APPLICATION TO EXTEND COMPLIANCE PERIOD OF A BREACH OF CONDITION NOTICE REGARDING ACCESS TO RESIDENTIAL STATIC CARAVANS

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1 Enforcement Ref: 08/00446/COMPCH APPLICATION TO EXTEND COMPLIANCE PERIOD OF A BREACH OF CONDITION NOTICE REGARDING ACCESS TO RESIDENTIAL STATIC CARAVANS AT 24 Gun Lane, Sherington, Newport Pagnell Ward: Sherington Parish: Sherington Parish Council Report Author/Case Officer: Ann Stannard Contact Details: ann.stannard@milton-keynes.gov.uk 1.0 SUMMARY (A brief explanation of what the application is about, what the main issues are and the officer's Recommendation to the Committee) 1.1 This report relates to a request by the landowner of 24 Gun Lane, Sherington to extend the compliance period of a Breach of Condition Notice served on the 2 nd June 2009 requiring compliance with Condition (3) of planning permission 08/00193/FUL, which states All residential access to and from the site during the habitation of the caravans shall be obtained from Gun Lane directly across the frontage of No 24 Gun Lane. No other access shall be used without the written approval of the Local Planning Authority. 1.2 In considering a report regarding the breach of planning condition, the Development Control Committee had resolved that in the circumstance and having regard to the national and the Council s enforcement policy in respect of enforcement action and the provisions of the development plan, it was expedient for the Council to issue a Breach of Condition Notice pursuant to section 187A of the Town and Country Planning Act The decisive issue for consideration in this matter is whether an extension to the compliance period of the Breach of Condition Notice would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. Consideration should be given as to whether the circumstances of the build, the groundwork and the family s circumstances have impacted on this area and whether, in light of all the facts in this case, the compliance period for the Breach of Condition Notice should be extended for a further ten week period. 1.4 RECOMMENDATION In the circumstances of this case and having regard to both national and the Council s policy in respect of enforcement action and the provisions of the development plan, it is recommended that the compliance period of the Breach of Condition Notice served on the 2 nd June 2009 should be extended for a further ten week period pursuant to s187a(7)(b) of the Town and Country Planning Act (260)

2 2.0 REASON FOR REPORTING APPLICATION TO COMMITTEE (Most planning applications are dealt with by the Chief Planning Officer under powers delegated by the Development Control Committee) 2.1 This matter is reported to Committee as it relates to a request to vary the compliance period of a Breach of Condition Notice, the service of which was authorised by the Development Control Committee 3.0 INTRODUCTION (A brief description of the site and its surroundings) 3.1 The development site, 24 Gun Lane is located to the east of Gun Lane and is bounded on the south by number 22 Gun Lane and to the north by number 26 Gun Lane. An access track to paddock land associated with of 24 Gun Lane is located to the north of 26 Gun Lane bounded by the garden of 26 Gun Lane and open countryside. 3.2 The static residential caravans granted planning consent under planning application 08/00193/FUL are sited on the paddock land to the rear of the residential curtilage of 24 Gun Lane. The development site is within the village limits as identified on the proposals map of the Local Plan, but the access track is identified as being within the open countryside. 4.0 BACKGROUND 4.1 In 2007 the occupiers of 24 Gun Lane, Sherington were granted consent for the demolition of an existing bungalow and the erection of a new dwelling under reference 07/00779/FUL. Condition 11 states: Access to and egress from the site during construction works shall not be obtained except to Gun Lane directly across the frontage of No. 24 Gun Lane between No. 22 and 26 Gun Lane. 4.2 In April 2008 planning permission was granted for the siting of two static caravans during the demolition of the existing dwelling and construction of the new dwelling, planning application 08/00193/FUL refers. 4.3 During the consultation for the siting of the caravans the owner of 26 Gun Lane wrote a letter of objection to the proposals stating : 1. Loss of privacy by virtue of siting; 2. Caravans are sited within the open countryside contrary to the development plan; 3. Access to the caravans is likely to be continued to be misused, which result in noise and nuisance to the detriment of residential amenities. 4. There is a gap of 5m between the new building and the northern boundary of the site,which could provide safe and convenient access for the applicants and their family; (261)

3 5. The static caravans should be sited at the front of the site where the new garage is to be sited to avoid the issues outlined in our previous letters. This would allow us to retain our privacy and would create far easier access for the applicants and their visitors. 4.4 The applicant responded to the issues raised by the objector relating to the use of the existing side access along the northern boundary of number 26 Gun Lane indicating that: "If we are not allowed access to and from the caravans via the track it means that we will have to cross the building site each time we want to access and leave the property. Building sites are dangerous areas for adults, as we have children as well this makes for a potentially very dangerous situation especially as the whole site will be affected. As there is a track there already it would be a strange situation if we were prevented from using it. I have had dealings with the HSE in the past and I am sure they would take a pretty dim view of us being prevented from using a "safe" route and being made to use a potentially very dangerous one from a risk assessment point of view." 4.5 In considering the merits of the planning application the officer s delegated report states: With regard to the access in question, it is considered that a balanced view has to be taken with impact on residential amenities of the occupier of the adjacent property on one hand and inconvenience and health and safety issues on the other. It is considered that there is adequate gap or distance between the proposed building and the northern boundary of the site to enable residential access. However, it is not clear whether the access would be safe and convenient in terms of vehicular use, and parking may have to take place remote from the temporary accommodation. 4.6 Planning consent for the siting of the static caravans was granted subject to the planning condition: All residential access to and from the site during the habitation of the caravans shall be obtained from Gun Lane directly across the frontage of No 24 Gun Lane. No other access shall be used without the written approval of the Local Planning Authority. 4.7 The reason for the imposition of the planning condition was to protect residential amenity of the neighbouring property. 4.8 Following the granting of the planning permission for the siting of the static caravans and the demolition of the existing bungalow and the erection of a new dwelling, there were discussions with the applicants in which they raised their concerns regarding the practicality of crossing the construction site for the new dwelling. They were advised that they were entitled to submit an appeal in respect of the aforementioned Condition (3) prohibiting the use of (262)

4 the track to gain access to the static caravans or submit a planning application to vary the condition. An appeal was not submitted. 4.9 On 4 September 2008 a planning application was received, recorded as Variation of Condition 3 of Planning Permission Number 08/00193/FUL so as to enable vehicular access. This application, Ref No 08/01550/FUL has been recorded as Application invalid on receipt. The reasons for recording as invalid include: Inadequate/no locations plans, inadequate/no block plans. Also, no fee was paid. In a subsequent telephone conversation, the applicant indicated he does not intend to submit the necessary information or fee, as the Condition should not have been placed in the first instance. The applicant cites Health and Safety grounds After development of the new dwelling had commenced, on 15 October 2008 the Planning Enforcement Section received a written communication that the planning condition prohibiting use of the track to gain access to the static caravans was being flouted on a daily basis On Monday 20 October 2008 a member of the planning enforcement team visited 24 Gun Lane, Sherington and noted that the development of the new dwelling had started. The enforcement officer noted that the track was being used to gain access to the static caravans, which was confirmed by the occupier. She explained that it was not practical to cross the construction site for the new dwelling to gain access to the static caravans where the family are living The resident family, who have four children under the age of six years, were accessing the residential caravans from the existing field access and track situated to the north of 26 Gun Lane. The use of this access was clearly in breach of the planning condition An enforcement report regarding this breach was submitted to the Development Control Committee in February 2009 as strong representations had been made both for and against enforcement of the condition As part of his submission the landowner advised: 1. The weather conditions had reduced the site to mud and that duck boards and planks were being used by the builders to cross the site. 2. Additionally, materials are stored and heavy plant, including a crane are operating at the front of the site, which it would be necessary to cross to comply with the requirements of the planning condition. 3. That he did not consider the site was safe for his children to access across. Should the Council take enforcement action to secure compliance with the planning condition then the family will not be able reside at the caravans and will need to source alternative accommodation The owners of the adjoining property, 26 Gun Lane, Sherington advised: (263)

5 1. Their request for the imposition of the planning condition stopping residential access of the northern track was accepted by planning officers. 2. They have lost all privacy, peace and enjoyment of the garden to the back and side elevation as a result of the use of the northern track. 3. They feel that the space on site is adequate to provide safe vehicular access to the temporary accommodation on site. 4. The occupiers have created their own problem by lack of foresight and planning. Mr and Mrs Constantine chose to have their family living on site. 5. Request an independent Health and Safety report to ensure impartiality and to demonstrate 5.217m is more than adequate to provide safe access Having considered the officer report and submissions the Development Control Committee resolved That enforcement action should be undertaken in respect of the breach of planning condition for the following reasons: 1. That it is expedient to take enforcement action with regard to the breach of Condition (3) of planning permission 08/00193/FUL. 2. That in the circumstance and having regard to the national and the Council s enforcement policy in respect of enforcement action and the provisions of the development plan, it is expedient for the Council to issue a Breach of Condition Notice pursuant to section 187A of the Town and Country Planning Act That the period for compliance for the breach of condition notice shall, following further discussion with the developer, be agreed in consultation with the Chair of the Development Control Committee Following discussions with the landowner and the Chair of the Committee it was considered appropriate to specify a period securing compliance with the planning condition within six months of the grant of a revised planning application i.e. 25 th August The Council has now received a written request from the landowner to extend the compliance period for a further ten week period. 5.0 RELEVANT PLANNING HISTORY (A brief outline of previous planning decisions affecting the site this may not include every planning application relating to this site, only those that have a bearing on this particular case) 07/00779/FUL Demolition of existing bungalow and construction of new dwelling and garage, permitted /00193/FUL Siting of two static caravans and covered entrance area during demolition of existing dwelling and construction of new dwelling permitted /00450/FUL (264)

6 Demolition of existing bungalow and erection of a two storey dwelling and a detached double garage (re-submission of 07/00779/FUL) permitted /01550/FUL Variation of condition 3 of planning permission number 08/00193/ful so as to enable vehicular access to the temporary residential caravans via land adjacent to the side and rear of 26 gun lane. Application Invalid. 08/01763/DISCON To discharge Condition 2 (Landscaping) Condition 3 (Trees & Shrubs) Condition 8 (Floor Levels) and Condition 10 (Boundary) attached to planning permission 08/00450/FUL. 08/01940/FUL Demolition of existing bungalow and construction of two storey dwelling and detached garage (Resubmission of 08/00450/FUL incorporating attic, en-suite bedroom with dormer windows and part revised materials to side elevation) permitted /00446/COMPCH Service of a Breach of Condition Notice regarding non-compliance with Condition (3) of planning permission 08/00193/FUL 6.0 NATIONAL POLICY AND GUIDANCE ON ENFORCEMENT ACTION 6.1 The Council s power to undertake enforcement action is discretionary. The wording of the legislation is that where it appears to the local planning authority that there has been a breach of planning control after the end of 1963; and they consider it expedient to do so having regard to the provisions of the development plan and to any other material considerations, they may issue a notice requiring the breach to be remedied. 6.2 In this case there had clearly been a breach of planning control and having considered the officer report and the representations made by interested parities, the Council considered that in the circumstance and having regard to the national and the Council s enforcement policy in respect of enforcement action and the provisions of the development plan, it is expedient for the Council to issue a Breach of Condition Notice pursuant to section 187A of the Town and Country Planning Act 1990 (hereinafter referred to as the 1990 Act). 6.3 However, the landowner has indicated that there have been unexpected problems and delays with the build project and that he does not feel that he will be able to provide safe access for his children to the residential caravans by the compliance date of the 25 th August He has therefore requested a 10 week extension to the compliance period. 6.4 Section 187A(7)(b) of the 1990 Act provides that the period allowed for compliance with the notice is that period as extended by a further notice served by the local planning authority on the person responsible. 6.5 Section 187A(6) of the 1990 Act provides that the Local Planning Authority (265)

7 may withdraw a notice and that such a withdrawal shall not affect their power to serve on the person responsible a further breach of condition notice directed at the conditions specified in the earlier notice, or at any other conditions. 6.6 Circular 10/97 Enforcing Planning Control: Legislative Provisions and Procedural Requirements further indicates that the withdrawal of a notice may take place at any time, including after the expiry of the compliance period. 6.7 Sections 187A(8) and (9) of the 1990 Act provide that if, following the end of the compliance period, the conditions specified in the notice have not been complied with and any specified steps have not been taken, the responsible person will be in breach of the notice and guilty of an offence. 6.8 There are two statutory defences provided by Section 187A(11) of the 1990 Act, for which the burden of proof rests with defendant, theses are: 1. That he took all reasonable measures to secure compliance with the conditions specified in the notice; and 2. Where the notice was served on him as a person having control of the land, that he no longer had control of it when the notice was served on him. 7.0 COUNCIL S PLANNING ENFORCEMENT POLICY 7.1 The Council s adopted enforcement protocol has the following objectives: 1. Remedy the undesirable effects of unauthorised development; 2. Bring unauthorised activity under control to ensure that the credibility of the planning system is not undermined; and 3. Strike a balance between protecting amenity and other interests of acknowledged importance, and allowing acceptable development to take place. 7.2 Paragraph 3.4 of the planning enforcement protocol sets out the options that are available to the Council and these include: 1. Minor breach with no significant effects no further action 2. Breach likely to be regularised by grant of permission / consent invite application for planning permission, etc. as appropriate 3. Breach immune from enforcement action due to passage of time limit invite application for Lawful Development Certificate 4. Breach where permission unlikely to be granted take enforcement action (enforcement notice, breach of condition notice, stop notice, injunction as appropriate depending on seriousness of breach and (266)

8 environmental effects) 5. Where a Breach of Condition Notice has not been complied with the person responsible, who was served with the notice, is likely to be prosecuted. Where an enforcement notice takes effect but is not complied with any owner / occupier / person who has control of or an interest in the land is likely to be prosecuted and the Council will consider using it s default powers to take direct action to remedy the breach of control, recovering the cost from the owner or placing a legal charge on the land. 8.0 OPTIONS TO CONSIDER 8.1 In line with national planning policy and guidance and the Council s adopted enforcement policy there are a number of options open to the Council in response to the request to extend the compliance period: 1. Serve a further Notice extending the period for compliance for an additional ten weeks. 2. Withdraw the Breach of Condition Notice. 3. Take no action in respect of the Breach of Condition Notice, with the compliance period remaining as the 25 th August The landowner has contacted the Council, in advance of the compliance date of the Breach of Condition Notice, as he is aware that the development has not progressed as quickly as he had anticipated and he feels that the condition of the land is such that he cannot safely provide access across the site for his children. 8.3 Section 187A(7)(b) of the 1990 Act allows for the extension of the compliance period. The landowner has provided detailed reasons for his request to extend the compliance period and these are contained in para. 9.3 below. The land owner has requested a 10 week extension to the compliance period which he believes will be sufficient to enable the overhead work to be completed and the scaffolding removed thus enabling him to comply with the planning condition and the requirements of the notice. 8.4 Section 187A(6) of the 1990 Act provides that the authority may, by notice served on the person responsible, withdraw the breach of condition notice, but its withdrawal shall not affect the power to serve on him a further breach of condition notice in respect of the conditions specified in the earlier notice or any other conditions. 8.5 Should members be minded to withdraw the notice, the progress on the development site could be monitored by the enforcement team and, should circumstances change but the breach of the planning condition continue, the expediency of undertaking of formal enforcement action could be considered. (267)

9 8.6 Planning permission 08/00193/FUL provided temporary consent for the siting of the static residential caravans. The planning permission expires on 31 st December 2009 which presently provides a fixed timescale for the cessation of the residential use of the land and the use of the access track. 8.7 Should the Breach of Condition Notice not be withdrawn any use of the northern agricultural track to gain access to the residential caravans after the 25 th August 2009 would be a breach of the notice and an offence. The only remedy available for such a breach is a prosecution of the person responsible. 8.8 As outlined in paragraph 6.8 above there are statutory defences to the offence, the most relevant being that the person responsible has taken all reasonable measures. This is a provision that is quite widely drawn. Provided the person responsible has taken all reasonable measures to secure compliance, even although he has not succeeded and even although he has not taken any of the specified steps, he is entitled to rely on the defence. 8.9 Whilst, on initial view, the steps to be taken in the event of non-compliance with a breach of condition notice appears a simple procedure a degree of complexity arises in a number of areas. As well as the statutory defences there is the prospect of public law points being taken in defence to a prosecution, such as challenges to the validity of the condition or the notice and the fact that this procedure attaches criminal liability to conditions which were not imposed and accepted without that prospect in mind and which may not be readily enforceable in this way In light of these matters and taking into account the request and additional information submitted by the landowner the Council s litigation team were asked to advise on the likelihood of success in the event that action needs to be taken to deal with a breach of the notice after the 25 th August From reviewing the documents in this matter the preliminary advice is that proposals to take legal action would not be at all likely to be successful. 9.0 CONSIDERATION OF ISSUES (The analysis of the issues which are critical, material, considerations and/or of greatest concern to objectors for the Committee to weigh up before making a decision) 9.1 A Breach of Condition Notice was served on the 2 nd June 2009 requiring the cessation of the use of the northern agricultural track to access the residential caravans. The compliance date for the cessation of the use of the track is the 25 th August On the 3 rd August 2009 the landowner contacted the enforcement team requesting that the compliance period for the notice be extended as the development site would not be safe for his children to cross by the 25 th August 2009 due to unexpected and unplanned difficulties with the project. (268)

10 9.3 The landowner further advised: The current building work at 24 Gun Lane Sherington has suffered a number of delays that have compounded to extend the expected completion date of the exterior works. The bad weather early in 2009 pushed us back a number of weeks as it was too cold to lay bricks and blocks. Further delays have been experienced more recently as it has taken longer than expected to prepare the ashlar reclaimed stone ready for laying. It is the ashlar stone part of the construction that is causing the delays and thus having a knock on effect, in terms of time, before we can have access along the north boundary of the house. At present the ground level is some two to three feet below finished ground level and this cannot be made good until the stone is finished, the drainage is completed and the scaffold comes down. As soon as this takes place we should be in a position whereby we can access the caravans via the North boundary and not via the track to the field. Currently the Northern boundary area is covered by scaffold that extends down into the area that has been dug out when the bungalow was knocked down. This area is impassable and dangerous because of the ground conditions and the fact that the work is going on overhead. Access across the site through the building is also not an option due to the overhead work and the general dangerous nature of the construction. (Please see attached photographs) My wife and I have four small children all under the age of six. To coax them across the site on a regular basis through the day is a practical impossibility and also a very dangerous and hazardous proposition that no-one on the site wants to be responsible for. The track gives us a very safe alternative that we believe has little or no impact on anyone else, in fact by using the track it s the furthest possible access point from any other property. In consultation with the Health and Safety Executive I continue to carry out a daily risk assessment regarding the safe access through the site. At the present time the risk is too high to contemplate any access across the site and I respectfully request that the compliance period is extended for a further ten weeks to allow for the construction work described above to be completed. 9.4 As safety issues have been raised by the occupiers, officers have previously consulted the Health and Safety Executive. The HSE have advised that in respect of construction sites their legislation deals with people within the workplace ensuring that such persons are not harmed and that the public are not out at risk. Within the terms of their legislation the family resident at the site would constitute the public and need to be protected. Matters such as consents, conditions, easements and other similar matters cannot negate the requirement to comply with Health and Safety Legislation. (269)

11 9.5 The owner of the adjoining property, 26 Gun Lane, Sherington has been advised of the request for an extension to the compliance period but officers have not received a response from them. Any comments that may be submitted will be reported verbally to the Committee. 9.6 The occupiers of 26 Gun Lane have not registered a complaint in respect of the use of the northern access track. 9.7 The planning condition was imposed to protect the residential amenities of this 26 Gun Lane, Sherington. It is noted that access to the residential caravans will occur either along the unauthorised agricultural access track which is adjacent to the northern boundary of this property, or the within the development site adjacent to the southern boundary of 26 Gun Lane. In both cases the vehicle movements will be close to the boundary fences and the number of vehicle movements, which the occupiers have indicated to be 6-10 movements a day, will be the same, although use of the northern access track results in vehicle movement being visible from the eastern boundary of the property. 9.8 Having undertaken an inspection of the site, considered the matters raised by the relevant parties, in particular the landlords expectation of his ability to comply with the requirements of the Notice at the end of the extended compliance period and advice from the Council s litigation team, it is considered that the request to extend the compliance period should be approved and, that a further Notice extending the compliance period 10 weeks is served CONCLUSION (The reasons that officers recommend that the application should be refused. The reasons must be ones that the Council can demonstrate with evidence, should the applicant appeal against the refusal.) 10.1 In the circumstances of this case and having regard to both national and the Council s policy in respect of enforcement action and the provisions of the development plan, it is recommended that the compliance period of the Breach of Condition Notice served on the 2 nd June 2009 should be extended pursuant to s187a (7)(b) of the Town and Country Planning Act (270)

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13 (271)

14 Photographs Referenced by Landowner (272)