PLANNING ENFORCEMENT - THE MOST COMPLEX AND LITIGIOUS PART OF THE PLANNING PROCESS

Transcription

1 PLANNING ENFORCEMENT - THE MOST COMPLEX AND LITIGIOUS PART OF THE PLANNING PROCESS

2 ENFORCING PLANNING CONDITONS PIPA Conference Friday 25 th October 2013 Presented by Vivien Green on behalf of

3 WHAT CONSTITUTES A BREACH OF PLANNING CONTROL? Town and Country Planning Act 1990: (a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted

4 Breach of Planning Control is NOT A CRIMINAL OFFENCE (NB: breaches in the Listed Building/Advertisement/ Protected Trees regimes are) a lot of Compliance/Enforcement Officers time is spent on investigations to gather EVIDENCE to establish a breach then on trying to resolve the breach/secure compliance rather than taking punitive action ONLY WHEN A PLANNING ENFORCEMENT NOTICE or a BREACH OF CONDITION NOTICE has come into effect and has not been complied with is there a CRIMINAL OFFENCE

5 DISCRETION it is often said that enforcement is discretionary BUT - dealing with complaints about breach of planning control is NOT DISCRETIONARY somebody in the council has to do it or there will be serious consequences making a fully reasoned and justified assessment of the evidence and deciding whether or not it is EXPEDIENT to enforce against an unauthorised development is NOT DISCRETIONARY it has to be done (may be subject of a Judicial Review/ Ombudsman complaint)

6 the expediency decision must be soundly based on your DEVELOPMENT PLAN and OTHER MATERIAL CONSIDERATIONS this is the point where the Council is exercising its DISCRETION effectively you are asking: Would the development be given planning permission, or must some form of action be taken? similarly a condition should not be imposed on a grant of planning permission unless it is necessary and there is a sound reason based on the Development Plan or a material consideration

7 BREACH OF CONDITION if used properly, conditions can enhance the quality of development, enable a permission to be granted which might other wise have been refused the public have a reasonable expectation that conditions will be complied with, failure to comply noticed and appropriate action taken the integrity of the whole planning process: making plans and dealing with applications, and the public s confidence and expectation of the system therefore depends on an authority's readiness to take EFFECTIVE ENFORCEMENT ACTION when it is ESSENTIAL

8 BUT Are your decision notices well thought-out/laid-out, userfriendly documents? Are your conditions enforceable? - necessary - relevant to planning - relevant to the development - precise - reasonable* Are your reasons specific, explaining clearly and succinctly why the condition is being attached? If not the condition will be unenforceable * Tests set out in Circular 10/95 developed from lots of case law

9 TYPES OF CONDITIONS AND ORDERING ON DECSION NOTICES - time by which development must commencement (3 years a default position) - pre-commencement conditions - conditions applying to the development phase, including listing of the approved plans - conditions applying in the post development phase - time limit on the permission (if appropriate) - conditions which will continuously apply to the development

10 BUT... Are your decision notices well thought-out/laid-out, userfriendly documents? Are your conditions enforceable? - necessary - relevant to planning - relevant to the development - precise - reasonable* Are your reasons specific, explaining clearly and succinctly why the condition is being attached? If not the condition will be unenforceable * Tests set out in Circular 11/95 developed from lots of case law

11 ALLEGED BREACH OF CONDITION.. prior to the garden centre... opening, details of the proposed types of products to be sold should be submitted to and agreed in writing by the LPA Reason: to ensure the use remains seasonal, specialist and leisure orientated as required by policy... - the condition does not restrict the goods that can be sold - should rather than shall begs question whether developer had to submit the details TELFORD & WEAKIN v SSCLG [2013] EWHC 79 (Admin)

12 DRAFTING GOOD CONDITIONS When you ask for an additional condition(s) to be imposed, remember: The applicant must know: - What is precluded? - What is required? When and How - When the condition will take effect The authority must be satisfied that: - the condition can be monitor to detect any breach and there are the resources to do so - if there is a breach it has the resources and the bottle to enforce...or THERE WILL BE NO COMPLIANCE CULTURE

13 TIME LIMITS FOR ENFORCING AGAINST CONDITIONS condition restricting change of use to a dwellinghouse FOUR YEARS from the date of the breach other breaches of condition -TEN YEARS from the date of the breach NB: IF THERE IS A BREACH OF A TRUE PRE-CONDITION (one which goes to the heart of the permission) then the permission has not been started this is not a breach of condition but development without planning permission

14 10 YEAR LIMIT ON CONDITIONS if there has been a continuous breach of a to do condition (e.g. paint a house, erect a fence) after 10years the breach becomes lawful; nothing can be done BUT if a condition has a continuing requirement (e.g. hours of opening, agricultural occupancy) even after 10years if there is a material period of compliance (i.e. hours complied with/property unoccupied) any subsequent breach is a new breach and time runs again an assessment is a matter of fact and degree in every case - Court has held that an Inspector s view that 48 days was not a temporary stopping and starting of the breach of an occupancy condition considered well founded

15 ENFORCEMENT IS TOO LATE AND TOO SLOW! the Planning Act (in England) does not require the developer to tell the LPA when he intends to start so that monitoring compliance with conditions can be triggered (mandatory in Scotland) the introduction of CIL - the Community Infrastructure Levy will help; notification of commencement is mandatory and will trigger the start of payments investigations need to gather evidence, this can sometimes be time-consuming

16 often necessary to serve statutory notices e.g. PLANNING CONTRAVENTION NOTICE and give time for their return, in order to get information and details of interests in the land so that any enforcement notice is served correctly the alleged contravener has to be given time to put things right the reporter/complainant has to be kept informed throughout Enforcement notices carry a right of appeal REMEMBER: getting things wrong at this stage can be damaging and potentially (very) costly later

17 ENFORCEMENT TOOLS APPLICATION TO VARY OR REMOVE THE CONDITION -this may satisfactorily resolve the problem BREACH OF CONDITION NOTICE - requires full compliance, no appeal (but could face a legal challenge), non-compliance a criminal offence, must be prosecuted in the Magistrates Court, limited fine, no power for LPA to do the work BREACH OF CONDITION ENFORCEMENT NOTICE - limited right of appeal, under-enforcement option, prosecution for non-compliance, Direct Action BREACH OF CONDITION ENFORCEMENT NOTICE + STOP NOTICE - only appropriate for limited types of conditions

18 BCN v ENFORCEMENT NOTICE Trust your officers their decision will be based on: type of condition how well the condition meets the tests in Circular 10/95 what you want to achieve whether under-enforcing will deal with the planning harm (as now perceived) who would be better assessing the requirements of the condition - Magistrates or an Inspector? whether prosecution/fine/criminal record will matter to the Defendant

19 TWO QUESTIONS TO LEAVE YOU WITH... Q. Is reacting to complaints when things have gone wrong the best use of scarce resources? Q. What message is this approach sending to the community about the integrity of your planning process?

20 WHOEVER SAID BEING A COUNCILLOR WOULD BE EASY? YOU WILL HAVE DIFFICULT DECISIONS TO MAKE IN THE COMING MONTHS WELL... IT S UP TO YOU IF YOU WANT TO INSTIL A Presentation by: VIVIEN GREEN COMPLIANCE CULTURE IN YOUR COMMUNITY Vivien Green Senior Associate TRA mail@tra-ltd.co.uk