Another PCN prosecution
PCN prosecutions are like buses it seems. You wait ages then two come along at once, writes Roderick Morton.
Hot on the heels of our note in January’s NAPE newsletter of a PCN (planning contravention notice) prosecution in Ealing comes another PCN prosecution case, this time in Maidenhead. In Russnak-Johnston vs Reading Magistrates and Royal Borough of Windsor and Maidenhead [2021] EWHC 112 (Admin) the High Court was asked to consider the nature of offences relating to failure to complete PCNs fully and providing false or misleading information.
The claimant operated a livery stables on Green Belt land near Maidenhead and may have lived in a caravan on site. The site had planning permission for a limited number of non-commercial stables. Information received by the council suggested the operation was more extensive than authorised. The council issued two PCNs in 2016 asking for information and documents. Notably, the council asked for copies of any commercial livery agreements and asked questions about residential use. Limited responses were received to both PCNs. The council served an enforcement notice in January 2017. The day before the public inquiry in February 2018, the claimant served a bundle of late evidence (including commercial livery agreements) which caused the council to have to withdraw the notice.
In June 2018, the Council prosecuted the claimant for failing to provide the information requested in the PCNs and for making false statements within the PCN responses.
S171C(2) allows a council to serve a PCN requesting “such information…as may be specified in the notice”. Failure to comply with any requirement of a PCN is an offence under s171D(1) TCPA 1990. Provision of false or misleading particulars in response to a PCN is an offence under s171D(5). Both offences are “summary only” offences, meaning that they can only be prosecuted in the Magistrates Court and the summons must be brought within 6 months of the date of the offence.
The prosecutions were brought more than 6 months after the date of the PCN responses but less than 6 months after the date on which the council became aware that the responses were false or incomplete (ie the day before the public inquiry). The claimant said that the council brought the prosecutions too late. The Magistrates disagreed. They held that the 6 months only started when the council became aware of the falsehoods.
The claimant also said that the livery agreements were documents and that the power to request information under the PCN did not include documents as such, only “information”; as such it could not be an offence to fail to provide documents. The Magistrates disagreed.
The case was referred to the High Court on these issues.
The High Court held that the “information” which could be requested under a PCN included any documents. After a wide-ranging review of planning and analogous UK legislation, including the Carnwath Report and the s171 regime, the court concluded that, since the point of a PCN is to obtain information as to the use of the land at an early stage of an investigation, taking a restrictive view as to the meaning of “information” was not justified.
Turning to the issue of time limits, the High Court concluded that the offence under s171D(1) (ie failure to comply with a requirement of the PCN) was a continuing offence, running from the date on which a response was required until such time as a full response was provided. As the claimant had not complied with the PCN requirement to provide documents until the day before the inquiry, the Council had issued the summons in time.
By contrast, the requirement not to give false or misleading particulars in any response was a “once and for all” requirement. As with other summary offences, it runs strictly from the date of the offence (in this case, the date of the PCN response) and not from the date the council finds out about the falsehood. As such, the council was out of time on those offences.
It is easy to forget the need for speed when it comes to PCN prosecutions. The 6 month time limit is strict. There are other areas of law where primary legislation has extended the 6 month limit until the date the enforcing authority had knowledge of the offence. Not so in planning enforcement.
However, this case is good authority that, if the offence can be framed as a failure to provide information, the fact that it is a continuing offence does give some leeway to prosecute even when apparently out of time.
There remains an interesting question as to whether the provision of false information (strict 6 month limit) could also be framed as a failure to provide the correct information (continuing offence).
The case is also helpful in emphasising the broad nature of the information that can be demanded under the PCN. That said, the information requested must still relate to the suspected contravention and should not amount to a fishing expedition.
Roderick Morton is a partner at Ivy Legal.