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#3236 - Planning Enforcement - Commercial Property

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Commercial Property

1. Planning Enforcement

LPA enforcement powers:

  • New and improved powers given to LPA by Planning and Compensation Act 1991. Updated the TCPA 1990.

Ss.171-196 TCPA 1990 = LPAs wide powers to enforce.

  • Enforcement powers for BREACH of planning control

  • Definition of BREACH: “when a development is carried out without the requisite planning permission or where a condition / limitation is not complied with. [S.171A(1)]

    • S.73A TCPA: it is not an offence to carry out development without first obtaining pp. Applications can be retrospective. If developer is likely to get pp then LPA should suggest they make a S.73A application instead of pursuing enforcement action.

  • LPA has DISCRETION in deciding whether to enforce / take action. The breach is not an automatic offence. [LPA may consider enforcement to be expensive and create bad publicity]

    • LPA should consider whether breach has caused a unacceptable affect on public amenity or on the existing use of the land / does the building merit protection in the public interest

  • Time Limits [S.171B TCPA]:

4 years from date of operation being substantially completed

  • Any kind of operational development without Planning Permission

e.g. building an extension / any new development.
4 years from date of breach

  • Change of use to a single dwelling house
10 years from date of breach

  • Everything else

If S.171B time limits [i.e. 10 years / 4 years] has expired. Enforcement notice is technically ultra-vires at this point! The development becomes immune from enforcement action.

Type of enforcement How it works
Enforcement notice

Issue and Service of the notice

  • S.172-182 TCPA

  • Veryflexible – can be used to address any kind of breach

  • When LPA will issue [it is not an automatic right] =

    • When there is an apparent breach of planning control; and

    • It is expedient to issue an enforcement notice having regard to the development plan and other material considerations.

    • It will generally be regarded as unreasonable for the LPA to issue an enforcement notice solely to remedy the absence of a valid planning permission. [LPA will risk appeal by the accused]

    • If problem can be solved by accused applying for PP with conditions – this is a better alternative than enforcement notice.

  • Time limits for issue: within relevant time limit as defined by S.171B

  • Time Limits for Service: owner / occupier / any other person with interest in the land [e.g. morgagee]. Must be served not more than 28 days after issue of notice and not less than 28 days before the date specified in the notice [S.178(3)] as the date on which it is to take effect.

  • Content of the enforcement notice: There is no statutory form prescribed but:

    • Is must specify the breach

    • How to remedy the breach - EXAM: WHAT CONDITIONS / remedial action??

      • Apply for PP with conditions

      • Re-locate

    • State a time when the remedy is to take effect

    • Reasons why the LPA consider it expedient to serve the notice

Non-compliance with the enforcement notice:

  • Owner is in breach and liable on summary conviction to a fine of up to 20,000, or, on indictment, an unlimited amount.

  • Any other person: commits offence if he carries on the prohibited activity.

Appeal:

  • There are limited grounds for appeal against enforcement notices;

  • Appeals must be given to DCLG before the date on which the relevant enforcement notice takes effect

  • Grounds = S.174(2) TCPA:

 PP should be granted / conditions should be attached to existing planning permission
Matters alleged in the notice have not occurred
There is no breach of pp
LPA was out of time [this will suspend the operation of the Notice]. [S.285]
Copies of enforcement notice were not serves – required by S.172
There is a defect in the notice error or mis-description [S.174]. The SOS can correct the defect or vary the terms of the notice so long as this will not cause injustice to the appellant or LPA
The notice has not given enough time [e.g. not allowing 28 days to remedy]. This does not invalidate the notice – but LPA will be required to vary the original notice.

Defences

  • S.179(3) owner did everything he could be expected to do to comply. [p.69]

  • Notice is a nullity [major defect]

  • Person is not served with the Enforcement Notice and it was not entered in the S.188 Register and he did not know of the existence of the notice [S.179(7)]

  • If S.171B time limits [i.e. 10 years / 4 years] has expired. Enforcement notice is technically ultra vires now! The development becomes immune from enforcement action. Seller should get Certificate of Lawful use or Development – for proof that the development is lawful.
Breach of Condition Notice

  • S.187A

  • Alternative to Enforcement Notice

  • BCN will stipulate what action needs to be taken –i.e. new conditions

  • Advantages of BCN: no right of appeal against service of this notice

  • 28 days to reply / remedy. Otherwise client commits an offence

  • Client should make S.73A retrospective PP application if development has already started. Perhaps stipulate new conditions to be complied with.

Defences: (limited)

  • Reasonable measures were taken to ensure compliance with notice

  • Client did not have control over the land
Right of Entry

  • S.196A- 196C

  • LPA must have reasonable grounds

  • For dwelling house – must give 24 hours notice
Planning Contravention Notice [PCN]

  • S.171C – S.171D

  • For obtaining information – helps authority decide if they need to take enforcement action for breach of planning condition most likely a BCN!

  • Requires information to be supplied to LPA within 21 days of service of the notice [exam – say what information will be needed]

  • Can propose that discussions get underway –

    • may suggest a retrospective permission [S.73A TCPA application]

    • suggest a time and lace for client to make an offer

  • Penalty [up to 20,000] for failure to comply

  • Appropriate where Enforcement Notice would be too extreme [LPA may require more information of breach to know what to do]

  • Content of PCN (p.64)
Stop Notice

  • S.183-187 and S.171E-171G

  • LPA considers it necessary to stop something immediately [Enforcement Notice time restrictions would result in further breach

  • Takes effect not less than 3 days / not more than 28 days from service of the stop notice

  • Stop Notice MUST refer to the Enforcement Notice – it is not a enforcement method in its own right. Stop notice cannot be served once enforcement notice has taken effect.

  • Display: “Site Notice” on the land concerned
Injunctions

  • S.187B

  • To restrain any actual or expected breach of planning control

  • LPA applies to High Court / County Court – up to discretion of court. LPA must show that injunction is necessary and appropriate.
Warning

  • May be appropriate before more stringent enforcement measures.

Changes in recent Localism Bill:

  • Fidler v SoS: LPA can issue “Planning Enforcement Order” = to be issued by the Magistrates Court granted on 3 conditions

  1. breach

  2. deliberately concealed

  3. making order is discretionary – reasonable to grant the order

This overrides the time limits [4 years / 10 years] so LPA can pursue the enforcement.

2. Appeals and challenges to planning decisions

When to appeal:

  • Unfair conditions

  • Refusal of PP / reserved matters on the outline permission

  • Decision for PP is delayed [e.g. longer than 8 weeks]

  • Appeal against refusal of a S.73 or S.73A application [retrospective PP]

Who can appeal:

  • ONLY the applicant

How to appeal

  • S.78 TCPA 1990

  • Standard Form supplied by DCLG [online]

  • Time limit: within 6 months of the decision by LPA

  • Appeal to DCLG directly / make unilateral offer – to the Planning Inspector

  • Included in appeal:

  1. Grounds of appeal – take each ground and explain WHY is it being appealed.

  2. Desire to have appeal determined by written representations, heard by inspector, or public inquiry [LPAs views on this matter will be taken into account]. Inspector will consider:

Written representations Clearly understood case; no evidence needed; Environmental Impact Assessment is not needed or EIA is not in dispute
Hearing No cross examination of evidence is needed; one day max; issues are straightforward
Inquiry Complex cases; public interest

Consider also: cost;

Challenging the appeal decision –i.e. where planning permission is STIL refused =

  • S.284 TCPA: the validity of an appeal decision cannot be challenged

  • S.288: Statutory review = If the party aggrieved believes the decision was Ultra Vires – they can challenge the decision by appealing to the High Court

    • Bring action 6 weeks from the date on which the action is taken

    • Grounds:

  • Procedural requirements breached: Applicant has to show they were severely prejudiced [to avoid people appealing on minor procedural errors]

  • Substantive appeal - decision was not within the powers

    • Taking into consideration the wrong thing

    • Error in law

    • ...
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