A LEADING LAW FIRM WITH A APPROACH. Enforcement Update Frank Orr

Transcription

1 A LEADING LAW FIRM WITH A APPROACH Enforcement Update Frank Orr

2 Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2010] EWCA Civ 26 Mr Beesley was granted planning permission for the erection of a barn subject to the condition that it was to be used for the storage of hay, straw or other agricultural products only. A structure was built which had the external appearance of a hay barn but internally was fitted out as a dwelling house. After residing in the building for four years an application was made under Section 191 of the Town and Country Planning Act 1990 ( the 1990 Act ) for a certificate of lawfulness. The Council refused the certificate, but on appeal to the Inspector the certificate was granted. The Council then successfully challenged in the High Court the Inspector s decision to award the certificate.

3 Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2010] EWCA Civ 26

4 Welwyn Hatfield Council v Secretary of State for Communities and Local Government and another [2010] EWCA Civ 26 Mr Beesley appealed to the Court of Appeal. The Court found that Mr Beesley could benefit from the four-year rule under section 171B(2) of the 1990 Act as the implied permitted use of the building was for agricultural storage and there had therefore been a change of use to a dwelling house. Immunity from enforcement did not depend upon establishing actual use for agricultural storage prior to the enforcement notice being served. The use of the building for a use other than the permitted use as established from the planning permission was sufficient.

5 Robert Fidler v Secretary of State for Communities and Local Government & Banstead Borough Council [2010] EWHC 143 (Admin) Section 171B of the 1990 Act operational development without planning permission the LPA has four years from the date of substantial completion to take enforcement action. Mr Fidler constructed a mock castle complete with conservatory, marquee, wooden bridge, patio and decking on his land in Surrey. An enforcement notice was served. At Inquiry the Inspector held that development had not been substantially completed until the plastic sheeting and straw bales had been removed therefore the enforcement notice was served within 4 years. Mr Fiddler appealed to the High Court.

6 Robert Fidler v Secretary of State for Communities and Local Government & Banstead Borough Council [2010] EWHC 143 (Admin)

7 Robert Fidler v Secretary of State for Communities and Local Government & Banstead Borough Council [2010] EWHC 143 (Admin) The Judge held that the Inspector had been entitled to find, as a matter of fact and degree, that straw bales were integral and an essential part of building operations. The definition of building operations under Section 55(1A) of the 1990 Act was not exhaustive and depending on the facts, could include straw bales. Mr Fidler has appealed to the Court of Appeal.

8 Williams v Hertfordshire Council [2010] All ER (D) 169 (Feb) Mr Williams and his wife had been issued with an enforcement notice to remove two mobile homes from a piece of land. Mr Williams was convicted of breaching Sections 179(1) and (4) of the 1990 Act as he did not fully comply with the notice. It was claimed that the enforcement notice was not clear and there was no express obligation under the notice to cease using the remaining mobile home.

9 Williams v Hertfordshire Council [2010] All ER (D) 169 (Feb) The appeal was allowed. The Court stated that there are two types of notices:- 1. do notices; and 2. desist notices. The Court ruled that an enforcement notice had to be unambiguous and its requirements need to be clear on its face. Whilst the enforcement notice made it clear that the mobile homes had to be removed, it did not contain a specific obligation to cease using the mobile homes.

10 R (On application of Martin Perrett) v Secretary of State for Communities and Local Government & West Dorset District Council [2009] EWCA Civ 1365 Mr Perrett owned a dairy farm which had been used for a variety of nonagricultural uses since the 1990 s. The local planning authority had granted lawful use certificates and planning permission in respect of some of the uses, but served enforcement notices requiring other uses to cease. Mr Perrett appealed to the Inspector and was successful on two appeals but not the entirety. The parties agreed to a consent order, but were unable to agree thereafter on the method and scope of the rehearing. The Inspector decided that ground (d) should be excluded from the scope of the redetermination. Mr Perrett applied for judicial review arguing that the inspector s exclusion of ground (d) was wrong in law. The Administrative Court dismissed the application.

11 R (On application of Martin Perrett) v Secretary of State for Communities and Local Government & West Dorset District Council [2009] EWCA Civ 1365 The Court of Appeal was required to decide whether on remittal of a case pursuant to Section 289 of the 1990 Act was there an obligation on the Secretary of State to consider the whole of the enforcement appeal de novo. The Court held that the Secretary of State had a discretion as to the manner in which an enforcement notice appeal was reheard following a remittal. The Court sought to make a distinction between a decision that had been quashed or set aside and a matter that had been remitted.

12 R (On the Application of Michael William Howells) v Secretary of State for Communities and Local Government and Gloucestershire Country Council [2009] EWHC 2757 An enforcement notice was served in respect of a breach of planning control through the unauthorised change of use of agricultural land for the importation and storage of inert waste. The Inspector concluded that the Enforcement Notice should be upheld. However, the plan attached to the notice should be amended to reflect the true area within which waste activities were taking place

13 R (On the Application of Michael William Howells) v Secretary of State for Communities and Local Government and Gloucestershire Country Council [2009] EWHC 2757 Section 176 of the 1990 Act states that the Secretary of State may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality defect is not material The Inspector was entitled to increase the area of the plan provided that no injustice occurred to either party.

14 Chas Storer Limited v. Secretary of State for Communities and Local Government and Hertfordshire County Council [2009] EWHC 1071 (Admin) An appeal was lodged against a decision by a planning inspector to uphold an enforcement notice which alleged that the Appellant had changed the use of its waste collection and processing site by processing co-mingled waste. The notice also imposed restrictions on the hours of operation and number of vehicle movements at the site. In the Inspector s decision letter he stated that it was only the receipt of co-mingled waste which gave rise to the material change of use, not the increase in vehicle movement or hours of operation. However, he still upheld the conditions, albeit on a varied basis, one of which limited the number of vehicular movements. The Appellant challenged the decision on the basis that on their own, the increase on vehicle movements and hours of operation would amount to a lawful use.

15 Chas Storer Limited v. Secretary of State for Communities and Local Government and Hertfordshire County Council [2009] EWHC 1071 (Admin) The appeal was allowed and the case was remitted back to the Secretary of State for re-hearing. The Court found that the increase in vehicle movements and hours of operation did not constitute or form part of the material change of use and did not amount to development. Therefore, such activities at those increased levels, remained a lawful use. The Inspector was not entitled to impose requirements that went beyond what was necessary to confine relevant activities to a lawful use.

16 R (on the application of USK Valley Conservation Group and others) v. Brecon Beacons National Park Authority and (1) Geraint Thomas and (2) Christine Thomas [2010] EWHC 71 (Admin) Planning permission was granted for the relocation of an existing camping facility out of a flood zone. There was no reference to caravans in the planning application or the site notices. However, the planning permission imposed a conditions that no more than 50 tents and 50 caravans shall be erected or sited within the camping/caravanning areas. Residents commenced proceedings against the validity of the permission 3 ½ years after after the permission was granted.

17 R (on the application of USK Valley Conservation Group and others) v. Brecon Beacons National Park Authority and (1) Geraint Thomas and (2) Christine Thomas [2010] EWHC 71 (Admin) Validity of the Planning Permission The application should not have been interpreted to include caravans as they did not feature in the application plans or under the relevant headings in the application form. Caravans may have been part of the existing facility and the parties may have formed a view that they would naturally be included in the new permission. However subjective understanding of the proposal cannot override the objective interpretation of the application read as a whole. The grant of planning permission is not the correct place to resolve ambiguity in an application. The duty on the National Park Authority to make reasonable enquiries to obtain factual information on which to base its decision was not discharged. Requirements for notifying the Community Council were not complied with.

18 R (on the application of USK Valley Conservation Group and others) v. Brecon Beacons National Park Authority and (1) Geraint Thomas and (2) Christine Thomas [2010] EWHC 71 (Admin) Environmental Impact Assessment There was no dispute that the development met some of the criteria for EIA Development and would be classed as a Schedule 2 development. However, the Court concluded that there was no evidence that the planning officers had addressed their minds to the question of environmental assessment therefore the permission was invalid. Prejudice Due to the delay in bringing the action, should the Thomases suffer the detriment and prejudice of the quashing? It was decided that no prejudice would be suffered by the Thomases as they were in no worse a position than they were before the grant of permission. Mr Thomas could start seeking planning permission again, but the public interest could not be protected unless the use were discontinued.