UPDATE ON ENFORCEMENT LAW

1. UPDATE ON ENFORCEMENT LAW 6th JULY 2007 -RTPI CELINA COLQUHOUN

2. CONTENTS • Part 1Consequence of proposed Review of Enforcement Law • Part 2 Recent Enforcement cases • DEVELOPMENT • TIME LIMITS/IMMUNITY • NULLITY & INVALIDITY • INJUNCTIONS • PROCEDURE • CONDITIONS • EN & COMPLETION NOTICES

3. CONSEQUENCES OF REVIEW • “REVIEW OF THE PLANNING ENFORCEMENT SYSTEM OF ENGLAND” – consultation ran until 31st December 2002 • Chp 7 Q.12 - LATE AMENDMENTS TO PLANNING & COMPLULSORY PURCHASE BILL included “TEMPORARY STOP NOTICE” – tabled 24th February 2004 ref- Keith Hill Hansard col 52-53WS as a result of the review.

4. PLANNING & COMPLULSORY PURCHASE ACT – Royal Assent May 13th 2004 – Section 52 inserted Ss 171E, F,G and H into principal Act • Town and Country Planning (TemporaryStop Notice) England Regulations 2005 (SI 2005 No.206) • Circular 02/2005 Temporary Stop Notice 7th March 2005

5. REVIEW OF PLANNING ENFORCEMENT: SUMMARY OF RECOMMENDATIONS November 2006 • Follows Oct 2002 consultation • List of 25 “Recommendations and Measures DCLG intends to take forward to promote good enforcement practice”

6. 10 of the recommendations are no change to current system(Nos 2,9,10,11,13,14,18,20,21 and 25) • “changes” :- 4 address financing/fees (3,4,6 and 22); 3 are aimed at promoting priority and image of enforcement (1,7 and8); and 4 address 2 new good practice guides (15 and 16 )for LPAs and (23 and 24 ) for JJs

7. 3 recommendations are to be subject to further research and consultation (No.5 – charges for compliance and monoitroing; • No.12 – unlawful developments notices and new PCNs; and No.19 – proposal to abolish 10 year time limit

8. Part 2 - RECENTENFORCEMENT CASES

9. DEVELOPMENT • Waverley BC (planning appeal decision) [2006] JPL 761that moveable ‘polytunnels’ could constitute ‘development’ and is not a use of the land but is a building operation and hence ‘development’. • Beronstone Ltd-v-First SofS[2006]EWHC 2391(admin) EN required removal of 554 wooden posts laid out to define plot boundaries within site in AONB and Green Belt. HHJ Mole QC on appeal against dismissal rejected notion Ins under an obligation to define threshold at which conglomeration of posts became “development” . His approach was unassailable – took account of extent, viability, form and degree of permanence. Decision upheld.

10. Re Kennet DC and British Waterways – Ref App/W1715/A/05176 (EN appeal) whether use of land for mooring of residential barges/boats which were not in course of navigation was a material change of use • Appeal on ground (e)- [failed ]- only landowner (BW)and leaseholder had been served. Indiv owners as occupiers under licence should have been served (as officer had advised). In circs hwoever where requisition notice only id’d BW and leaseholder and copy of notice had been fixed to post at site entrance and substantial number of boat owners attended no signif prejudice by failure.

11. Appeal on ground ( c) – [succeeded] • EN alleged “unauthorised use of land for mooring of residential barges/boats not in the course of navigation”. Based on evid it was accepted predominant use was not residential.Insp changed EN to “home mooring of barges/boats”. • Planning unit Insp held to be canal as entity including its banks at Ladies Bridge is incidental and ancillary to use of canal therefore not MCU. Inspector noted unusually large size. • Insp accepted contention was that based on test in Harrods-v-SSETR[2002] EWCA Civ412 “home”mooring of boats was reasonably incidental to canal primary use and no MCU.

12. R (on the application of Wallis)-v-National Assembly for Wales [2007]JPL 962 • Mr Wallis had pp for change of use from sewage works to kennels subject to conditions that, inter alia, kennel/hound lodge and associated run area only to be used for accommodating dogs owned by him and not to be used in any other capacity • Subsequently sought pp for residential caravan - refused and appeal dismissed. EN issued in respect of this change of use.

13. On appeal Insp rejected argument that there was need for caravan to secure well-being of dogs as such special circs only relate to commercial kennels which was not an authorised by pp nd dismissed appeal. • On appeal to High Ct Davies J allowed – (1) Insp fell into error in his interpretation of pp and treating way Mr W had been using kennel hound lodge and associated run area as “commercial kennel operation”. His use was entirely within the pp conditions – only him and his own dogs.

14. TIME LIMITS/IMMUNITY • R (on the application of Arun DC) v The First Secretary of State and Brown [2005] EWHC 2520, [2006] EWCA Civ 1172 • Enforcement against breach of non-separate use conditions-time limits • Permission was granted to build an extension to a property to house a dependent relative. A condition attached to the permission said the property was not be occupied or disposed of as a separate independent unit of accommodation. Some time in 1996 the extension was used as separate accommodation. The Council issued an enforcement notice in 2004.

15. Judge Mole QC held: • In 1996 there were effectively two sorts of breach: (1) non-permitted change of use from a single dwelling-house to two separate dwelling-houses (2) breach of condition prohibiting change of use to two separate dwelling-houses. • S. 171 B (2) states “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of breach.”

16. S. 171 B (2) does NOT mean that the time limit for enforcing against a breach of condition against separate use is four years. Instead the normal ten-year rule applies and EN had been served within time . • HOWEVER in the CofA it was held that the time limit for enforcing against change ofuse of any building to use as a single dwelling is 4 years whether breach was development without permission or breach of condition.

17. In Arun - Carnwath LJ pointed out that clear legislative intention was that, unlike other changes of use, householders should only be vulnerable to enforcement action if it was instituted within 4 years. Given such intent it would be illogical for there to be a different period depending on how breach came about ie breach of condition or development without pp. • Similarly – illogical for time limit to depend on how LPA formulated breach.

18. NULLITY & INVALIDITY Clive Payne –v-(1) National Assembly for Wales (2) Caerphilly County BC (2006) [2006] EWHC 597[2007] JPL117 Test to apply • Inspector had correctly identified that an enforcement notice did not comply with S.173(3) because of uncertainty and therefore failed to specify steps. The notice had asked for submission of a scheme to the LPA . Inspector decided to exercise power under S.176 to correct and vary.

19. Issue of nullity not been taken on appeal to Inspector but on appeal to High Court DDJ Wyn Williams QC held that the Inspector having reached the conclusion that the notice did not comply with S.173 fell into legal error by varying its terms. He had no power so to do because notice was a nullity.

20. R (on the application of EHDC)-v-First Sof S[2007]EWHC 834. • Estoppel – “second bite” Enforcement/ nullity • EN/Appeal 1 – developer appealed on written reps, neither developer nor LA provided sufficient info to determine whether developmen t compied with pp or not. Appeal 1 allowed on ground (c) – no breach.

21. EN/Appeal2 – Inspector allowed appeal/quashed notice as nullity on basis matter had already been determined by 1st Insp. • LA’s subsequent JR was successful. Q was whether 1st Insp had actually determined merits of case when “cause of action estoppel” would have arisen to prevent 2nd EN having effect. Sullivan J held no estoppel arose and that even if it had special circs enabled ct to exercise discretion in favour of applicant.

22. INJUNCTIONS South Beds DC-v-J. Price [2006]JPL 1805 breach of inj –committal- suspension- gypsies- circ 01/06 • LPA had been granted S.187B inj following EN being upheld requiring Price and others to move caravans off site, cease resid use and restore land. No compliance at all.DC issued commital proceedings – def X-application for inj to be discharged or varied. • In High Ct – Bean J refused to discharge, vary or suspend inj despite further S.78 appeal pending. Made commital order suspended for 2 mths

23. Further application when date for S.78 inquiry 2 mths away resulted in suspension for short period to allow defs to get off site(bef inq date) which they did. • BUT inquiry date got set back, was then adjnd sinedie and C01/06 issued. Def appealed against committal order and sought permission to appeal decision not to discharge or suspend. • CofA held: 1. Existing shortage of accommodation and likelihood of future sites being identified did not in themselves tolerating use of site which was unsuitable for purpose. No basis on which to conclude J’s refusal to suspend wrong

24. 2. C01/06 clearly did improve defs’ planning case – in considering temp pp substantial weight to be accorded unmet need. But not poss to assume more likely to succeed. The q was whether defs should be allowed back on land until decision. • 3. Only right to suspend committal pending result if evidence showing substantial likelihood planning appeal wld succeed. Whilst def’s chances had improved but not poss to say strong. • Appeal agnst commital order dismissed and permission to appeal J’s refusal to suspend refused.

25. South Cambs DC-v-Dan Flynn [2007] JPL 440;[2006]EWHC 1330 “Smithy Fen”- gypsies- Circ 01/06 • LPA sought inj under S.187B to require def gypsies to move. 3 Ens served re different parts all upheld on appeal. • Defs argued against as (1)not proportionate and (2)effect of Circ 01/06 and temp pp

26. Silber J granting application held: • (1)Re Proportionality – Insp andSofS had weighed issue of unsatisfied need and personal circs, even taking account of 2 vacant but not approp/available County Council sites; no failure on DC’s part re homeless applications nothing more could or should have been done under Housing Act; planning merits were clearly not “finely balanced” as Defs argued;only new legal change to for Court to consider was C01/06; land not GB but DC had v strong claim to relief unless temp pp justified -C01/06

27. (2) Re Cir 01/06 +Temp pp – defs argued that C01/06 means strong chance of success of getting temp pp.But “real prospect”of success required not satisfeid by C01/06 provisions as defs putting forward same case in suppport of claim for temp pp as before which was rejected. Nothing in C01/06 alters planning judgmt. Nothing in C01/06 suggests sites shld be permitted where such level of harm had been found; prospects of success therefore so low ct can disregard.

28. Bath and North East Somerset Council-v-Connors [2006] EWHC 1595; [2007]JPL 140 S.187B - Gypsies; Injunctions; Enforcement and suspension • LPAapplied for injunctions to restrain existing and anticipated breaches. • Defendant gypsies had been refused pp for site and S.78 appeal had been dismissed by Inspector and Sof S. Their personal circumstances were not sufficient to outweigh harm to GB and AONB site. • Defs applied for temp PP to permit them to remain on site until LPA had carried out needs assessment under circ and land could be identified for them.

29. Defs accepted inj should be granted but suspended as they had reasonable prospect of success with fresh application for temp pp Tugenhadt J granted application: no realistic prospect of success for application or S.78 appeal( cf South Cambs). Planning circs of site not going to change by end of temp permission period.Whilst substantial weight could be given to unmet need and possibility of further sites being identified for temp pp, significant weight had already been accorded previously to same issue by Ins and SofS

30. Moreover significant degree of env damage was principal consideration and that was also unlikely to change. • BUT suspended order for 4 as opposed to LPAs suggested 3 months to allow time taking account of personal circs. • J. noted that it remained possible to apply and extend in future.

31. PROCEDURE • Oxford City Council-v-SSCLG[2007] EWHC 769 – important re way second inspectors address decisions but also for procedural point. Where LA taken enforcement action and inspector grants pp and quashes EN, it is essential on appeal to request court quashes both aspects of decision (S.288 and 289 appeals)

32. R on application of Mohammed Eid-v-First SofS [2006]JPL 1754 • Def appealed agnst Insp’s deicisn dismissing EN appeal on basis that (1) Insp should not have been permitted to correct typo in his DL and (2) erred in holding change of use from financial and professional services to café was harmful.

33. Held dismissing appeal (1) as long as correction of modest proportion and did not cause prejudice and (2) purpose of S.289 appeal was to id errors of law made by Insp not to carry out a re-run of original inquiry which is what def was doing – seeking to test findings against the evidence and putting indiv sentences under magnifying glass. Nevertheless Insp’s conclusions survived such scrutiny.

34. CONDITIONS • Watershore Ltd and Jonathon Bolwes-v-National Assembly for Wales and Cardiganshire CC[2006] JPL 1754-55 • EN alleged breach of unauthorised construction of a building intended for use as a barn requiring it to be demolished. • Insp rejected contention under S.174(2) ( c) that bldg designed for agric purposes and accordingly permitted devel. Insp amended notice removing words “intended for use as a barn” and rejected ground (a) and (f) appeals

35. S.289 appeal dismissed- (1)Insp had referred to S.75(3) which was not relevant as no PP to construe but considering under S.177(5) which, following his amendment of the EN was for construction of a building. Ct held probably referring to S.75(3) by way of analogy where ppsilent on purpose of bldg. In any event Insp would have reached same concl without ref to S.75.

36. (2)rejected contention that Insp had failed to take acc of mc in that he could have imposed a condition re agric use. Having found that the building was not designed for agric use it would have been perverse to proceed to impose a condition limiting it to agric use.

37. EN & COMPLETION NOTICES • Carddiff CC-v- National Assembly for Wales & Malik [2006] EWHC 2391- inter-action between a completion notice and an EN • In 1993 Malik obtained consent to erect garage to rear of home and began work. Work ceased 1994. 2001 S.94 completion notice served but failed to comply by deadline so EN issue in 2004 alleging breach and that devel was unsightly.

38. Mr Malik’s appeal allowed by Assembly contrary to Insp. • LPA’s appeal under S.289 was dismissed. Davies J found that works carried out prior to expiry of completion notice remained development authorised by pp in light of exception provided by S.95(4) for building works carried out under relev pp. Works were lawful as had been done under 1993 consent.

39. However J went on to point out there remained significant sanction in loss of benefit for future of original consent. • He also noted that LPA could,in its discretion, issue an EN as to part only of devel.

40. THE END…