Authority criticised over inconclusive legal basis for planning enforcement charges
The Local Government and Social Care Ombudsman has criticised a national park authority for the way it adopted a policy to charge residents for planning enforcement action, saying the move was based on an “inconclusive legal opinion”.
The North York Moors National Park Authority decided to make a charge to recover some costs when taking enforcement action.
A couple complained to the Ombudsman that the park authority had charged them for enforcing a planning notice.
The Ombudsman said its investigation had found the park authority was “at fault for the way it made the decision to introduce the charge, and for not properly advising members of the legal and administrative basis on which it decided it was entitled to introduce it”.
It revealed that when the authority introduced the policy in 2015, and when it re-confirmed its position a year later, it took legal advice that found no clear legislation providing for local planning authorities to recover enforcement costs, and no case law on the issue.
The park authority has now suspended the policy, cancelled the charges made under the policy and issued a refund to any others that have paid.
The LGO called on the park authority to apologise to the couple for not properly considering the basis of the charge and for not explaining the basis for that charge.
Michael King, Local Government and Social Care Ombudsman, said: “In making policy decisions authorities should show a level of evidence reflecting the importance of the issue, and I would expect it to be meticulous for a decision as contentious as charging for planning enforcement.
“In this case, North York Moors National Park Authority’s decision was based on an inconclusive legal opinion and did not take into account all the relevant factors.”
The Ombudsman added: “I would expect a decision of this nature to receive thorough scrutiny. But the full implications of the authority’s proposal were not properly communicated to members, so it is questionable how informed their decision making could have been.
“We are also concerned the authority’s rationale for the decision shifted over time – rather than a robust, risk-based decision it appears it sought to justify a desired policy objective on limited and uncertain grounds.”
The park authority said the scheme was based on the principle that the costs of dealing with those who deliberately ignored planning law should be met by those responsible rather than the law abiding taxpayer.
The costs sought to be recovered were not those of enforcement proceedings but those of enforcement action that were otherwise not recoverable through any other process, it added.
Commenting on the Ombudsman’s report, park authority chairman Jim Bailey said: “The members are surprised and disappointed at these findings in view of the evidence provided to the LGO. They believe they have sufficiently considered the legal basis of the scheme, including advice of a local authority barrister and specialist QC, through a process of public reports to members in December 2014 and December 2015, and the usual range of discussions with officers as part of that process, and therefore had sufficient information to reach the decisions they did.”
He argued that the members were “fully aware that it was a new approach, with some legal uncertainties, but with significant public benefits, and the strong basis of ‘natural justice’ in seeking to recover costs from those who deliberately flout planning laws rather than the great majority who abide by them”.
The park authority is to accept the LGO finding that the basis of the cost recovery scheme was not adequately explained to the complainant.
It will formally consider the LGO’s final report, including its recommendations and such further actions as need to be taken, and respond to the Ombudsman in the next few weeks.
Bailey added: “Do we intend to re-introduce the cost recovery scheme? Probably, yes. The adoption and running of the scheme brought significant public benefit and the LGO does not conclude that the scheme was unlawful, but recommends the steps that need to be taken should the authority seek to reintroduce such a scheme.”
