Module 6 Planning Enforcement and Control of Advertisements · ENFORCING PLANNING CONDITONS Presented by Vivien Green on behalf of PIPA Conference Friday 25th October 2013

©Trevor Roberts Associates specialists in training for the planning service

PLANNING ENFORCEMENT - THE

MOST COMPLEX AND LITIGIOUS

PART OF THE PLANNING PROCESS

ENFORCING PLANNING

CONDITONS

Presented by Vivien Green

on behalf of

PIPA Conference

Friday 25th October 2013


WHAT CONSTITUTES A BREACH

OF PLANNING CONTROL?

Town and Country Planning Act 1990:

(a) carrying out development without the required

planning permission;

or

(b) failing to comply with any

condition or limitation subject

to which planning permission

has been granted


• Breach of Planning Control is NOT A CRIMINAL OFFENCE

(NB: breaches in the Listed Building/Advertisement/

Protected Trees regimes are)

• a lot of Compliance/Enforcement Officers’ time is spent on

investigations to gather EVIDENCE to establish a breach

• then on trying to resolve the breach/secure compliance

rather than taking punitive action

• ONLY WHEN A PLANNING ENFORCEMENT

NOTICE or a BREACH OF CONDITION

NOTICE has come into effect and has not

been complied with is there a CRIMINAL

OFFENCE

©Trevor Roberts Associates

“DISCRETION”

• it is often said that “enforcement” is discretionary

• BUT - dealing with complaints

about breach of planning control is

NOT DISCRETIONARY somebody

in the council has to do it or there

will be serious consequences

• making a fully reasoned and justified assessment of the

evidence and deciding whether or not it is EXPEDIENT to

enforce against an unauthorised development is NOT

DISCRETIONARY it has to be done (may be subject of a

Judicial Review/ Ombudsman complaint)

specialists in training for the planning service


• the “expediency” decision must be soundly based on

your DEVELOPMENT PLAN and OTHER MATERIAL

CONSIDERATIONS

• this is the point where the Council is

exercising its DISCRETION

• effectively you are asking: Would the

development be given planning

permission, or must some form of

action be taken?

• similarly a condition should not be imposed on a grant of

planning permission unless it is necessary and there is a

sound reason based on the Development Plan or a

material consideration



BREACH OF CONDITION • if used properly, conditions can enhance the quality of

development, enable a permission to be granted which

might other wise have been refused

• the public have a reasonable

expectation that conditions will be

complied with, failure to comply

noticed and appropriate action taken

• the integrity of the whole planning process: making

plans and dealing with applications, and the public’s

confidence and expectation of the system therefore

depends on an authority's readiness to take EFFECTIVE

ENFORCEMENT ACTION when it is ESSENTIAL



BUT … • Are your decision notices well thought-out/laid-out, user-

friendly documents?

• Are your conditions enforceable?

- necessary

- relevant to planning

- relevant to the development

- precise

- reasonable*

• Are your reasons specific, explaining clearly and

succinctly why the condition is being attached? If not the

condition will be unenforceable

* “Tests” set out in Circular 10/95 developed from lots of case law



TYPES OF CONDITIONS AND

ORDERING ON DECSION NOTICES

- time by which development must commencement

(3 years a default position)

- pre-commencement conditions

- conditions applying to the

development phase, including

listing of the approved plans

- conditions applying in the post

development phase

- time limit on the permission (if appropriate)

- conditions which will continuously apply to the

development



BUT ... • Are your decision notices well thought-out/laid-out, user-

friendly documents?

• Are your conditions enforceable?

- necessary

- relevant to planning

- relevant to the development

- precise

- reasonable*

• Are your reasons specific, explaining clearly and

succinctly why the condition is being attached? If not the

condition will be unenforceable

* “Tests” set out in Circular 11/95 developed from lots of case law



ALLEGED BREACH OF CONDITION

“ . . prior to the garden centre . . . opening, details of the

proposed types of products to be

sold should be submitted to and

agreed in writing by the LPA”

Reason: to ensure the use remains

seasonal, specialist and leisure

orientated as required by policy . . .

- the condition does not restrict the goods that can be sold

- “should” rather than “shall” begs question whether

developer had to submit the details

TELFORD & WEAKIN v SSCLG [2013] EWHC 79 (Admin)



DRAFTING GOOD CONDITIONS

When you ask for an additional condition(s) to be imposed,

remember:

The applicant must know:

- What is precluded?

- What is required? When and How

- When the condition will take effect

The authority must be satisfied that:

- the condition can be monitor to detect any breach and

there are the resources to do so

- if there is a breach it has the resources and the “bottle” to

enforce

. . .OR THERE WILL BE NO COMPLIANCE CULTURE specialists in training for the planning service


TIME LIMITS FOR ENFORCING

AGAINST CONDITIONS

• condition restricting change of use to

a dwellinghouse – FOUR YEARS from

the date of the breach

• other breaches of condition -TEN YEARS

from the date of the breach

NB: IF THERE IS A BREACH OF A TRUE PRE-CONDITION

(one which goes to the “heart” of the permission) then the

permission has not been started this is not a breach of

condition but development without planning permission


10 YEAR LIMIT ON CONDITIONS

• if there has been a continuous breach of a “to do”

condition (e.g. paint a house, erect a fence) after 10years

the breach becomes lawful; nothing can be done

• BUT if a condition has a continuing requirement (e.g. hours

of opening, agricultural occupancy) even after 10years if

there is a material period of compliance (i.e. “hours”

complied with/property unoccupied) any subsequent

breach is a new breach and time runs again

• an assessment is a matter of fact and degree in every case

- Court has held that an Inspector’s view that 48 days was

not a “temporary stopping and starting of the breach” of

an occupancy condition considered well founded


ENFORCEMENT IS TOO LATE

AND TOO SLOW!

• the Planning Act (in England) does not require

the developer to tell the LPA when he intends

to start so that monitoring compliance with

conditions can be triggered (mandatory in

Scotland)

• the introduction of CIL - the Community

Infrastructure Levy will help; notification of

commencement is mandatory and will trigger the start

of payments

• investigations need to gather evidence, this can

sometimes be time-consuming


• often necessary to serve statutory notices e.g. PLANNING

CONTRAVENTION NOTICE and give time for their return,

in order to get information and details of interests in the

land so that any enforcement notice is

served correctly

• the “alleged” contravener has to be

given time to put things right

• the “reporter/complainant” has to be

kept informed throughout

• Enforcement notices carry a right of appeal

REMEMBER: getting things wrong at this stage can be

damaging and potentially (very) costly later


ENFORCEMENT “TOOLS” APPLICATION TO VARY OR REMOVE THE CONDITION -this may satisfactorily resolve the problem

BREACH OF CONDITION NOTICE - requires full compliance, no appeal (but could face a legal challenge), non-compliance a criminal offence, must be prosecuted in the Magistrates Court, limited fine, no power for LPA to do the work

BREACH OF CONDITION ENFORCEMENT NOTICE - limited right of appeal, under-enforcement option, prosecution for non-compliance, Direct Action

BREACH OF CONDITION ENFORCEMENT NOTICE + STOP NOTICE - only appropriate for limited types of conditions



BCN v ENFORCEMENT NOTICE

Trust your officers their decision will be

based on:

• type of condition

• how well the condition meets “the

tests” in Circular 10/95

• what you want to achieve

• whether under-enforcing will deal

with the planning harm (as now perceived)

• who would be better assessing the requirements of

the condition - Magistrates or an Inspector?

• whether prosecution/fine/criminal record will matter to

the Defendant


TWO QUESTIONS TO LEAVE YOU WITH ...

Q. Is “reacting” to complaints when things have gone

wrong the best use of scarce resources?

Q. What message is this approach sending to the

community about the integrity of your planning process?


WHOEVER SAID BEING A COUNCILLOR WOULD

BE EASY?

YOU WILL HAVE DIFFICULT DECISIONS TO MAKE

IN THE COMING MONTHS

Presentation by:

VIVIEN GREEN


WELL... IT’S UP TO YOU IF YOU

WANT TO INSTIL A

“COMPLIANCE CULTURE”

IN YOUR COMMUNITY

Vivien Green Senior Associate TRA

[email protected]

mailto:[email protected]



Documents

Module 6 Planning Enforcement and Control of Advertisements · ENFORCING PLANNING CONDITONS Presented by Vivien Green on behalf of PIPA Conference Friday 25th October 2013