Woking Borough Council, R (on the application of) v Keenan [2005] EWHC 979 (Admin)

Case No CO/5389/2004[2005] EWHC 979 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 6 May 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF WOKING BOROUGH COUNCILClaimant-v-
Between
PATRICK JAMES KEENANDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS S NARTEY (SOLICITOR ADVOCATE)(instructed by Woking Borough Council) appeared for CLAIMANTThe DEFENDANT appeared in person for in person
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an appeal by way of case stated from a decision of the North West Surrey Magistrates' Court sitting at Woking on 13th August 2004. The magistrates dismissed an information preferred by the appellant against the respondent that he on 23rd September 2003 failed to comply with a stop notice dated 13th September 2003 and served by the appellant. The stop notice required him, as the owner of land known as "Field 0475, land NNW Blanket Mill Farm, Goose Rye Road, Worplesdon, Guildford, Surrey", to:
"Cease the unauthorised operational development on the land namely the construction of a hardcore track, contrary to s.187(1) Town and Country Planning Act 1990."
[2]So far as relevant, section 187 provides:
"(1) If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence. (1B) References in this section to contravening a stop notice include causing or permitting its contravention."
[3]In paragraph 2 of the case stated the magistrates found the following facts:(i) The respondent is the owner of land known as Field 0475, land NNW of Blanket Mill Farm, Goose Rye Road, Worplesdon, Guildford.(ii) The respondent was building a hardcore track across his land. This came to the attention of the appellant Council in August 2003.(iii) The appellant Council through its officer, Mr Travis, served an Enforcement Notice on the respondent on 12th September 2003. The Notice was effective from 16th October 2003. An appeal was subsequently lodged against this Notice.(iv) The appellant Council through its officer, Mr Travis, served a Stop Notice dated 16th September 2003 on the respondent by leaving the Notice at his home with an adult.(v) The Stop Notice provided that it take effect on 22nd September 2003.(vi) Following receipt of the Stop Notice and before it took effect, the respondent continued work completing it in the evening of 20th September 2003.(vii) On 23rd September 2003, Mr Travis, a Planning Enforcement Officer, visited the site in the morning. He did not see the respondent. He took a number of photographs from a concealed position which showed static vehicles outside the area covered by the Stop Notice. He also took a photograph showing a receding view of a vehicle leaving the site. He saw three men who drove off site in various vehicles.(viii) On the morning of 23rd September 2003, the respondent was employed as mechanic to Mr R.Marsh, Bursar at Epsom College, the work being carried out at Epsom College.(ix) On 23rd September 2003 vehicles were removed from the site. They did not undertake construction work relating to the track on that date.[4]The magistrates summarised the evidence given before them as follows: a) Mr Travis, Planning Enforcement Officer, Borough of Woking, said that he became aware of the construction of a track by the respondent on 12th August 2003. This did not have the necessary planning permission. After discussion with the respondent he served an Enforcement Notice on 12th September 2003 and a Stop Notice on 16th September 2003. The Stop Notice took effect from 22nd September 2003. He visited the site on 23rd September 2003. Three men were present, who, on seeing him, got into vehicles, including a transport van, and drove away. A number of vehicles were present, which he photographed. He stated that he saw work in progress which took the form of levelling off. He had taken photographs which were exhibited. He accepted that photographs showed static vehicles off the area covered by the Stop Notice, and one leaving the site. He agreed that the photographs did not show work taking place and no photograph had been taken to show this. b) Mrs Christine Boroman, a nearby resident who knew the site and was concerned about the development, said on 23rd September 2003 she had visited the site and watched work being carried out and that the work was tidying up. She had been at the site early in the morning and had seen Mr Keenan working with the JCB vehicle on the site. She saw no transit van. c) Mr Robin Boroman, a nearby resident and husband of Mrs Christine Boroman, had said that he had started work on 23rd September on his extension at 8.00 am. From his scaffolding he could see work going on in the field. He said that he went to see what was happening and saw the respondent working on the site. d) Patrick James Keenan said that on 23rd September 2003 he had to go to Epsom College to see a client. He got up early and went direct to Epsom. This was part of his work as a mobile mechanic. He serviced the Director of Finance's motor vehicle which was at the college. He said no-one had authority to work on the land. He had been served with a Stop Notice and had complied with it. It became effective on 22nd September. Work had continued after service of the Stop Notice before it became effective. The track was finished on 20th September 2003 in the evening. e) Mr Robert Marsh said that he was the Director of Finance at Epsom College. He had his motorcycle serviced by the respondent. His diary showed a service at the college on 23rd September. The respondent normally arrived at between 9.00 am-9.30 am and work would be carried out after which payment would be made on return of the keys. His diary clearly showed an appointment on that date. He had never known the respondent cancel an appointment. f) Karen Keenan had attended the site to feed chickens early in the morning before going on to work at school. Saw no work in operation. The previous Saturday she had taken a fish supper down to the track between 5.00 pm-6.00 pm as work was still going on until early evening to finish the job.[5]The magistrates then set out the respective contentions of the parties, the appellant contending that work took place on 23rd September 2003 by the respondent, and he was causing or permitting others to work on the land in contravention of the stop notice; the respondent contending that no work took place on 23rd September 2003. Vehicles were removed from the site on that day. Work had been completed on 20th September 2003.[6]The magistrates set out their own conclusions in paragraph 5 of the case stated:
"We were of the opinion that we could not rely on the evidence of Mr & Mrs Boroman. They were concerned about the development and had been showing interest over a period of time. Their clear insistence that the respondent was present was in direct contradiction with the respondent's evidence of working at Epsom. We regarded Mr Marsh as a very credible witness and could not be satisfied of the recollection of the date in question by Mr & Mrs Boroman. "
We also took into account that Mr Travis, although clear in his own view that he had seen work in progress, had confined himself to taking photographs of static vehicles and a vehicle leaving the site. He made no effort to speak to anyone present. "We also had evidence from the respondent that no-one had authority to work without his authority and none had been given. The work had been finished in the evening of 20th September 2003. This was corroborated by the respondent's wife. We could not be satisfied to the criminal standard that the work had been carried out on the 23rd September. Accordingly we dismissed the information."[7]The magistrates then posed two questions for the opinion of this court:
"i) whether we were entitled, on the evidence before us, to come to the conclusions that we could not be satisfied beyond reasonable doubt that an offence under s.187(1) Town & Country Planning Act 1990 had been committed; ii) whether, in informing the parties at the time of dismissing the information that, given the conflicting evidence before us which we recited, we preferred the defence version of events and that we were unable to be certain beyond reasonable doubt that unauthorised works were being carried out at the time in question, and failed to give adequate reasons for our decision."
[8]In view of the provisions of subsections (1) and (1B) of section 187, the magistrates had to consider whether the stop notice had been contravened on 23rd September because either(a) the defendant was himself constructing the hardcore track on that day, or(b) he was causing or permitting other persons to do so.[9]Dealing with the first of those issues, Mr Travis did not see the respondent when he visited the site. The appellant relied on the evidence of Mr and Mrs Boroman. The appellant says that the magistrates' summary of Mr Marsh's evidence was not accurate. The clerk's notes of the proceedings show that Mr Marsh said that he had no independent recollection of the day, that he did not bring his diary itself, but he did bring a letter in which he said that the word "bike" was written in his diary for 23rd September. The appellant submitted that the magistrates erred in failing to take into account these flaws in Mr Marsh's evidence.[10]I remind myself that this is an appeal by way of case stated, not a rehearing of the appeal on the merits. It is certainly unfortunate that, by reference to the clerk's notes of the proceedings, Mr Marsh's evidence appears to have been inaccurately summarised in the case stated. However, having heard the respondent, Mr Marsh and Mr and Mrs Boroman, the magistrates were entitled to believe the respondent's version of events. That is to say, he was not there on 23rd September after he had got up early and gone to work on Mr Marsh's motorcycle at Epsom.[11]It follows that when one turns to consider the second issue, once Mr and Mrs Boroman's evidence is rejected as unreliable on the question of dates, and the respondent's evidence is accepted, the only person who was able to give any evidence as to what happened on 23rd September was Mr Travis. By comparison with Mr and Mrs Boroman, where the magistrates said that they "could not be satisfied of the recollection of the date in question by Mr and Mrs Boroman", the magistrates found as a fact that Mr Travis visited the site on the morning of 23rd September 2003. (See paragraph 2(vii) of the case stated above.) Since there is no suggestion that Mr Travis might have been mistaken as to the date of his visit, his evidence was the only evidence as to what did or did not happen on the site after the respondent had left for Epsom.[12]Again, the appellant criticises the magistrates' summary of Mr Travis' evidence and says that it is incomplete by reference to the clerk's notes. If one looks at those notes, Mr Travis is recorded as having said that he could see a JCB on the site; also a red transit van and a small mini skip carrier. He referred to three men being on the site, and said that the JCB drove south and picked up some hardcore from a pile on the Guildford side of the boundary. It then drove up the track emptied and levelled off before driving back up the track towards Mr Travis. The three men then looked in his direction and the mini skip and the transit drove off the site.[13]Again, it is unfortunate that the magistrates did not record Mr Travis's evidence in more detail, but they are simply attempting to summarise the evidence in the case stated, and the case stated says that Mr Travis "stated that he saw work in progress which took the form of levelling off". The case also refers to his seeing three men getting into vehicles and then driving off.[14]The magistrates found as a fact in paragraph 2(ix) that vehicles were removed from the site on 23rd September, but the magistrates found that "they did not undertake construction work relating to the track on that date". The question therefore arises as to how the magistrates were able to reach that conclusion in the light of the only evidence as to what did occur on 23rd September 2003, namely that there had been work in progress which took the form of levelling off.[15]There is no suggestion in the case stated that the magistrates concluded that Mr Travis was being dishonest in giving that evidence. There remains therefore the possibility of him having made a mistake. But by comparison with the ease with which a witness may make a mistake as to such matters as the dates when events occurred or the identity of people who carried out certain actions, it is difficult to see how Mr Travis could have been mistaken as to whether or not work consisting of levelling off had taken place. Either he saw the JCB levelling off or he did not. It was not as though his evidence had been limited to seeing vehicles driving off the site, which might have been ambiguous because the vehicles might or might not have been engaged on work on the hardcore track. He had said in terms, as recorded in the case stated, that he saw levelling off taking place, and that process is described in somewhat more detail in the clerk's notes.[16]Why then did the magistrates reject, if they did reject, Mr Travis' evidence? The only explanation would appear to be in the following passage:
"We also took into account that Mr Travis, although clear in his own view that he had seen work in progress, had confined himself to taking photographs of static vehicles and a vehicle leaving the site. He made no effort to speak to anyone present."
[17]The fact that Mr Travis did not speak to anyone present and did not take photographs of the work in progress does not gainsay what he saw with his own eyes: levelling taking place, i.e. work in progress.[18]I accept that the magistrates were not bound to accept Mr Travis' evidence. They could have concluded that he was either lying or mistaken about seeing the levelling off, but the magistrates do not seem to have been able to bring themselves to reach such a conclusion. Rather, the paragraph set out above skirts around the issue. It is clear that the magistrates could not bring themselves to reject Mr Travis' evidence. Their comments amount to no more than a suggestion that he might have given more evidence, viz taking photographs of the works in progress and/or speaking to someone about them.[19]Clearly the conclusion that no work was taking place on 23rd September would be a perverse conclusion unless the evidence of Mr Travis was to be rejected. But the magistrates could not bring themselves to say explicitly that Mr Travis had been giving untruthful or mistaken evidence about what he saw taking place on the site.[20]In Northumberland County Council v PR Manufacturing Limited [2004] EWHC 112 (Admin), a decision of Beatson J on 30th January 2004, the extent of the magistrates' obligation to give reasons is considered in paragraph 16 of the judgment. Beatson J said in part:
"In the context of the present case, where a case is stated by Justices, the reasons for the decision will be found in the case stated. In general terms, what is required is for the deciding court to demonstrate that it has identified the main contentious issues and to show how it has resolved them. What is required of reasons is that they enable the parties to understand why a decision has been reached."
[21]If one reads this case stated as a whole, it is simply not possible to understand why the magistrates were able reach the conclusion that no work had taken place on 23rd September in the face of the evidence from Mr Travis, who was the only witness who was able to give evidence about what had occurred at the relevant time on that day. Did they disbelieve Mr Travis? Did they consider that he was mistaken? And, if so, on what basis?[22]As I have said, it is relatively easy to be mistaken as to someone's identity or as to whether an event took place on a particular date some time ago, but it is difficult to see how someone can be mistaken as to whether or not a JCB is engaged in levelling activities or whether vehicles are simply being driven off the site. The mere fact that no photographs were taken of the levelling activity and no-one was spoken to is simply no answer to what Mr Travis said he saw with his own eyes.[23]Because the magistrates concluded that no work had taken place, it followed that they did not then have to grapple with issue (b): had those works in contravention of the stop notice been caused or permitted by the respondent? That would be a question of fact for the magistrates to resolve in the light of all of the evidence.[24]The respondent told the magistrates in his evidence that he had not authorised the work and, as far as he was concerned, it had been completed on 20th September. He repeated that point in his submissions before me today. On the other hand, if Mr Travis' evidence was not disbelieved, he had seen three men who were engaged in levelling off the track using a JCB. On seeing him they drove off. Were they working there on their own initiative? Were they there because the respondent had asked them to construct the hardcore track? Those were questions of fact for the magistrates to resolve. But the magistrates did not begin to consider those matters because they concluded, upon an inadequately reasoned basis, that no work at all had taken place on 23rd September.[25]It may well be that the magistrates failed to grapple with the second limb of section 187 contained in subsection (1B) because they concentrated unduly on the first limb: was the defendant carrying out works himself? The magistrates say, in the second question posed for the opinion of the court, given the conflicting evidence before us which we recited, we preferred "the defence version of events".[26]The defence version of events was certainly capable of answering the first issue: was the defendant himself engaged on construction activities? However, once it was accepted, then, on the defence version of events, the only person who could give relevant evidence about what occurred on 23rd September, after the respondent left for Epsom, was Mr Travis. For the reasons set out above, the magistrates' reasons for rejecting Mr Travis' evidence -- since it appears they must have done so -- are far from clear.[27]For these reasons, I would answer the questions posed for the opinion of the court in this way. Firstly, the conclusion that work had not taken place on the 23rd was perverse unless the magistrates rejected Mr Travis' evidence. Secondly, merely accepting "the defence version of events" did not provide an adequate reason for rejecting Mr Travis' evidence, for the reasons set out above. It follows that the magistrates failed to give adequate reasons for their decision, and their decision must be quashed and the matter remitted for reconsideration by a differently constituted bench.[28]MS NARTEY: I have not seen sight of the respondent's skeleton argument. I was wondering if I could ask if he could forward a copy to me.

MR JUSTICE SULLIVAN: You have not?

[30]MS NARTEY: No, I have not seen sight of it at all.[31]MR JUSTICE SULLIVAN: Since I have quashed the decision, in a sense it is more of academic interest, but I could always make my copy available. I have not referred to it; not out of any discourtesy to Mr Keenan, but it was rather prepared on the basis that this was going to be an appeal on the merits, which it has not been.[32]MR KEENAN: Does this mean that the case is going to come back to a fresh hearing and no evidence heard so far will have any bearing on that hearing?

MR JUSTICE SULLIVAN: It goes back to a fresh hearing, yes.

[34]MR KEENAN: And no evidence that has been used up until now will be used again or can be used again?

MR JUSTICE SULLIVAN: I am sorry?

[36]MR KEENAN: I presume it is irrelevant whether Ms Nartey has seen my skeleton argument today or not. It will be a completely fresh hearing and I would rather keep all my evidence close to my chest until I see what they come up with at the next hearing.[37]MR JUSTICE SULLIVAN: Yes. The problem is that in fact you should really have served your skeleton argument on the other side. I had not realised you had not done so. I simply did not know that Ms Nartey had not seen the skeleton argument. It should have been served. It is a public document, any skeleton argument, just as the Council's skeleton argument, I assume, was served on you.[38]MR KEENAN: Yes, and I followed the etiquette to a tee. I sent them to the court office here and sent them a copy. If they have not received it --

MR JUSTICE SULLIVAN: Sorry, you did send it to them?

[40]MR KEENAN: I am sure I followed the etiquette to a tee.[41]MS NARTEY: I just spoke to Mr Keenan before we came in. He actually said he did not know he had to send it. So I do not know why he is saying now that he has sent it.[42]MR JUSTICE SULLIVAN: Mr Keenan, the answer is that the Council should have been provided with a copy of your skeleton argument, and I regret that I did not appreciate that that had not been done. I accept that -- it is no disrespect to you -- much of the argument in it was in fact off the point from the point of view of an appeal by way of case stated. But I think the answer is yes, that ought to be -- do we have a copy on the court file of the defendant's skeleton argument? It is called "skeletal argument". Yes? I intend to give a copy now to the Council, Mr Keenan. I appreciate you want to keep your powder dry, but I do not think you can keep it quite that dry.[43]MR KEENAN: Does my Lord accept that Mr Keenan was not on the site that morning and therefore Mr Marsh will not be called in evidence in the future?[44]MR JUSTICE SULLIVAN: It is not for me to say what I accept. It is, as it were, for the magistrates to find the facts. The matter has been quashed. It would go back for a rehearing. In the sense everything is up for grabs. But one bench of magistrates having accepted that you were not there, and having preferred Mr Marsh's evidence and so forth, obviously it will be a matter for the Council as prosecuting authority to decide whether or not they want to pursue that argument or whether they are simply going to be pursuing the argument that you were not there, Mr Travis was, he says he saw what he saw, and then deal with the causing or permitting. I think that is a matter for the Council to decide, and if they come back a second time and reargue the point about whether you were there, you will always be able to point to this judgment because, although the decision is quashed, I did not allow the Council's appeal on the basis that the first bench of magistrates were not entitled to find what they did about your version of events of what you did on that morning.[45]MR KEENAN: Okay, my Lord.[46]MR JUSTICE SULLIVAN: I think it will be a matter for the Council to consider because my decision will be a matter of public record as well. That is the position as far as I can explain it to you. Perhaps you would be well advised to consider taking legal advice, particularly on this causing or permitting issue. But that is a matter for you to decide. Anything else? Thank you.

Cited in 1 later judgment