LEVEL 6 UNIT 11 PLANNING LAW SUGGESTED ANSWERS - JUNE Note to Candidates and Tutors:

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1 LEVEL 6 UNIT 11 PLANNING LAW SUGGESTED ANSWERS - JUNE 2011 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2011 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. SECTION A Question 1 In addition to general planning controls, the Town and Country Planning Act 1990 (TCPA 1990) provides a number of special forms of control which are mainly concerned with preserving or improving the pleasant features of both town and country. These special provisions include controls over trees and woodlands. If it appears expedient, in the interests of amenity, the LPA may make a tree preservation order (TPO) to preserve a tree, or trees, or woodlands as specified; s.198 TCPA The order may prohibit the felling, lopping, wilful damage or wilful destruction of trees without the consent of the LPA; in the case of woodlands, it may contain provisions as to the replanting of any area that is felled in the course of forestry operations permitted under the TPO. A tree may be wilfully damaged or destroyed by negligence as well as deliberate intent. In Barnet London Borough Council v Eastern Electricity Board [1973] contractors laying cables damaged the roots of trees subject to a TPO thereby reducing their life expectancy by an uncertain period and rendering them unstable and a possible danger. It was held that this was wilful destruction the test was whether the injury was so radical that the reasonable forester would decide to fell the tree. It should be noted that there is an overlapping regime concerning felling licences in the Forestry Act A felling licence under that Act will override a prior TPO; there are some broad exceptions to this, eg trees in gardens and open spaces. There is no definition of tree in TCPA Originally, Lord Denning in Kent County Council v Batchelor [1976] favoured the view that saplings were not trees; however, this was not followed in Bullock v Secretary of State for the Page 1 of 21

2 Environment [1980] where a wider definition was applied. The Bullock approach was followed in Palm Developments Ltd v Secretary of State for Communities and Local Government [2009] in which the court held that there are no limitations in terms of size saplings are trees. Also, in a woodland, a TPO extends to all trees including those not yet in existence at the time the order is made. Turning to the procedures involved, the LPA must give notice of the making of the TPO and consider any objections; s.199 TCPA Under s.198(6) a TPO cannot prohibit the cutting down, etc of trees which are: dying, dead or have become dangerous; or is done in compliance with statutory obligations; or is necessary to abate a nuisance. In connection with the abatement of a nuisance, TCPA 1990 must be interpreted as meaning that works to a tree were only justified to the extent that they were necessary. If lesser works could be done to abate a nuisance without harming the tree, then the more radical works were not necessary ; Perrin v Northampton Borough Council [2007]. In making and administering a TPO, the LPA are concerned solely with considerations of amenity; they are not concerned with such matters as the economic value of the trees. Subject to specified exceptions, control over tree felling in the interests of the national economy is exercised by the Forestry Act The felling of a tree might therefore require the consent of the Forestry Commissioners under the Act of 1967 and/or the consent of the LPA under a TPO. A TPO must be in the form specified by the Town and Country Planning (Trees) Regulations It must be served on interested parties inviting objections within 28 days and a copy must be made available to the public. After considering objections, the LPA may confirm the order. Once confirmed, the order may only be challenged in the High Court under s.288. The 1999 regulations have been amended by the Town and Country Planning (Trees) (Amendment) (England) Regulations 2008, the requirements of which include the use of a standard form for consent for cutting down, topping, lopping or uprooting any tree protected by TPO. There is power for the LPA to make a provisional TPO which takes effect immediately. If appears to the LPA that a TPO should take effect immediately, they may make a TPO to this effect, expressly stating that it is made under the provisions of s.201 TCPA Such an order takes effect on the date specified in it. That effect is provisional as it continues in force for six months, or until the TPO is confirmed, whichever the earlier. Application for consent under the TPO to cut down, etc a tree subject to a TPO must be made to the LPA, who may refuse consent or grant it with or without conditions. There is a right of appeal to the Secretary of State and provision for High Court challenge. Under s.210 TCPA 1990 a criminal offence is committed where a person, in contravention of a TPO: cuts down, uproots or wilfully destroys a tree; or wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it. Page 2 of 21

3 The offence is absolute in the sense that knowledge of the TPO is not a requirement of the offence; Maidstone Borough Council v Mortimer [1980]. No offence is committed if the defendant s ignorance is due to the failure of the authority to place a copy of the order on deposit for inspection: Vale of Glamorgan Borough Council v Palmer and Bowles [1982]. Further, the owner is liable for the acts of his servants but not for an independent contractor who had been expressly told not to touch the tree: Groveside Homes Ltd v Elmbridge Borough Council [1988]. In order to enforce the provisions of the order, the LPA may also seek an injunction under s.214a TCPA There are in addition provisions requiring the replacement of trees. Under s.206, where a tree is removed or destroyed in contravention of a TPO, the owner must plant another tree of appropriate size and species in the same place as soon as reasonably practicable, unless the LPA dispense with the requirement. The new tree will be subject to the original TPO. The provisions so far described are concerned with the preservation of existing trees and their replacement when felled or destroyed. The Civic Amenities Act introduced for the first time provisions designed to secure the planting of new trees. These provisions are now contained in TCPA 1990, s 197. Under this section it is the duty of the local planning authority when granting planning permission for any development to consider whether it would be appropriate to impose conditions for the preservation and planting of trees and to make tree preservation orders in connection with the grant of planning permission. As we have seen, under the existing system of TPOs, much of the detail of the law is contained in TCPA 1990, with procedural matters being prescribed by the Tree Preservation Regulations. Following a Government consultation paper in 2007, Tree Preservation Orders: Improving Procedures, the Government decided to remove much of the detail regarding tree preservation controls from the primary legislation and to give the Secretary of State much wider powers to make regulations regarding trees. Accordingly PA 2008, s.186, on a day to be appointed repeals various provisions of TCPA 1990 relating to TPOs and enables these deleted matters to be included in regulations made by the Secretary of State. New sections 202A 202G are to be inserted into TCPA These enable regulations to be made covering such matters as: the form and content of TPOs; the procedure to be followed in the making of TPOs; provisions regarding when TPOs are to take effect; the prohibited activities in relation to trees; the giving of consent for prohibited activities; provisions about the payment of compensation; and the maintenance of public registers. There is a transitional provision enabling the new regulations, when made, to apply to trees subject to existing TPOs. Question 2 (a) The Planning Act 2008 (PA 2008), Part 11, makes provision for the introduction of a Community Infrastructure Levy (CIL). According to the Government, the overall purposes of the CIL are to ensure that development contributes fairly to the mitigation of the impact it creates; and to ensure that development is delivered in a more sustainable way. It is right that development itself should make more of a contribution to the infrastructure cost faced by local communities and that the burden of contributing to development should be spread more fairly. (CIL, DCLG 2008). At the same time, it is hoped that developers should have more certainty as to what they will be expected to contribute, thus speeding up the planning system. Page 3 of 21

4 It should be noted that planning obligations under s.106 TCPA 1990 will be retained as the basis for negotiated agreements between developers and local authorities. Thus planning obligations will continue to provide the means of securing contributions from developers for those authorities choosing not to introduce the CIL, which will be optional. However, when the 2008 Act was passed, the Government stated that it would encourage LPAs to levy charges using the CIL. The statutory provisions in PA 2008 relating to the levy have been supplemented by detailed regulations made by the Secretary of State with the consent of the Treasury, ie the Community Infrastructure Levy Regulations The statutory provisions and the regulations came into force on 6 April PA 2008, s.205(2) states that the overall aim of CIL is to ensure that the costs of providing infrastructure can be funded (wholly or partly) by owners or developers of land. The Act provides that infrastructure is defined as including: roads and other transport facilities; flood defences; schools and other educational facilities; medical facilities; sporting and recreational facilities; and open spaces. PA 2008, s.206 provides that a charging authority may charge CIL in respect of the use and development of land in its area. Charging authorities, ie authorties which are able to levy CIL, are LPAs responsible for the production of statutory development plans for the area. In London, the charging authority is the Mayor of London. Where liability to CIL would arise in respect of proposed development, a person may assume liability to pay the levy. A person assuming liability before the commencement of development becomes liable when, in reliance on planning permission, development is commenced; s.208 PA Where liability is not assumed in this way, the owner or developer of land is liable for CIL. Development, for the purposes of CIL liability, excludes anything done by way of or for the purpose of the creation of a new building, or anything done to or in respect of an existing building, providing the building is one into which people do not normally go, or do so intermittently for maintenance or inspection of plant or machinery. The regulations provide for exemptions to CIL or reductions in CIL for charities and other bodies. Under s.211, charging authorities must produce a charging schedule setting out CIL rates for the area, having regard, inter alia, to the costs of infrastructure. Charging authorities must appoint an independent examiner to approve, or otherwise, the draft charging schedule. Anyone may make representations about a draft charging schedule.; and anyone who makes representations about a draft charging schedule to be heard by the examiner. A charging authority may only approve a draft charging schedule if the examiner recommends approval and subject to any modifications recommended. An approved charging schedule may not take effect unless it has been published by the authority. There is, under s.215, a right of appeal on a question of fact relating to the calculation of the amount of CIL levied on proposed development. The regulations require charging authorities to prepare and publish a list of projects that are to be, or may be, wholly or partly funded by the CIL; and they Page 4 of 21

5 include provision as to the circumstances in which a charging authority may or may not apply CIL to projects not included in the list. In making provision about funding, the regulations permit CIL to be used, for example, to reimburse expenditure already incurred; or to include provision for the giving of loans, guarantees and indemnities. The CIL regulations also include provision about the ways in which CIL may be collected. The CIL regulations include provision about the relationship of CIL with s.106 TCPA Thus where a development is capable of being charged CIL, any s.106 planning obligation must satisfy certain criteria if it does not, the planning obligation will not amount to a material consideration. There are also provisions to prevent double-charging, ie where the developer is required to fund a single item of infrastructure through both a planning obligation and CIL. Under s.218 of PA 2008, the CIL regulations include provision about the enforcement of CIL and the consequences of late payment and the failure to pay, such as the payment of interest and the imposition of penalties or surcharges. There are also criminal offences, eg for offences relating to evasion or providing false or misleading information. (b) Whereas the well-established system of Environmental Impact Assessment (EIA) is concerned with the assessment of the likely environmental effects of individual development projects, the more recently introduced SEA involves a similar process with regard to strategic planning. European Directive 2001/42/EC on Strategic Environmental Assessment (the SEA Directive ) had to be implemented by member States by 21 July The Directive introduced an obligation to take environmental considerations into account in the preparation of plans and programmes. It extends not only to land use development plans but also to programmes in other fields such as energy, transport, and telecommunications. The SEA Directive was implemented by the Environmental Assessment of Plans and Programmes Regulations 2004 which came into force on 20 July The regulations implement the Directive as regards plans and programmes relating to England there are separate regulations for Wales. The purpose of SEA is to ensure that plans and programmes against which EIA projects will be determined will be subject to the same environmental scrutiny as that to which the projects themselves will subjected. SEA applies to plans and programmes which are required by legislative, regulatory or administrative provisions and are either: (a) subject to preparation or adoption by an authority at national, regional, or local level; or (b) prepared by an authority for adoption through a legislative procedure by Parliament or Government. In terms of town and country planning, this means that the obligations imposed by the Directive apply to the RSS, the SDS for London, DPDs and other LDDs. No plan or programme may be adopted unless SEA has been undertaken. SEA is a requirement for any new plan or programme whose first formal preparatory act took place after 21 July It is also a requirement for any plan or programme whose first preparatory act took place before 21 July 2004 but which had not been adopted by 22 July SEA involves the carrying out of an environmental assessment this is defined by the Directive as the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information Page 5 of 21

6 on the decision in accordance with [the Directive]. It is therefore a process very similar to EIA. The criteria for determining the likely significance of effects on the environment are set out in Schedule 1 to the regulations and include: (1) The characteristics of plans and programmes, having regard to various factors including the environmental problems relevant to the plan or programme; and the relevance of the plan or programme for the implementation of Community legislation on the environment; (2) The characteristics of the effects and of the area likely to be affected, having regard to various factors including the probability, duration, frequency, and reversibility of the effects; the risks to human health or the environment; and the effects on area or landscapes which have special protection status. Where an environmental assessment is required by the regulations, the responsible authority must prepare an environmental report. The report must identify, describe, and evaluate the likely significant effects on the environment of implementing the plan or programme, and the reasonable alternatives, taking into account the objectives and geographical scope of the plan or programme. When deciding on the scope and level of detail of the report, the responsible body must consult the specified consultation bodies, who have a period of five weeks within which to respond. The information that the environmental report must contain is prescribed by Schedule 2 to the regulations and includes the likely significant effects on the environment and an outline of the reasons for selecting the alternatives identified by the report. Every draft plan or programme and its accompanying environmental report (the relevant documents ) must be made available for the purposes of publicity and consultation and copies must be sent to specified consultation bodies. The consultation bodies and the public consultees to express their opinion on the relevant documents, specifying the address to which, and the period within which, opinions must be sent. As soon as reasonably practicable after the adoption of the relevant plan or programme for which an environmental assessment has been carried out, the responsible authority must make a copy of the plan or programme and its accompanying environmental report available for inspection, with due publicity. The responsible authority must monitor the significant environmental effects of the implementation of each plan or programme. The purpose is to identify unforeseen adverse effects at an early stage, with a view to taking appropriate remedial action. Question 3 The Human Rights Act (HRA) 1998, which came into force on 2 October 2000, incorporates the provisions of the European Convention of Human Rights (ECHR) into the domestic law of the United Kingdom. Before the passing of the HRA 1998, it was only possible for individuals to petition the European Court of Human Rights (ECtHR) at Strasbourg if they had exhausted all domestic remedies. The right to take a case to the European Court still exists after the 1998 Act has been brought into force, but it is now possible for challenges to be made before the domestic courts. Page 6 of 21

7 Under the HRA 1998, the rights and fundamental freedoms set out in the ECHR and its protocols are defined as Convention rights, and so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. HRA 1998, s 6 provides that it is unlawful for any public authority, to act in a way which is incompatible with Convention rights, unless, as a result of primary legislation, the authority could not have acted differently. A person who is, or would be, the victim of such an unlawful act may bring proceedings against the authority concerned, or rely on the Convention right or rights in issue in any legal proceedings. Although the courts cannot strike down incompatible primary legislation, they may make a declaration of incompatibility where legislation is in conflict with Convention rights. The government may, by statutory instrument, make such amendments to the legislation as are necessary to remove the incompatibility. HRA 1998, Sch 2 provides for such remedial orders, as they are called, to be approved by Parliament. The Convention rights which are the most relevant to land use planning are: First Protocol, Article 1: Protection of Property every natural or legal person is entitled to the peaceful enjoyment of his possessions. There shall be no deprivation of this right except in the public interest and as provided for by law. The state may, however, enforce laws as necessary controlling the use of property in the general or interest, or for taxation or similar purposes. Article 6(1): Right to a Fair Trial - in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment must be made publicly but in certain circumstances, the press and public may be excluded, eg for national security purposes or where publicity would prejudice the interests of justice. Article 8: Right to Respect for Private and Family Life the right to respect private and family life and correspondence. There shall be no interference by a public authority this right except as is in accordance with the law and in certain specified interests, eg national security. Even before the HRA 1998 came into force, the ECtHR heard complaints from individuals alleging an infringement of the Convention in planning matters. For example, Article 8 of the Convention was in issue in Buckley v United Kingdom. [1996]. The applicant, a gypsy, placed caravans, without planning permission, on a site that she had acquired. The LPA took enforcement action. The applicant alleged a violation of Article 8 of the ECHR in that she was unable to live on her own land and provide her children with a stable upbringing and education free from disruption; and that she was a victim of discrimination as a gypsy. The case was referred to the ECtHR which held that although Article 8 applied to the applicant s case, there had been no violation of the Article. There is no doubt that such cases served as an early warning that the planning procedures of the United Kingdom were susceptible to challenge on human rights grounds. The HRA 1998 was not long in force before the issue came before the courts. The Alconbury litigation In R v Secretary of State for the Environment, Transport and the Regions, ex p Alconbury Developments Ltd [2001] (consisting of three consolidated appeals) the Divisional Court had originally held that the procedures whereby the Secretary of State recovered jurisdiction in planning appeals for his own Page 7 of 21

8 determination were incompatible with Article 6(1) of the Convention. The court had taken the view that as the Secretary of State was the policy-maker, he could not also be an independent and impartial decision-taker without, in effect, being a judge in his own cause. On appeal, a unanimous House of Lords held that although Article 6(1) applied to the procedures in question, there was no conflict between these procedures and the Article itself, at least where a public inquiry was held. Thus the Secretary of State could be both policy-maker and decision-taker without infringing Article 6(1). As to the process of judicial review by the courts, although the planning merits of the decision could not be reviewed, a review of the merits of the decisionmaking process was fundamental to the court s jurisdiction. Lord Nolan in the House of Lords felt that a broad and generous approach had been adopted in the development of judicial review extending not only to points of law in the strict and narrow sense but to such matters as the rationality of the decision and the fairness of the decision-making process. Thus the House of Lords upheld the status quo and confirmed that the Secretary of State s role, and its review by the courts, are not inconsistent with Article 6(1). Had this case been decided otherwise, a wide-ranging reform of longestablished procedures for the determination of planning decisions would have been required. Local authority decision-making In the wake of the Alconbury litigation, the focus of human rights challenges shifted to local authority decision-making processes, such as the determination of planning applications. In a line of cases including R (on the application of Vetterlein) v Hampshire District Council [2002] and R v Secretary of State for the Environment, Transport and the Regions, ex p Adlard [2002] the courts considered whether the planning process affords the parties a reasonable opportunity to put their case and whether the system enables decision-makers to be adequately informed. Broadly speaking, the courts have upheld the procedures involved and consider that (as with Alconbury) the availability of judicial review constitutes an adequate safeguard that the parties receive a fair hearing. Enforcement of planning control A considerable number of the cases concerned with Article 8 have involved enforcement action taken by local planning authorities against gypsies who occupy land residentially without planning permission. The issue came before the House of Lords in South Buckinghamshire District Council v Porter [2003] (which involved consolidated appeals in a number of linked cases) where their Lordships emphasised the requirement for proportionality in cases under the Convention. Thus where injunctions were sought against gypsies occupying land without planning permission, the local planning authority were entitled to consider the personal circumstances of the occupiers. If the local planning authority had considered the hardship involved but nevertheless resolved to seek an injunction, the court would respect the balance which the authority had struck between public and private interests. It would weigh heavily in favour of granting injunctive relief. It is for the court to decide whether the remedy sought is just and proportionate in the circumstances. Page 8 of 21

9 Proportionality As we have seen with the Porter case discussed above, under ECHR jurisprudence, proportionality is a key factor to be taken into consideration by decision-makers. Thus there is a balance to be struck between the rights of landowners and public concern for the environment and good standards of planning. The striking of a fair balance was in issue in the decision of the Court of Appeal in Lough v First Secretary of State [2004] where it was held that a dimunition in the value of property caused by neighbouring development did not constitute a separate or independent basis for alleging a breach of Article 8 and Article 1 of the First Protocol. Article 8 required respect for the home but did not give rise to any absolute right to the amenities enjoyed by the landowner or occupant. The role of the Article had to be viewed in the context of the competing rights of other landowners and the public as a whole. Question 4 (a) The Town and Country Planning Act (TCPA) 1990, s.191(1) provides that if any person wishes to ascertain whether: (i) any existing use of buildings or other land is lawful; (ii) any operations which have been carried out in, over or under land are lawful; or (iii) any other matter, constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful; he may apply to the LPA specifying the land and describing the use, operations or other matter. If, on such an application, the local planning authority are satisfied with the lawfulness of the use, operations or other matters described in the application (or that description as modified or substituted by them) they shall issue a CLEUD refuse the application. The certificate must specify the land to which it relates, describe the use, operations or other matter in question and give reasons for determining them lawful. Further, the certificate may be issued in respect of the whole or part of the land specified in the application; and where the application specifies more than one use etc, a certificate may be granted for all of them or one or more of them. It should be noted that the LPA s decision is a purely judicial one and, if they are satisfied that the applicant s case is made out, they must grant a certificate. For the purposes of the Act, uses and operations are lawful at any time if: (a) no enforcement action may be taken in respect of them; and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. Further, TCPA 1990, s 191(6) provides that the lawfulness of any use, operations or other matter for which a certificate is in force shall be conclusively presumed. Under TCPA 1990, s 191(7) the certificate will have effect as if it were a grant of planning permission in three instances; (a) for the purposes of obtaining a caravan site licence (b) for the purpose of obtaining a waste disposal licence and (c) for the purposes of obtaining a waste management licence. These Page 9 of 21

10 are cases, where, in general, planning permission is a condition precedent to the issue of the relevant licence. There is a right of appeal to the Secretary of State against a refusal to grant a certificate, and this extends to any refusal in part; and to any modification or substitution of the use, operations or other matter in question. The right of appeal also extends to a failure to give a decision within the prescribed time. The decision of the Secretary of State may be challenged in the High Court on the usual statutory review grounds. Two cases are of significance with regard to the effect of a CLEUD. First, it was widely believed that, providing a certificate of lawfulness is in force, the particular use etc, cannot be extinguished by abandonment. This opinion requires re-appraisal as a result of the decision in M & M (Land) Ltd v Secretary of State for Communities and Local Government [2007]. In this case it was contended that it was not possible to abandon a use that was subject to a CLEUD. The court disagreed and held that s.191(6) does no more and no less than declare conclusively that at the point in time that the certificate refers to, that particular use is lawful. The judge felt that the certificate operated like a planning permission which makes a particular use lawful then is spent. This did not stand in the way of a permitted change of use being abandoned. Secondly, it also seems to be the case that a CLEUD can be overridden by an enforcement notice. In Staffordshire County Council v Challinor [2007], the Court of Appeal held that there was no general right to assert existing use rights at a time when an enforcement notice had come into effect after an appeal had been disallowed or had never been lodged. The existence of a CLEUD granted many years earlier made no difference, as the certificate was only declaratory of the lawfulness of the use at a particular time. These two decisions are important because they illustrate the limitations of CLEUDs. (b) TCPA 1990, s.102 enables the LPA to make discontinuance orders in relation to existing buildings and uses without the authority having to acquire the land. Compensation must be paid to the owner for the loss of the rights but at the local authority are spared the added expense of acquiring land for which they would have no particular need. This is a particularly useful method of dealing with comparatively small but objectionable development. Many such uses were established at a time when planning permission was not required; in some cases they have arisen since 1948 in contravention of planning control but the LPA have failed to serve an effective enforcement notice within the proper time. The LPA may take action under TCPA 1990, s. 102 if they consider it desirable for the planning of their area, including considerations of amenity; regard is to be had to the development plan and to any other material considerations. An order may be made: (a) requiring any use of land to be discontinued or imposing conditions on the continuance of the use; or (b) requiring any buildings or works to be altered or removed. Page 10 of 21

11 The LPA may be prepared to sanction some other development of the land: if so, they may include in the order a grant of planning permission for that purpose. If the Secretary of State considers that the local authority ought to have made an order he may make an order himself. An order of the LPA does not become effective unless and until it is confirmed by the Secretary of State. Before the Secretary of State can confirm the order, the owner and the occupier of the land must be given an opportunity of being heard. If the order is made by the Secretary of State he will give the persons affected a similar opportunity of being heard before he comes to a final decision. The Secretary of State may confirm the order with or without modifications and he may include in the order a grant of planning permission for some other purpose. The validity of the order may be challenged not later than six weeks after the Secretary s confirmation in High Court proceedings under TCPA 1990, s. 288 but not otherwise. If the order relates to the use of the land, failure to comply is an offence punishable by fine. But if it requires the removal or alteration of buildings or works the remedy is for the local planning authority to carry out the requirements of the order and recover the cost from the owner. If the effect of the order is to render the land incapable of reasonably beneficial use the owner may serve a purchase notice under TCPA 1990, s 137. SECTION B Question 1 (a) Development is defined by s.55(1) of the Town and Country Planning Act (TCPA) 1990 as the carrying out of building, engineering, mining, or other operations in, on, over, or under land, or the making of any material change in the use of any buildings or other land. Under s57(1) of the Act development, as defined, requires planning permission. The definition of development consists of two distinct concepts, operation and use in Parkes v Secretary of State for the Environment [1978], Lord Denning considered that operation comprises physical alterations to the land which have some degree of permanence in relation to the land itself, whereas use refers to activities carried out on the land but which do not interfere with the actual physical characteristics of the land. Whether or not a particular activity amounts to development is said to be a matter of fact and degree. So far as the vending machine is concerned, the question arises as to whether it constitutes a building operation. The word building is defined in s.336 TCPA 1990 as... including any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building. Further, building operations are defined as including the demolition of buildings; rebuilding; structural alterations of or additions to buildings; and other operations normally undertaken by a person carrying on business as builder (s.55(1a)). In determining whether an activity constitutes a building operation, three factors have emerged from the decisions of the courts (i) size; (ii) fixity; and (iii) degree of permanence. Thus a building is something of such size that it would normally be built or constructed on site as opposed to being brought on ready made; Barvis v Secretary of State for the Environment [1971]; however this does not mean that it has to be particularly large nor is a thing removed from Page 11 of 21

12 the category of building because it is brought to the site in one piece. Whether or not the thing is affixed or attached to the land is said to be relevant but not conclusive; Cheshire County Council v Woodward [1962]. The degree of permanence is a highly material factor Skerritts of Nottingham v Secretary of State for Transport, Environment and the Regions (No 2) [2000]. Although small, free-standing mechanically operated vending machines would not be regarded as building operations, this particular machine is not insubstantial in size; it has some physical attachment to the land; and has the requisite degree of permanence so as to be regarded as a building. It may be relevant that the machine is (presumably) connected to the main building by an electrical power cable. On the other hand, the removal of the machine may be a relatively quick and easy matter. Although the installation of a vending machine on the forecourt of a garage has been held to be a material change of use as it would involve the introduction of a shop use (Bendles Motors Ltd v Bristol Corporation [1963]) in modern trading conditions such a use is likely to be regarded as de minimis or possibly a use incidental to the main use of the site, rather than the introduction of a separate primary use under Class A1 of the Use Classes Order (b) The issue here is whether a material change of use will occur. The initial step is the selection of the correct planning unit. The planning unit is the area of land or buildings which must be considered in order to determine whether a material change of use takes place. Criteria were laid down in Burdle v Secretary of State for the Environment [1972] under the first of these, if it is possible to identify a single main purpose of the use of the land to which other activities are incidental, the whole unit of occupation must be considered. Applying this analysis, it is suggested that the planning unit in this case will be the individual flat that Sam occupies. As the flat is small, the amount of space given over to the new activity may be of relevance in determining the materiality of the change. The fundamental test of whether a material change of use occurs is whether, in the planning unit, there is a change in the character of the use from a planning viewpoint; East Barnet Urban District Council v British Transport Commission [1962]. The point that the matter is one of fact and degree was emphasised in Bendles Motors Ltd v Bristol Corporation [1963] where the court upheld the Minister s decision that there had been a material change of use even though the judges thought the use in question to be de minimis. One of the factors that can be taken into account in assessing whether the change is material is the impact on the neighbourhood in terms of greater activity, noise, the generation of traffic and so forth; Lilo Blum v Secretary of State for the Environment [1987]. Sam may argue that his proposed use is merely ancillary or incidental to the use of the flat. Although strictly concerned with the curtilage of a dwelling the case of Wallington v Secretary of State for Wales [1991] is of relevance as it established that uses will be incidental if they are the normal use of the dwelling. In this respect the size and location of the premises are relevant as are the nature and scale of the activity and the disposition of the occupier. The position may ultimately depend on the volume of published works. If small, the impact in land use terms may be insignificant and the proposed change of use will not be material. (c) With regard to the re-opening of the hotel, the position may depend on the history of the planning unit. If the original use as a hotel is one Page 12 of 21

13 that had become either immune from enforcement or lawful through the passage of time, it is clear that such uses are susceptible to abandonment. In Hartley v Minster of Housing and Local Government [1969] it was held that where a person ceases to use land for a particular purpose and it remains unused for a considerable time, the proper inference may be that the use has been abandoned. Once abandoned, the use cannot be recommenced without planning permission. The intention of the person is relevant but it cannot be conclusive as the test is essentially objective; Hughes v Secretary of State for the Environment, Transport and the Regions [2000]. The fact that Helen has continued to live at the premises may be put forward as evidence that, when trade recovered, she intended to re-open the hotel, but such evidence will be viewed objectively along with all other relevant factors. However, it should be noted that a use authorised by planning permission and implemented according to its terms cannot be extinguished by abandonment (Pioneer Aggregates (UK) v Secretary of State for the Environment [1985]). On this basis, if the use as hotel is authorised by an express grant of planning permission, Helen will be able to re-open the hotel. Before 1991 the demolition of a building per se was not regarded as development; however PCA 1991 amended the definition of building operations so as to include the demolition of buildings (s.551a see above). The 1991 Act enabled the Secretary of State to make a direction providing that the demolition of particular types of building is not development. The Demolition of Buildings Direction 1995 specifies a number of instances where the total demolition of a building is excluded from development. However, as the extension in this case is physically attached to the main structure of the house, it seems likely that its demolition would constitute partial demolition. This is generally regarded as being development under s.55 TCPA 1990 as it involves a structural alteration materially affecting the external appearance of a building; Coleshill and District Investments Co Ltd v Minster of Housing and Local Government [1969]. In that case the demolition of concrete blast walls surrounding a war-time ammunition store was held to be development requiring planning permission. The basis of the decision was that the walls were an integral part of the structure as a whole. The provision of a hard surface for additional car parking is likely to be regarded as an engineering operation. An engineering operation is defined by s.336 TCPA 1990 as including the formation or laying out of means of access to highways. Apart from this, the words are to be given their ordinary meaning and it will be a matter of fact and degree for the LPA as to whether an activity amounts to such an operation. In Fayrewood Fish Farms Ltd v Secretary of State for the Environment [1984] the court considered that such operations were of a type generally supervised by a qualified engineer but it was not necessary that a particular operation should actually have been so supervised. It is wellestablished that the construction of hard-standings for vehicles falls within the definition of an engineering operation; it should be noted, however, that the rights permitted by GPDO Part 1, Class F (provision within the curtilage of a hard surface for any purpose incidental to the enjoyment of a dwellinghouse) will not apply to premises in use as a hotel. Question 2 (a) Where there has been a breach of planning control, the LPA have the option of issuing an enforcement notice requiring the owner or occupier to Page 13 of 21

14 remedy the situation. It is only when the enforcement notice is ignored that the LPA may prosecute the offender. Thus the LPA have the power to issue and serve an enforcement notice where there has been a breach of planning control, ie in the case of development without planning permission or in breach of condition. The LPA must be satisfied that it is expedient to issue the notice, having regard to the development plan and to any other material considerations; s.172 (1)(b) TCPA So far as the validity of the enforcement notice is concerned, the first issue to be addressed concerns time limits enforcement action may be time-barred. In such a case, the enforcement notice will be invalid. The time limit rules under s.171b TCPA 1990 may be summarised as follows: operational development no enforcement action may be taken after four years from the date of substantial completion; material change of use and breaches of condition 10 years from the date of breach; change of use of any building to use as single dwellinghouse or breach of condition preventing such a change four years from the date of breach. In the case of the caravan rental to the holidaymakers, as this activity is categorised as a use, no enforcement action can be taken after a period of 10 years commencing with the date of the breach. The burden of proof is on the person served with the notice to establish the period of immunity; Nelsovil v Minster of Housing and Local Government [1962]. If Giles can satisfy the burden of proof, he will have a ground of appeal under s.174(2)(d), ie that at the date when the notice was issued, no enforcement action could be taken in respect of the relevant breach of planning control. With regard to the occupancy of Harold and his family, the issue is whether s.171b(2) applies. That subsection provides that where there has been a breach of planning control consisting of the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of four years from the date of the breach. It is doubtful, however, whether a mobile caravan can be described as a building for the purposes of planning control. In Measor v Secretary of State for the Environment, Transport and the Regions [1999] it was held that a caravan lacked the requisite degree of permanence and attachment to constitute a building. On this basis Harold may not rely on the four year period of immunity. The extraction of minerals is a mining operation not a use. It is subject to the four year rule under s.171b(1) but as each cut or shovelful of minerals is a separate act of development (David (Thomas) (Porthcawl) Ltd v Penybont Rural District Council [1972]) enforcement action may be taken as long as the operation is continuing, even if it started more than four years previously. The enforcement notice may therefore not be challenged on this point. So far as the barn is concerned, the case of Secretary of State for Communities and Local Government (Welwyn Hatfield Council) [2010] is of relevance. On similar facts to the present case it was held by the Court of Appeal that since a hay barn had been permitted to be used only for agricultural storage, its use as a dwellinghouse was properly to be regarded, for the purposes of s.171b(2), as a material change of use and a breach of planning control. Accordingly, no enforcement action could be taken after the expiry of four years and the applicant was entitled to the statutory year immunity as certified by a Certificate Page 14 of 21

15 of Lawfulness. Richards LJ said that the court should not be tempted to adopt a strained construction of the subsection in reaction to the deliberate deceit practised by the applicant. He felt that if it was considered that there should be a different outcome in a case of dishonesty it was for Parliament to amend the legislation accordingly. Giles may therefore appeal against the notice under s.174(2)(d). In dealing with the validity of the enforcement notice a further issue to be addressed concerns the service of the notice. Under s.172(2) TCPA 1990 a copy of the notice must be served on the owner and occupier of the land and on any other person with a material interest. It must be served: not more than 28 days after its date of issue; and not less than 28 days before the date on which it is to take effect. In Stevens v Bromley London Borough Council [1972] caravan dwellers in permanent occupation under licence were held to be occupiers for the purpose of service. On this basis Harold is in permanent residence and would be considered as having a material interest. The holidaymakers, on the other hand, would probably not be regarded as either in law occupiers or as having a material interest as their presence is purely transient. The failure to serve someone who ought to have been served with a copy of the notice may render the notice invalid, or even a nullity; McDaid v Clydebank District Council [1984]. On these facts, the notice is likely to be invalid which will afford a ground of appeal under s.174(2)(e) TCPA (b) Any person with an interest in the land or a relevant occupier (ie a licensee) may appeal to the Secretary of State against the enforcement notice whether or not a copy of the notice has been served on him. As identified in (a) above he grounds of appeal in s.174(2) include the following which are relevant to this case: that copies of the notice have not been served as required by [the Act] (ground (e)) ; and that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters (ground (d)). The appeal can be lodged either (i) by giving written notice to the Secretary of State before the date that the enforcement notice takes effect; or (ii) by a properly posted letter which would, in the ordinary course of post, be received by him before that date. Notice of appeal suspends the operation of the notice pending the final outcome of the appeal. The parties have a right to be heard at an inquiry or other hearing. On appeal the Secretary of State may uphold, quash or vary the notice; grant planning permission or a Certificate of Lawfulness; or correct any defect if it would not cause injustice to the parties. Procedures for enforcement appeals are contained in regulations including the Town and Country Planning (Enforcement Notices and Appeals) Regulations 2002 and there are special rules and regulations applicable to enforcement appeals by way of written representations; hearing; or inquiry. There is provision for High Court challenge under s.289 TCPA Page 15 of 21