Transcript WEST MIDLANDS PLANNING ENFORCEMENT FORUM

EFFECTIVE USE OF
TEMPORARY STOP
NOTICES
SANDWELL MBC
PARDIP SHARMA, GROUP MANAGER – PLANNING, HIGHWAYS AND CPO
LEGAL SERVICES
March 2007
TEMPORARY STOP NOTICES
Clear understanding of the new discretionary
enforcement power - Temporary Stop Notices
Remind ourselves of statutory provisions
Look at Government advice set out in circular
2/2005
How to stop being unduly cautious about serving
Temporary Stop Notices
Ideas for good practice on enforcement generally
STOP NOTICES
Stop Notices not a new concept have been feature of the
Planning Legislation for many years
Sections 183 – 187 of the T & C P Act allows Stop Notices to
be served contemporaneously with an Enforcement Notice
No secret that LPAs have been reluctant to serve Stop
Notices because of the fear of having to pay compensation
Risk of compensation claims lie behind this reticence
Compensation paid if Enforcement Notice quashed,
withdrawn or not served in accordance with S172
The compensation provision for TSN as we shall see are
different
EFFECTIVE USE OF TEMPORARY STOP NOTICES –
HAVE CLEAR UNDERSTANDING OF STATUTORY
PROVISIONS AND CIRCULAR ADVICE
Temporary Stop Notices – Provisions
Temporary Stop Notice provisions in part 4 of the
Planning and Compulsory Purchase Act 2004
inserted sections 171(e) to 171(h) to the Town and
Country Planning Act 1990 (as amended) – came into
force 7th March 2005
Town and Planning (Temporary Stop Notice)
(England) Regulations 2005 specify activity not
prohibited by a Temporary Stop Notice
Guidance as set out in ODPM circular 02/2005
POWER TO SERVE
TEMPORARY STOP NOTICE
Where LPA considers there has been a breach of planning control
and it is necessary in order to safeguard the amenity of the area
the activity that amounts to the breach should stop immediately,
section 171(e) enables local LPA to issue Temporary Stop Notice
Effect of Temporary Stop Notice will be immediate, not necessary
to wait three days before Temporary Stop Notices takes effect
Notice must set out activity the Local Planning Authority thinks is a
breach of planning control
Notice must prohibit the carrying out of the activity and set out
reasons for issuing Notice
TEMPORARY STOP NOTICE
Important to kick start the HM search at early stage.
Notice to be served on:Any person who appears to be carrying out activity
prohibited by the Notice
Anyone who seems to be occupying the land
Anybody who appears to have an interest in the land
Matter for the Local Planning Authority to decide which is
the appropriate person or persons
Where such persons cannot immediately be located or
refuse service of the Temporary Stop Notice display of the
Notice on the site will suffice (the TSN has effect from the
time a copy of the Notice is displayed on the land)
CESSATION OF THE EFFECT OF
A TEMPORARY STOP NOTICE
TSN expires 28 days after the display of the Notice on the site,
or any shorter period set out in the Temporary Stop Notice, or if
it is withdrawn by the LPA
During the 28 day period the Local Planning Authority must
decide whether it is appropriate to take enforcement action
At the end of the 28 days there is a risk of the activity resuming
if an Enforcement Notice is not issued and a Stop Notice served
The idea seems to be that TSN will give the Authority breathing
space while it weighs up whether or not to issue an Enforcement
Notice – Council seen to be doing something
SCOPE OF THE PROHIBITION IN
A TEMPORARY STOP NOTICE
TSN may prohibit a particular activity taking place
on only part of the land LPA will need to consider
whether activity prohibited is capable of readily
being moved around to another part of the site eg
open storage of pallets. If so, prudent to make the
TSN apply to the entire site
Prohibit an activity that takes place on the land
intermittently or seasonally
SCOPE OF THE PROHIBITION IN
A TEMPORARY STOP NOTICE
Activity, which the TSN prohibits, is defined in Section
171(e) of the 1990 Act as activity (or any part of the
activity) which amounts to breach of planning control
Temporary Stop Notice is prohibitory therefore not
appropriate to use it in any circumstances, which requires
some positive action to be taken in response to it
TSN can only require an activity to cease, or reduce or
minimise the level of an activity
SCOPE OF TEMPORARY STOP
NOTICE
TSN may be served where planning permission
has been granted subject to conditions which if not
complied with can result in serious harm
Examples include archeologically surveys before
works commence on the site
Tree protection required before work commences
on site
Surveys indicating trees to be retained before work
commences on site
Wheel washing equipment for vehicles on site
TEMPORARY STOP NOTICE
RESTRICTIONS
TSN may not prohibit the use of a building as a
dwellinghouse
Town and Country Planning (Temporary Stop Notice)
Regulations 2005 states TSN may not prohibit the
continued stationing of a caravan on land where the
caravan is the main place of residence of the
occupier unless the Local Planning Authority consider
that the risk of harm to a compelling public interest
arises from the stationing of the caravan is so serious
so as to outweigh any benefit, to the occupier of the
caravan, in the stationing of the caravan for the
period in which the Temporary Stop Notice has effect
TEMPORARY STOP NOTICE
RESTRICTIONS
Circular 02/05 says “some examples of locations where the
unauthorised stationing of a caravan would normally be
unacceptable are:Sites of special scientific interests where an encampment
endangers a sensitive environment or wildlife
Grounds of ancient monuments or listed buildings, battlefields or
sites of potential archaeological interests
A site where pollution from vehicles, or dumping or from poor
sanitation could damage ground water or watercourses
A derelict area with toxic waste or other serious ground pollution
The verge of a busy road where fast traffic is a danger to
unauthorised campers
Where the site is exposed to unacceptable level of air pollution.
Where there is an immediate negative impact on the health of the
occupiers of the caravan
TEMPORARY STOP NOTICE
RESTRICTIONS
TSN may not prohibit the carrying out of any activity,
which has been carried (whether continuously or not) for a
period of more than four years ending with the day on
which the copy Notice was first displayed
TSN may be used to prohibit operational development
activity consisting of or incidental to building engineering
mining or other operations and the deposit of refuse or
waste material
Can’t issue a further temporary TSN upon the expiry of a
Temporary Stop Notice unless some form of enforcement
action (including obtaining an injunction under section
187(b)) against the activity set out in the original
Temporary Stop Notice issued
PENALTIES FOR
CONTRAVENTION OF TSN
Section 171(g) provides where a person contravenes a
TSN after a Site Notice displayed or TSN served on them
they shall be guilty of an offence and
Liable on summary conviction to a fine not exceeding
£20,000.00 and, on conviction on indictment , to an
unlimited fine
In determining fine Court is to have regard to any financial
benefit, which has accrued in consequence of offence
Defence for any person to prove that TSN not served on
them and that they did not know, and could not reasonably
have expected to know of its existence
Circular advises LPAs to act swiftly with prosecutions
where breach occurs. Agree priority for this area of work
in SLA’s
CHALLENGING THE PROHIBITION
IN A TEMPORARY STOP NOTICE
Circular 02/2005 states that any person affected by TSN
will be able to make representations to the Local Planning
Authority and that the LPA should include name, address
and telephone number of nominated officer in the TSN
No right of appeal to the Secretary of State against
prohibition in a TSN
Validity of a Temporary Stop Notice, and the proprietary of
the Local Authority’s decision to issue a TSN, may be
challenged by judicial review. Leave of court will be
required
TSN continues to apply for a maximum of 28 days even
when a person served has challenged it
CHALLENGING THE PROHIBITION
IN A TEMPORARY STOP NOTICE
Where no planning permission exists developer has right
to make an application for a lawful development
certificate, or for planning permission
TSN will have a similar affect as to an interim injunction
Planning application can be submitted and this will not
affect the Temporary Stop Notice which will continue to
take effect
Existing powers to serve a Stop Notice under Section 183
may have to be used following the issue of an
Enforcement Notice in order to prevent any further works
or use taking place unless and until planning permission is
granted either by LPA or the Secretary of State on appeal
AVOIDING COMPENSATION AND AVOIDING
THE OVER CAUTIOUS APPROACH
Any person who is served with a TSN who has an interest in the
land is entitled to compensation for any loss or damage directly
attributable to the prohibition in the Temporary Stop Notice.
Understand that compensation only payable:
The activity specified is authorised by a pre existing planning
permission or a Development Order
The LPA later issues a lawful development certificate confirming
that the development was lawful
The LTA withdraws the TSN for some reason other than
because it granted planning permission for the activity.
Avoid by a thorough investigation of the relevant planning
history and painstaking evaluation of the facts
Seek help from Legal Department at early stage co-operation
essential to get it right and avoid need to withdraw
COMPENSATION - LIMITS
Compensation liability may be reduced or eliminated in any
case where the claimant was required by a PCN or a RIF to
provide information to LPA and did not provide it or otherwise
co-operate with the LPA when responding to Notice
(a) 12 month time limit running from the date TSN ceased
to have effect or the date it was withdrawn for claiming
compensation
(a) Compensation either agreed or where a dispute referred
to Lands Tribunal
ADMINISTRATIVE PROCEDURES
Once LPA has decided to issue TSN essential to implement
decision speedily and effectively. Should be a clear
understanding (preferably stated in administrative instructions)
about the respective responsibilities of the Local Authority’s
Planning Department and Legal Department for
necessary preparatory work – Enforcement Officer
the formulation of the term of the TSN – Legal Officer
the arrangements for issuing and serving it – Enforcement
Officer
and how its practical affect will be assessed (including the
need to bring a prosecution quickly if the Notice is
contravened)
ADMINISTRATIVE PROCEDURES
AVOIDING CHALLENGE
Important to obtain proper authorisation for issuing
TSN from the Council’s officer to whom authority to
issue TSN has been delegated.
(Delegated
authority essential to ensure effective use.
Although no right of appeal to Secretary of State
against TSN it can be defended on the granting of
Section 171(g)(5) of the 1990 Act that it was not
properly authorised or the decision to issue it was
unreasonable
Challenge in High Court by way of judicial review
ADMINISTRATION PROCEDURES
AVOIDING COMPENSATION
Must draft the terms of TSN with clarity and precision
No opportunity for any drafting deficiency to be corrected after it
has been issued. NB if withdraw – compensation liability.
Notice should prohibit all the activities comprising the alleged
breach of control or certain of the specified activities at which
the LPA has decided to direct the Notice
In the event of prosecution LPA may need to initiate
proceedings, which would require it to prove “beyond
reasonable doubt”, prohibition has been contravened by the
defendant
The terms of the Notice must provide the basis for any such
prosecution
Because it is an offence it is critical that drafting must be clear
and there must be a clear case that there is an offence before
conviction
USE OF POWERS TO ISSUE
TEMPORARY STOP NOTICE
Effect of TSN will be to halt the breach of planning
control or the specified activity immediately
Can have immediate serious consequences on
business and therefore LPAs should ensure that a
quick but adequate assessment of the likely
consequence of issuing the TSN is available
No need to carry out detailed cost/benefit
assessment
The assessment should examine the foreseeable
costs to the company, operator or landowner against
whose activity is to stop notices directed and the
benefit to the community in the vicinity of the site,
which is likely to result from the TSN
COST/BENEFIT ASSESSMENT
FOR TEMPORARY STOP NOTICES
Cost to firm may vary from having to modify
production process at little or not additional costs
(to one extreme), to the complete cessation of a
business (the other) with consequence loss of
jobs, failure to complete contracts or bankruptcy.
Therefore LPA should ensure that TSN
requirements prohibit
Only what is essential to safeguard amenity or
public safety in the neighbourhood
Or to prevent serious or irreversible harm to the
environment in the surrounding areas
HUMAN RIGHTS
TSN may not lawfully be used in any way that
contravenes:
Article 1 of the First Protocol - and
Article 14 of the European Convention
LPA must be satisfied that immediate cessation of the
activity is expedient in the circumstances and must
set out its reasons on the fact of the Notice
Inherent in this power is to ensure that the LPA have
given regard to HRA Act and are satisfied that a fair
balance is struck between the protection of individual
rights and the interests of the community at large
EFFECTIVE USE OF TEMPORARY STOP
NOTICES ACHIEVED BY EFFECTIVE
ADMINISTRATIVE PROCEDURES
Early dialogue with Legal Department.
Service
Level
Agreement
includes
prioritisation for this work
Resources – over stretched – panel
arrangements
Time limits – local performance indicators
MORE GOLDEN RULES FOR
EFFECTIVE ENFORCEMENT SERVICE
Ensure more than one person well versed in
planning enforcement – better position to deal
with urgent matters
Monitor progress of enforcement cases –
monthly meetings between enforcement
officers and legal – enables regular
appraisal of how an issue or problem is
being dealt with
In- house training
Keep each other informed – disseminate
and share relevant case law
RAISE PROFILE OF TSN’s
Improve and promote image of TSN
Publicise successful prosecution and
actions taken
Raises awareness – enforcement taken
seriously
Liaise with press-office