Dundalk Town Council (complainant/respondent) v Bill Lawlor (defendant/appellant).
Planning and development - Case stated - Enforcement notice - Summons for failure to comply - Validity of enforcement notice - Meaning of "specified period" - Meaning of the requirement 'to return site to its previous condition1 - The Planning and Development Act 2000 (No.30), s.154
The High Court (before Mr Justice O'Neill) judgment delivered March 18th, 2005.
Failure to comply with an enforcement notice is a criminal offence. It is well settled that criminal offences must be defined with clarity and precision so that a person can know whether his conduct is or is not a commission of an offence. This means that in construing any notice issued pursuant to section 154, a strict construction is required.
Where there is a requirement that steps be taken "within a specified period", any period in time necessarily requires for its definition or ascertainment a beginning and an end. A fortiori a "specified" period must be capable of having its beginning and end clearly ascertained.
As failure to comply with an enforcement notice is an offence, an enforcement notice must with clarity and precision set out the steps that are required to be taken in the specified period. The inclusion of the concept envisaged by the phrase "insofar as is practicable" makes it all the more imperative that the precise steps required by the council be set out with precision and clarity because, in the absence of that being done, it becomes difficult to the point of impossible for a person served with the notice to know how far they must go in order to ensure compliance with an enforcement notice and, hence, the avoidance of criminal liability.
The High Court so held in answering both questions in the negative.
John H. Connolly BL for the complainant/respondent; John R. McBratney SC and Micheál D. O'Connell BL for the defendant/appellant.
Mr Justice O'Neill commenced his judgment by stating that the matter before him was a case stated by Judge Flann Brennan, a judge of the District Court assigned to the District Court area of Dundalk, District No. 6, in which he posed two questions for the opinion of the High Court:
1: Whether he was correct in law in determining that the period of time set forth on the said Enforcement Notice satisfied the requirement of section 154 of the Planning and Development Act 2000 and
2: Whether he was correct in law in determining that the requirement in the said Enforcement Notice to "return site to its previous condition" satisfied the requirement of section 154 of the Planning and Development Act 2000.
Mr Justice O'Neill then outlined the background to the matter. By notice entitled "Enforcement Notice pursuant to section 154 of the Planning and Development Act 2000" and dated October 21st, 2003, the complainant/respondent, Dundalk Town Council (hereafter the council), required of the defendant /appellant (hereafter Mr Lawlor) that certain things be done at a property known as Soldiers Point, Lower Point Road, Dundalk, namely to cease unauthorised site development works and cease all excavation site clearance works and return site to its previous condition within a period of immediately commencing on the date of the service of the notice. The notice was served on Mr Lawlor. By letter dated October 26th, 2003, addressed to the Planning Officer of the council, Mr Lawlor requested clarification of the contents of the enforcement notice stating he was not aware of them having carried out any development whatsoever in contravention of the 2000 Act. Mr Justice O'Neill stated that there did not appear to have been a response to that letter. Instead the council caused a summons to be issued against Mr Lawlor in which the complaint was that he had knowingly failed to comply with the requirements of the notice. The complaint came on for hearing before the learned District Court judge at a sitting of the District Court in Dundalk on March 10th, 2004.
Mr Justice O'Neill referred to the agreed note of the evidence heard in the District Court. That note recorded that Mr Fergus Smyth, on behalf of the complainant, gave evidence as to his inspection of the site the subject matter of the notice on October 24th, 2003. He testified that he was familiar with the site and that it was an old shipyard, which was since overgrown and was a habitat for birds. He further testified that the works referred to in the enforcement notice consisted of the excavation and stripping of top soil and storing of it on site as well as the removal of some debris, which was stacked in different parts of the site concerned. He agreed that the photographs attached to his report accurately showed some of the works concerned. He also agreed that no works had been carried out after the date of service of the notice, confirming that the work had ceased on the site as all the sod had been stripped and that the work had been carried out over a weekend. He confirmed that the notice was served on October 21st, 2003. Evidence was given as to the due service of the enforcement notice and Mr Smyth was cross-examined on aspects of the notice and a letter sent to the complainant dated October 26th, 2003.
Thereafter counsel for Mr Lawlor applied to the learned District Court judge to dismiss the summons submitting that the enforcement notice was invalid and of no effect. Counsel submitted that the time stated in the notice "within a period of immediately commencing on the date of service" did not satisfy the requirement of section 154 of the 2000 Act. That section required that the notice should state a "specified period" within which to take the steps specified in the enforcement notice. Counsel further submitted that the requirement stated in the notice to "return site to its previous condition" did not satisfy the statutory requirement under section 154 of the 2000 Act. Section 154 required that the enforcement notice "request such steps as may be specified in the notice to be taken within a specified period, including where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, insofar as is practicable, the restoration of the land to its condition prior to the commencement of the development" The matter was adjourned to May 5th, 2004, for further submissions and thereafter to July 7th, 2004, when the learned judge refused to dismiss the summons against Mr Lawlor. Arising there from was the case stated.
Mr Justice O'Neill stated he would consider the time issue first and then the issue as to whether the notice adequately specified the steps to be taken in compliance with section 154. Before dealing with these he set out the relevant portions of section 154 as follows:
"154 - (5) an enforcement notice shall refer to the land concerned and shall-
(a) (i) in respect of a development where no permission has been granted, require that development to cease or not to commence, as appropriate, or
(ii) in respect of a development for which permission has been granted under Part III, require that the development will proceed in conformity with the permission, or with any condition to which the permission is subject,
(b) require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development.
(8) Any person on whom an enforcement notice is served under subsection (1) who fails to comply with the requirements of the notice shall be guilty of an offence.
S.156 - 1: A person who is guilty of an offence under sections 58(4), 63.151, 154,205,230(3), 239 and 247 shall be liable on conviction on indictment, to a fine not exceeding £10,000, or to imprisonment for a term not exceeding 2 years, or to both or
(c) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both."
Mr Justice O'Neill said that the questions posed in the case stated related to section 154(5)(b) as set out above. The question which arose in relation to the time specified was whether "within a period of immediately commencing on the date of service of this notice" was capable of being construed as a "specified period" as stated in section 154(5)(b). Mr Justice O'Neill stated that the first thing to be borne in mind was that a failure to comply with an enforcement notice is a criminal offence. It is well settled that criminal offences must be defined with clarity and precision so that a person can know whether his conduct is or is not a commission of an offence. Mr Justice O'Neill referred to King v Attorney General IR 233. What that means is that in construing section 154(5)(b) and also in construing any notice issued pursuant to section 154, a strict construction is required i.e. the subsection in question and any enforcement notice must be construed in accordance with the natural and ordinary meaning of the words used and there is no scope for any kind of purposive or teleological approach. Subsection (5)(b) requires that steps "be taken within a specified period". Mr Justice O'Neill said any period in time necessarily requires for its definition or ascertainment a beginning and an end, a fortiori a "specified" period must be capable of having its beginning and end clearly ascertained. In his view the use of the word "immediately" provided a beginning to a period but did not indicate when the period ended. In other words it did not, in fact, create a period, it simply defined a point at which or from which something must be done. However, it entirely failed to describe or limit a time within which the step was to be accomplished. Therefore Mr Justice O'Neill came to the conclusion that the enforcement notice failed to comply with the terms of sub- section 5(b) which requires that there be a "specified period".
Mr Justice O'Neill went on to state that even if that were not required by the subsection the notice was lacking in sufficient precision, as to the time permitted for the required steps to be taken, to be the proper matter of a criminal offence. Mr Justice O'Neill said that a person served with a notice, with that time provision in it, could not know, even though the steps had been taken, that there had been compliance with the notice in terms of time, and hence whether he or she was free of the notice. Mr Justice O'Neill was satisfied, therefore, that the notice was for the above reasons, invalid and he answered the first question posed in the negative.
Mr Justice O'Neill then addressed the second question which he stated was whether or not the particulars set out in the third schedule of the notice and in particular the part which reads "return site to its previous condition" was adequate compliance with the requirements of section 154(5)(b). Mr Justice O'Neill said that as failure to comply with an enforcement notice is an offence an enforcement notice issued pursuant to sub-section (5)(b) must with clarity and precision set out the steps that are required to be taken in the specified period. The steps can include the matters as set out, such as the removal, demolition or alteration of any structure or the restoration of land to its condition prior to the commencement of the development. Mr Justice O'Neill stated that it is not sufficient, however, for the purposes of the notice merely to recite the phrases used in sub- section (5)(b), such as demolition or alteration of any structure or as in this case "return site to its previous condition" where the use of that kind of phraseology borrowed from the subsection, fails to clearly and precisely indicate to the person served with the notice what exactly has to be done in order to comply with the notice.
Mr Justice O'Neill then addressed the submissions made on behalf of the council that the requirement as set out in any enforcement notice is not an absolute requirement, but merely obliges the person served to go as far as practicable in restoring the site to its pre-development condition. Mr Justice O'Neill accepted that an enforcement notice has to be read in conjunction with sub- section (5)(b) and hence the limitation implied in the phrase "as far as practicable" would be imported into every notice even though not expressly stated. In Mr Justice O'Neill's view the inclusion of the concept envisaged by the phrase "insofar as is practicable" makes it all the more imperative that the precise steps required by the council be set out with precision and clarity because, in the absence of that being done, it becomes difficult to the point of impossible for a person served with the notice to know how far they must go in order to ensure compliance with an enforcement notice and hence the avoidance of criminal liability. Mr Justice O'Neill stated that if the steps required are not set out with precision and clarity a person served with a notice may find themselves having to guess or speculate as to what they must do to achieve compliance and he stated that would appear to be precisely the position in the instant case. Prior to the carrying out of the development there was a considerable amount of debris strewn about the site. Mr Justice O'Neill posed the question: does the notice require that the debris be brought back on site and placed where it was before the development or is that not required? The notice did not provide any answer to that obvious question. Also as the unauthorised development complained of was the removal of top soil and the stripping off of sod, did the notice require that top soil be restored, and that the sod be restored or merely that the top soil be reseeded? Again, the notice did not specify which of these alternate steps was required for there to be compliance with the notice.
Mr Justice O'Neill was satisfied that the notice did not set out with sufficient clarity or precision the steps that were required, having regard to the fact that failure to comply with the notice is a criminal offence. Mr Justice O'Neill held that the mere recitation of the phraseology used to describe steps in sub-section (5)(b) of section 154 was insufficient, in a notice such as this which purported to ground criminal liability. Mr Justice O'Neill came to the view that on this ground also the enforcement notice was invalid.
In conclusion, Mr Justice O'Neill therefore answered no to the two questions raised in the case stated.
Solicitors: James McCourt & Son. (Dundalk) for the complainant/respondent; Sean T. O'Reilly & Co. (Dundalk) for the defendant/appellant.
Joan Kelly, barrister