Wicks, R v.

Factual and Procedural Background

The Appellant owned a storm-damaged building in The City. After reconstructing portions of the structure, the local planning authority (hereafter “the Authority”) concluded that the works created a new building requiring planning permission. An enforcement notice was served on 13 March 1990 under the Town and Country Planning Act 1990, requiring the Appellant to reduce the height of the walls within one month of 24 April 1990.

The Appellant appealed administratively to the Secretary of State on four statutory grounds; an inspector dismissed the appeal on 10 May 1991. Having failed to comply with the notice, the Appellant was prosecuted under section 179(1) of the 1990 Act. At the Crown Court he sought to defend the charge by alleging that the Authority’s decision to issue the notice was tainted by bias and improper purpose. The trial judge ruled that such a challenge had to be pursued by judicial review, not in the criminal trial. The Appellant thereupon pleaded guilty, was bound over, and obtained certification of three questions of public importance for the Court of Appeal. The Court of Appeal dismissed his appeal; the present judgment is the final determination by the House of Lords.

Legal Issues Presented

1. Whether a defendant charged under section 179(1) of the Town and Country Planning Act 1990 may, as of right in the criminal proceedings, assert that the enforcement notice is invalid because the decision to issue it was ultra vires (e.g. motivated by bias or irrelevant considerations).
2. If such a defence is generally barred, whether any exception exists—particularly where mala fides is alleged—that would allow the challenge to be raised before the criminal court.
3. If the defence is permissible, whether validity is a matter for determination by the judge or by the jury.

Arguments of the Parties

Appellant's Arguments

• The enforcement notice was vitiated by bias and improper motive; therefore no offence could be committed by non-compliance.
• Historical practice (especially in byelaw cases) allows defendants in criminal courts to raise all ultra vires challenges.
• The distinction drawn in Bugg v Director of Public Prosecutions between “substantive” and “procedural” invalidity is unsound and should not limit defences.

Respondent's Arguments

• Under the statutory scheme an enforcement notice is to be treated as valid unless and until quashed on appeal or judicial review; criminal courts should not entertain wider challenges.
• The specialised appeal procedure and judicial review provide the correct fora for allegations of bias, mala fides or other procedural impropriety.
• The policy and time-limits of the 1990 Act would be frustrated if defendants could reopen validity in criminal prosecutions.

Table of Precedents Cited

Court's Reasoning and Analysis

The leading opinions (Judge Nicholls and Judge Hoffmann) approached the matter as one of statutory construction rather than general administrative law.

• Statutory framework: Part VII of the Town and Country Planning Act 1990 establishes an integrated code: (i) formal requirements for issuing enforcement notices; (ii) a broad administrative appeal to the Secretary of State; (iii) limited judicial review. Section 179 criminalises non-compliance only after these mechanisms have run their course.
• Meaning of “enforcement notice” in section 179(1): The term denotes a notice that (a) is formally compliant on its face and (b) has not been set aside. It does not require the prosecution to prove that the underlying decision is immune from every possible public-law attack.
• Policy considerations: Allowing collateral challenges in criminal trials would (i) undermine the specialised appeal route; (ii) impose complex administrative-law questions on magistrates or juries; (iii) risk defeating statutory time-limits (e.g. the four-year limit in section 172(4)); and (iv) weaken the coercive function of daily fines under section 179(5).
• Residual grounds of challenge: Allegations of bias, mala fides or irrelevant considerations fall outside the eight statutory grounds of appeal. They must therefore be pursued, if at all, by prompt judicial review, not by way of defence to a section 179 prosecution.
• Relationship to earlier case-law: The House doubted the universal applicability of the substantive/procedural distinction in Bugg but found it unnecessary to resolve that debate for byelaws. Whatever the position elsewhere, the planning statute’s wording and policy dictated the outcome.

Holding and Implications

APPEAL DISMISSED.

The House of Lords answered the certified questions as follows: (1) a defendant prosecuted under section 179(1) cannot as of right raise ultra vires arguments based on bias or improper purpose; (2) no exception exists for allegations of mala fides; (3) the subsidiary question regarding judge or jury determination does not arise.

Practically, defendants who wish to contest an enforcement notice on grounds other than those listed in section 174(2) must initiate timely judicial review proceedings. The judgment reinforces the self-contained nature of the planning enforcement code and limits collateral attacks within criminal trials, but leaves open the broader debate about challenges to other forms of subordinate legislation.