PAPER F

 

Committee :   DEVELOPMENT CONTROL SUB COMMITTEE

 

Date :              22 AUGUST 2006

 

Title :               ENFORCEMENT - GORE BASIN MOTOCROSS SITE, DOWN END ROAD, NEWPORT

 

                        REPORT OF THE DEVELOPMENT CONTROL MANAGER

 

 

 

REASON FOR COMMITTEE CONSIDERATION   

 

The Enforcement Notice compliance date has passed without the required works being undertaken. The site has a long history, it is contentious and whilst it currently has no extant planning permission, there is strong indication that an application is due to be submitted. It is considered that the Elected Members should review the options available to the Local Planning Authority in responding to the continued breach of planning control.

 

 

1.         BACKGROUND

 

1.1       Development Control Sub Committee Members will be familiar with this site particularly following the detailed report considered at the 27 June 2006 meeting which concerned a request from the Amateur Motor Cycle Association to use the land for a two day event in August 2006. That report contained a detailed synopsis of the situation and I would refer Members back to that urgent business paper to familiarise themselves with the planning history relating to this site.

 

1.2             Regarding this report the salient points are as follows:

 

·                    A Planning enforcement Notice was served dated 10 February 2005 which set out 17 actions that the landowner was required to undertake which would see the cessation of the use of the land for motor sport activities, the removal of all the created structures, the return of the land to agricultural use and the closure of one of the vehicular accesses with a reduction in the size of the other. The effective date set out on the enforcement notice was 8 March 2005, with a 6 month period for compliance. This set an original compliance deadline of 8 September 2005.

 

·                    An appeal was lodged against the enforcement notice before the effective date citing Ground D (that the planning Authority was time barred from taking action) and Ground F (the steps required by the notice are excessive). This action had the effect of suspending the timescales outlined above.

1.3       In a decision letter dated 26 January 2006 the Planning Inspector dismissed the appeal against the enforcement notice with corrections and variations. This set a new compliance date of 26 July 2006. A visit to the site on 28 July 2006 confirmed that none of the actions required by the enforcement notice have been undertaken.

 

1.4       The fact that the compliance date has passed without the required actions being undertaken has not gone unnoticed in the locality.

 

1.5       Members will recall from the meeting of the Development Control Sub Committee on 27 June 2006 that reference was made to the preparation of a new planning application to be accompanied by an environmental statement which officers are advised by the agent acting on behalf of the landowner will be submitted shortly. In that context, I can confirm that an incomplete draft environmental statement consisting of some 133 pages plus appendices was presented to the Local Planning Authority on 25 May 2006 asking for views on whether the document covered the salient points. A response was sent on 14 July 2006.                   

 

1.6       The agent acting for the landowner has indicated verbally that the planning application and statement will be submitted before the end of August 2006.

 

2.         CONSULTATIONS

 

2.1       Mindful of local feeling, officers have undertaken a limited consultation exercise and are seeking the views of Arreton Parish Council and of several local residents who have expressed a strong interest in the site in the past. The local Member has also been alerted of the situation. Any comments received will be reported at the meeting.

 

2.2       The landowner has also been given the opportunity to comment.

 

3.         THE LEGAL BACKGROUND

 

3.1       Section 179 of the Town and Country Planning Act 1990 indicates that it is an offence not to comply with the requirements of an enforcement notice. Such a matter would be pursued through a prosecution in the Magistrates Court.

 

3.2       Section 178 of the Town and Country Planning Act 1990 gives power to the Local Planning Authority to enter land and undertake the steps necessary to comply with a notice and then recover reasonable cost incurred.

 

3.3       Planning Policy Guidance Note 18 (Enforcing Planning Control), which sets out the general principles of enforcement, advises that it is a discretionary power that should be taken when it is regarded as expedient to do so.

 

4.         OPTIONS

 

 

1.         To advise the landowner that following the expiry of the compliance date with regards to the enforcement notice the Local Planning Authority proposes to initiate a prosecution under Section 179 of the Town and Country Planning Act 1990 for failing to comply with the requirements of the notice under.

 

2.         To advise the landowner that following the expiry of the compliance date with regards to the enforcement notice the Local Planning Authority proposes to exercise powers under Section 178 of the Town and Country Planning Act 1990 to enter the land and undertake the steps required by the notice and then seek to recover expenses reasonably incurred.

 

3.         To note the failure of the landowner to comply with the requirements of the enforcement notice by the compliance date but given the information with regard to the imminent submission of a planning application (accompanied by an environmental statement) to defer any further enforcement action providing a valid planning application with the appropriate environmental statement is submitted before the end of August 2006

 

 4.        In the event that no valid application is submitted by the end of August 2006 to initiate a prosecution in the Magistrates Court and to continue with this action in the event of a valid planning application is submitted after that date.

 

 

5.         CONCLUSION

 

5.1       The site has not been used for motocross purposes since August 2005. Nevertheless, a clear breach of planning control exists as the compliance date set by the enforcement notice has now passed without any of the required works being undertaken. A number of options are open to the Local Planning Authority. In the circumstances I would advise Members that each option should be considered carefully paying specific regard to whether some form of formal action is clearly in the public interest.

 

5.2       With regards to the first option which is to initiate a prosecution in the Magistrates Court, this would involve the commitment of resources in terms of collating the necessary evidence and preparation of a prosecution statement. The action would also involve the Council’s legal section. The extent of resources that would need to be applied would be influenced by whether the defendant pleaded guilty or not guilty and in the latter case whether they wished the matter to be heard in the Magistrates Court or to be heard in front of a Judge and Jury. Elected trial by Jury would incur greater expense than if it were to remain within the Magistrates Court. Such a choice is the sole prerogative of the defendant no matter how strong the Council considers its case to be.

 

5.3       Whether defending an action in front of a Magistrate or a Judge and Jury the Local Planning Authority would have to show that the action was in the public interest whilst the Courts would take a sensible and reasonable attitude. On the basis that the Local Planning Authority is likely to be determining a planning application at this time, I would anticipate the likely defence against such an action would be that the dismantling of the site would be ‘wasted effort’ on the basis that the landowner may gain planning consent for its retention. I would also expect the landowner to refer to the time it took the Authority to respond to his agent’s letter of 25 May 2006, although this was not considered to be unreasonable given the size of the document and the complexity of the issues it raised. Whilst the only defence to such an action is that he had done everything he could reasonably have been expected to do to secure compliance with the enforcement notice the concern is that the Magistrates may either choose to refuse to determine until the planning application has been decided or reduce the fine and/or costs in light of the concurrent planning application.

 

5.4       In my view, whilst the Courts would undoubtedly accept that a breach has taken place as compliance has not occurred the likely fine and recovery of costs would reflect the circumstances at that time. Accordingly, I would question if it is genuinely in the public interest to follow this option.

 

5.5       The second option outlined above relates to direct action by the Local Planning Authority which would involve undertaking the works prescribed in the notice and then recovering the costs from the landowner. This action would require a greater level of resources both in terms of acquiring the necessary quotes in the first instance (minimum of 3) and then the Local Planning Authority paying a contractor to undertake the works and then commencing the necessary legal action to recover the costs. At the time of writing this report, no estimate of the costs involved has been sought but enquiries will be made before the meeting and Members updated on the results. Given the level of resources required this option is not recommended.

 

5.6       It is considered that both options 3 and 4 can be reviewed together. The third option is to note the continued breach of planning control with regards to the landowner having passed the compliance date set in the enforcement notice. The major consideration here is the imminent submission of a planning application which will seek to remedy the current breach through gaining consent for limited activities on site. Section 180 of the Town and Country Planning Act 1990 indicates that where an enforcement notice has been served and planning permission is subsequently granted for any development carried out before the grant of that permission, then the notice shall cease to have effect so far as the matter set out in the notice then granted consent.

 

5.7       The main considerations with regards to this option are firstly the realistic likelihood of the submission of the application and secondly whether a decision by the Local Planning Authority not to take further action passes the tests that are normally applied to enforcement, which are considered to be consistency, fairness and proportionality.

5.8       With regards to the submission of the planning application, Members will recall that the Local Planning Authority has been advised of a submission for a significant period of time. However, based on the sight of the document in May it does appear that the landowner has invested in the preparation of the document and officers have been advised (verbally) by the agent that an application will be submitted by the end of August and hopefully before the committee meeting on 22 August. Were an application is submitted it is considered that in the absence of any immediate harm resulting from the use of the site, Members have the option of deferring enforcement action pending the determination of such an application. If at the end of the determination period a planning application was supported and approved then based on the observations of the incomplete draft environmental statement, this would be likely to quash all the requirements of the enforcement notice. If an application were refused and depending on the grounds for refusal, Members could at the same time advise officers on the appropriateness or otherwise of initiating further action to remedy the breach.

 

5.9       The second consideration concerning option 3 is the question of how this option would sit with regards to the Council’s responsibilities and role in enforcing planning legislation. As Members will be aware the decision whether to take enforcement action is discretionary and rests with the Local Planning Authority but it should be able to justify if required any decision not to take action. The decisive issue in considering whether to take action is the effect on public amenity that merits protection in the public interest.

 

5.10    The site continues not to be used and effectively the gates have been locked since the last event which took place in August 2005, which was regulated through a legal agreement. There are views into the site from the main road and also from the local footpath system but these are mitigated in part by the developing vegetation particularly on the track area.  

 

5.11    At the time of writing this report the Local Planning Authority has not received any public views on the current status of the site. Nevertheless, in the days leading up to the compliance deadline (26 July 2006) the Authority was approached by several local individuals asking for clarification on the planning position and the reaction of the Local Planning Authority if the compliance date passed without action taking place. The landowner, the Parish Council and interested local residents have been given the opportunity to comment on the current situation and Members will be updated on any views expressed at the meeting. Whilst noting these concerns, it is considered that, on balance, a decision to wait until the end of August in anticipation that a valid planning application with the necessary environmental statement will be submitted is a reasonable and justifiable course of action. This should however be supported by a clear cut off date of 31 August beyond which time action should commence. It is considered that this is reflected in the recommendation below.

6.         RECOMMENDATION

 

3.         To note the failure of the landowner to comply with the requirements of the enforcement notice but given the information with regard to the imminent submission of a planning application accompanied by an environmental impact statement to defer any further enforcement action providing a valid planning application with the appropriate environmental impact statement is submitted before the end of August 2006.

 

4.         In the event that no valid application is submitted by the end of August 2006 to initiate a prosecution in the Magistrates Court and to continue with this action whether a valid planning application is submitted after that date or not.

 

Contact Details :       Steve Cornwell, Area Team Leader (West)                                                     

 

( 01983 823552     e mail : [email protected]

 

 

ANDREW PEGRAM

Development Control Manager