The Art of Development Management

Enforcement: The Art of War

“The supreme ART of war is to subdue your

enemy without fighting”.

Sun Tsu

Content(ious)

• Introduction• Ground F Appeals• Concealment • Injunctions• Monitoring• A ‘better model’ – Och Aye• And finally………..

The Dark ART

• Why some may have, hopefully in the past, thought of Enforcement as the poor relation. poorly written legislation.

• Appeals against enforcement notices initially in the hands of Magistrates

• Legal niceties allowed cases to be dragged through the Courts for years

• Not a mandatory activity – duty to consider “expediency” of taking enforcement action

• Lack of appropriate “tools”

Under pressure………

• “Planning enforcement is under great strain; it appears under-resourced in many cases and lacking in profile and emphasis; issues of management and organisation are also present. These factors are impacting upon the effectiveness and robustness of planning enforcement services.”

• Sheppard, A., Britnell, S. and Cooke, J. and Royal Town Planning Institute: Network for Planning Enforcement (2014) Planning enforcement England: At the crossroads. Project Report. University of the West of England, Bristol.

The new age of Enforcement• Paragraph 207 NPPF • Enforcement only mentioned once – not mentioned at all in the

draft document.• “Effective enforcement is important as a means of maintaining

public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so”.

Ground F AppealsWhen 2 become 1

• Actually when 3 become 5

• Ioannou v Secretary of State for Communties and Local Government [2014] EWCA Civ 1432

• Planning Enforcement Appeal • Ground A• Ground F

When 5 become 3

• So what happened• Single house • Converted into 5 separate residential units• Enforcement Notice Issued requiring reversion

to 1• During the appeal the appellant submitted an

alternative scheme for a reduction from 5 units to 3

At first instance• Ouseley J. allowed the appeal.

He held that:• (1) The Inspector’s powers under the Ground (a) appeal were

confined by s.177 of the 1990 Act to the “whole or any part of” the development enforced against. The 3-flat scheme was not the whole or any part of the development enforced against but a different development. Therefore the Inspector was right to hold that he could not consider it under Ground (a).

At first instance• And that

• (2) Under Ground (f), however, the Inspector could have altered the requirements of the enforcement notice so as to require the 5-flat scheme to be converted to the 3-flat scheme. The 3-flat scheme would then receive deemed planning permission under s.173(11) of the 1990 Act once the requirements of the notice were complied with. The only limit to the Inspector’s power to achieve this result was the Wheatcroft principle pursuant to which it is impermissible on a planning appeal to grant permission for something which was “substantially different” than that applied for / enforced against. The Inspector’s decision letter contained no assessment of whether the 3-flat scheme would be consistent with the Wheatcroft principle. Therefore he erred in law.

On Appeal• The leading judgement in the Court of Appeal was given by Sullivan LJ he held that:

• (1) The clear terms of s.173(11) were that only unlawful development which could have been required to be undone at the time of the enforcement notice, but which whilst specified in the notice was not required to be undone, benefits from the deemed grant of planning permission. The alternative 3-flat scheme was not in existence at that time and therefore fell outside the scope of s.173(11).

• (2) Mr Ioannou’s call for a purposive approach to the interpretation of s.173(11) could not defeat the clear words of the provision. In any event, the Secretary of State was correct that a purposive approach favoured the Inspector’s approach since it would mean that a deemed planning permission could be brought in circumstances where an express planning permission was prohibited by the terms of s.177(1).

On Appeal• (3) Mr Ioannou’s reliance on case-law stating that an Inspector’s powers

under Ground (f) were broad had to be read in the light of the issues in those cases and the terms of the legislation.

• (4) Accordingly, the ground (f) appeal could not be relied upon to bring about the grant of deemed planning permission for an alternative development which was not in existence at the time of the enforcement notice. This did not deprive enforcement proceedings of their remedial character since it was open to an Inspector to extend the time for compliance with the enforcement notice under Ground (g) of s.174(2) so as to provide time for a fresh planning application to be made to the local planning authority for an alternative development which he considers may well be acceptable in planning terms.

The Wheatcroft Principle• Section 1.9 of the Planning Inspectorate’s Procedural Guidance (PINS

01/2009) makes clear that in deciding whether to accept amendments to appeal schemes the principles of the “Wheatcroft” judgement1 will be applied.

• Wheatcroft principle pursuant to which it is impermissible on a planning appeal to grant permission for something which was “substantially different” than that applied for / enforced against.

• The dissuader: “Particular consideration should be given to whether submission of such a change at this stage would be likely to be regarded as unreasonable and, if so, whether it would result in any additional costs being incurred to other parties”.

Jackson

• The case concerns Nigel Jackson, a trout farm owner from Sutton Scotney in Hampshire who was served an enforcement notice in June 2013 for the material change of use of an agricultural barn to a mixed use as an agricultural storage barn and a self contained unit of residential accommodation.

Concealment

Fiddler in the roof

• In the case heard last month, Nigel Jackson challenged the decision of the Secretary of State to apply the Welwyn Principle. He contended that the enactment of Parliament introducing Planning Enforcement Orders meant that the Welwyn Principle could no longer be relied on and that Local Authorities were obliged to apply to the Magistrates’ court for a Planning Enforcement Order.

The result

• The judge in the Jackson case favoured the arguments of the Secretary of State (that those sections of the Town and Country Planning Act 1990 simply widened the powers available to authorities).

The Ruling

• Mr Justice Holgate and said that "61...The language used by Parliament (including the decision to insert sections 171BA to 171BC alongside section 171B), is not sufficient to indicate an intention to alter the scope of section 171B as interpreted in Welwyn. In particular, I cannot detect any intention to enlarge the scope of section 171B and then to make that provision subject to the PEO code, so that concealment could only be dealt with under that code.." and "68...I conclude that the Welwyn principle has not been replaced...".

Injunctions: Use one, get one free(ish)

• 187B Injunctions restraining breaches of planning control.

• (1)Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

• (2)On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

Strange but true……

• Background• Cryptic call• Materials arrive• Necessity?• Decision making framework• Timeliness• Process

The outcome and benefits

• Application made to County Court on Friday Morning

• Expedited hearing arranged• Initial hearing on an ex parte basis• Interim injunction granted • No undertaking for damages• An undertaking as to costs• Substantive hearing arranged

The outcome and benefits

• Work didn’t go ahead• Sent a clear message to all parties concerned• Provoked discussion amongst the Judges “on

the circuit”• In the end the cost to the Council was minimal• Work at the front end saved time later• And the best news is……………….

Its free (well sort of)• Central Government announced in January the provision of a £1m Planning

Enforcement Fund aimed at providing funding of up to £10,000 or 50% of the estimated legal costs (whichever is lesser) for local planning authorities towards the legal costs of seeking a court injunction.

• In order to be considered for an award of a grant, each application for funding should address the following criteria in approximately 1,000 words in total (with a final word count):-

• Demonstrate why the action is in the general interest; • Explain the degree and flagrancy of the breach of planning control; • Set out the enforcement history for the site e.g. what other measures have failed over a

long period of time; • Explain any urgency needed to remedy the breach; • Set out the planning history of the site; • Provide details of previous planning decisions in relation to the site.

Monitoring, its priceless………

• For everything else there might be the Developers MasterCard (or Visa)

• Case arises from an appeal decision in Oxford in respect of a housing development comprising 26 units.

• It relates to the requirement for a developer to pay towards the “monitoring and administration costs” associated with the obligations contained within the agreement

• It refers in particular to the impact of Regulation 122 Community Infrastructure Regulations 2010

Monitoring• “…the Inspector was entitled to conclude that the costs

of administration and monitoring would be included in the Claimant’s [the County Council] resources and budget for the discharge of its functions under s106…”

• The judgment emphasises that, unlike previous Circulars and guidance, regulation 122 of the CIL Regs is a statutory requirement. It is not policy which could be departed from for good reasons or guidance which can be considered but not strictly adhered to. The Regulations set out limitations on how and when s106 Agreements should be used.

Monitoring• In exceptional cases, likely to involve proposals of significant

scale, the Council may be able to demonstrate that additional resources are necessary to ensure the implementation of s106 obligations. Even in such cases, the Authority would need to demonstrate that this obligation was “necessary to make the development acceptable in planning terms” (sub-para. 2(a) CIL Reg. 122).

• This remains an issue of planning judgement which Inspectors are entitled to make based on the evidence before them. Given the absence of a requirement for such fees within the relevant legislation, regulations policy or guidance it is unlikely that Councils will be able to make such a case.

There is another way……

• The proper operation of planning enforcement system sometimes (often) produces perverse results.

• This despite been raised by NAPE in the extensive consultation on the Localism Bill were not taken forward.

• Four of the areas in question have however been dealt with, to some extent, north of the border.

The Scottish Powers

• Fixed Penalty Notices• Fines of £2000 issued where a breach is

identified • Discharges the transgressors liability • Precludes future action in respect of the

development• Provides options for preventing the

perception of ‘people getting away with it’

The Scottish Powers

• Notice requiring the submission of an application• Where the [Scottish] planning authority considers

that a development which does not have planning permission may be acceptable ( i.e. they consider that it might be granted planning permission) they may issue a notice requiring the landowner or developer to submit a retrospective planning application.

• The notice precludes the development becoming lawful through the passage of time.

The Scottish Powers• Monitoring• Start Notices• In Scotland, start notices take the form of Notices of

Intention of Development where the requirement for developers to notify the local authority upon commencement was introduced by the Planning etc. (Scotland) Act 2006.

• Whilst not compulsory and there being no penalty for failure to comply there statutory basis provides more legitimacy to them being requested by local authorities to assist with monitoring

The Scottish Powers

• Monitoring• Completion Notices• These notices are also required in Scotland and

failure to submit them results in a breach of planning control.

• In addition both the start notice and the completion notice must be displayed on site which allows the public to be more aware of what is going on and can help to eliminate complaints made due to uncertainty.

NAPE

• National Association of Planning Enforcement• Now an RTPI Network• Please join• Please share your knowledge and experience

through the online forums• Please help with our work responding to

consultations