Bath and North East Somerset Council Planning Enforcement Training Olwen Dutton Partner, Bevan Brittan

Issues to cover Why is planning permission needed? Balancing public interests and private interests What is a breach of planning control? Unauthorised developments Time limits Local Enforcement Plan Enforcement action Stop notices Dealing with complaints

Planning enforcement Failing to get planning permission is not a criminal offence Local authorities have discretion about when to take enforcement action and should act proportionately in doing so If there is the carrying out of development without the required planning permission; or A failure to comply with any condition or limitation subject to which planning permission has been granted There can then be enforcement action by the Council if it is expedient to do so having regard to the development plan and other material considerations

Powers Local Planning Authorities have responsibility for taking enforcement action if they consider that it is necessary in the public interest Effective enforcement helps to maintain the integrity of the decision making process and helps to ensure public acceptance of the planning process. Local authorities have limited ( and shrinking ) resources and have to prioritise enforcement actions with their other functions and duties But appropriate and effective and proportionate enforcement is important. Local enforcement plan

General approach to enforcement LPAs have the primary responsibility for taking whatever enforcement action may be necessary in the public interest in their area The Ombudsman has found that there is mal- administration if an authority fails to take effective enforcement action which was plainly necessary; usually delays No maladminstration if the Council has responded reasonably and effectively Ombudsman doesn’t decide if a council should take enforcement action

Key Considerations Decisive issue – Does a breach of control unacceptably affect public amenity or the existing use of land and buildings meriting protection in public interest The power to issue an enforcement notice should only be used where the LPA is satisfied that there has been a breach of planning control and is expedient to issue a notice Wednesbury principles will apply, i.e. ‘reasonableness’ The cost and time taking enforcement proceedings should be balanced against the prospect of success

Other Considerations It is generally ‘unreasonable’ for the LPA to issue an enforcement notice solely to remedy the absence of valid planning permission if there is no significant planning objection to the breach of control (carries a risk of costs) Where it is likely that unconditional planning permission will be granted for development which has already taken place the correct approach is to suggest that a retrospective planning application should be submitted – the same relates where an unauthorised development can be made acceptable by the imposition of conditions

When might enforcement be inappropriate ? A trivial or technical breach which causes no material harm or adverse impact on amenity Development is acceptable in planning terms Local authority think that an application is the best way to resolve the situation, for example when conditions may need to be imposed Can invite a retrospective application- although can’t assume that this will be granted.

Particular issues Large development sites What is expedient and in the overall public interest? Remember the requirements for proportionality and expediency Need to negotiate Planning Officers experience and skills Formal Enforcement notices are the last resort

Time Limits Enforcement action in respect of all breaches of planning control is subject to time limits For operational development (carrying out a building engineering, mining or other operations in, on, over or under land (four years from the date on which the operations were ‘substantially completed’) Breaches of planning control consisting in the change of use of any building (includes part of a building) to ‘use as a single dwelling house’ four years from the date of the breach Any other breach of planning control – ten years from the date of the breach The expiry of the time period does not make the development authorised; it simply means that it is immune from enforcement action

Planning Enforcement Orders Apply when a person deliberately conceals unauthorised development- eg house hidden by bales of straw Allows council to take action notwithstanding that time limits have expired; but must apply to court within 6 months of it coming to councils attention Requires evidence of positive steps of concealment

Enforcement notices Can “under- enforce”- decide not to take actions to remedy the whole of a breach of planning control There is a right of appeal against an enforcement notice It is an offence not to comply with an enforcement notice once it has taken effect Punishment is a fine- up to £20k or unlimited; and court will consider financial benefit arising from the offence

Stop Notices A ‘stop notice’ can be served after an enforcement notice has been served and before the expiry of the period for compliance, and prohibits the carrying out of the relevant activity on the land It cannot prohibit the use of any building as a dwelling house Can’t be used to prohibit carrying out any activity if it has been carried on for a period of more than four years previously Service of a stop notice is discretionary- must be satisfied it is necessary to safeguard amenity or public safety Requires not less than 3 days notice to come into effect Compensation can be payable in some circumstances An offence not to comply with it once it has been served

Temporary Stop Notice Requires the breach of planning control to stop immediately Cant be used to prohibit use of a building as a dwelling house Can require and activity to cease, reduce or be minimised. Authority should be able to assess implications of issuing- only prohibit what is necessary to safeguard amenity or public safety or prevent serious or irreversible harm

Dealing with complaints Complaints are dealt with on a strictly confidential basis Have to comply with Data Protection Act requirements- can’t reveal details of a complainant Not subject to FOI Notices are public documents once served on local authority has to keep a register

Summary Enforcement is an important tool for the planning authority Action is always discretionary Action has to be reasonable and proportionate Service of notices is the last resort

Bath and North East Somerset Council Planning Enforcement Training Olwen Dutton Partner, Bevan Brittan /