car boot sales. He was served with an enforcement notice requiring him, amongst other things, to cease using the land for the purposes of markets and/or car boot sales. The enforcement notice was upheld, but it was not amended so as to safeguard what were permitted use rights under the Town and Country Planning General Community Development Order 1995 which permitted temporary use of the land for the holding of markets for not more than 14 days in total in any calendar year.
31. When the matter came before the Court of Appeal the court dismissed the appeal, again in respect of the terms of the notice, under what is effectively Section 176. It was not necessary to amend expressly an enforcement notice in order to safeguard an occupier's lawful use rights. The purpose of the Act was to define the activity which was to cease - the activity which constituted a breach of the planning permission - and not to encompass any activity which could lawfully be carried on. An occupier is entitled to use an enforcement site for permitted development purposes once he has indicated that he has ceased to use it for and has in fact discontinued the permanent purposes prohibited by the enforcement notice. As Ward LJ observed, paragraph 33:

"The appellant is entitled to use his land for GPDO purposes once he has indicated that he has ceased to use it for and has in fact discontinued the permanent purposes prohibited by the enforcement notice. The enforcement notice is clear and certain and requires no amendment."

32. What is argued by Mr Owen is that the prosecution, who had the burden of proof, did not here prove that the respondents had broken the terms of the enforcement notice properly construed. Properly construed, those notices would not prohibit use which was lawfully ancillary to Class B2 use and that, as a matter of fact, was what the magistrates found had been carried on. Accordingly, he submits that the questions, despite their infelicities, which he accepts to exist, should be answered in each case by "yes".

Discussion

33. As Lord Hoffman observed, the purpose of an enforcement notice is to provide clarity as to what is required in order to comply with planning control. If an enforcement notice is not amended or appealed within the detailed statutory provisions permitted, then it stands in its terms and it cannot be attacked on any basis in respect of which an appeal under Section 174 would run. Any argument, therefore, to the effect that what the respondents were doing on the site at Hillside Works affected by the enforcement notice of 13 August 2007 and on that other part of the site affected by the notice of 2009 could be said not to constitute a breach of planning control by the magistrates must fail, if that is what the enforcement notice itself said. Thus the magistrates were bound to accept the terms of the enforcement notice, in the first case that the change of use had occurred, and the description of the use to which the enforcement notice related. It was open to the respondent to show that it had ceased the use of the land for the storage of scrap vehicles et cetera and it would be open to the respondent to show that if there was a scrap vehicle or unroadworthy vehicle on the land that its presence, and what the respondent did with or to it, was of a different order from the acts which were prohibited by the enforcement notice, such that it was in fact an ancillary use which was lawful, as in the case of the private garage owner and as in the case of the land owner who was permitted on a few occasions to use his land for the temporary market purposes which the GPDO permitted.
34. Upon a construction of the enforcement notice, however, the starting point is the terms of the notice. What the prosecution had to prove was that the land was still being used for storage of scrap vehicles plant and machinery, and whether the respondents had removed all the scrap vehicles plant and machinery, and all unroadworthy vehicles, (subject only to the point as to ancillary use to which the cases refer) was that which the magistrates had to investigate
35. What the magistrates court did, however, was make no findings as to whether or not there had been compliance with the enforcement notice. It made no findings in the terms of Duguid that the respondent had ceased to use the land for the prescribed purpose and had discontinued the permanent purposes prohibited by the enforcement notice but was now using it for the purposes for which he had always been entitled to use it lawfully. It made no finding as to whether the respondent had complied with the clear terms of the enforcement notice. It appears that the justices were influenced by a passage in the Town and Country Planning Encyclopaedia into thinking that they were entitled to make findings for themselves as to whether the matters which had been prohibited by the enforcement notice were matters which could nonetheless lawfully have been carried out within the planning law. It is not for the justices to consider planning issues; that is for other parties in the system provided for by the Town and Country Planning Act: in the first place for the Secretary of State through his inspector, and in the second place for this court if there should be any appeal about it.
36. The justices appear to think in question number 1 that they were "going behind" the enforcement notice. They had no right to do so. If that is what they were doing then the decision was flawed. I accept Mr Owen's submission that the justices were entitled to disregard the reasoning of the inspector as being the opinion of another person in respect of the facts placed before him, but they could not go behind his decision, which was to hold the enforcement notice valid. The form of the questions suggests that here the justices thought that they might not comment directly as to the validity of an enforcement notice but could disregard effectively what it required. It should be clear from the law which I have recited that they could not do so and that that was an error of law.
37. In my view, therefore, the answer to the first question was no.
38. The answer to the second question -- were the activities complained of at the trial and set out in the said enforcement notices within general industrial use B2 classification notwithstanding the decision of the inspector? -- would be unexceptional if it omitted the words "and set out in said enforcement notices", but it does not. The question effectively asks whether what was set out as prohibited by the enforcement notice was actually within general industrial use B2? That was not a question which the magistrates had any right to ask. They could ask whether the respondents had complied with the enforcement notice; they could ask, having complied with it, whether what still might appear to be a breach, in the sense that there were unroadworthy vehicles or tyres on the site, was in truth use ancillary to what, it was common ground, was a general industrial use. But they did not analyse the case in that way, and therefore it follows that the second question also must be answered no.
39. As to the third matter, the justices were entitled to conclude that the respondent's use of the land was lawful in general terms, but it would be a question which would be, in this context, meaningless. Again the problem arises from the first four words of the third question. The magistrates drew a link between their decision and the inspector's and thought, or appeared to think, that their decision was contrary to the decision which the inspector had reached. If so, it was contrary to a decision that the enforcement notice was valid; the justices were not entitled to conclude the opposite.
40. I am not convinced that the third question requires an answer given the answers to the first two questions, but, insofar as it does, I would answer the question no; the premise is wrong.
41. The findings to which this court has come are that the magistrates proceeded on a wrong footing in the law; they had the wrong focus; they did not ask themselves the right factual questions. As I have observed in their determination in the case the magistrates do not appear to have answered whether there was or was not compliance in fact with the enforcement notices, and although there is a heavy hint that the enforcement notices had not been complied with this is, in my view, insufficient in any criminal case to justify this court in exercising its powers to remit the case with a direction to convict.
42. It follows that what I have said thus far is that this appeal must be allowed and I shall hear counsel as to any consequential orders which need to be made.

MR HOLROYD: My Lord, given your decision, and I accept it is quite proper, that this court cannot direct conviction, the matter must, in my submission, be remitted back to the magistrates for them to answer properly the issue of whether, on the face of the enforcement notices, what is not allowed and what is required to be done has in fact been done. Those are the matters the magistrates' court need to address. I accept your Lordship says there is a hint there that these matters have not been addressed and complied with but the magistrates have to answer that question.

MR JUSTICE LANGSTAFF: Well, it's a criminal case and therefore a court has to be satisfied on the appropriate standard that the prosecution has proved the facts. Because the approach appears to have been cockeyed in law they have to address those questions. It would seem, as I have already said, wrong of this court to invite them to convict on the basis of findings which are incomplete and misdirected.

MR HOLROYD: Indeed my Lord. So I … my submission is it should be remitted to the magistrates court for them to address the issues that your Lordship has referred to this morning, namely without planning permission these matters have occurred, it cannot be challenged, and what is required is within three months the various requirements that are set out in both enforcement notices have to be complied with, and if the magistrates find they have not then of course they should convict on these matters.

MR JUSTICE LANGSTAFF: Mr Owen, what do you say?

MR OWEN: My Lord, I agree with respect that the appropriate order would be to remit to the justices for further consideration in the light of your Lordship's judgment. That would suffice in my submission.

MR JUSTICE LANGSTAFF: Yes, I think so. So be it. So it follows that I am going to quash the determination

MR HOLROYD: Yes.

MR JUSTICE LANGSTAFF: So, quash the determination and remit to the magistrates for consideration in the light of the judgment.

MR HOLROYD: My Lord, the question of costs today…

MR JUSTICE LANGSTAFF: Yes.

MR HOLROYD: I don't know whether your Lordship has received a copy of the claimant's schedule of costs.

MR JUSTICE LANGSTAFF: I did. I confess I haven't looked at it. Do you have a spare copy?

MR HOLROYD: I do, my Lord.

MR JUSTICE LANGSTAFF: Mr Owen, what do you say?

MR OWEN: My Lord, there is one other matter I would wish to add to this. I suspect my fees should be subject to VAT, that VAT should be added to that. My instructing solicitors say that that figure of £4,800 is exclusive of VAT and that would add another £960 to the …

MR JUSTICE LANGSTAFF: And is there an appropriate certificate which should accompany that at this claim for VAT?

MR OWEN: There is no certificate I am informed, my Lord

MR JUSTICE LANGSTAFF: In which case I cannot add VAT, can I?

MR OWEN: I think that is probably correct. I think as well because a similar costs schedule from the defendants, if the matter had come to a different conclusion, had added VAT, but perhaps you have a certificate, I have no certificate

MR JUSTICE LANGSTAFF: Mr Holroyd, what do you want to say

MR HOLROYD: My Lord, so far as the detail of the claim is concerned, it is rather difficult for me to say anything other than perhaps the amount of time is perhaps longer than it might have been, but a more substantive point I seek to make is this, and I proceed to ask your Lordship to consider in terms of costs the question of discretion so far as an order my client is concerned in the circumstances where the justices have not addressed the issues in the way in which they should have been addressed. I appreciate of course that we were before the court and my instructing solicitor is taking submissions to the court, but so was the prosecution. Is it right in these circumstances, given that there is no direction for this court (inaudible) to the justices to convict, and there is a decision that requires them to reconsider in a way in which they should have been, is it right and appropriate in those circumstances for my client to bear the cost?

MR JUSTICE LANGSTAFF: Well, I would have perhaps more sympathy with that submission had it … had there been some evidence that those instructing you had proposed to the defendants that this court be invited to consider the case stated and to remit for a rehearing, particularly given the terms of the questions which I (inaudible). But they didn't; that is their entitlement, but it comes at a cost to the claimant, the appellant. So for that reason, I mean in principle, I am against that submission.

MR OWEN: (?) Would your Lordship consider a percentage rather than…

MR JUSTICE LANGSTAFF: Well, it does occur to me that there was no order… I have not been invited to make any order in respect of the costs awarded below. The order of the magistrates has been quashed, but plainly you are entitled to (inaudible) acquitted at the next hearing to say, well, the hearing has effectively gone on not only today and this part of the hearing but before the previous bench, and they did not address the matter properly. That is not your client's fault; and so the appropriate time (inaudible) would be at that stage and you say, look, therefore either we shouldn't have to pay those costs to the bench rehearing the matter, or if you succeed we should get all our costs…

MR OWEN: Yes

MR JUSTICE LANGSTAFF: I don't think it is appropriate to deal with that issue on this appeal for those reasons. So I will award the costs against your client the question now is the amount.

MR OWEN: Well, I have … this is a (inaudible) my Lord in the circumstances I make the one point which I can reasonably make and that is as to quantum of the time, but (inaudible) there is nothing (inaudible) realistically have.

MR JUSTICE LANGSTAFF: Yes, the approach I have to take is first standing back and looking to see whether some looks proportionate or disproportionate, and if it is plainly disproportionate then one looks more carefully and scrupulously at each individual item. That is the correct approach, isn't it?

MR OWEN: I agree.

MR JUSTICE LANGSTAFF: £6,730 on a case stated schedule (inaudible) may be a little bit less, but it is not on the face of it disproportionate, is it?

MR OWEN: I have said what I have to say, my Lord.

MR JUSTICE LANGSTAFF: So I will hear what has to be said as to the hours, there is plainly a challenge on the rates per hour, they are very modest. Mr Holroyd, there is very nearly a week's work, in fact there is exactly a week's work, 40 hours, a 40 hour week on the documents. That is a lot?

MR HOLROYD: My Lord, yes, but that presumably would include right from the outset have been involved what is required of the appellant to get this matter before the court by way of case stated. It is not simply preparing the documents for this particular hearing today; there was a draft case stated produced that would have to be commented on, and in my submission the hours that are put forward are not disproportionate. I do have, my Lord, if your Lordship wished to see this, a detailed breakdown of the hours.

MR JUSTICE LANGSTAFF: Well, perhaps you would pass that over to Mr Own to see if any point arises which he wants to take on that.

MR OWEN: All we can do, my Lord, with this document detailed consideration, is to point (inaudible) 10 March two hours is claimed considering the skeleton (inaudible) case law and amending the skeleton. There is a separate fee for that …

MR JUSTICE LANGSTAFF: Would this assist? At the moment I can see there may be points to be made about the documents. Do you want some time to do so, it is now 1.00pm. I am quite happy to come back at 2.00pm and hear any submissions the parties may wish to make. You may feel that putting your head together with Mr Holroyd in the light of my observations that the hours are a little (inaudible), and if that matter… I am not sure how far (inaudible) incur fees, but whether six hours (inaudible) is actually (inaudible) I don't know but you would … those with local knowledge would know a bit better than I do. (inaudible) I can see the (inaudible). So … On that (inaudible) agree some modest diminution in the total, but shall I retire and let you have five minutes to chat and come back into court and see where we have got to?

MR OWEN: Certainly.