Cases - Dilieto v Ealing London Borough Council
Record details
- Name
- Dilieto v Ealing London Borough Council
- Date
- [1998]
- Citation
- EWHC 389 (Admin)
- Legislation
- Keywords
- Planning control - Town and Country Planning Act 1990
- Summary
-
This case is about defending a prosecution for non-compliance with a breach of condition notice.
Planning permission was granted in 1964 for a warehouse subject to a condition that a yard area 'be maintained clear at all times to the satisfaction of the local planning authority'. In 1994 the council found that the yard was being used for the parking and storage of ice-cream vans. In 1995 a breach of condition notice was served and the appellant was prosecuted. The appellant claimed that the notice was out of time and that the condition was void for uncertainty, but the magistrates held that the validity of the notice could not be challenged in criminal proceedings.
The Divisional Court held that the defendant could challenge a breach of condition notice on the basis that it was out of time, because, under section 171B of the Town and Country Planning Act 1990, 'enforcement action' cannot be taken after the expiry of the time limit. The defendant would have to prove 10 years' use according to the civil standard of proof.
The Court went further and stated that a breach of condition notice could also be challenged on the ground that the relevant condition was so vague and imprecise as to be a nullity. Given that there was no right of appeal against a breach of condition notice, it would need very clear words to exclude a challenge to the lawfulness of the condition. Nevertheless, there is a limit to the scope of challenge in criminal proceedings, and it would normally be inappropriate to raise questions of Wednesbury unreasonableness before magistrates.
(The notice was held to be sufficiently certain.)
Note: if an enforcement notice is out of time, it can only be challenged by way of appeal under ground (d) of section 174(2) (because of the effect of section 285). See Vale of White Horse DC v Treble-Parker.