Ards And North Down Borough Council v Young

Factual and Procedural Background

This opinion arises from a longstanding dispute, spanning nearly 20 years, between the Council and the Appellant concerning the construction of a dwelling house at a specified location. The dispute originated with an enforcement notice issued by the Council's statutory predecessor on 9 January 2004. The Appellant was convicted in 2005 for failing to comply with this notice, with subsequent appeals upholding the conviction. More recently, the Council initiated fresh prosecution proceedings under the Planning Act (NI) 2011. The Appellant and his spouse were convicted by a District Judge in January 2019, and these convictions were appealed to the County Court. The Appellant raised a preliminary issue before the County Court which was resolved in favor of the Council. The Appellant then sought to have a County Court Judge state a case for the Court of Appeal's opinion, but this application was refused. The Appellant subsequently applied to this Court of Appeal for an order compelling the County Court Judge to state a case. This judgment addresses that application.

Legal Issues Presented

1. Whether the Enforcement Notice dated 9 January 2004, consisting only of one page of text without the accompanying map, complies with the requirements of section 140 of the Planning Act (NI) 2011 and is unchallengeable in a court of law.
2. Whether the Appellant was misled by a reference to a map in the Enforcement Notice and the service of a different map alongside the Notice than that originally served.
3. Whether, in light of the above, the Appellant's rights under Article 6, Article 8, and Article 1 of the First Protocol were infringed.
4. Whether the County Court was correct in dismissing the Appellant's challenge to the lawfulness of the Enforcement Notice served on 9 January 2004.

Arguments of the Parties

Appellant's Arguments

• The map served with the Enforcement Notice in January 2004 was a black and white version different from the coloured map later used by the Council.
• The Council deliberately falsified or substituted the map attached to the Enforcement Notice to strengthen its position.
• The Appellant was misled by the reference to a map in the Enforcement Notice and by the service of a different map alongside the Notice.
• The Enforcement Notice and map lodged with the Land Registry were not the versions served on the Appellant.
• The Council's explanations regarding the substitution of maps during prosecutions were irrational and not credible.
• The Appellant challenged the credibility of the affidavit evidence presented by the Council's Principal Planning Officer and alleged professional misconduct by the Council's solicitor and counsel.

Council's Arguments

• The Enforcement Notice served on 9 January 2004 validly complied with statutory requirements and included a map file copy consistent with that served on the Appellant.
• The map attached to the summonses issued in later prosecutions was illustrative only and did not invalidate the original Enforcement Notice or prosecutions.
• The Appellant is not entitled to challenge the validity of the Enforcement Notice in the current proceedings.
• The Appellant and his spouse were aware of the property to which the Enforcement Notice related, the breach alleged, the required remedial steps, and their rights under the Notice.
• The Council rebutted the Appellant's allegations of falsification and substitution of maps.

Table of Precedents Cited

Court's Reasoning and Analysis

The court noted that the preliminary issue determined by the County Court Judge primarily concerned whether the one-page Enforcement Notice complied with statutory requirements without the accompanying map. The Judge refused to state a case on this issue, certifying the application as frivolous or unreasonable. The Court of Appeal found that the Judge's refusal was justified because the Appellant's challenge involved factual disputes rather than points of law. The court emphasized that questions of fact are distinct from legal issues and that the Appellant had not laid the groundwork to show that the Enforcement Notice was invalid as a matter of law. The court also relied on the binding House of Lords authority that the validity of an enforcement notice cannot be challenged as a defence to prosecution. Furthermore, two of the four purported legal questions raised by the Appellant were not properly before the County Court and thus were not considered. The court concluded that the refusal to state a case was appropriate, especially given the ongoing appeals against conviction and the availability of further procedural remedies. The court also expressed concern about the procedural difficulties arising from the Appellant's self-representation and the use of preliminary issue hearings as a shortcut, advocating instead for fact-finding as the better approach.

Holding and Implications

The Court of Appeal DISMISSED the Appellant's application for an order compelling the County Court Judge to state a case for the opinion of the Court of Appeal.

The direct effect of this decision is to uphold the County Court Judge's refusal, maintaining the status quo in the ongoing appeals against conviction. No new precedent was established. The judgment underscores the principle that challenges to the validity of enforcement notices are not permissible as defences in prosecutions for non-compliance and reinforces procedural expectations regarding the proper framing of legal issues and the distinction between fact and law in appellate processes.