PAPER C1
ISLE OF WIGHT COUNCIL DEVELOPMENT CONTROL COMMITTEE –
TUESDAY 10 DECEMBER 2002
REPORT OF THE STRATEGIC DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES
CONSULTATION PAPER ON THE REVIEW OF THE PLANNING ENFORCEMENT SYSTEM IN ENGLAND
Summary
To develop a response to the abovementioned consultation document issued by the Office of the Deputy Prime Minister asking for comments by 31 December 2002.
In December 2001 the Secretary of State published a Planning Green Paper entitled ‘Delivering Fundamental Change’. This wide ranging document looked at the whole planning system and in the section on enforcement highlighted the following particular issues:
· The case for making a breach of planning control a criminal offence.
· Increase in penalties so they were more of a deterrent.
· Reviewing the arrangements whereby people can effectively buy extra time to enjoy the benefit of unauthorised development by appealing against an Enforcement Notice to the Secretary of State.
The deadline for comments with regards to the Green Paper was 18 March 2002. Members may recall considering a report at the 18 February 2002 Development Control Committee meeting as part of the process of formulating an appropriate response.
A national working party was formed in January 2002 to start the review of the planning enforcement system. Their views together with the responses to the Planning Green Paper have formed the basis of this Consultation Paper which has now been released and on which Members are now being requested to comment.
THE PRESENT ENFORCEMENT SYSTEM
The current enforcement regime provides a mix of discretionary powers with which to deal with breaches in a controlled but flexible manner. Many minor breaches of planning control can be resolved through negotiation without the need for recourse to formal enforcement action. In less straightforward cases, and particularly in cases where there is a deliberate abuse of the system, formal enforcement action may be necessary.
Enforcement powers exist to provide a flexible toolkit with which to tackle a range of breaches of planning control. The powers include:
· The power to serve a Planning Contravention Notice. This may be used where it appears that there may have been a breach of planning control and the Local Planning Authority requires information about the activities on the land or to find out more about the nature of the recipient’s interest in the land.
· The power to issue and Enforcement Notice, requiring steps to be taken to remedy the breach within a given period. There is a right of appeal to the Secretary of State against an Enforcement Notice. If the Notice is upheld, failure to comply is an offence with a maximum penalty on conviction of £20,000.
· The power to serve a Stop Notice. This has the effect of immediately stopping any activity which contravenes planning control with any contravention facing similar penalties to those for Enforcement Notices.
· The power to serve a Breach of Condition Notice where there is a failure to comply with any condition or limitation imposed on a grant of planning permission. This procedure provides a fast track enforcement option to secure compliance, with no statutory right of appeal to the Secretary of State.
· The ability to seek an Injunction in the High Court or County Court to restrain any actual or expected breach of planning control.
Planning Policy Guidance Note 18 and Circular 10/97 Enforcing Planning Control. Legislative Provisions and Procedural Requirements together with the accompanying Enforcing Planning Control . Good Practice Guide for Local Planning Authorities set out national policy and procedural guidance on enforcement.
THE CONSULTATION DOCUMENT
The consultation document is a detailed report which contains a number of background statements, drawing on the Green Paper responses, accompanied by questions seeking comments from Councils who have enforcement powers as Local Planning Authorities. The Government is inviting views on no less than 29 separate issues. The document defines the objectives for the planning enforcement system as follows:
“A planning enforcement system which is fair and transparent, easily understood by all those involved in it, which operates efficiently and effectively, and which engenders confidence. We therefore need to review how well the current system is working against the background of these objectives.”
Having reviewed the information to date, the conclusion of the consultation paper is:
“that the existing system is basically sound and does not need to be reinvented. But that is not to say that there is not scope for improvement to make planning enforcement more effective and better able to play its part in ensuring that people
have confidence in the planning system as a whole. These improvements may be achieved through making better use of the existing system or it may require changes to the system”.
In order to submit a comprehensive and co-ordinated response the following approach has been adopted:
· Detailed discussions with the Development Control Section involving the Development Control Manager and the Enforcement Team Leader.
· Outline of proposed response(s) agreed with the Head of Planning Services.
· Consideration of proposed response(s) by the Development Control Committee.
· Adaptation of the draft response(s) to reflect the views of this Committee.
· Submission of responses to ODPM.
A copy of the consultation document has been placed in the Members Room and is also available for inspection at Seaclose Offices. However, this report, for the purpose of Member consideration, will focus on the principal aspects of the review and seeks a steer from Members experienced in dealing with development control related matters such as enforcement, so that Officers can complete the response(s) before Christmas 2002. I attach as an appendix to this report a copy of the summary and questions/issues on which views are invited.
The following principal areas will be considered:
1. Resources and proactive approach by Local Authorities.
2. Should a breach of planning be a criminal offence.
3. Responding to retrospective applications.
4. Enforcement appeals.
5. Monitoring the implementation of a planning permission and compliance with conditions.
Members who have had the opportunity to read the document may, of course, wish to raise other related issues.
1) RESOURCES AND PROACTIVE APPROACH BY LOCAL AUTHORITIES (QUESTION 2)
Background Statement
Although evidence indicates Authorities provided a modest increase in resources for planning enforcement during the period when spending on planning functions generally fallen our impression enforcement is rarely if ever seen as a priority function. Unlike applications for planning permission, enforcement does not benefit from a distinct income stream and so has to be subsidised from other sources. Current research will consider extent to which existing fee regime adequately funds the wider development control functions which includes enforcement and monitoring.
Enforcement work is largely reactive although it is recognised that some Authorities take a more proactive approach actively monitoring implementation of planning permissions. Where Local Authorities are proactive enforcement works better.
Resource question not simply a matter of finance and priorities, there are also questions about the availability of suitably trained and experienced staff and measures needed to improve recruitment into the planning profession of people with the necessary skills.
CONSULTATION PAPER QUESTION
Seek views from Local Authorities in particular on resourcing planning enforcement and whether this presents a barrier to its effectiveness. Is identifying and retaining suitable staff to undertake enforcement work a problem? Is there a need to raise the profile of planning enforcement and for Local Authorities to accord it a high priority?
ISLE OF WIGHT COUNCIL RESPONSE
Our Enforcement Team presently consists of a Team Leader, two Area Enforcement Officers, a Monitoring/Compliance Officer and an Assistant Enforcement Officer (latter post has other related and unrelated duties which require two days a week on other matters). For a number of years the Council has recognised the importance of monitoring new development and planning conditions. Under these circumstances, unlike national trend, our figure for the service of Enforcement Notices is increasing. So far this year we have served 24 notices whereas in 2000 we served just 12 notices.
Notwithstanding the above enforcement is clearly a resource hungry function which could absorb any resources allocated to it.
In terms of income stream support principle that any planning fee income increase is in part intended to cover the monitoring and compliance service. In that context, if the developer (above householder application level) has to pay in advance for a checking fee there is likely to be more incentive for them to use that service at the appropriate time.
Problems with regard to staffing are shared across the Authority. The proposed Planning Delivery Grant being placed from 2003/4 with the incentive of improving Local Authority Planning services would be welcomed if it contains specific elements with regards to enforcement.
2) SHOULD A BREACH OF PLANNING BE A CRIMINAL OFFENCE (QUESTION 3)
Background Statement
The consultation paper outlines the arguments for and against the criminalisation of a breach of planning control.
In favour of such an approach would be the strong deterrent message that it would send and provide a means to tackle short lived breaches more effectively. Against the concept of criminalisation is the fact that interpretations of planning law can at times be a “grey area” and that criminalisation would shift the burden of proof from the appellant/offender to the Local Planning Authority who, as in other criminal proceedings, would need to prove beyond reasonable doubt that a breach had occurred. Satisfying the criminal burden of proof may prove extremely difficult. The other concern with regards to criminalisation is that all breaches no matter how trivial would be caught resulting in a person who had inadvertently undertaken development without obtaining the necessary consent ending up with a criminal record.
CONSULTATION PAPER QUESTION
On balance, the Government considers it would be inappropriate and a disproportionate response to make a breach of planning control a criminal offence, but views sought on this issue.
ISLE OF WIGHT COUNCIL RESPONSE
The number of cases which result in the service of an Enforcement Notice (approximately 25 per year) with possible court action is very minor compared to the number of alleged breaches investigated (approximately 500). This indicates that the vast majority of cases are resolved. The additional burden that criminalisation would put on the resources allocated to enforcement in terms of the need to ‘caution’ any individual from the very beginning would seem to indicate that such a response is excessive. Providing other measures are put in place to effect more immediate responses and address the poor perception of planning then I would support the Government’s belief that criminalisation would be an inappropriate and disproportionate response.
3) RETROSPECTIVE PLANNING PERMISSION (QUESTIONS 4, 5 AND 6)
Background Statement
The opportunity of making a retrospective planning application is seen by some as being unfair. However, the success rate for retrospective planning applications is 85% only just 3% lower than for proposed development applications. Whilst retrospective applications are dealt with on the same basis as standard applications, there is a public perception that the matter has already been decided.
In cases where a retrospective planning application is not made (even though it is encouraged) but the development is not considered so damaging as to justify any enforcement action, the question has been raised whether legislation should be amended to empower the Local Authority to serve a certificate on the developer or landowner requiring them to pay a fee equivalent to the planning application fee. Failure to make payment would be an offence. Further suggestion that where retrospective planning applications are made they attract a higher fee.
CONSULTATION PAPER QUESTION
Should retrospective applications continue to have a role to play in legitimising unauthorised development against which enforcement action is inappropriate?
Views sought on suggestion that where retrospective application not submitted LPA should be able to require a fee to be paid with non-payment being an offence.
Views sought on whether higher fees for retrospective planning applications will be counter productive acting as a disincentive to applying.
ISLE OF WIGHT COUNCIL RESPONSE
Issues revolving around retrospective applications are the most damaging to credibility of the planning system. When a Local Planning Authority exercises its discretionary powers not to take matters further, perception is that the developer has manipulated the system. Consequently, there must be a penalty for failing to follow procedures. It must be something which the property or householder feels clearly has a disadvantage to them immediately or in the more long term to cause them to reconsider their actions.
In the absence of the concept of criminalisation regarding a breach of planning control I would support legislative change to enable LPA to serve a certificate on developer or owner requiring them to pay a fee equivalent to the planning application fee with failure to submit a fee to be an offence.
Acknowledge that an increase in the fee for a retrospective planning application would only act as a further disincentive to apply. No matter how clear procedures would be there will always be circumstances where honest mistakes are made.
Accordingly I do not support increase in fee for retrospective applications.
4) ENFORCEMENT NOTICES AND APPEALS (QUESTIONS 18, 19, 20, 21 AND 22)
Background Statement
Under the present arrangement, even if a retrospective planning permission is refused the delay in serving an enforcement notice can create a situation whereby an appeal against refusal of retrospective planning permission will occur. Any subsequent appeal against a later enforcement notice would then be heard separately introducing further delay. If an enforcement notice was served immediately it would be possible for the two appeals to be considered together so speeding up the enforcement process.
On occasions, applicants employ the tactic of making either an application for a Lawful Development Certificate or a planning application even where an enforcement action has been authorised.
It has been suggested that the right of appeal against an enforcement notice should be scrapped in order to speed up the enforcement process. This would however have severe implications in terms of human rights and natural justice.
It has been suggested that ground A (that planning permission ought to be granted for a development) be removed from appeal process forcing a developer to seek planning permission. However, ground A is considered useful because deemed application and enforcement appeal can be considered together. On balance it is considered that all existing grounds for appeal remain relevant.
Where application made under ground A (planning permission ought to be granted) in most cases a double fee is payable which is split between the Secretary of State and the Local Planning Authority.
CONSULTATION PAPER QUESTION
Views sought on practicalities of issuing enforcement notices soon after retrospective planning permission is refused.
Views invited on whether LPA’s should have right to decline to determine applications for Lawful Development Certificates or planning permission once enforcement notice has been issued.
We consider that the right to appeal against an Enforcement Notice should remain in its current form. Views are invited on this issue.
We therefore believe that all grounds of appeal should remain in their current form. Welcome views on this issue.
Views invited whether the whole fee should go to the Local Planning Authority to help pay towards the cost of enforcement. Local Authorities would be expected to take on responsibility for administering the administrative fee system including the initial calculation of the deemed application fee.
ISLE OF WIGHT COUNCIL RESPONSE
On its own, the enforcement appeal process is a fundamental right which should not be removed. Where the system comes into discredit are the circumstances following refusal of a retrospective application which may lead to the service of an enforcement notice and where the developer then seeks to ‘buy time’ to appeal against refusal of planning permission and then the service of the enforcement notice. The service of an enforcement notice requires certain action and whilst service speed can be improved there will inevitably be a gap between issuing of a refusal notice and the service of an enforcement notice.
Where an enforcement notice is under consideration and developer then seeks to delay matters by submission of a planning application suggest Local Authority have right to reject to deal with such a proposal if there is a resolution to serve a notice and notice has not actually been served.
With regards to the double deemed fee question, it would clearly assist Local Authorities in funding an effective service if the entire fee was given to them, particularly bearing in mind the degree of work that is undertaken before an enforcement notice is issued.
5) MONITORING THE IMPLEMENTATION OF A PLANNING PERMISSION IN COMPLIANCE WITH CONDITIONS (QUESTIONS 14 AND 15)
Background Statement
Many Local Planning Authorities routinely monitor whether development is carried out in accordance with approved plans and conditions. Most permissions will have some conditions attached which results in significant number of conditions to monitor. Accordingly, Authorities tend to concentrate on key sites or specific conditions. The fact that most planning permissions run for five years creates difficulties in identifying time when development commences.
Complaints with regards to new development may be result of complainant being unaware of the full facts. Conditions should only be imposed where they meet the tests set out in Circular 11/95 (The Use of Conditions in Planning Permissions). The difficulty in monitoring complaints should not be used as an excuse either not to impose conditions or refuse permission if conditions would make development acceptable. Better procedure to enable monitoring of conditions required. Suggest two possible approaches of site notices and system of self certification.
Suggest notice posted on site giving details of planning permission granted and any conditions attached which has to be displayed for set period before work starts, for as long as work is carried out and afterwards for a specified time.
Suggested developers required to self certify that approved development accords with the permission granted with it being a criminal offence to issue a false certificate. Certificate could only certify compliance at a particular time.
CONSULTATION PAPER QUESTION
Views sought on practicalities of introducing and operating a requirement to have a notice on the site indicating when the work commenced. Should there be a sanction for failing to display such a notice? A possible alternative would be a requirement for the developer to notify the Planning Department when works are about to commence. Would also welcome views on this possible approach.
Views also invited on whether a self certification process to confirm that a development accords with the planning permission would be workable.
ISLE OF WIGHT COUNCIL RESPONSE
Having granted conditional approval to a scheme it is clearly important that the works undertaken conform with the approved details and conditions. To check all approvals would be a significant strain on resources and there is therefore logic in focusing resources on the more important sites. At present there is no legal requirement for a developer to notify the Local Planning Authority that work is about to commence. Whilst some developers do submit the details in the time specified in the conditions others take a more relaxed approach in the belief that all the matters will be resolved by the time the properties are sold. Solicitor searches still fail to pick up on failures to comply with conditions or fail to advise clients to hold back monies before taking up residency.
Whilst the idea of displaying notice on site has certain merits can anticipate number of practical difficulties if plans are not displayed, location where the display takes place and the remedy/penalty if display is not undertaken for required time.
I would support a formal requirement of all developers that they must to notify LPA of intention to start work. A failure to do so would invalidate any consent.
The failure to comply with conditions before development commences has been interpreted as rendering the entire consent invalid. (Henry Boot Homes Ltd v Bossethan District Council 2002 JPL 1224). Existing Breach of Condition Notice procedure is not particularly appropriate in such circumstances. Where BCN’s are used twenty eight day period to resolve outstanding matter is far too long, for example, to put up fencing around trees to protect them during works. I believe there is a need for a separate type of notice that can be served during building works to remedy outstanding matters or require cessation of work on site altogether until matters resolved.
Self certification by builder that development carried out in accordance with the approved plans and conditions would be ideal as it puts responsibility and onus on the developer. Whether solicitors will accept their clients word without seeking LPA acknowledgement that everything is correct remains doubtful.
Suggest LPA’s initiate a certification system (for which a fee could be charged) stating that development carried out in accordance with the approved plan and with conditions complied with up to the date of the certificate.
GENERAL OBSERVATIONS
In addition to the specific points outlined above I believe that the Council should also make several general points and these are outlined below:
1. Changes to procedures are not sufficient on their own to address problems within the planning enforcement system. There are a number of well known ambiguities, and inconsistencies in basic interpretation of the legislation such as the General Permitted Development Order that must be addressed simultaneously to help improve the efficiency of the system.
2. There are problems with other regulatory bodies with an apparent mismatch where they share common interests. The most classic case is the situation whereby someone can get a HGV operating licence without first having obtained planning permission. Members will recall the recent case adjacent Sandown Airport where such a situation arose.
3. The Advertisement Regulations need clarification. For example, clubs often claim they simply provide a venue and that associated flyposting is undertaken by event organisers who are difficult to track down. In these circumstances, the club ought to carry some level of responsibility as they clearly benefit financially from the illegal operation.
Strategic Director
Corporate and Environment Services