Planning Enforcement : Round-up of recent law

William Upton, Barrister, [email protected]

Chambers of Stephen Hockman QC, Six Pump Court, Temple, London.

Planning Enforcement

    Notices:    Breach of Condition Enforcement Notices, and Stop Notices Listed Building ENs etc Injunctions Direct action Prosecution

Time Limits and concealment

  Fidler v SoS CLG [2010] EWHC 143 (Admin)   Hay bale wall hides house building was not substantially complete

R. (oao Welwyn Hatfield Council) v

SoS CLG [2010] EWCA Civ 26,  Internal dwelling in a hay barn

the Localism Bill 2011

 Section 104 deals with the  Fidler issues. LPA will apply to Magistrates for a "planning enforcement order“;    apply for order within 6m of the date on which evidence of an apparent breach of planning control, “came to the authority's knowledge". Magistrates must be satisfied that person’s actions have resulted in or contributed to the full or partial concealment of the apparent breach & consider it just to make an order, having regard to all the circumstances. 12 months to act thereafter

the Localism Bill

 Despite lobbying, time limits for taking enforcement action essentially the same. 

Part 1, Chapter 5:

  decline to determine a planning application if all or part of the proposed development is already the subject of an enforcement notice removal of deemed planning permission under section 177(5).

Direct Action

 

R. (on the application of Harper) v

Waverley BC [2010] EWHC 1175  Residential annex - no need to agree schedule of works Challinor v Staffordshire CC [2011] EWCA   strike out as an abuse of process landowner's claim for damages in relation to direct action should have been raised during earlier proceedings concerning the direct action.

Interpretation of pp



Singh v Secretary of State for Communities and Local Government

[2010] EWHC 1621 (Admin)    certain parts of a development given pp become physically incapable of being completed due to work completed under a later pp whole development under the first permission became unlawful.

Enforcing a section 106



R (oao of ASDA Stores Ltd and another) v

South Tyneside BC [2010] EWHC 3285    ASDA relocated, agreed s.106 restricting food retailing on old store it was vacating within a couple of years, Morrisons had taken a 25 year lease of the old store and was fitting it out for the purpose of food retail. the enforcement Section 106 agreements depends on whether the council considers it expedient or necessary.

Resolving an old breach of condition

   Trim v North Dorset DC [2010] EWCA Civ 1446 Old Breach of Condition Notice, not enforced appropriate means of challenge to its validity was by way of judicial review and not by private law proceedings.

Section 180 complications

 

R (oao Rapose) v Wandsworth LBC

[2010] EWHC 3126 (Admin)  Failure to consider effect of later pp on earlier EN - s.180 effect Brent LBC v Adil and others [2010] EWHC 3654 (Admin)  Magistrates error on s.180 and EN prosecution

Amending the notice



Howells v SoS CLG and

Gloucestershire CC [2009] EWHC 2757  Inspector had the power (under s.176(1)) to amend a plan attached to an enforcement notice issued by a local authority, to expand the area covered, so long as the amendment did not cause any injustice to the parties.

drafting



Independent Pension Management Ltd v SoS for CLG & Kent County

Council [2010] EWHC 3090 (Admin)   Waste or B2 No need in EN to make clear that it was not intended to prevent lawful activities on a site

Jamie Oliver as a Material consideration …



R. (on the application of Copeland) v

Tower Hamlets LBC [2010] EWHC 1845 (Admin)   material considerations opponents of a planning application for a hot food takeaway very close to a school entrance

Current Issues in Planning and Environmental Enforcement Law

William Upton, Barrister, [email protected]

Chambers of Stephen Hockman QC, Six Pump Court, Temple, London.