PLANNING SUMMER SCHOOL

PLANNING SUMMER SCHOOL ENFORCEMENT OF PLANNING CONTROL Celina Colquhoun LLB 3 GRAY'S INN SQUARE

1. Planning Powers I - POWERS Local Planning Authority s s principal enforcement powers under Town and Country Planning Act 1990 (as amended): Issue an Enforcement Notice (S. 172). Issue a Stop Notice (S. 183). Issue a Stop Notice (S. 183). 3 GRAY'S INN SQUARE

Issue of a Temporary Stop Notice (s. 171E). Application for a planning Injunction (s. 187B). Issue of a Breach of Condition Notice (s. 187A). 3 GRAY'S INN SQUARE

Where E N is in force, a local authority is further empowered to prosecute for breach of the notice (s. 179), and to take direct action in default (s. 178). 3 GRAY'S INN SQUARE

Such powers are without prejudice to local authority s s right to regain possession of its own land from unlawful occupiers: Kay v Lambeth LBC; Leeds CC-v-Price et ors [2006] 2 WLR 570.[HL] 3 GRAY'S INN SQUARE

2. Other Planning Controls Untidy Land Notice S.215 Control of Advertisements Ss220-225 225 Tree Preservation Orders Ss198-214 3 GRAY'S INN SQUARE

Listed Buildings and Conservation Areas Listed Buildings Act 1990 and Plannning (Listed Buildings and Conservation Areas ) Regs SI 1990/1519 special form of control applicable to buildings of special architectural or historic interest. Control not over development as per S.55 but whether works are for demolition or alteration or extension likely to affect character Ss 7and 9 - Offence 3 S.38 - EN GRAY'S INN SQUARE

II - RELEVANT GUIDANCE PPG 18 Enforcing Planning Control 1992 Circular 10/97 - Enforcing Planning Control: Legislative Provision and Procedural Requirements / TAN 9 Wales Enforcing Planning Control: Good Practice Guide for Local Planning Authorities.[DETR 1997] ODPM Circular 02/2005 (Temporary Stop Notices) 3 GRAY'S INN SQUARE

DoE Circular 18/94: Gypsy Sites policy and Unauthorised Camping (amended July 2000) ODPM/Home Office Guidance on Managing Unauthorised Camping (February 2004) Enforcement Concordat (1998) Code for Crown Prosecutors (2004) (in respect of criminal proceedings) 3 GRAY'S INN SQUARE

III -ENFORCEMENT AND DECISION MAKING ENFORCEMENT ACTION IS DISCRETIONARY NOT DUTY enforcement notice may only be issued where it appears there is a breach of planning control AND where it is expedient to do so 3 GRAY'S INN SQUARE

IN MAKING DECISION MUST HAVE REGARD TO PLANNING CRITERIA ie development plan policies and other material considerations. 3 GRAY'S INN SQUARE

CONSEQUENCE OF REFUSAL TO TAKE ENFORCEMENT ACTION (1) 1) Challenge by Third Parties Powers conferred solely on LPAs.. In theory, private individuals could seek judicial review of decision not to take enforcement action, but unlikely to succeed given breadth of LPA s discretion unless some error of law can be shown: R v Sevenoaks DC, ex p Palley [1995] JPL 915. 3 GRAY'S INN SQUARE

Where enforcement action unreasonably refused or delayed, a complaint to the Local Government Ombudsman may lead to a finding of maladministration and a recommendation to pay compensation. 3 GRAY'S INN SQUARE

(2) Decision not to take enforcement action is not equivalent to granting planning permission and does not prejudice issuing any subsequent EN but NB: (i) later action may become time barred under S.171B (4 and 10 year rule) whereupon breach deemed lawful; and (ii) if LPA chose to under-enforce enforce (see S.173) what is left is deemed to be granted

IV ENFORCEMENT NOTICE APPEALS S.174 Grounds S.174(2) (a)-(g) (g) (a) Permission should be granted (b) Matters not occurred (c) (d) (e) (f) (g) Matters do not constitute breach Immune from action as consequence of passage of time (see S.171B) Notice not served properly Excessive steps 3 Unreasonable time to comply GRAY'S INN SQUARE

Deemed to include application for planning permission S.177(5) fee required Appeal to Secretary of State Inspector is appointed to conduct inquiry Town and Country Planning (Enforcement Notices and Appeals) Regulations 2002 (SI 2002/2682) {for Wales Regs 1991(SI 1991/2804)

Onus of proof in enforcement appeals is on appellant that there is no breach of planning control; Standard is proof on balance of probabilities 3 GRAY'S INN SQUARE

Following decision interested party may appeal to High Court against it under S.289 Principles to be applied are those of Judicial Review NOT rehearing. 3 GRAY'S INN SQUARE

V ISSUES: 1. TIME LIMITS 2. UNDER ENFORCEMENT 3. GYPSIES 4. INVALIDITY delegation of decisions 3 GRAY'S INN SQUARE

1.TIME LIMITS- immunity S. 171 B Four Year Rule ss (1) and (2) 4 yrs is time allowed to take enforcement action where breach is either operational development or change of use of any building to use as a single dwellinghouse. Ten year Rules ss (3) 10 yrs is time allowed to take enforcement action for all other breaches. Time begins to run from date of breach.

R (north Devon DC)-v-FSS [2004] EWHC 578 (Admin) (Sullivan J; 12 th March 2004) Related to LDC but considered immunity under S.171B(3) for continuous breach for 4 or 10 years Issue whether immunity can be acquired in case of breach of seasonal occupancy condition. J in conclusion noted that many conditions but not all were capable of continuous breach.

R (on the application of Arun DC) v The First Secretary of State and Brown [2005] EWHC 2520, [2006] JPL 654 Enforcement against breach of non-separate use conditions-time time limits Permission was granted to build an extension to a property to house a dependent relative. A condition attached to the permission said the property was not be occupied or disposed of as a separate independent unit of accommodation. Some time in 1996 the extension was used as separate accommodation. The Council issued an enforcement notice in 2004.

Judge Mole QC held: In 1996 there were effectively two sorts of breach: (1) non- permitted change of use from a single dwelling-house to two separate dwelling-houses (2) breach of condition prohibiting change of use to two separate dwelling-houses. S. 171 B (2) states where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse,, no enforcement action may be taken after the end of the period of four years beginning with the date of breach.

S. 171 B (2) does NOT mean that the time limit for enforcing against a breach of condition against separate use is four years (contra the suggestion of David Keene QC in Kings Lyn and West Norfolk BC v Secretary of State for the Environment [1995] JPL 730). Instead the normal ten-year rule applies. Here therefore the enforcement notice had been served within time

Swale BC v First Secretary of State and Lee [2005] EWCA Civ 1568 - Four year period to create immunity from enforcement-continuity continuity of residential use. Owner of a barn into which two mobile homes were incorporated claimed immunity from enforcement action against change of use by virtue of four years residential use. The inspector found that there was residential use from March 1995 to February 1996, and from the year 2000 onwards. During the missing period he found that there was erratic use of the site and the owner had a complex personal life. There was no evidence of an intention to abandon residential use of the barn

Court of Appeal: The question of whether a building is being used for a particular purpose at a particular time is largely, but not wholly, a question of fact. The legally correct question for the inspector to have asked here e was whether the building had been used as a single dwelling house throughout the four year period. The question is not whether the use had been abandoned-that is simply not relevant here. The inspector did find four years use without a significant break but he reached this conclusion without deciding that periods of non- occupation were de minimis and taking into account factors such as absence of intention to abandon and lack of use for any other purpose. The decision therefore could not stand. The decision therefore could not stand. 3 GRAY'S INN SQUARE

Planning appeal decision: Leicester CC, Khan [2006] JPL 439 Quality of use for purposes of immunity from enforcement after 4 years. The lack of sustained residential activity for two year and one month period meant that the appellant could not show four years use as a residential dwelling, so as to provide immunity from enforcement. In considering residential use it is not enough simply to consider the characteristics of the building, in other words whether it has the facilities for everyday living. It is also necessary to consider the use of the building during the relevant period.

2.UNDER ENFORCEMENT Section 173(11) TCPA 1990 Where - (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.

Government Policy - Circular 10/97 Annex 2 paragraphs 2.10 to 2.13 States that section 173(11) grants permission for all remaining uses on the land once the Notice has been complied with. Deemed application arising from any appeal should relate to the mixed use in its entirety, not just those elements which are in breach of planning control.

On appeal, if the LPA does not specify all the uses taking place on the planning unit, the SoS/Inspector will correct the Notice to include all component uses taking place on the land. The result of this could be to grant permission for those uses specified in the allegation but not in the requirements.

Fidler-v-FSS FSS 2004]EWCA Civ 1295 (CofA( Brooke, Buxton and Carnwath LJJ Oct 12 2004) Honeycrock Farm three planning units A,B and C Unit C complex procedural and planning history following EN appeal and S.289 appeal to HC two principal issues before CofA Issue 2 = Suggestion of deliberate inaction for which S.173(11) designed.

Held ss(11) had effect only in relation to activities mentioned in the EN as constituting a breach of planning control.it did not therefore operate to grant pp for other possible breaches or for any other uses remaining on site but not subject to action once notice complied with even if not referred to in EN.

3.GYPSIES 2 February 2006 Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites issued.

The main changes (1) The definition of gypsies the old definition Originally defined in statute as persons of nomadic habit of life, whatever their race or origin Statutory definition adopted in Circulars 1/94 and 18/94. In Wrexham CBC v National Assembly of Wales [2004] JPL 65 the Court of Appeal held that as a matter of planning law and policy this definition imported a functional test to be applied to the applicants way of life at the time of the planning determination: are they at that time following such a habit of life in the sense e of a pattern and/or a rhythm of full-time or seasonal or other periodic travelling? If the applicants have retired permanently from travelling for whatever reason, ill-health, age or simply because they no longer wish to follow that way of life, they no longer have a nomadic habit of life. 3 GRAY'S INN SQUARE

(2) The definition of gypsies and travellers the new definition Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family s s or dependants educational or health needs or old age have ceased to travel temporarily or permanently,,... [Change from proposed definition in consultation draft: a person or persons who have a traditional cultural preference for living in caravans and who either pursue a nomadic habit of life or have pursued such a habit but have ceased travelling, whether permanently or temporarily, because of the education needs of their dependant children, or ill-health, old age, or caring responsibilities (whether of themselves, their dependants living with them, or the widows and widowers of such dependants)

(3) Gypsy and Traveller Accommodation Assessments Local authorities to assess gypsy and traveller accommodation needs as part of their GTAA GTAA information informs Regional Spatial Strategy, which will identify the pitch requirement for each local authority

(4) Obligation to allocate land (5) Transitional arrangements Where there is a clear and immediate need for gypsy and traveller pitches, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs. Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

Before refusing planning permission, LPAs will be expected to show that they have considered information on need eg data on incursions, application and appeal decisions, waiting lists and bi-annual count. Where unmet need but no available alternative gypsy and traveller site provision in an area but a reasonable expectation that new sites are likely to become available within a specified period in the area which will meet that need, LPAs should give consideration to granting a temporary permission. When preparing a gypsy and traveller site DPD LPA expected to give substantial weight to unmet need in considering whether temporary planning permission is justified. Such a permission does not create a precedent if later a full permission is applied for.

(6) Sites in the country A rural exception site policy should be included in the relevant DPD to meet local need for affordable land. Gypsy and traveller sites are inappropriate development in the Green Belt. Criteria-based policies should follow PPG2. Alterations to Green Belt boundaries may be permissible in exceptional circumstances eg where an existing need could not otherwise be met. Rural settings not subject to special planning constraints are acceptable locations in principle for gypsy and traveller sites.

(7) Applications Sites identified in DPDs to be used before windfall sites. Absence of a local connection is not by itself a reason to refuse an application. But local authorities can refuse applications that do not comply with planning policies, especially where the authority has complied with the Circular and proceeded properly to ensure that needs identified by accommodation assessments are being met.

(8) Sustainability Authorities should first consider allocating sites in or near settlements with access to services. Allocations to be assessed having regard to their social, environmental and economic impacts. (9) References to the Human Rights Act and the Race Relations Act

Recent Gypsy cases Smith v First Secretary of State [2006] JPL 386 Planning appeal against the refusal of planning permission for the retention of a gypsy caravan site. Inspector dismissed the appeal on the ground, amongst others, that nearby residents had a fear of crime and vandalism emanating from the site. That finding was challenged, but upheld in the High Court. On appeal to the Court of Appeal, held:

Fear of crime is capable of being a material consideration: West Midlands Probation Committee v SSE and Walsall MBC (1997) JPL 323 (concerning a bail hostel). The fear and concern must have some reasonable basis, though falling short of requiring the feared outcome to be proved as inevitable or highly likely.

The object of that fear and concern must be the use, in planning terms, of the land. On the evidence, the number of incidents had diminished, and those reported to the inquiry could not be reliably attributed either to the appeal site or to the applicants.

In order to take the incidents into account, it was necessary to attribute them not merely to the individuals concerned but also to the use of the land. It was not right to view land use for the purpose of a gypsy caravan site as inherently creating the real concern that attaches to an institution such as a bail hostel. The issue of fear of crime needed in this case to be very carefully explored. If the concern for the future rested not wholly on extrapolation from past events, but at least partly on assumptions not supported by evidence as to the characteristics of the future occupiers, then in accordance with the guidance contained in the West Midlands case it could not be taken into account. Appeal allowed on this and other grounds.

First Secretary of State v Simmons [2006] JPL 575 Enforcement notice issued against use of land as a caravan site in the Green Belt. On a recovered appeal, the Secretary of State concluded that the circumstances relied on by the occupier did not amount to very special circumstances sufficient to outweigh the harm to the Green Belt, and upheld the notice. That decision was challenged in the High Court before Newman J, who quashed it on the ground that the Secretary of State had attached undue significance to a lack of evidence of search for other sites. On appeal, the Court of Appeal restored the decision of the Secretary of State. Carnwarth LJ held, at 29:

Number of pitches set out in the RSS must be translated into sufficient specific site allocations in one of LPAs DPDs. The Core Strategy should set out fair, realistic and effective criteria for location of gypsy sites which will be used to guide the allocation of sites in the relevant DPD. These criteria will also be used to meet unexpected demand. Identified sites must be suitable and have a realistic likelihood that they will be made available for gypsies. DPDs will need to explain how the land required will be made available for a gypsy and traveller site, and timescales for provision.

the availability of alternative sites in a particular area is only logically relevant, once it is established that there are special circumstances which require a site in that area, and that those circumstances are in themselves sufficiently compelling to overcome Green Belt policy.. Mr Simmons failed at the first hurdle, since he failed to establish a special requirement to be located in the Sevenoaks district area. But even if he had been able to make such a case, based on a strong personal need, and that there were no viable alternative sites, it would not follow that as matter of policy the Secretary of State would be bound to regard it as a sufficient reason to justify the grant of permission.

(3) South Bedfordshire District Council v Price [2006] EWCA Civ 493 Following service of an EN, upheld on appeal, an injunction was granted requiring the defendants to leave land they owned in the Green Belt. They failed to comply and an application for their committal was made. In response defendants sought an order varying or discharging the injunction. In the High Court the defendants application was refused and a suspended committal order made. They then left the land. On appeal to the Court of Appeal the defendants argued that the committal order should be suspended as, amongst other things, a pending planning appeal had good prospects of success, particularly in light of Circular 01/2006. The Court of Appeal held:

The new circular clearly does improve the defendants case on the planning appeal [but see Simmons above]. Previously, unmet need was a factor to which weight had to be given. Now the planning authorities are directed to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The success of the application, at least to the extent of a temporary permission, was on the facts more likely than it would otherwise have been. But it was not possible to assume that it was more likely to succeed, even to that extent, than to fail.

It would only be right to suspend the committal order pending the result of the planning appeal if there were evidence before the court showing a substantial likelihood that the planning appeal would succeed, at least to the extent of a temporary permission. On the evidence the prospects of the planning appeal were better than remote, but were not particularly strong. The change in circumstances since the High Court hearing did not justify allowing the appeal so as to permit the Defendants to return to the property pending the outcome of the planning appeal.

Wychavon District Council v Rafferty [2006] EWCA Civ 628 Injunction granted prohibiting defendants from moving onto land owned by one of them. In breach of that injunction they moved onto the land. They sought to have the injunction varied, but that application was refused. They were given a suspended committal order. The defendants appealed to the Court of Appeal on the grounds, amongst others, that the judge below had wrongly fettered his discretion by not entering into a detailed examination of the merits of the defendants pending planning appeal, which at the time was about 12 months away. On this issue, the Court of Appeal held:

The evidence on which the inspector would ultimately decide the appeal would be to a substantially greater extent than was present before the court and was likely to be different from that before the court. As the decision of the House of Lords in South Bucks v Porter showed, it is not the court s s function to second- guess the outcome of the appeal, and even if it were, the court did not have the material on which to do so because of the further and different evidence which was likely to be adduced in due course.

The judge below assessed the merits of the planning appeal as not hopeless,, but they did not have a a real prospect of success. To have any prospect of success on the appeal to the Court of Appeal, the appellants would have to establish that the judge s s assessment was perverse. On the facts, the defendants did not begin to do that. t Witnesses should not be called and cross-examined on planning issues to enable the judge to form a better view of the prospects s of success of outstanding planning applications or appeals. Such a course is unnecessary to enable the court to form a broad view of o planning prospects, which it can and should do from the papers in i the same way that the court so often has to do about other contested issues in interim injunction proceedings. Appeal dismissed. (This case contains a useful summary of the relevant authorities and principles applicable to injunctions and committal applications)

4. NULLITY/ VALIDITY MPD London Borough Ealing [Ref App/A5270/c/04/1153203] Appeal against EN requiring removal of unlawful extensions. Issue whether notice was nullity or invalid - alleged failure by Council to comply with its internal procedures - no proper authority to issue notice In circumstances where Council s s scheme of delegation required consultation with Director of Legal and Democratic services and no reference was made in officer s s report, onus is on Council to demonstrate that Council s s resolution to take enforcement action was in accordance with scheme. Council failed to discharge that onus.

Whether nullity or invalid? Whilst advice exists suggesting EN that is not properly issued is a nullity it was not bad on its face. Conclusion was that circumstances would be akin to that of a fundamental error having been made, arising from a procedural irregularity.. Therefore EN was invalid and appeal allowed.

Kirklees BC v Brook [2004] EWHC 2841, [2005] JPL 1254 [2005] JPL 1254 Council sought 3 injunctions 2 under S.187B and 1 under s.214a. Authority to commence proceedings signed by Council s s Head of Planning services. No specific reference in scheme of delegation to exercise of power under Ss 187B or 214A and criminal proceedings were dealt with differently.

Court held that proceedings under these provisions were the most serious that a planning authority could take by way of enforcement because of sanction of commital to prison which was not otherwise available for a breach of planning control. The Council could not be taken to have intended that authority to start such proceedings could be delegated more widely than authority to start a criminal prosecution. The consequence of this was that there was no general delegation of authority to bring proceedings under S.817B or S.214A. The proceedings were not therefore validly authorised

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