Whilst local planning authorities are under a lot of pressure, in our experience enforcement is an area that remains an area of priority for most authorities. With proposed changes in the Levelling Up and Regeneration Bill on the horizon (see our article Hot-wiring the Planning System: The Levelling Up and Regeneration Bill here) it is even more important to know the developments taking place in this area of law.
This article highlights developments being proposed by the government (despite the change in leadership) and highlights some of the issues in the different enforcement powers available to local authorities through a review of recent Court decisions.
Levelling Up and Regeneration Bill
One notable innovation in the Levelling Up and Regeneration Bill, currently working its way through parliament, is the extension and unification of the planning enforcement limitation periods.
Once in force, section 101 of the LRA will amend s. 171B(1) & (2) of the Town and Country Planning Act 1990 to impose a single limitation period of ten years for all breaches of planning control (in place of the current mix of a four year period for operational development / change of use of a building to a dwelling house and ten years for all other breaches). Therefore, local authorities will be able to take enforcement action, where they consider it expedient to do so, up to ten years from the date the breach of planning control commenced. This is a significant departure from the existing position which has been in place since 1991 and, should the government proceed with this, many will be caught unaware.
CASE LAW
Discretion to take Enforcement Action
R (Neophytou and another) v Enfield Council [2022] EWHC 521 (Admin)[1]– the High Court considered whether the local planning authority should have served an enforcement notice against unauthorised development. Ockelton J held that a local planning authority (LPA) was justified in not taking enforcement action against an alleged breach of planning control after considering that it would not be expedient to do so and re-emphasising that taking enforcement action is discretionary. It was held that the LPA is entitled to seek remedial work before enforcement, entitled to also consider and weigh up whether the enforcement would be upheld on appeal and whether permission may be granted.
Comment: Commonly local planning authorities tend to take enforcement action after exhausting other actions but where this is not undertaken, it can result in enforcement notices being withdrawn or successfully challenged at appeal. We recently advised a landowner on receipt of an Enforcement Notice for change of use of the land to mixed use of agriculture and the stationing and residential occupation of caravans in Cambridgeshire. We advised on the appeal against the Enforcement Notice, leading to the withdrawal of the notice by the Council and full award of costs to our client due to defects in the notice and also failure to consider the fallback position.
Haytop Country Park Ltd v Secretary of State for Housing, communities And Local Government & Anor1 – This case was an unsuccessful challenge under section 289 of the Town and Country Planning Act 1990 to the decision of an inspector to dismiss the appellant’s appeal against an enforcement notice concerning operational development carried out at Haytop Caravan Park, Derbyshire. Haytop was first established as a caravan park in the 1950s, following the grant of planning permission in 1952 for the use of the site for 30 mobile dwellings and one wooden bungalow. A subsequent permission was granted in 1966 authorising the extension of the existing site from 30 to 60 caravans. Following acquisition of the site, the company carried out works to provide 23 new caravan bases, accessed off a newly created internal road and terraces to provide a level platform associated with each base. The Council issued an enforcement notice in March 2019 requiring the company to restore the land to its pre-existing level and condition.
A planning inspector had dismissed the company’s appeal against the notice, which was primarily based on the argument that the works that had been carried out were permitted development by virtue of being in keeping with a 1968 caravan licence. The planning inspector concluded that whilst works to upgrade and improve the site were permissible under the 1966 permission and subsequent licence, the actual works carried out by the company went far beyond those envisaged in the licence. The company based their challenge to the Inspector’s finding on a number of grounds, but the two most pertinent were:
- That there was no breach of planning control by virtue of article 3(1) of and Part 5 Class B of schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 which authorises: ‘Development required by the conditions of a site licence for the time being in force under the [Caravan Sites and Control of Development Act 1960] and
- That permission ought to be granted in respect of the matters stated in the notice to constitute a breach of planning control. The appellant contended that the inspector erred in law in failing to take into consideration the fallback position that a new caravan site licence would be granted in accordance with current national and local model standards and conditions, whose terms would require the construction of hard surfaced roadways, hardstandings and the installation of services and lights.
Timothy Mould QC in dismissing the challenge, said: “the terms in which the permitted development right is expressed require the decision maker to determine not merely whether the development under consideration includes elements which are required by a condition of a caravan site licence read in isolation, but also whether the development is in accordance with the conditions of that site licence read as a whole[2],” and that by virtue of section 3(3) of the [Caravan Sites and Control of Development Act 1960], a local authority may issue a caravan site licence if and only if at the time when that site licence is issued, the applicant is entitled to the benefit of planning permission for the use of the site as a caravan site.
On the facts as they stood before the inspector, it was the 1952 planning permission and the 1966 permission which would provide the lawful basis for the Appellant to apply for and for [Amber Valley Borough Council] to issue a modern caravan site licence in respect of the site. Given that use of the site as a lawful caravan site was primarily controlled by the 1966 permission, the only realistic fallback open to the Appellant in the event that ground (a) failed, was to reinstate the layout authorised by condition 2 of the 1966 permission.”
Enforcement Notice quashed as breach not taking place
London Borough of Tower Hamlets issued an Enforcement Notice on 20 January 2022 alleging “Without planning permission, the material change of use of the first, second and third floor of the premises from storage to a 6-room House in Multiple Occupation” for the site at 110 Whitechapel Road, London. [3] The Council has set out that the rooms (except one) on the first, second and third floors of the building had been subject to recent renovation works providing shower rooms with WCs, to each room with a bedroom on either side. The Inspector highlighted Section 172(1) of the Town and Country Planning Act 1990 which states:
“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,…”
In this instance, the Inspector found that neither the Council nor the appellant suggested that the alleged change of use had actually commenced and held that S172(1) required the breach of planning to have actually taken place. The Council appeared to have “acted upon the apparent readiness of the property to be used as an HMO, rather than upon such a use having begun” and the enforcement notice was therefore a nullity and no further action was required.
Comment: The case is a good reminder of the fact that the local authority’s power to issue an Enforcement Notice only comes into effect if the breach is taking place and cannot use the statutory powers on an anticipated breach. Where local authorities have good evidence to suggest a breach of planning control is going to take place, we have secured an injunction to restrain an actual or apprehended breach of planning control providing there is good evidence to support the application under Section 187B of the Town and Country Planning Act 1990.
Prosecution for felling trees subject to Tree Preservation Order
The Director of Purity Properties Ltd was recently fined £9,600 and the company was fined £24,000 for removing trees protected by a Tree Preservation Order, at The Priory Nursing Home, Spring Hill, Wellington. Telford & Wrekin Council prosecuted both the Director and the Company pursuant to section 210 of the Town and Country Planning Act 1990[4]. The Section states:
210(1) if any person, in contravention of tree preservation regulations:
- Cuts down, uproots, or wilfully destroys a tree,
- Wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, or
- Causes or permits the carrying out of any of the activities in paragraph (a) or (b),
he shall be guilty of an offence.
Defences available against prosecution are that:
- the tree in question is dead, dying or dangerous,
- the work was required to comply with a statutory obligation,
- the work was necessary to prevent or abate a nuisance or the works were urgently necessary to remove an immediate risk of serious harm,
- the tree in question is cultivated for production of fruit in the course of business or trade and such work was in the interest of that business or trade,
- the work involved the removal of dead branches from a living tree or
the work was necessary to implement a planning permission (other than an outline permission).
Comment: With such cases, the investigation that is carried out by the enforcement team should look at the reasons the works were carried out, whether any defences are available and the likelihood of success of any prosecution. It is also common also for multiple parties to be prosecuted to ensure that the prosecution does not fail due to the parties blaming each other.
In this case, the Council’s consent for works to the trees had been sought and the Director was informed by the Council on 6 March 2020 not to start work until a decision had been made. When the Council’s officer visited the site on 30 September 2020, he noted that two yew trees had been felled and a week later, he found further work had been carried out. It is interesting to note that the fact that the application for the work had been submitted but the work was carried out without waiting for the decision, meant that the Council was able to demonstrate what, in their view, was a clear and deliberate breach.
Council use of Enforcement Notice and Breach of Condition Notice upheld
R (Liquid Leisure Ltd) v Royal Borough of Windsor and Maidenhead[5]
In this case, the High Court decision upheld that a local authority was entitled to issue a breach of condition notice (BCN) even though it overlapped with elements of an enforcement notice (EN) that the authority had already issued.
In November 2020, the Council refused a Certificate of Lawfulness for several existing structures at the site and in December 2020, the Council issued an enforcement notice (“EN”) for purported breach of planning control. The enforcement notice, with a total of 23 requirements, barred the site’s use as an “aqua theme park” for open water swimming with climbing frames over the water. In January 2021, the Claimant appealed against the EN and in October 2021 the Council issued a Breach of Condition Notice (“BCN”). Many of the 23 requirements of the BCN, mirrored the enforcement notice. The BCN alleged breaches of the 1988 planning condition through unauthorised building, engineering, and other operations. Judicial Review was sought of the Council’s decision to issue the BCN and Mrs Justice Lang DBE found that the Council was entitled to use its enforcement powers by issuing the EN and the BCN, that the powers were not mutually exclusive and that the local authority was allowed to protect itself against the possibility of the alleged breaches becoming immune through the passage of time.
Comment: The two concerns that stem from this decision are establishing that local authorities can pursue a number of enforcement measures at the same time and the fact that the Court reached the decision that it did despite the Council failing to discharge the public sector equality duty (“PSED”) in section 149 of the Equality Act 2010 when deciding whether to issue the BCN. The Court concluded that the Council had unlawfully failed to consider the PSED when deciding whether to issue the BCN and found that the Council should have been aware from its site visits and responses to the EN appeal that persons with protected characteristics may be making use of the unauthorised facilities. However, the High Court refused relief on the basis that it was satisfied that it was highly likely that consideration of the PSED by the Council would not have changed the final outcome.
The case summaries above indicate the robustness with which local authorities are taking enforcement action and pursuing these through the courts if necessary. If a local authority should resolve to take a number of enforcement actions to ensure immunity does not accrue, then this means that faced with such enforcement action, you would need to respond to the different actions being pursued by the local authority as failure to do could have serious implications.
Should you require assistance with any enforcement action or proceedings, then please get in touch with our team who have extensive experience in planning enforcement matters.
[1] https://www.bailii.org/ew/cases/EWHC/Admin/2022/521.html
[2] Paragraph 72 of Judgement Haytop Country Park Ltd v Secretary of State for Housing, communities And Local Government & Anor [2022] EWHC 1848 (Admin)
[3] Planning Inspectorate Appeal Decision 12th August 2022 Reference APP/E5900/C/22/3292210
[4] https://www.planningresource.co.uk/article/1798035/company-owner-pay-almost-46000-cutting-down-three-protected-yew-trees
[5] [2022] EWHC 1493 (Admin)
