THE PLANNING REFORM BILL: DEVELOPING A WELSH ENFORCEMENT SYSTEM Sophie Berry Welsh Government/Newport City Council

Overview Background to enforcement research and Planning Bill Task 1 Measures proposed to be included in the Bill Task 2 Outcome of phase 1 of research What next? Sophie Berry Welsh Government/Newport City Council

Background Stage 1 and 2 Enforcement Reviews Planning Delivering for Wales (PdW) (2002) Programme: Enforcement system is ‘cumbersome and ineffective’ Subsequent review into Welsh enforcement system Stage 1 of review: Questionnaire to stakeholders fed into Stage 2 review paper (2006) Consensus that existing regime was generally effective although made recommendations for areas of further research – no primary legislation making powers until March 2011 Sophie Berry Welsh Government/Newport City Council

Background Report by Independent Advisory Group (IAG): ‘Towards a Welsh Planning Act’ (Sep 2012) IAG set up to review planning system - chaired by former Director of Planning Inspectorate in Wales - other stakeholders: lawyer, local government, RSPB, development industry Gathered evidence on how best to allocate future roles and responsibilities in the planning system – 97 recommendations Few comments from call for evidence re enforcement Recommendations made based on experiences of IAG members Recommendations 82 and 92 – 93 Sophie Berry Welsh Government/Newport City Council

Task 1 Put the existing legislation/policy documents in the correct columns on your worksheet: A. Town and Country Planning (Local Development Plan) Regulations B. Technical Advice Note 9: Enforcing Planning Control C. Town and Country Planning Act D. Town and Country Planning (General Permitted Development) Order E. Planning and Compulsory Purchase Act F. Town and Country Planning (General Development Procedure) (Wales) Order G. Planning and Development Regulations H. National Planning Policy Framework I. Town and Country Planning (General Development Procedure) (England) Order J. Planning and Development Act

Planning Bill Overarching power in primary and detail in secondary e.g.TCPA & DMPWO - not the case with enforcement Pre 2011: relied on secondary legislation, policy and guidance to shape system Primary legislation powers in May2011 (commencement of Part 4 of Government of Wales Act 2006): Now able to legislate for Welsh Context in areas of legislative competence Sophie Berry Welsh Government/Newport City Council

Arup research Arup won £50,000 contract to conduct review into Welsh enforcement system over 5 months Asked to consider measures identified in Stage 2 review and by IAG Conducting baseline survey of Welsh LPA enforcement statistics to feed into review Steering Group established 3 Phases. Phase 2 report due in March Final Phase Report will make recommendations for effective and efficient enforcement system: Bill, secondary legislation, policy, guidance, training etc Sophie Berry Welsh Government/Newport City Council

Measures Considered Changes to 4 and 10 year time limits Power to introduce Temporary Stop Notices Use of completion notices Role of fines Use of S102 and conditions on Notices Power to introduce Fixed Penalty Notices for offences Provision to cancel Enforcement Notices Changes to ground (a) appeal: remove deemed application & no ground (a) if previous refusal upheld Power to decline to accept retrospective applications Change of S.217 appeals to Ministers Sophie Berry Welsh Government/Newport City Council

Task 2 Group A: Removal of time limits Group B: Introduction of Fixed Penalty Notices In your group identify: The legislation that would have to be changed to implement your measure; The positives and negatives of implementing this measure

Common Themes in Phase 1 Reactive approach Resource constraints Variations in service quality Training Delegation of responsibility Delay and unfair practice Collaborative working and info sharing

Time limits S.171B TCPA 1990: 4 and 10 years immunity – increase? Decrease? Remove? Beesly 2011: ‘deliberate, elaborate and sustained plan to deceive the council from first to last’ What about residential conversions where no obvious deliberate attempt to deceive? reduced urgency/increased strain & increase in appeals/prosecutions OR Reduced burden & greater clarity Sophie Berry Welsh Government/Newport City Council

Temporary Stop Notices S.171 (E – H) TCPA 1990 (S. 52 PCPA 2004): ‘Widely effective tool’ (DCLG) S144A & 144D of TCP(Scotland) Act 1997 Power not available in Wales Immediate effect, no EN required, offence BUT compensation risk Positive reaction in interviews: ‘breathing space’, halt intensification. Increased complexity? Sophie Berry Welsh Government/Newport City Council

S.94 Completion Notices In-effective Not used regularly Result in lawful but Incomplete development Slow, WM approval, & Compensation risk Repeal or change S.94 under Planning Bill Sophie Berry Welsh Government/Newport City Council

Fines Defined in legislation Fines imposed too low Fines don’t act as deterrent Change to legislation OR guidance to magistrates? LPA’s need to emphasise Financial gain Sophie Berry Welsh Government/Newport City Council

Conditions on a Notice S102 TCPA 1990: Discontinuance Order - rarely used - little knowledge of Orders New power to attach conditions to EN’s - where development acceptable in all other respects e.g. removal of pd rights, opening hours Change to S.173 (content of an EN) or S.102 Quick resolution BUT No retrospective fee Sophie Berry Welsh Government/Newport City Council

Fixed Penalty Notices S.136A & 145A of TCP (Scotland) Act must be served within 6 months, no appeal, 1 per offence -£300 (BOCN) to £ rarely used Quick fix Avoid magistrate system More proportionate? Multiple FPNs for repeat offences = appeal system Sophie Berry Welsh Government/Newport City Council

Cancelling Notices Notice on Register can be impediment to property transactions (IAG) Power to cancel EN’s when spent Could be beneficial where no chance of re- occurrence Part of site history – informational, deterrent What if repeat offence occurs? resource implications LPA’s interviewed considered Notices should run with land Register should already record compliance Sophie Berry Welsh Government/Newport City Council

Ground (a) Appeal Removal of ‘deemed’ application - ‘deemed application’ is confusing - ground (a) only route to pp once EN served - interviewees agree Remove ground (a) appeal where refusals upheld - prevent delay - S.123 Localism Act 2011 – no ground (a) where EN served after app submitted and before the end of the application period – Wales goes further (applies to retrospective) - restriction of appeal rights? Sophie Berry Welsh Government/Newport City Council

Retrospective Applications S.123 Localism Act 2011: Power to Decline Retrospective Planning Applications, where EN served first Discretion of LPA Would operate in conjunction with loss of ground (a) where previous refusals upheld Prevent delay – developer forced to take one route to attempt to gain pp where breach has occurred Risk of manipulation through proposal of small changes Sophie Berry Welsh Government/Newport City Council

S.217 Appeals Appeals against S.215 Notices (S.217 TCPA 1990) currently determined by magistrates No other enforcement or planning appeals dealt with in this way Magistrate’s not used to making such judgements More appropriately dealt with by WM? Very few S.217 appeals made LPA’s tend to get good results at court for these sorts of cases Sophie Berry Welsh Government/Newport City Council

What Next? Phase 2 report due in March: case studies and baseline data Final Report and recommendations in April Final policy instructions by May White Paper and draft Planning Reform Bill by winter 2013 Secondary legislation and guidance Planning Bill by Sophie Berry Welsh Government/Newport City Council

Sophie Berry Welsh Government (Newport City Council)