Planning Enforcement & Appeals
While the theory of planning enforcement may be relatively straightforward, the practice can prove to be very tricky, not least because the Council’s action is discretionary and must comply with its adopted planning enforcement policy.
By the time a Council decides to issue a Planning Enforcement Notice the background facts should have been established (e.g. following the service of a Planning Contravention Notice) and so it should be the ‘start of the end’ for the recipient.
However, Councils do not always get it right and mistakes are surprisingly common if you know where to look.
A Planning Enforcement Notice must be issued within certain timescales, must contain specific information and the person authorising its service must have the necessary power to do so. All three points are worth careful checking.
But how could the Council get it wrong?
The Council may simply have inaccurate or out of date information or both.
Accurate understanding of the law?
Mistakes may also occur because in many Councils the staff employed to carry out investigative and enforcement action (as opposed to dealing with planning applications) do not hold formal qualifications in relation to planning/development control.
A surprisingly high number of such staff seem to be retired police officers. While their investigative and reporting skills are second to none, their knowledge of planning law may (understandably) not be so precise.
Authority to take action?
In recent years many Councils across have country have undergone multiple internal re-organisations, with repeated changes to their management structure and job titles.
A direct consequence of such changes is to make the Council’s ‘Scheme of Delegated Powers to Officers’ out of date.
Unless the scheme of delegated powers is updated so as to be in keeping with any new management structure, planning officers can inadvertently be left without the authorisation they previously held.
So while the Council’s old ‘Head of Planning’ was properly authorised to issue formal notices on behalf of the Council, the ‘Director of Environment & Regeneration’ in the Council’s new shared service may not be!
We are aware of one District Council in the east of England that issued multiple Planning Contravention Notices before realising the ‘Authorising Officer’ did not have the power to do so. Embarrassing for the Council? Certainly. Maladministration? Quite possibly.
When advising a Council in relation to a listed building we emphasised the need to ensure the ‘proper officer’ made the formal decision to issue the relevant notices. Following their service, the owner’s solicitors immediately requested a copy of the Council’s ‘Scheme of Delegated Powers to Officers’ in an attempt to identify a ‘technical’ error that invalidated the notices.
Unfortunately for them we had anticipated that move!
Appeals can of be made against Planning Enforcement Notices, but they must be submitted in good time. If not then the ‘planning argument’ is lost and, once the notice comes into effect, the Council are at liberty to take direct action or commence a criminal prosecution.
Appeals can be made on a variety of ground. In broad terms these are:
- (a) That planning permission should be granted for the development/activities.
- (b) That the alleged development/activities are not taking place.
- (c) That the alleged development/activities do not amount to a breach of planning control.
- (d) That it is too late to take enforcement action.
- (e) That the notice was not properly served.
- (f) That the steps required exceed what is necessary.
- (g) That the period specified for taking the steps is too short and unreasonable.
It is apparent that:
- if the Council has carried out a thorough and accurate assessment of the situation then grounds (a) to (d) should not apply; and
- there is little excuse for the Council failing to serve the notice correctly, so ground (e) should not apply. However, it is still worth checking because, despite Google and free Companies House checks, they often get company names wrong.
- Ground (f) and particularly ground (g) are the more subjective areas and therefore more likely to be the subject of a successful appeal.
We have significant experience advising on the full range of enforcement action, from preparing responses to Planning Contravention Notices to appeals against Planning Enforcement Notices.
We were recently instructed by a Client who had failed to either appeal against or comply with a Planning Enforcement Notice.
The Council then commenced a criminal prosecution. We were only instructed after the matter had been listed for a trial – one week later! However, as a result of our representation to the Magistrates’ Court we managed to secure an ‘Absolute Discharge’, which was an excellent outcome for the Client in very difficult circumstances.
IT IS NEVER TOO LATE TO SEEK OUR ADVICE.
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