In control

March 3, 2011

The coalition government is committed to reforming – through the Localism Bill – the regime for the enforcement of planning control. Harriet Townsend evaluates the proposals.

It is generally well known that the Government entered office with proposals for reform of the planning system. These were set out in a document called Open Source Planning prepared by the Conservative Opposition as Policy Green Paper No.14 and generally endorsed within the Coalition Agreement. Practitioners’ responses to Open Source Planning ranged from “bold” through “ambitious” to “barmy”.

It included references to the enforcement of planning control promising:

Stronger enforcement powers to tackle unauthorised development
A limit on retrospective planning permission “to permit only the rectification of genuine mistakes”
Powers to revoke those planning permissions granted on a misleading basis.

During 2010 I found myself at a meeting with the Department of Communities and Local Government alongside Philip Kratz and one or two others. Civil Servants within DCLG were brainstorming ideas to implement these policies at a formative stage: we were told that Ministers had not by then contributed to the process.

The Decentralisation and Localism Bill was introduced to Parliament, after some delay, on 13 December 2010. It is divided into 8 Parts with 207 Clauses and 24 Schedules. It is the flagship piece of legislation designed to deliver – or at least take us closer to – the Government’s big idea, the Big Society.

It is perhaps not surprising that the enforcement of planning control occupies a relatively modest position within the Bill. The provisions are found within Part V Planning, at Chapter 5 Enforcement. The changes they introduce go beyond the main decentralisation agenda. There is, in the enforcement provisions, a clear policy thread which is not at all about decentralisation. Nor is it part of the localism agenda save to the extent that the enforcing authorities are local authorities and it gives them greater powers than hitherto. These are new powers and are designed as a package to strengthen the power of the state (broadly defined) over those who are responsible for breaches of planning control and certain similar acts.

The Bill was published together with a 15 page “Essential Guide” – largely about complementary measures which the Government will need to take to deliver a genuinely decentralising programme – as well as a statement for use by the media on the Bill’s provisions. Links to the various documents may be found here.

The Plain English Guide to the Localism Bill was published on 17 January 2011 when the Bill began its second reading in the Commons. On enforcement the Guide says this only:

Strengthening enforcement rules: For people to have a real sense that the planning system is working for them, they need to know that the rules they draw up will be respected. The Localism Bill will strengthen planning authorities’ powers to tackle abuses of the planning system, such as making deliberately misleading planning applications.

The main objectives of the enforcement provisions are set out in the Enforcement Package Impact Assessment published on 31 January 2011, as follows:

The Government is keen to strengthen local authorities’ enforcement powers, and is proposing four measures in the Localism Bill that will do so. These are to:

increase penalties for certain breaches of planning control, and amend time limit for prosecuting certain others
limit the use of retrospective planning applications
stronger powers against deliberate deception
stronger controls over advertisements

The two elements of the package which form the focus of this paper are the limit on the use of retrospective planning applications, and the powers to enforce against deliberate deception. None of the Bill’s provisions on enforcement apply to Wales.

It is of course important to read the provisions in their proper statutory context. Most enforcement provisions are found within the Town and Country Planning Act 1990 Part VII, sections 171-196C (as variously amended). The Act sets out the definition of a breach of planning control [s.171A] and provides within this Part for range of enforcement powers where breaches of planning control take place. These include:

The enforcement notice – s.172 and following – against which there is a right of appeal under s.174 bringing with it the ability to secure planning permission in an appropriate case - on appeal and retrospectively. Once an enforcement notice comes into effect a failure to meet its requirements is a criminal offence under s.179;
The breach of condition notice – s.187A – against which there is no right of appeal and which brings with it a criminal sanction;
The planning injunction – s.187B
The stop notice – s.183 – and temporary stop notices under s.171E and following.

Retrospective applications

The determination of a planning application made to a local planning authority is one of that authority’s statutory functions and, until the Planning and Compensation Act 1991 introduced the first s.70A, the authority was bound to determine a valid application no matter how often the process was repeated. The first s.70A was repealed and replaced – by the Planning and Compulsory Purchase Act 2004 – by s.70A and s.70B which permit an authority to decline to determine applications for planning permission in a greater number of situations [to repeated applications where the Secretary of State had refused permission on appeal were added repeated applications made to the authority and not appealed; and overlapping applications]. In each case a perhaps cumbersome but (I believe) important statutory framework for the exercise of the power is set out.

The Localism Bill proposes to introduce a new s.70C and with it a new power to decline to determine an application. This new power is stated as follows:

70C Power to decline to determine retrospective application: A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which an enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

It is immediately apparent that the form of this clause is different from that of the two which went before. The discretion is – on the face of it – totally unfettered. It would or might be said that this different approach is deliberate and that it is entirely unnecessary to restrict the Council’s ability to decline to determine an application where an enforcement notice has been issued. In other words it may be said that a Council is entitled to decline to determine an application despite a material change in circumstances since the enforcement notice was issued.

Neither is there any express restriction on timing – save that at the time the lpa decline to determine the application there should be an enforcement notice in place.

Must a local planning authority give reasons for declining to determine an application? My view would be that, if asked for them, they would almost certainly be required to give them by the courts were a claim for judicial review to be brought (bearing in mind recent case law on screening opinions, most particularly Mellor).

It is also of some interest that the Impact Assessment does not appear to address this particular aspect of “Objective 2”, which is to “limit the use of retrospective planning applications by making those who carry out unauthorised development choose either to submit a retrospective planning application or to lodge an appeal against the enforcement notice under ground (a) if they want the unauthorised development to have planning permission.” Section 70C is not about a choice over mode of appeal – it’s a new power to decline to determine an application.

Elsewhere Clause 103 does force Appellants to make a choice, and does so in the following way:

The deemed application on an enforcement appeal only arises if the Appellant expressly appeals on ground (a) [new s.177(1C) and s.177(5)]
The ground (a) appeal is not available if the enforcement notice was issued after the application for planning permission and before the expiry of the period within which that application must be determined [new s.174(2A) and (2B)].
There is no right to appeal non-determination if the local planning authority declines to determine the application under s.70C [bringing that new section into line with sections 70A and 70B – the remedy being solely judicial review]

Putting this another way:

An Appellant needs to “opt in” to a ground (a) appeal expressly
If an enforcement notice is issued before an application for planning permission is made, the authority may decline to determine that application – leaving the applicant with no choice but to appeal the enforcement notice.
If an application for planning permission is made before an enforcement notice then it is the only route for an appeal on the planning merits (unless the enforcement notice is issued after the period within which a determination of the application is required. In such an event it would seem the choice over mode of appeal remains).

I personally believe the drafting of these provisions has not achieved the draftsman’s intention and that some re-working of these clauses is inevitable. A better indication of the Government’s current proposals than the actuality of the Bill may yet be the pithy statement within the Impact Assessment.

Deliberate deception

It is perhaps worth noting that during 2010 there were two well reported cases involving a degree of concealment and deception. One, Robert Fidler v SoSCLG and Reigate and Banstead DC [2010] EWHC 143 (Admin), was imaginatively dealt with in a way which did not reward the “wrongdoer” – the straw bales concealing the building were part and parcel of the operational development, which was therefore not “substantially complete” until they were taken away.

But the other – in Welwyn Hatfield DC v SSCLG and Beesley [2010] EWCA Civ 26) – was a more successful deception: Mr and Mrs Beesley inhabited – as a dwelling house – the hay barn which had been permitted by planning permission. The facts were that the concealment was deliberate and that the haybarn had not been constructed and was never used for any other purpose. They were granted their certificate of lawful use when the Court of Appeal allowed their appeal and held that questions of deceit should not come into questions of interpretation of the statute.

The Localism Bill introduces an entirely new procedure. Clause 104 is devoted to “Time limits for enforcing concealed breaches of planning control”. It introduces a new s.171BA, s.171BB, and s.171BC.

It proposes that the local planning authority may apply to the Magistrates Court for a “planning enforcement order” within six months of having evidence sufficient to justify the application. If that order is made it gives the local authority in broad terms a year from the date of the order to bring enforcement action (without altering the existing limitation period if in fact it would permit longer than this).

The Magistrates Court in their PEO must “identify the apparent breach of planning control to which it relates [s.171BC(3)]. They must be satisfied of two things

They must be satisfied on the balance of probabilities that the actions of a person (including their representations and inaction where relevant) resulted in, or contributed to full or partial concealment of the apparent breach or of the matters constituting the apparent breach.
They must be satisfied that it is just to make the order having regard to all the circumstances.

This is essentially intended to operate as a deterrent measure and the Impact Assessment says this “the Government wants to ensure that people who deliberately deceive the local planning authority about the nature of their intended development, or who conceal it until the window for enforcement action has expired, are no longer able to profit from this practice.” [p12, Objective 3].

Other measures and timetable

The Bill proposes to increase the financial penalties associated with certain offences, most particularly for present purposes the breach of condition notice [from £1000 or level 3 up to £2,500 or level 4].

The difficulty enforcement officers have with a 6 month limitation period on prosecution is recognised and to at least some extent addressed: the new measures affect prosecution for breach of a Tree Preservation Order under s.210(4) and breach of advertisement control under s.224. At present the offending activity needs to be tied down to a date so that it can be demonstrated that prosecution is brought within 6 months of the offence. Offences which draw attention to themselves or involve the intervention of the authorities do not present too much difficulty, but breach of advertisement control, and damage to a TPO tree short of wilful damage likely to destroy it, are not so readily detected. The proposals are that prosecution would be possible within 6 months of the date the prosecutor has evidence sufficient – in their opinion – to prosecute, with a long stop date of 3 years from the offence.

Clause 106 would introduce a suite of powers to address unauthorised advertisements. These may be summarised as follows

A power to remove structures used for the unauthorised display of advertisements – but only after serving a “removal notice” [Clause 106(1) introducing a new s.225A]
A power to serve an “action notice” under a new s.225B on the owner or occupier of the land where there is a “persistent problem” with the display of unauthorised advertisements. This is subject to a right of appeal to Magistrates under new s.225C.
A power to remedy the defacement of premises, post boxes and bus shelters under a new s.225E, F and G. This is subject to a right of appeal to Magistrates under s.225H and may be at owner or occupier’s request s.225I.
Provision is made for the application of these powers to statutory undertakers land.

The committee stage of the Bill has begun and is timetabled to continue until the 10 March 2011.

Conclusions

The main proposals within the Localism Bill of relevance to those involved in planning enforcement are the new power to decline to determine applications; the complex provisions designed to prevent duplication of the routes by which the planning merits of unauthorised development are tested on appeal; and the introduction of the Planning Enforcement Order designed to prevent those who conceal the breach of planning control from the enforcing authority – in any way – from profiting from this.

The first two are less than well expressed in my view, but the progress of the Bill may yet enable what are essentially drafting issues to be ironed out.

Harriet Townsend is a barrister at 2-3 Grays Inn Square (www.2-3graysinnsquare.co.uk).