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PPG 18 - ENFORCING PLANNING CONTROL - Dec 1991 |
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Nelson says: "Are your council reasonable"
1. New and substantially improved powers to
enforce planning control are given to local planning authorities (LPAs)
by the Planning and Compensation Act 1991. The enforcement provisions of
the Act are based on the main recommendations of the report by Robert
Carnwath QC, entitled "Enforcing Planning Control" (HMSO,
February 1989).The report also recommended (Recommendation No. 14) that
current Ministerial policy guidance about enforcement, in DOE/WO
Circulars, should be revised, taking account of the concern expressed
about certain aspects of the current guidance. This Note gives revised
guidance. The
New Enforcement Regime
2.
The new and
improved enforcement powers provided by the 1991 Act are:- 1.
the power to
serve a "planning contravention notice" where it appears that
there may have been a breach of planning control and the LPA require
information about activities on the land, or the nature of the
recipient's interest in the land (new section 171C of the Town and
Country Planning Act 1990); 2.
the power to
serve a "breach of condition notice" where there is failure to
comply with any condition or limitation imposed on a grant of planning
permission (new section 187A of the 1990 Act); 3.
the ability to
seek an injunction, in the High Court, or County Court, to restrain any
actual or expected breach of planning control (new section 187B of the
1990 Act); 4.
the power to
serve a stop notice to prohibit the use of land as the site for a
caravan occupied as a person's only or main residence, and to make a
stop notice immediately effective where special reasons justify it
(amended sections 183 and 184 of the 1990 Act); and 6.
improved powers
of entry on to land for the LPA's authorised officer to obtain
information required for enforcement purposes (new sections 196A, 196B
and 196C of the 1990 Act). 7.
The penalty
provisions for enforcement offences have also been revised. The maximum
summary penalty on conviction of the offence of contravening the
requirements of an effective enforcement notice, or the prohibition in a
stop notice, is increased from £2,000 to £20,000. And, when sentencing
a convicted person for an enforcement notice or stop notice offence, the
Court is to have regard to any financial benefit which has accrued, or
appears likely to accrue, to him in consequence of the offence .These
exceptional summary maxima are intended to signal clearly how seriously
Parliament regards this type of offence. The increased penalties are
consistent with Government policy stated in the White Paper entitled
"Crime, Justice and Protecting the Public" (Cm 965), published
in February 1990. Chapter 5 of the White Paper acknowledges that there
is increasing public concern about activities which damage the quality
of people's lives (paragraph 5.8). It states - "If people ignore or
flout laws and regulations designed to protect the public from serious
harm, they should be properly punished, and the punishment should take
account of the resulting profits or savings..." During consideration of the Bill in Parliament, amendments to impose
a general duty on LPAs to ensure compliance with planning control were
proposed. Although these amendments were not accepted (because the
Government considers that enforcement action should remain within the
LPA's discretion), the Government's view is that the integrity of the
development control process depends on the LPA's readiness to take
effective enforcement action when it is essential. Public acceptance of
the development control process is quickly undermined if unauthorised
development, which is unacceptable on planning merits, is allowed to
proceed without any apparent attempt by the LPA to intervene before
serious harm to amenity results from it. Enactment of the new and
improved powers summarised in paragraph 2 gives LPAs a wider choice of
available enforcement options. Authorities will therefore need to
assess, in each case, which power (or mix of powers) is best suited to
dealing with any particular expected, or actual, breach of control, to
achieve a satisfactory, lasting and cost-effective remedy. Rapid
initiation of enforcement action is usually vital to prevent a breach of
control from becoming well established and more difficult to remedy. The
General Approach to Enforcement
Nothing in this Note should be taken as condoning a wilful breach of
planning law. LPAs have a general discretion to take enforcement action,
when they regard it as expedient.They should be guided by the following
considerations:- 1.
Parliament has
given LPAs the primary responsibility for taking whatever enforcement
action may be necessary, in the public interest, in their administrative
area (the private citizen cannot initiate planning enforcement action); 2.
the Commissioner
for Local Administration (the local ombudsman) has held, in a number of
investigated cases, that there is "maladministration" if the
authority fail to take effective enforcement action which was plainly
necessary and has occasionally recommended a compensatory payment to the
complainant for the consequent injustice; 3.
in considering
any enforcement action, the decisive issue for the LPA should be whether
the breach of control would unacceptably affect public amenity or the
existing use of land and buildings meriting protection in the public
interest; 4.
enforcement
action should always be commensurate with the breach of planning control
to which it relates (for example, it is usually inappropriate to take
formal enforcement action against a trivial or technical breach of
control which causes no harm to amenity in the locality of the site);
and
Where
Development is Carried Out Without Permission
6.
In assessing the need for enforcement action, LPAs should bear in
mind that it is not an offence to carry out development without first
obtaining any planning permission required for it. New section 73A of
the 1990 Act specifically provides that a grant of planning permission
may relate to development carried out before the date of the
application. Accordingly, where the LPA's assessment indicates it is
likely that unconditional planning permission would be granted for
development which has already taken place, the correct approach is to
suggest to the person responsible for the development that he should at
once submit a retrospective planning application (together with the
appropriate application fee). It may also be appropriate to consider
whether any other public authority (eg the highway or environmental
health authority) is better able to take remedial action. 7.
While it is clearly unsatisfactory for anyone to carry out
development without first obtaining the required planning permission, an
enforcement notice should not normally be issued solely to "regularise"
development which is acceptable on its planning merits, but for which
permission has not been sought. In such circumstances, LPAs should
consider using the new "planning contravention notice" to
establish what has taken place on the land and persuade the owner or
occupier to seek permission for it, if permission is required.The owner
or occupier of the land can be told that, without a specific planning
permission, he may be at a disadvantage if he subsequently wishes to
dispose of his interest in the land and has no evidence of any
permission having been granted for development comprising an important
part of the valuation. As paragraph 14 of DOE Circular 2/87 (WO 5/87)
points out, 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, if it is concluded, on an enforcement
appeal to the Secretary of State, that there is no significant planning
objection to the breach of control alleged in the enforcement notice.
Accordingly, LPAs who issue a notice in these circumstances will remain
at risk of an award against them of the appellant's costs in the
enforcement appeal. Where
Unauthorised Development can be Made Acceptable by the Imposition of
Conditions
8.
A LPA may consider that development has been carried out without
the requisite planning permission, but the development could be made
acceptable by the imposition of planning conditions (for example, to
control the hours, or mode, of operation; or to carry out a landscaping
scheme). If so, the authority may invite the owner or occupier of the
land to submit an application, and pay the appropriate application fee,
voluntarily. It can be pointed out to the person concerned that the
authority do not wish the business, or other activity, to cease; but
they have a public duty to safeguard amenity by ensuring that
development is carried out, or continued, within acceptable limits,
having regard to local circumstances and the relevant planning policies.
LPAs should bear in mind the need to consult on such applications in the
normal way and the possible effect of such development on the functions
of statutory undertakers. 9.
If, after a formal invitation to do so, the owner or occupier of
the land refuses to submit a planning application in these
circumstances, the LPA should consider whether to issue an enforcement
notice. Section 173(4)(b) of the 1990 Act (as amended by the 1991 Act)
provides that one of the purposes for which the LPA may, in an
enforcement notice, require remedial steps to be taken is for
"removing or alleviating any injury to amenity which has been
caused by the breach". For that purpose, section 173(5) of the 1990
Act provides that an enforcement notice may require, among other things,
"the carrying out of any building or other operations"
(paragraph (b)); or "any activity on the land not to be carried on
except to the extent specified in the notice;" (paragraph (c)).
Accordingly, where an owner or occupier of land refuses to submit a
planning application which would enable the LPA to grant conditional
planning permission, the authority would be justified in issuing an
enforcement notice if, in their view, the unauthorised development has
resulted in any injury to amenity, or damage to a statutorily designated
site, which can only be satisfactorily removed or alleviated by imposing
conditions on a grant of planning permission for the development. If an
enforcement notice is issued to enable the LPA to grant conditional
planning permission, they should explain clearly (in their statement of
reasons for issuing the notice) what injury to amenity, or damage to the
site, has been caused by the unauthorised development and how their
conditional grant of permission will effectively remedy it.The owner or
occupier will then have no doubt about the purpose of the enforcement
action, or what he is required to do in order to remove or alleviate the
perceived injury to amenity. Where
the Unauthorised Development is Unacceptable on the Site but Relocation
is Feasible
10.
It is not the LPA's responsibility to seek out and suggest to the
owner or occupier of land on which unauthorised development has taken
place an alternative site, to which the activity might be satisfactorily
relocated. But if, as part of their economic development functions, the
authority are aware of a suitable alternative site, it will usually be
helpful to suggest it, and to encourage removal of the unauthorised
development to it. 11.
If an alternative site has been suggested, the LPA should make it
clear to the owner or occupier of the site where unauthorised
development has taken place that he is expected to relocate to the
alternative site (or some other site he may prefer).The LPA should set a
reasonable time-limit within which relocation should be completed. What
is reasonable will depend on the particular circumstances, including the
nature and extent of the unauthorised development; the time needed to
negotiate for, and secure an interest in, the alternative site; and the
need to avoid unacceptable disruption during the relocation process. If
a timetable for relocation is ignored, it will usually be expedient for
the LPA to issue an enforcement notice. In that event, the compliance
period in the notice should specify what the LPA regard as a reasonable
period to complete the relocation. Where
the Unauthorised Development is Unacceptable and Relocation is not
Feasible
12.
Where, in the LPA's view, unacceptable unauthorised development
has been carried out, and there is no realistic prospect of its being
relocated to a more suitable site, the owner or occupier of the land
should be informed that the authority are not prepared to allow the
operation or activity to continue at its present level of activity, or
(if this is the case) at all. If the development nevertheless provides
valued local employment, the owner or occupier should be advised how
long the LPA are prepared to allow before the operation or activity must
stop, or be reduced to an acceptable level of intensity. If agreement
can be reached between the operator and the LPA about the period to be
allowed for the operation or activity to cease, or be reduced to an
acceptable level, and the person concerned honours the agreement, formal
enforcement action may be avoided. But LPAs should be aware of the
possibility of intensification of the development after expiry of the
statutory period for enforcement action. If no agreement can be reached,
the issue of an enforcement notice will usually be justified, allowing a
realistic compliance period for the unauthorised operation or activity
to cease, or its scale to be acceptably reduced. Any difficulty with
relocation will not normally be a sufficient reason for delaying formal
enforcement action to remedy unacceptable unauthorised development. Where
the Unauthorised Development is Unacceptable and Immediate Remedial
Action is Required
13.
Where, in the LPA's view, unauthorised development has been
carried out and the LPA consider that - 1.
the breach of control took place in full knowledge that planning
permission was needed (whether or not advice to this effect was given by
the LPA to the person responsible); 2.
the person responsible for the breach will not submit a planning
application for it (despite being advised to do so); and 3.
the breach is causing serious harm to public amenity in the
neighbourhood of the site, the LPA should normally take vigorous enforcement action (including, if
appropriate, the service of a stop notice) to remedy the breach
urgently, or prevent further serious harm to public amenity. Unauthorised
Development by Small Businesses or Self-Employed People
14.
Although some breaches of control are clearly deliberate, the LPA
may find that an owner or operator of a small business, or a
self-employed person, has carried out unauthorised development in good
faith, believing that no planning permission is needed for it. The cost
of responding to enforcement action may represent a substantial
financial burden on such a small business, or self-employed person. LPAs
should consider this in deciding how to handle a particular case. 15.
The initial aim should be to explore - in discussion with the
owner or operator - whether the business can be allowed to continue
operating acceptably on the site at its current level of activity, or
perhaps less intensively. The LPA should carefully explain the planning
objections to the current operation of the business and, if it is
practicable, suggest ways to overcome them. This may result in the grant
of a mutually acceptable conditional planning permission, enabling the
owner or operator to continue in business at the site without harm to
local amenity. If the site's owner or occupier is at first reluctant to
negotiate with the LPA, the service of a "planning contravention
notice" may help to convey the LPA's determination not to allow the
development to go ahead by default. 16.
If a mutually satisfactory compromise cannot be reached, and
formal enforcement action is essential, the LPA should make their
intentions clear, at the outset, to the owner or operator of a small
business or a self-employed person. Unless it is urgently needed, formal
enforcement action should not come as a "bolt from the blue"
to a small business or self-employed person. It should be preceded by
informal discussion about possible means of minimising harm to local
amenity caused by the business activity; and, if formal action will
clearly be needed, by discussion of the possible relocation of the
business to another site. As explained in paragraph 10, it is not the
LPA's responsibility to take the initiative in finding or providing a
suitable alternative site. If formal enforcement action is likely to
compel a small business or self-employed person to relocate their
trading activities, the LPA should aim to agree on a timetable for
relocation which will minimise disruption to the business and, if
possible, avoid any permanent loss of employment as a result of the
relocation. Once an enforcement notice has taken effect, LPAs should
bear in mind that, where the circumstances justify it, new section 173A
of the 1990 Act enables them to withdraw the notice; or to waive or
relax any requirement in it, including the compliance period. A
reasonable compliance period, or an extension of the initial period, may
make the difference between enabling a small business or self-employed
person to continue operating, or compelling them to cease trading. 17.
The Government remains committed to fostering business
enterprise, provided that the necessary development can take place
without unacceptable harm to local amenity. LPAs should bear this in
mind when considering how best to deal with unauthorised development by
small businesses. Nevertheless, effective enforcement action is likely
to be the only appropriate remedy if the business activity is causing
irreparable harm. Unauthorised Development by Private Householders 18.
When they are considering the possibility of enforcement action
involving unauthorised development by a private householder, LPAs should
bear in mind that independent professional advice about whether planning
permission was needed for the development may sometimes not have been
readily available, or affordable. This is particularly true where the
householder may have relied on "permitted development" rights
in the General Development Order (the GDO) as authorisation for the
development, but a specified limitation has been exceeded in carrying it
out. In these circumstances it is inappropriate to initiate a
prosecution of a householder, under new section 187A(9) of the 1990 Act
(prosecution for the offence of failure to secure compliance with the
limitation imposed on a grant of planning permission by virtue of the
GDO), unless the breach of condition notice served on the householder
includes a full explanation of the allegedly unauthorised development
and he has failed to take satisfactory steps to regularise it, despite
being allowed adequate time to do so. In considering whether it is
expedient to take enforcement action against development carried out in
excess of the permission granted by the GDO, the LPA should have full
regard to what would have been permitted if the development had been
carried out in strict accordance with the relevant provisions. LPAs
should not normally take enforcement action in order to remedy only a
slight variation in excess of what would have been permitted by virtue
of the GDO provisions. Enforcement
of Planning Control Over Mineral Working
19.
Minerals planning control is well established as part of the
general planning system and there are no separate enforcement powers for
unauthorised minerals working. The general policies and principles
applicable to enforcement apply equally to minerals cases. Nevertheless,
unauthorised minerals working sometimes poses particular enforcement
problems, both in terms of the occasionally irremediable nature of the
working and the speed at which damage can be caused. Certain of the new
powers in the 1991 Act should therefore be helpful to mineral planning
authorities (MPAs), to prevent damage which would otherwise be virtually
or totally irremediable, either to the site itself or to its
surroundings. 20.
It is clearly preferable for effective liaison and contacts
between MPAs and minerals operators to be sufficiently good for
contraventions of planning conditions to be avoided, and for any
problems to be resolved through discussion and co-operation. In cases
where formal enforcement proceedings are necessary, it is important to
ensure that action is taken quickly. MPAs need to be able to stop an
unauthorised activity as soon as it is detected. Examples are where a
mineral operator is moving soil materials in contravention of clear
planning conditions, so as to jeopardise the restoration and aftercare
of the site; or where unauthorised excavation outside the permitted
boundary causes irremediable damage, or endangers the safety and
stability of the surrounding land. Section 183 of the 1990 Act (as
amended by section 9 of the 1991 Act) enables a stop notice to be served
at the same time as the copy of an enforcement notice; and section
184(3) (as amended) now enables a stop notice to take effect before the
expiry of 3 days, or immediately, where special reasons justify it - for
example to prevent irremediable damage. The planning injunction
provisions of section 187B are also available in respect of unauthorised
minerals development. 21.
Further guidance on any more detailed aspects of enforcement of
planning control over mineral working will be included, where necessary,
in revisions to the relevant Minerals Planning Guidance Notes (MPGs). The
Organisation of their Enforcement Functions by LPAs
22.
How LPAs organise the administrative function of enforcing
planning control is for each authority to decide. The organisation
should correspond to the volume and complexity of enforcement casework
in each LPA's area and be sufficiently flexible to adapt to short-term
increases in the demand for enforcement. All authorities should ensure
that there is a close and co-operative working relationship between the
Planning Department and the Solicitor's (or Secretary's or Chief
Executive's) Department. Without such an effective working relationship,
formal enforcement action (which depends for its success upon speed of
assessment and process) may be hampered by poor communications and
misunderstandings. Public criticism is then likely, especially if
statutory time-limits for taking enforcement action are allowed to
expire because of administrative delay. Unless they have done so
recently, all LPAs are recommended to carry out a thorough review of the
effectiveness of their procedural arrangements for planning enforcement;
and, where necessary, to introduce revised arrangements. 23.
When complaints about alleged breaches of planning control are
received from parish or community councils, or members of the public,
they should always be properly recorded and investigated. If the LPA
decide to exercise their discretion not to take formal enforcement
action, following a complaint, they should be prepared to explain their
reasons to any organisation or person who has asked for an alleged
breach of control to be investigated. Cancellation
of Advice
24.
The following PPGs are cancelled:- PPG 1 (January 1988) - paragraphs 30 and 31; PPG 4 (January 1988) - paragraph 19. Paragraphs 15 and 16 of, and Annex B to, DOE Circular 22/80 (WO 40/80) are also cancelled.
THANK YOU MESSAGE
I would just like to say to the growing number of affected members of the public who telephone or email me, that I am so very pleased if anything we have published can be used to further just decision making. The encouragement is mutual! Lastly, if you cannot find what you are looking for on these pages and need some help, please help me to help others by emailing first. Please reserve the telephone for emergencies only.
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