Planning Enforcement in Wales Getting the Notice right Peter Burley Chief Planning Inspector

Transcription

1 Planning Enforcement in Wales 2012 Getting the Notice right Peter Burley Chief Planning Inspector

2 Why? Because the LPA has identified that there has been a breach of planning control AND It considers that it is expedient to issue a notice having regard to the provisions of the Development Plan and to any other material considerations [s172(1)]

3 Why? Because it is a legal document, which if not complied with may end up in the Courts Because it sets out for the Appellant the LPA s view of what has been done wrong and what is necessary to put it right [Miller Mead v Minister of Housing and Local Government [1963] 2 QB 196] If fee paid/an appeal is lodged on ground (a) then it is going to set the terms of the deemed planning application (s177(1))

4 Why? Because quashing a defective EN benefits nobody, apart from the rogues. Because normally the outcome is a second EN under s171b(4) second bite provision - further delay and cost of a further appeal - possible costs award against LPA

5 Conflicting Objectives? to ensure EN contains all it should so it is clear to the recipient what they have done wrong and what needs to be put right to ensure effective enforcement action is not deflected or delayed by technical or unmeritorious points of law Hammersmith LBC v SSE and Sandral [1975] 30 P The Inspector has duty to get the notice in order if he can

6 The Inspector s Power S176 - extremely wide power to correct any defect, error or misdescription only one statutory limitation -no injusticeto either side many court cases to support, from: - R v SSE and LB Tower Hamlets, ex parte Ahern [1989] JPL 757 the pettifogging has to stop virtually any correction can be made the test is whether there would be injustice to: Howells v SSCLG [2009] EWHC 2757 (Admin) red line on plan extended s176 only test is injustice

7 The Opportunity More opportunity at hearings and inquiries airing problems = no surprise. Go back to parties on WRs appeals if practical and would achieve purpose To get the parties to agree to correction which might well make the notice more onerous for example by amending area Appeal to the better nature of the parties only going to have to go through the process again on re-issue

8 The exceptions - Nullities Defective on its face generally something missing rather than an error No notice at all without legal effect no notice and so no right of appeal S173 sets out the statutory requirement that enforcement notices shall state and specify certain matters If the notice does not comply with requirements of s173 automatically a nullity the pain of Payne

9 s173 - EN must contain An EN shall state/specify: s173(1)(a) - the matters which appear to the LPA to constitute the breach of planning control the allegation s173(1)(b) - the paragraph of s171a(1) within which the breach falls development without pp or failure to comply with a condition. s173(3) - the steps to be taken or activities to cease the requirements

10 continued s173(8) - the date on which it is to take effect s173(9) - the compliance period(s) s173(10) - as prescribed: reasons why expedient to issue EN, relevant DP policies, precise boundaries of the land & explanatory note [Regs 4 & 5, ENAR 2002]

11 The enforcement notice the the para para of of s171a(1) s171a(1) which which applies applies -- boc boc or or development development precise precise boundaries boundaries of of the the land land affected affected normally normally with with a red red line line on on a plan plan the the matters matters constituting constituting the the breach breach of of planning planning control control statement statement of of reasons reasons for for issuing issuing the the notice notice (include (include relevant relevant time-limit) time-limit) the the steps steps required required to to be be taken taken precision precision

12 The enforcement notice the the period period for for compliance compliance with with the the steps steps the the date date on on which which EN EN is is to to take take effect effect Date Date EN EN issued issued Signature Signature of of Council s Council s authorised authorised officer officer

13 Nullity If an EN is missing some element required by s173 and the ENAR it will be a nullity Failure to specify an allegation, steps to be taken, effective date, period for compliance, why it is expedient to take action. OR if the EN is: hopelessly ambiguous and uncertain so that the owner or occupier did not know what he had done wrong and what he had to do to put the matter right. S173(2) A lot needs to be wrong for that to apply

14 The S176 power Is not available if EN is a nullity Over the years the Courts have encouraged a move away from strict adherence to formalities in tune with the 1989 Carnwath Report Enforcing Planning Control which raised concern about matters of complexity and technicality So provided a nullity is not found then the only test as to whether correctable is injustice

15 Common Problems Headings and the right paragraph of s171 The land to which the notice relates - there generally is, but doesn t have to be, a plan - correct planning unit identified? Especially important where the breach is a change of use. It provides the basis for assessing the materiality of the change.

16 continued Reasons for issue - get the right immunity period [s171b] - go back to why it was considered expedient to take action - because planning permission has not been granted or because the building differs from that which was granted planning permission will not do - don t forget DP policies Time for compliance -mustbe a period (not immediately or a calendar date)

17 Common Problems allegation Stand back and consider the breach Is it development without pp (Ops/MCU) or is it a BoC? Might be both can issue notices in the alternative If Ops should be simple the erection of a building, the construction of a hard surface If pp has been granted but something materially different constructed then what you have is development without planning permission no need to list the changes from the approved scheme in the allegation

18 allegation continued Think of the description of development as you would in an application for planning permission If MCU to mixed use identify all principal (not ancillary) activities taking place on the planning unit (even the lawful ones) not just the one you are concerned about Siting/stationing of caravans is not a use of land why are they there? for what use? Neither is use as residential curtilage

19 allegation continued If a use continues at the end of a temporary planning permission then there is no further MCU the breach is the failure to comply with the condition Describing the previous use is not essential but might help to clarify the change Description such as change to a mixed use including is not appropriate BoC specify the condition and then describe in what way it has not been complied with

20 Common Problems - requirements S173(3) specify the steps to achieve the purpose precision Payne Be clear about what the purpose of the notice is remedy the breach or remedy injury to amenity [s173(4)(a) or (b)] In most cases it is to remedy the breach. Why not state the purpose in the notice? It will help in ground (f) appeals since any arguments like I can paint it a different colour or I can reduce its height would not remedy the breach. However remember fallback of permitted development Never seek an improvement can only go back to previous situation and even then cannot require previous use to resume

21 requirements continued So for purpose Remedy of the breach Match the requirements to the allegation: - erect building demolish building - change the use cease that use - didn t comply with the condition comply with the condition If the purpose is to remedy the breach and the requirements don t match the allegation be sure that you know why and that it isn t a mistake. Common ones: - to bring into dev into line with a pp - to require only the additional activities in a mixed use to cease (Mansi) - to require works and ops that facilitated the MCU to be removed (Murfitt and Somak Travel)

22 requirements continued If the requirements don t match the allegation was it intentional? to under-enforce? Purpose to remedy the injury to amenity Examples: - Erection of an extension reduce the depth by 2m - Mixed use only require some of the new activities to cease or require cessation only on one part of the site - BoC non-compliance require compliance in part But BEWARE unintentional effects s173(11) Where an EN could have required buildings/works to be removed or activities to cease and doesn t do so then once the requirements are complied with those matters, have unconditional pp

23 Problem spotting a recent example The allegation: Without pp, a MCU from a single dwellinghouse (and purposes incidental to the enjoyment of the dwelling house) to a mixed use comprising a dwelling house and for purposes of vehicle storage The requirement: Cease the use for the purposes of vehicle parking (save for such domestic parking of no more than 6 vehicles as may be regarded incidental to the enjoyment of the dwelling house)

24 and another Problem spotting The allegation: MCU from agriculture to mixed use as a caravan site for the stationing of a caravan capable of being used for residential purposes and agricultural land used until recently for the keeping of horses The requirement: Cease the use for the stationing of a caravan capable of being used for residential and storage purposes; dismantle and cause the caravan to be removed; remove or cause to be removed any chattels and ancillary items to the use of the land as a caravan site

25 Problem spotting seems obvious but reached PINS before problem picked up! The land affected Outlined in blue The breach of planning control Placing 3 containers on the land in the approximate position marked XXX

26 Problem spotting The allegation: The construction of a dwellinghouse which is not wholly in accordance with the approved plan Reason for issue: It appears that the above breach of planning control has occurred. Permission for a dwellinghouse was granted on 20 August The roof design fails to comply with the approved plan The requirement: Carry out the necessary works to the roof to comply with the approved plan

27 Problem spotting some are just plain odd The allegation: without planning permission, the erection of a car port to the front of the building on the land The requirement: the land must be restored, in its entirety, to its former use.

28 Problem spotting and some seek to do the job of a pp The allegation: - MCU to mixed use dwellinghouse and commercial hairdressing The requirements: - limit floorspace used for hairdressing - personal permission - restricted hours of operation

29 S176(1)(a) a wide power correct any defect, error or misdescription - Cutting down or expanding the allegation. - Cutting down or expanding the requirements. - Cutting down or expanding the extent of the land affected. - Combining two or more ENs into one. - BUT it may be a step too far.

30 A step too far? Is the appellant in a position to deal with the implications of the change? Does extending the area bring in new occupiers who did not appeal? Does extending the allegation bring in a s173(11) problem? Does widening the scope make the notice more onerous? If MCU/BoC changed to Ops could a ground (d) appeal have succeeded? Is there agreement to the changes?

31 Keep it simple Top Tips Use s173 as a check list Check the requirements against the allegation if they are different: Why? What would be the consequences?

32 Finally, make a friend of the Inspector LPAs: check and double check the EN get it right at the start. If you identify a problem later ask the Inspector to make the correction early in the appeal process. Appellant s advisors: be practical and sensible in accommodating changes avoid an unwelcome rehearsal of arid technicalities.

33 So, be on the ball and keep ahead of the game [excuse the mixed metaphor]