Role of Enforcement in the Planning Process

Myles JoyceLondon and East of England Representative: NAPE

Presentation-see

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Workshop Questions

Any other Questions

• Primarily Legislation

• National Planning Policy and Guidance

• Local Plans

• Planning or Enforcement?

• Planning Policy and the Enforcement Plan

• Infrastructure

• The PD Regime and Impact on Enforcement

• The Enforcement ‘Toolkit’

• Pro-active enforcement

• Case Studies:

1. Direct Action

2. POCA

3. Major PE Projects

This presentation will not deal with:

• Trees

• Appeals against Notices

• Negotiations

(but the workshop session might..)

Primary Legislation

• Town and Country Planning Act 1990, as amended by other legislation in particular:

• The Planning and Compensation Act 1991

• The Planning and Compulsory Purchase Act 2004

• The Localism Act 2011

• Defines Development Breaches of Planning Control and Enforcement Action

• Primacy of Development Plan

• Expediency of taking enforcement action

• Contains range of formal enforcement options- ‘Enforcement Toolkit’

Town and Country Planning Act 1990

Development• S55 “development,” means the carrying out of building,

engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

Primacy of the Development Plan• S70(2)In dealing with such an application the authority

shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations

Town and Country Planning Act 1990

S171 A Breaches of Planning Control

For the purposes of this Act— a breach of control is:

• (a)carrying out development without the required planning permission; or

• (b)failing to comply with any condition or limitation subject to which planning permission has been granted,

For the purposes of this Act—enforcement action is:

• (a)the issue of an enforcement notice or

• (b)the service of a breach of condition notice

Town and County Planning Act 1990

Power to Issue an Enforcement Notice

• S172- The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them—

• (a)that there has been a breach of planning control; and

• (b)that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

National Policy and Guidance

• National Planning Policy Framework 2012

• National Planning Policy Guidance 2014

• Sets out National Planning Policy and associated guidance replacing almost all pre-existing guidance including Enforcement (PPG18)

• Presumption in Favour of Sustainable Development

• Emphasis on resolution before decision stage e.g. Pre-apps

• Decision Taking and Imposition of Conditions

• Bespoke Paragraph on Enforcement in NPPF (para 207)

• Enforcement toolkit fleshed out in NPPG

NPPF

• Para 14: At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

• Para 203: Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects

• Para 207: 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.

NPPF: Local Plans

• Para 151: Local Plans must be prepared with the objective of contributing to the achievement of sustainable development, consistent with the principles and policies set out in this Framework, including the presumption in favour of sustainable development

• Para 153: Each local planning authority should produce a Local Plan for its area. This can be reviewed in whole or in part to respond flexibly to changing circumstances. Supplementary planning documents should be used where they can help applicants make successful applications or aid infrastructure delivery, and should not be used to add unnecessarily to the financial burdens on development.

• Para 157: identify areas where it may be necessary to limit freedom to change the uses of buildings, and support such restrictions with a clear explanation; identify land where development would be inappropriate, for instance because of its environmental or historic significance; and contain a clear strategy for enhancing the natural, built and historic environment, and supporting Nature Improvement Areas where they have been identified.

Pre-Application: Prevention

• Para 189: Local planning authorities have a key role to play in

encouraging other parties to take maximum advantage of the pre-

application stage. They cannot require that a developer engages with them before submitting a planning application, but they should encourage take-up of any pre-application services they do offer.

• Para 190: The more issues that can be resolved at pre-application stage, the greater the benefits. For their role in the planning system

to be effective and positive, statutory planning consultees will need

to take the same early, pro-active approach, and provide advice in a timely manner throughout the development process

Role of Planning Enforcement

• National Association of Planning Enforcement (NAPE) describes Planning Enforcement on the RTPI website:

• As an important and distinct function within the planning process.

• That Planning enforcement officers work at the ‘sharp end’ of development management.

• They ensure that the consequences of decisions made as a result of planning applications being refused, or where applications haven’t been made in the first place, are carried through on the ground.

• Enforcement staff require unique skills to ensure the effective and successful resolution of the many issues encompassed by planning enforcement.

Role of Planning Enforcement

• Traditionally seen as ‘last resort’ in the planning process when things ‘go wrong’ and need to be rectified. However has a more holistic role to play with regard to:

• Prevention: advising, assisting and negotiating at any stage of planning application process

• Changing behaviours: taking timely, proportionate action where appropriate.

• Perception: Raising the profile of service through effective service delivery

• Monitoring: Highlighting the efficacy and effectiveness of planning policy and guidance and planning decisions including imposition of conditions

• Place Making: Can lead to improvements in implementation of development as well as mere regularisation and remediation of planning breaches, either individually or though joint action

• Cost recovery: Can through service provision and action realise significant income for the LPA although this potential is often overlooked as ‘discretionary service’.

Planning or Enforcement?

• Councils not required to have a bespoke PE service, nor is it required to sit within the Planning Service, many do not

• Council’s overarching enforcement policy will usually (and should) include the enforcement of planning control

• Whilst overarching principles of good (regulatory) enforcement concur with planning enforcement practice, the discretionary nature of enforcement action sets it somewhat apart from other Regulatory services

• Works best when it sits within planning service and retains its planning focus but ought to be responsive to potential role in joint enforcement actions

Enforcement Plans

• Para 207 of NPPF has no clear definition of what an enforcement action is nor where it should sit in terms of Planning Policy and Guidance- LPA some leeway in its definition and content

• Para 153 in relation to Supplementary Guidance appears to suggest an enforcement plan as an SPD is not appropriate.

• However a plan in itself will not have the weight of a Local Plan Policy and associated guidance.

• A local plan policy would last for the duration of the local plan but enforcement priorities change on much shorter timescales, requiring the flexibility to be frequently reviewed as circumstances require

• How much detail should an enforcement plan or related policy provide?

Enforcement Plan

• A local plan policy committing the LPA to supporting the plan through suitable action and/or compliance would be welcome but cannot be too specific given the long life-cycle of the Local Plan

• An enforcement plan should provide the details and be clearly linked to the Local Plan Policy

• Important to clearly communicate specific projects which may be subject to change from more general principles of enforcement and service standards which may not

• Many LPAs have service standards and protocols relating to their planning enforcement service but relatively few have actual enforcement plans. Those that have do not as a rule include themes or specific project work.

• Detail, complexity, range of consultation and degree of member involvement individual matters for LPAs

Role in Local Plan: LB Lambeth

Policy D5 Enforcement“(a) The council will investigate reported breaches of planning

control in accordance with its planning enforcement protocol. Cases will be prioritised according to the harm to amenity

caused and resources available. Investigations will be carried out proportionately in relation to the breach of planning

control identified.

(b) Where informal negotiations fail to resolve the identified breach of planning control, and where it is considered

appropriate and expedient to do so having regard to the

provisions of the development plan and any other material

considerations, formal action will be taken”.

• The council’s planning enforcement protocol is published on

the website and will be updated periodically as required

Development Allowed by Central Government Orders-GPDO

• Town and Country Planning (General Permitted Development) Order 2015 (GPDO)

• Rights are grants of planning permission for development and changes of use

• Rights are subject to limitations and conditions

• Development that is outside a limitation is not PD at all

• Enforcement action may be directed at the development as a whole and limitations must be met at all times for development to be PD

GPDO: New PD Rights

• B8 (storage) to residential

• Amusement arcades and casinos to residential

• Shops (A1) to financial/professional services (A2)

• Pay day loan shops/betting offices removed from A2 and subject to limited PD rights

• A1/A2/betting shops/casinos to restaurants/cafes (A3)

• A1/A2 to assembly and leisure (D2)

• Temporary filming (up to 9 months) and associated operational development

• Extensions to shops, offices, industrial and warehouse buildings – 2013 changes made permanent

• Large rear extensions to dwellinghouses – 2013 changes now possible until May 2019

• Other rights relating to waste management facilities, sewerage equipment, “Click and collect” facilities of up to 4m in height, Extension of shop loading bays by up to 20%, Solar panels on non-domestic buildings

PD: Prior Approval Process and Enforcement

• Scope of prior approval process strictly limited:

• May refuse if proposal does not comply with conditions/limitations

• May refuse on grounds of transport/highways, contamination or flood risk

• Development may not take place until confirmed that PA not required; or it is given; or 56 days has expired

• Development must be carried out in accordance with approved plans or, if approval not required, in accordance with plans submitted

• LPA may impose conditions on prior approval

• Possible to require the development to be brought into accordance with a planning permission – including that granted under GPDO

• May enforce as breach of condition as well as through enforcement notice

• Still need to take view on planning merits even if PD rights exceeded (ground (a) appeal and expediency

The Planning Enforcement ‘Toolkit’: Legislative Context

• 70C Right to decline application when EN in place/no ground a appeal

• S171B Time Limits for Enforcement Action

• S171 C-D: Planning Contravention Notices

• S171E Temporary Stop Notices (28 days)

• S172 Issue of Enforcement Notices

• (S174 Appeals Against Enforcement Notices)

• S178 Execution and Cost of Works required by Enforcement Notice

• S179/S181 Offence where EN not complied with

• S183 Stop Notices

• S187A Breach of Condition Notices

• S187B Injunctive Action

• S194 Offence when False and misleading information supporting a Certificate a Lawfulness application

• S196 A-C Rights of Entry relating for Investigative Purposes

• S215 Notice-Untidy Land

• S225(A-K) Notices regarding advertisements, placards and posters etc

Time Limits to Enforcement Action

S171B provides that no enforcement action can be taken after:

• 4 years for (substantially completed) operational development and changes of use to a dwelling house

• 10 years for a material change of use

could• Was generally understood that it was irrelevant how or why the time

limit had expired without enforcement benefit from their own wrong

Anyone guilty of fraud or deliberate concealment.

• Localism Act introduced into the Planning Act the Planning Enforcement

Order (PEO) (S171BC (1)b) which allowed:

• Application to magistrates for a within 6 months of becoming aware of

grounds for applying

• Magistrates may make a PEO if satisfied there has been deliberate

concealment, and it is just in all the circumstances

• LPA has a year in which to enforce

CLEUD provisions modified accordingly

Case Study: Deliberate Concealment: LB Brent v Mr. Virendra and Mr. RashmikaPatel• S171BC (1)b of Act provides for Enforcement Order to be applied for where LPA

believe deliberate concealment of a breach of planning has occurred

• Such an order must be made within 6 months from date of discovery of breach

• Several LA officers and both defendants gave evidence as witness.

• Established that the defendants did not notify LA of change of use, for Council Tax banding nor created a separate postal address nor separately metered for electricity

• Held that deliberate concealment had occurred and Mrs Patel had sought to mislead Council officer(s)

• Enforcement Order made on 16th January 2014. LBB have 1 year to take enforcement action- commencing 7th Feb 2014.

• The owners have since demolished the dwelling in the summer of 2014.

NB: Recent Case Law suggests that simple omission of facts is not sufficient to amount to deliberate concealment an amount of co-mission is required

Infrastructure

• Para 162. Local planning authorities should work with other authorities and providers to:

• assess the quality and capacity of infrastructure for transport, water supply, wastewater and its treatment, energy (including heat), telecommunications, utilities, waste, health, social care, education, flood risk and coastal change management, and its ability to meet forecast demands; and

• take account of the need for strategic infrastructure including nationally significant infrastructure within their areas.

• The relevant Local Planning Authority is responsible for enforcing the provisions and requirements set out in the Consent

• Some condition under different legislation will have different enforcement bodies

• Lead Local Flood Authorities will have power to enforce and carry out works in default

• Small scale such as SUDS, condition imposed by LLFAs etc. may be PD or enforceable by condition by LPA

Two Types of Planning Enforcement

• Pro-active: actively seeks to manage role through:

�Ensuring compliance- condition monitoring, chargeable services, under-enforcement

�Encouraging regularisation through retrospective planning applications and Certificate applications where appropriate

�Seeking to employ direct action for appropriate cases

�Undertaking projects where multiple breaches at site(s) having a negative cumulative impact on a site and/or surrounding area either as a stand alone service or part of a joint initiative

�Seeking to recover resources expended on enforcement action- POCA, referral to other services, referral to pre-app service

Re-active: Responds to alleged breaches of planning

control and makes decision on a case by case basis

Examples of ‘Pro-active’ Enforcement: Direct Action

S178 TCP act 1990 Provides for LPA for compliance with EN to—

(a)enter the land and take the steps; and

(b)recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.

• Same powers for breaches of Notices issued under:

�S215 Untidy Land (S219 power to carry out default works)

�S225 (A-K) advertisements, poster and placards removal

• Can be a quick and straightforward

LB Hounslow: Enforcement Notice

LB Haringey: S225 Notice

Confiscations Under POCA

• S179(9) of TCP Act allow Courts to have regard to any financial benefit but this will not set level of fine

• LPAs can refer for confiscation under POCA on conviction for any breach of Enforcement Notice(s) after convicton but before sentencing

• POCA draconian- Gross income not Net benefit

• Crime incentivisation scheme, LA share up to 37.5% of total confiscated Should use POCA proceeds to plough back into ‘crime fighting’ not into a general pot.

• Used increasingly where income from planning breaches is considerable-often housing related

• Confiscation amount can be reviewed at any time

A Tale of Two POCAs: Brent and Haringey

• Converted and extended house to 12 flats

• EN issued and not appealed

• Convicted at MC and matter referred to CC on request

• Confiscation Hearing order to pay £1,438,180.59

• Reduced on appeal to £544,358

• Amount paid in full

• Converted two houses into 4 and 5 flats respectively

• EN issued and not appealed

• Prosecuted for breach of EN and convicted. Referred for confiscation after 3rd conviction.

• Confiscation hearing ordered to pay £ £312,315

• Amount paid in full

Last word from Del Basso Case

• Judge Baker:

• “the law is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risks of having the gross receipts of their illegal business confiscated. This may greatly exceed their personal profits. In this respect they are in the same position as thieves, fraudsters and drug dealers”

Case study: Enforcement and Housing: LBH Industrial Living Project

• 2012 joint SVs PE, Env Health and B Control showed rapidly growing problem of unlawful residential use in South Tottenham Ind Estates and surrounds.

• Feb 2013 Funding for PEO for focused research into issue approved

• Qualified member support seeing regeneration potential alongside need for action

• Jan 14 Cabinet report approved £600K for 2 year multi-agency project

• Project Manager appointed

• 2 Distinct Areas, 26 sites, 322 units and over 1,000 bedrooms confirmed.

• Enforcement Action commenced. Appeal decisions more favourable towards live/work rather than straightforward residential

• Dissemination to raise profile and counter strong pushback from owners and some residents

• Focus shift to Policy-Regeneration in ‘West’ Area, Article 4 direction sought

• Investigations ongoing in ‘East’ Area

• Now Seeking Article 4 to remove new change of use PD rights to avoid loss of remaining employment land

Examples of Poor Quality Residential Use

Ladder into bedroom:

Arena Centre

With CLDE Granted

Permission on Appeal for

live/work or residential

Without CLDE or Planning

permission

No material change of use to

live/work or residential

With CLED –unreliable

information

Material change of use occurred

to live/work or residential

Material change of use to Places

of Worship

Land Use and Planning History

Landownership

Rightstock Limited

(Freeholder)

Simon & Leona Wieder

& Cygnus Automotive

Limited

Henry Alan Lesser &

David Michael Lesser (

First floor) Freeholder

Haringey Council

Property

Palmlane Estates

(Freeholder)

Masrus Supplies Limited

(leaseholder & Wana

Limited (Leaseholder)

Byron & Byron

Holding Limited

(Freeholder

Gary Battle

(Leaseholder)

Unknown

Firgate Estate Limited

(Freeholder)

Project Latest

• Project ongoing and flexible to regular changing circumstances with a mixed enforcement/compliance/regeneration brief

• Revised site allocation enlarging and joining area for mixed use development to augment regeneration aspect of project

• Employment land studies show need to protect employment land hence application for Article 4 direction by LPA

• Both sites close or adjoining large scale regeneration areas

• Environmental Health and Building Control continued role where housing and live work units can be brought up to necessary standards

• Continued member focus on project given clear influence on place shaping housing and employment concerns in the surrounding and wider area

• A long way from 2012 when initial planning enforcement concerns on use of industrial units were not considered a priority

Case study. LB Hounslow: Rogue Landlord’s project

• Established c20,000 sheds in borough serious issue with unlawful residential lettings

• Project board set up-senior planning, housing and council tax officers and members

• Fire Brigade. Met Police, Press, Community Safety and Education Improvement Partnership included

• Target 6 most affected wards with outbuildings 25 sq.m or above in situ

• Project team recruited in Dec 2012

Hounslow: Results to date• 467 planning contravention notices

issued.

• Prosecutions (over £330,000 in fines).

• £80,000 fine on conviction in Crown Court. Not appealed-3 rear outbuildings at 44, 46, 48 Park Road, Hounslow.

• 27 properties visited under warrant a further 27 evening unannounced visits with police.

• £480k secured for team of 5 for 3 years (until 2017/18).

• Estimated income generation from project work: £309,418 (from ground A appeals and council tax)

• Commence focus on Portfolio landlords (potential POCA)

• Two National Planning Awards for enforcement work, including the “Editor’s Award

2968 Investigations resolved,

including:

• 401 referred to other SPs for

action

• 75 Taken out of residential use

• 14 Demolished

• 13 Prosecuted

• 139 enforcement notices issued

Project updates

• Live cases currently stand at c500

• Aim to reduce caseload to allow refocus of PE in 16/17

• Outbuilding issue diminishing but being replaced by significant numbers of house conversions and creations of separate flats

• Evidence taking advantage of larger extensions allowance under Part 1 of GPDO 2015

• Work to encourage community referral of outbuilding cases to the table, resolving them and ensuring they are not brought back into residential use.

7. Conclusions:

• Planning Enforcement integral part of planning system and Simple overarching Policy and a detailed flexible plan provides significant clarification of what its role is at any given time

• Move towards resolution of issues prior to decisions should also have role of minimising enforcement action. Planning Enforcement key role to play at this and application not just post application stage

• PE Toolkit provides range of options should enforcement action be required but still role for negotiation.

• PE role with read to infrastructure more limited but examples clearly show impact with regard to place making and housing matters

• Political and local ‘Buy-in’ crucial for successful outcomes in individual work and the enforcement plan itself

• Given action is discretionary continued need to ‘make the case’ and remain vigilant, especially with regard to the need for a multi-agency approach to tackle the more complex issues

Workshop

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