Case No: CO 3331/98
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CROWN OFFICE LIST

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 13th April 2000
B e f o r e :
THE HON MR JUSTICE HOOPER

	THE QUEEN		
	- v -		
	EPPING FOREST DISTRICT COUNCIL
ex parte
 MARTIN ARNOLD PHILCOX	Respondent

Applicant	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
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Mr Peter Harrison (Instructed by the Legal Department. Epping District Council for the Respondent)
Mr Robin Howard (Instructed by Duffields, Chelmsford CM1 1EX for the Applicant)
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JUDGMENT
(Draft for approval)
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 Mr Justice Hooper:
1.	This is an application for judicial review of the respondent’s decision to grant a certificate of lawful established use (hereafter referred to as a “CLEU”).  The applicant submits that the respondent acted unlaw fully in granting a CLEU b ecause the person who made the successful application had been committing criminal offences under section 33(1)(a), (b) and (c) of the Environmental Protection Act 1990.  The applicant submits that a person cannot obtain any legal right through the commission of a criminal offence.  The respondent accepts that these proceedings should be conducted on the basis that such criminal offences had been committed.  The respondent submits that they acted lawfully in granting the CLEU without considering whether or not the criminal offences under the Environmental Protection Act 1990 had been committed by the person applying for the CLEU. 
2.	By virtue of section 191 of the Town and Country Planning Act 1990 (as substituted by the Planning Compensation Act 1991 section 10(1)) a person wishing to ascertain whether an existing use is lawful may make an application to the local planning authority.  A similar application may be made in other circumstances.  Thus, an application may be made to determine whether operations carried out on the land are lawful or whether a failure to comply with the terms of a planning permission is now lawful.  Section 191(2) provides:
“For the purposes of this Act uses and operations are lawful at any time if-
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
		(b) they do not constitute a contravention of any of the requirements of any 		 enforcement notice then in force.”
If the local authority grants the certificate then the lawfulness of the use or the operations shall be conclusively presumed (section 191(6)).  By virtue of section 191(7) a certificate “shall also have effect ... as if it were a grant of planning permission” for the purposes of various enactments including section 36(2)(a) of the Environment Protection Act 1990.  That sub-section provides that an application for a waste management licence may not be granted if there is no planning permission in force in relation to the relevant use of the land. 
3.	To determine whether under (a) “the time for enforcement action has expired” one turns to section 171(B) of the Town and Country Planning Act 1990.  Sub-sections (1) and (2) of that section set out a period of 4 years in respect of certain breaches of planning control.  In respect of any others, sub-section (3) provides that “no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach.”
4.	Mr Howard on behalf of the applicant submits that section 191(2) must be interpreted in the light of the principle “that a man [cannot] rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully” (see Shah v Barnet London BC [1983] 2 A.C. 309 343-4 per Lord Scarman).  He cites what has been described as the “absolute rule” “that the Courts will not recognise a benefit accruing to a criminal from his crime” (Beresford v. Royal Insurance [1938] A.C. 586, at 598 per Lord Atkin). He refers to the words of Forbes J in R v Secretary of State for the Home Department ex parte Puttick [1981] 1Q.B. 767, at 776: “no Court will allow itself to be used to enforce rights the entitlement to which has been illegally obtained”. Mr Howard did not seek to argue that the commission of a civil wrong would prevent the grant of a CLEU.  Mr Howard referred to cases which show how the legislation which preceded the new section 191 was interpreted in a manner consistent with the principle. 
5.	Mr Harrison for the respondent accepts the general principle but submits that section 191(2) is so worded that this general principle has no application.  He submits that the Act contains “an elaborate code” dealing with planning matters and that there is no room for the application of the principle.  He also tells me that the interpretation for which the respondent is arguing is one that is accepted by both local authorities and as far as the Respondents are aware by the Secretary of State for the Environment.
6.	On the face of it, the wording of section 191(2) seems quite clear.  “Uses and operations are lawful” if the two conditions in sub-paragraphs (a) and (b) are satisfied. To make quite sure  that the provision was to be interpreted in the manner sought by the applicant, it would probably be necessary to insert a new sub-paragraph (c) which would state that, notwithstanding (a) and (b), uses and operations are not lawful if they constituted criminal offences. Mr Howard submits, however, that it is wrong to approach the matter in that way. It is not necessary, he says, to show how the legislation could be drafted to achieve a result in conformity with the general principle. He cites R. v. Chief National Insurance Commisioner ex parte Connor [1981] 1 Q.B. 758 and Puttick [1981] 1 Q.B. 767. In the former case a provision entitling “a woman who has been widowed” to a widow’s allowance was construed so as to exclude a woman who had unlawfully killed her husband. The Court held that public policy prevented her from receiving the allowance. Lord Lane C.J. said in a judgment, with which the other members of the Court agreed (at p. 765 B-C) :
“The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned  if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time.”
7.	In Puttick it was held that the expression “a woman who has been married” in an act dealing with British nationality, should be construed to exclude a woman who was validly married but who, in marrying in the circumstances in which she had, had committed a serious offence. Donaldson L.J. cited the above passage from Lord Lane’s judgment and said:
“This decision provides authority for the proposition that statutory duties which are in terms absolute may nevertheless be subject to implied limitations based upon principles of public policy accepted by the courts at the time when the Act is passed.”
8.	To make quite sure that the provision was to be interpreted in the manner sought by the respondent, it would probably be necessary to add some words to the effect: “any rule of law to the contrary notwithstanding”. Mr Harrison submits, however, that the wording is so clear that no such additional phrase is needed. He also submits that, if the applicant’s argument is right, the reference in section 191(7)(c) to section 36(2)(a) of the Environmental Act 1990 would be otiose.  As I have already said, section 36(2)(a) provides that an application for a waste management licence may not granted unless there is planning permission in force in relation to the relevant use of the land and section 191(7)(c) provides that a CLEU shall have effect as if it were the grant of planning permission. If it would be impossible to obtain a CLEU when an offence was being committed under section 33 of the Environment Protection Act 1990 or its predecessor (which, in this respect, created offences covering almost the same ground as the 1990 Act), section 191(7)(c) could have no practical effect. He points out that the grant of a CLEU would not make the conduct lawful, but would entitle  the holder of such a certificate to seek a waste management licence. Whether it would be granted or not would be a matter for Environment Agency. Mr Harrison also submits that the interpretation being sought by the respondent is supported by the Carnwath Report (1989) and by ministerial comments when the bill was passing through Parliament. 
9.	I turn to the cases on the predecessors to section 191. In Glamorgan County Council v. Carter [1962] 3 All E.R. 866 the appellant unsuccessfully contended that an enforcement notice was invalid in that planning permission was not required for the particular use in the light of  section 12(5) of the Town and Country Planning Act 1947. The sub-section provided:
	“Notwithstanding anything in this section, permission shall not be required under this Part of this Act—…  (c) in the case of land which on the appointed day is unoccupied, in respect of the use of the land for the purpose for which it was last used ….”

Salmon J, said (at page 868 E-F):
“So it is quite plain that Mrs James, in keeping her caravan on the land after this scheme came into force—and it was in force during the whole of 1937—was committing an offence for which she was liable to be prosecuted and fined.  It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal user to which she was putting the land.  It is impossible by committing an offence to acquire a right.  In my view, it is plain that the use referred to in sub-s (5) of s 12 of the Town and Country Planning Act, 1947, must mean lawful use, at any rate in this sense, that it cannot include use which constitutes the commission of a criminal or quasi-criminal offence.”
10.	Section 94 of the Town and Country Planning Act 1971 provided that a person who claimed that, in certain defined circumstances,  a use was established, had the right to an established use certificate. In Vaughan v. Secretary of State for the Environment and another [1986] Journal of Planning Law 840, McNeill J applied  Carter   to the 1971 Act. Wording similar to the wording in section 94 of the 1991 Act is to be found in section 191 of the Town and Country Planning Act as in force prior to the introduction in 1991 of the new section 191. 
11.	It seems to me that the wording of section 191(2) as substituted by the 1991 Act makes a clear break with the past. Section 191(2) should not be construed in the light of the general principle to which I have referred.  Section 191(2) gives a comprehensive answer to what is or is not “lawful” for the purposes of the Act. This application therefore fails.
Order: Permission to appeal refused.
(Short submission by counsel inaudible)