Transcript Freedom of Information - Cornerstone Barristers

Tonbridge and Malling
Borough Council
UPDATE ON ENFORCEMENT
LAW
Jonathan Clay
2-3 Gray’s Inn Square
OVERVIEW
I.
The powers
•Local planning authority’s principal enforcement
powers under the Town and Country Planning Act
1990 (as amended) comprise:
•
The issue of an enforcement notice (s. 172).
•
The issue of a stop notice (s. 183).
•
The issue of a temporary stop notice (s. 171E).
•
The making of an application for a planning
injunction (s. 187B).
•
The issue of a breach of condition notice (s.
187A).
•Where an enforcement notice is in force, a local
authority is further empowered
•
to prosecute for breach of the notice (s.
179), and
•
to take direct action in default (s. 178).
•The above powers are without prejudice to an
authority’s right to regain possession of its own
land from unlawful occupiers: Kay v Lambeth
LBC [2006] 2 WLR 570.
•Powers conferred solely on LPAs. In theory,
private individuals could seek judicial review of a
decision not to take enforcement action, but
unlikely to succeed given breadth of LPA’s
discretion unless some error of law can be shown:
R v Sevenoaks DC, ex p Palley [1995] JPL 915.
•Where enforcement action unreasonably refused
or delayed, a complaint to the Local Government
Ombudsman may lead to a finding of
maladministration and a recommendation to pay
compensation.
•II. The guidance
•A variety of national guidance documents of varying degrees of relevance
and specificity:
•
PPG 18
•
Circular 10/97
•
Enforcing Planning Control: Good Practice Guide for
Local Planning Authorities.
•
ODPM Circular 02/2005 (temporary stop notices)
•
Guidance on Managing Unauthorised Camping (February 2004)
•
ODPM Circular 01/2006: Planning for Gypsy and Traveller
Caravan Sites
•
Enforcement Concordat (1998)
•
Code for Crown Prosecutors (2004) (in respect of criminal
proceedings)
Recent Cases on Enforcement
• I. Enforcement notices
• (1) Time limits
•
S. 171B of the Town and Country Planning
Act states:
•
“(1) Where there has been a breach of
planning control consisting in the carrying out
without planning permission of building,
engineering, mining or other operations in, on,
over or under land, no enforcement action may
be taken after the end of the period of four years
beginning with the date on which the operations
were substantially completed.
•
•
(2) Where there has been a breach of planning
control consisting in the change of use of any
building to use as a single dwelling house, no
enforcement action may be taken after the end
of the period of four years beginning with the
date of the breach.
(3) In the case of any other breach of planning
control, no enforcement action may be taken
after the end of the period of ten years
beginning with the date of the breach.”
•Arun District Council v First Secretary of State
[2006] 1 WLR 365
•Planning permission granted for an extension to a
dwellinghouse subject to a condition that the
extension should be used for purposes incidental to
the dwellinghouse. After a number of years the
council discovered that the extension was in use as a
separate dwelling. It served an enforcement notice
alleging breach of condition. An appeal against the
notice was allowed by an inspector on the ground
that it was served more than 4 years after the
separate residential use commenced. On appeal by
the Council under s. 289 T&CPA 1990, HHJ Mole
QC held that 10 years was appropriate period.
•But now see same case in CA at [2007] 1 WLR 523
reversing the decision at first instance:
•Per Carnwath LJ:
•“……it appears to me that, if one approaches the amended
1990 Act in accordance with ordinary principles of
construction, without undue attention to the history, there is
no great difficulty. Section 171A(1) defines "a breach of
planning control" as meaning either (a) carrying out a
development without the required planning permission or (b)
failing to comply with any condition subject to which
planning permission has been granted. Accordingly the
reference in section 171B(2) to "a breach of planning control"
is naturally read as including either type of breach. The only
requirement in that section is that the breach should "consist
in the change of use in any building used as a single dwelling
house".
•As long as it involves a "change of use", it matters
not which type of breach it is: whether development
without planning permission or a failure to comply
with a condition. This view of the matter is
reinforced by the lack of reference to the need for the
change of use to be "material", as in the definition of
"development" in section 55; nor, unlike section
171B(1), does it require the breach to have involved
something done " without planning permission". As I
have said, Miss Williams accepts that, apart from the
condition, the change would have involved a breach
of planning control, but that it would have become
immune from enforcement action under the fouryear limit. Once it is accepted that sub-section (2) on
a natural reading extends to either form of breach of
planning control, the same time-limit must apply,
and it is hard to see any policy reason why the two
cases should be treated differently.”
•(2) Vague requirements
S. 173(3) of the T&CPA 1990 provides:
“An enforcement notice shall specify the steps which the
authority require to be taken, or the activities which the
authority require to cease, …”
•S. 176(1) confers power to correct a notice:
•
“On an appeal under section 174 the Secretary of State
may—
(a)
correct any defect, error or misdescription in the
enforcement notice; or
(b)
vary the terms of the enforcement notice,
if he is satisfied that the correction or variation
will not cause injustice to the appellant or the
local planning authority”
•Payne v National Assembly for Wales [2006]
EWHC 597 (Admin)
•Enforcement notice issued in respect of various
unauthorised activities. Paragraph 5 of the notice set
out what the recipient was required to do. In addition
to ceasing the activities, the notice required the
recipient to:
• “(f) Submit details of a scheme of levelling and
planting of the land to the Local Planning
Authority, for written approval, which shall
include proposals to Level and plant the
areas of the land affected by the activities
described in Part 3 of this Notice.
• (g) Implement the approved scheme as set out
in (f) above.”
•On appeal, an inspector considered that the
above requirements were unacceptably
uncertain, but he upheld the notice having
replaced the steps (f) and (g) with others of
his own devising. On appeal by the landowner
under s. 289, Wyn Williams QC held:
•
The courts still recognised the
distinction between an enforcement
notice that was a nullity on its face (“so
much waste paper”), and a notice that
was invalid but capable of correction.
•
An enforcement notice that required steps to
be taken to be agreed with the local planning
authority was unacceptably uncertain
(applying Miller-Mead v Minister of Housing
and Local Government [1963] 2 Q.B. 196;
Kaur v SSE and Greenwich LBC [1989] EGCS
142).
•
As the inspector had found that the notice was
uncertain on its face and did not comply with
s. 173, he should have concluded that the
notice was a nullity and incapable of
correction.
•II. Stop notices
•Compatibility with the European Convention
•Wilson v Wychavon DC [2005] EWHC 2970
(Admin)
•A claim for a declaration that section 183(4) of the
T&CPA 1990 as amended, is incompatible with
article 14 of the European Convention on Human
Rights (which prohibits discrimination in the
application of Convention rights on the grounds of
sex, race, religion etc) to the extent that it provides
that a stop notice shall not prevent the use of any
building as a dwelling house but does not provide the
same protection to those dwelling in a caravan, thus
having a disproportionate effect on Romany Gypsies
and Irish Travellers. Crane J held:
•
There is a difference in the
immediate environmental effects of
a change in the use of an existing
building and the bringing onto land
of residential caravans.
•
It was therefore proportionate for
the Government to have a rule that
exempted the residential use of
buildings, but not caravans.
•III. Planning injunctions
•S. 187B, supplemented by RSC Ord 110,
CCR Ord 49 r 7
•South Bucks v Porter [2003] 2 AC 558
•Principal authority on court’s discretion
under s. 187B. Summarised by Auld LJ in
Davis v Tonbridge and Malling BC [2004]
EWCA 194:
“(1) section 187B confers on the courts an original and
discretionary, not a supervisory, jurisdiction, so that a
defendant seeking to resist injunctive relief is not
restricted to judicial review grounds;
(2) it is questionable whether Article 8 adds anything to
the existing equitable duty of a court in the exercise of
its discretion under section 187B;
(3) the jurisdiction is to be exercised with due regard to
the purpose for which was conferred, namely to
restrain breaches of planning control, and flagrant
and prolonged defiance by a defendant of the relevant
planning controls and procedures may weigh heavily
in favour of injunctive relief;
(4) however, it is inherent in the injunctive remedy that its
grant depends on a court’s judgment of all the
circumstances of the case;
•(5) although a court would not examine matters of planning policy
and judgment, since those lay within the exclusive purview of the
responsible local planning authority, it will consider whether, and the
extent to which, the local planning authority has taken account of the
personal circumstances of the defendant and any hardship that
injunctive relief might cause, and it is not obliged to grant relief
simply because a planning authority considered it necessary or
expedient to restrain a planning breach;
•(6) having had regard to all the circumstances of the case, the court
will only grant an injunction where it is just and proportionate to do
so, taking account, inter alia, of the rights of the person or persons
against whom injunctive relief is sought, and of whether it is relief with
which that person or persons can and reasonably ought to comply.”
•South Cambridgeshire DC v Persons Unknown [2004] EWCA Civ
1280
•
Court has power to grant an injunction against persons unknown.
•
They should not be identified by reference to their subjective
intention (eg “persons proposing/intending to do X…”). Instead,
they should be identified by reference to the activity which they
will cause or permit (eg “persons causing or permitting X to be
done on land at …”)
•
An order for alternative service under CPR 6.8 might provide for
service of the claim form and injunction “by which they are
placed in clear plastic envelopes and nailed to a stake or gatepost,
or other prominent location, on [the land concerned]. Once a
week the Council should ensure that the notice is there. The
notice should inform [the persons affected] that they can obtain
copies of the application notice, and the accompanying witness
statement and exhibits, by applying to the Council at an identified
address at its planning offices during working hours.”
•South Cambridgeshire DC v Gammell [2006] 1
WLR 658
•A person who entered onto land and occupied it in
breach of an injunction granted against persons
unknown thereby became a person to whom the
injunction was addressed and a defendant to the
proceedings, so that it was not necessary to join
him as a defendant at a later date. The Court of
Appeal gave guidance on the proper approach to
applications to commit for breach of a planning
injunction, as well as applications to vary
injunctions.
(1) The principles in the South Bucks case apply when the
court is considering whether to grant an injunction against
named defendants.
(2) They do not apply in full when a court is considering
whether or not to grant an injunction against persons
unknown because the relevant personal information
would, ex hypothesi, not be available. However this fact
makes it important for courts only to grant such
injunctions in cases where it is not possible for the
applicant to identify the persons concerned or likely to be
concerned.
•
(3) The correct course for a person who learns that he is
enjoined and who wishes to take further action, which is
or would be in breach of the injunction, and thus in
contempt of court, is not to take such action but to apply
to the court for an order varying or setting aside the order.
On such an application the court should apply the
principles in the South Bucks case.
(4)
The correct course for a person who appreciates that he is infringing
the injunction when he learns of it is to apply to the court forthwith
for an order varying or setting aside the injunction. On such an
application the court should again apply the principles in the South
Bucks case.
(5) A person who takes action in breach of the injunction in the knowledge
that he is in breach may apply to the court to vary the injunction for the
future. He should acknowledge that he is in breach and explain why he
took the action knowing of the injunction. The court will then take
account of all the circumstances of the case, including the reasons for the
injunction, the reasons for the breach and the applicant's personal
circumstances, in deciding whether to vary the injunction for the future
and in deciding what, if any, penalty the court should impose for a
contempt committed when he took the action in breach of the injunction.
In the first case the court will apply the principles in the South Bucks
case and in the Mid Bedfordshire DC v Brown [2005] 1 WLR 1460 case.
(6) In cases where the injunction was granted at a
without notice hearing a defendant can apply to
set aside the injunction as well as to vary it for
the future. Where, however, a defendant has
acted in breach of the injunction in knowledge
of its existence before the setting aside, he
remains in breach of the injunction for the past
and in contempt of court even if the injunction
is subsequently set aside or varied.
(7) The principles in the South Bucks case are
irrelevant to the question whether or not a
person is in breach of an injunction and/or
whether he is in contempt of court.
•
•
IV. Direct action
S. 178(1) provides:
•
“Where any steps required by an enforcement
notice to be taken are not taken within the
period for compliance with the notice, the
local planning authority may-
•
•
(a)
(b)
enter the land and take the steps; and
recover from the person who is then the
owner of the land any expenses
reasonably incurred by them in doing
so.”
•R (O’Brien) v Basildon DC [2006] EWHC 1346
(Admin)
•Council resolved to take direct action to remove
persons in occupation of land in breach of
enforcement notices. Occupiers challenged that
decision by way of judicial review, contending (1) it
was disproportionate, and therefore contrary to their
rights under article 8 of the Convention, to seek to
secure compliance with the enforcement notices by
direct action rather than by way of a planning
injunction; (2) in any event, it was disproportionate
and unlawful to secure compliance with the notices
at all. Ousely J held:
•
The planning structure in the 1990 Act of enforcement
notice, appeal on the merits, compliance period, criminal
sanction and direct action, with the possibility of a fresh
planning application being made and the planning merits
being considered afresh at any time, was generally
demonstrative of proportionality.
•
The enforcement of criminal law is properly to be given
very considerable weight in the decision as to the steps to
be taken to enforce compliance with enforcement notices
which have taken effect.
•
There was no reason for requiring a further intervention of
the court before direct action is taken. A court decision is
not necessary to sanction such action, let alone should it
be one in which the court itself decides whether such
action is necessary.
•
Selecting a power given by Parliament, which does not require
the local planning authority to invoke the assistance of the
court, does not become objectionable merely because it avoids
court proceedings and the risk of the refusal of relief by the
court in the exercise of its own discretion. That is of course
different if the purpose of the selection of the route is to avoid a
challenge to the lawfulness of the decision.
•
It may not always be necessary to give notice of proposed direct
action; for example, where preparations for violent resistance
sensibly dictate that the timing of the action be not notified.
•
A local planning authority in deciding whether to use section
178 should consider and weigh various factors: the degree of
harm done to the interests protected by planning control; the
need for a swift or urgent remedy; the need to uphold and
enforce planning control embodied in an effective enforcement
notice and the criminal law; the personal circumstances and
impact on the individuals of removal.
•
The prospects of success which
the occupiers might have on a
planning application or appeal
were relevant, as was the timetable
of any such application or appeal.
•On the facts, the prospects of success
had not been considered, and the
decision was quashed.
•V. Criminal proceedings
•Wycombe DC v Jesse Wells [2005] JPL 1640
•Prosecution of defendant under s. 179 T&CPA 1990
for breach of an enforcement notice requiring the use
of land as a caravan site to cease. Defendant
acquitted because magistrates considered defence
under s. 179(3) – he did everything he could
reasonably be expected to do to secure compliance
with the notice – made out. Defendant had argued
there were no other sites available to him. On an
appeal by the Council by way of case stated,
Newman J held:
• A defence under s.179(3) is not established by
demonstrating that the reason for non-compliance
with an enforcement notice is that no alternative site
has become available, where the activity in question
could be continued. On that basis, a whole range of
activities, which take place contrary to planning
control, and are commonly enforced against, could
continue simply because nowhere else was available
for them to be carried on.
• For the defence to be made out, it must be
established that, despite doing everything that could
be reasonably expected, the defendant was
nevertheless incapable of complying with the notice.
• Appeal allowed.
PRACTIAL ISSUES
• Ensure enforcement decisions, particularly
urgent ones, are taken in accordance with
the relevant scheme of delegation
• Enforcement decisions should be reasoned
and recorded
• Alternative service – see CPR 6.8