The requirement

Report
3rd Annual UWE/NAPE Planning
Enforcement and Development
Management Conference
22 February 2013
Getting the Notice right
Stuart Reid
Group Manager, Enforcement,
Specialist Casework and Costs
Why?
• Because the LPA has identified that there
has been a breach of planning control
AND
• It considers that it is expedient to issue a
notice having regard to the provisions of the
Development Plan and to any other material
considerations [s172(1)]
Why?
• Because it is a legal document, which if not
complied with may end up being looked at
by the Courts
• Because it sets out for the Appellant the
LPA’s view of what has been done wrong
and what is necessary to be done in order to
put it right [Miller Mead v Minister of Housing and Local
Government [1963] 2 QB 196]
• If fee paid/an appeal is lodged on ground
(a) then it is going to set the terms of the
deemed planning application (s177(1))
Why?
• Because quashing a defective EN benefits
nobody, apart from the rogues.
- no public benefit in quashing because of a
“technical” failure – the harm continues and
the Appellant remains in a state of
uncertainty
• Because normally the outcome is a second
EN under s171B(4) – second bite provision
- further delay and cost of a further appeal
- possible costs award against LPA
Conflicting Objectives?
• - to ensure EN contains all it should so it is
clear to recipient what is wrong and what
needs to be put right
- to ensure effective enforcement action is
not deflected or delayed by technical or
unmeritorious points of law
• Hammersmith LBC v SSE and Sandral
[1975] 30 P & CR 19 – The Inspector has a
duty to get the notice in order if he can
The Inspector’s Power
• S176 - extremely wide power to correct any defect,
error or misdescription – only one statutory limitation
- no injustice to the appellant or the local planning
authority
many court cases to support this principle, from:
- R v SSE and LB Tower Hamlets, ex parte Ahern
[1989] JPL 757 – “the pettifogging has to stop” –
virtually any correction can be made – the test is
whether there would be injustice
to:
Howells v SSCLG [2009] EWHC 2757 (Admin) – red
line on plan extended – s176 – only test is injustice
The Opportunity
• More opportunity at hearings and inquiries –
airing problems = no surprise
• Go back to parties on WRs appeals if
practical and would achieve purpose
• To get the parties to agree to correction
which might well make the notice more
onerous – for example by adding to the
requirements
• Appeal to the better nature of the parties –
only going to have to go through the
process again on re-issue
The exceptions - Nullities
• Defective on its face – generally something
missing rather than an error
• No notice at all – without legal effect – no
notice and so no right of appeal
• S173 sets out the statutory requirement
that enforcement notices shall “state” and
“specify” certain matters
• If the notice does not comply with
requirements of s173 – automatically a
nullity – the pain of Payne [Payne v NAW and
Caerphilly CBC [2007] JPL 117]
s173 - EN must contain
• An EN shall state/specify:
– s173(1)(a) - the matters which appear to
the LPA to constitute the breach of
planning control – the allegation
– s173(1)(b) - the paragraph of s171A(1)
within which, in the opinion of the LPA,
the breach falls – development without
pp or failure to comply with a condition
– s173(3) - the steps to be taken or
activities to cease – the requirements
– s173(8) - the date on which it is to take
effect
– s173(9) - the compliance period(s)
… continued
– s173(10) - as prescribed: reasons why
expedient to issue EN, relevant DP policies,
precise boundaries of the land & explanatory
note [Regs 4 & 5, ENAR 2002]
Nullity
• If an EN is missing some element required
by s173 and the ENAR it will be a nullity
– Failure to specify an allegation, steps to be
taken, effective date, period for compliance,
why it is expedient to take action.
• OR if the EN is:
– hopelessly ambiguous and uncertain so that
the owner or occupier did not know what he
had done wrong and what he had to do to put
the matter right - s173(2)
A lot needs to be wrong for that to apply
The s176 power
• Is not available if EN is a nullity – to rush to
the conclusion that it is a nullity is not in the
public interest
• Over the years the Courts have encouraged
a move away from strict adherence to
formalities, in tune with the 1989 Carnwath
Report Enforcing Planning Control which
raised concern about matters of complexity
and technicality
• So provided a nullity is not found then the
only test as to whether correctable is
“injustice”
Common Problems
• Headings and the right paragraph of s171
• The land to which the notice relates
- there generally is, but doesn’t have to be,
a plan
- correct planning unit identified? Especially
important where the breach is a change of
use. It provides the basis for assessing the
materiality of the change
… continued
• Reasons for issue
- get the right immunity period [s171B]
- go back to why it was considered
expedient to take action
- because planning permission has not been
granted or because the building differs from
that which was granted planning permission
will not do
- don’t forget DP policies
• Time for compliance
- must be a period (not “immediately” or a
calendar date)
Common Problems – allegation
• Stand back and consider the breach
• Is it development without pp (Ops/MCU) or
is it a BoC? Might be both – can issue
notices in the alternative
• If Ops should be simple – the erection of a
building, the construction of a hard surface
• If pp has been granted but something
materially different constructed then what
you have is development without planning
permission – no need to list the changes
from the approved scheme in the allegation
… allegation continued
• Think of the description of development as
you would in an application for planning
permission
• If MCU to mixed use – identify all principal
(not ancillary) activities taking place on the
planning unit (even the lawful ones) – not
just the one you are concerned about
• Siting/stationing of caravans is not a use of
land – why are they there? – for what use?
• Neither is use as residential “curtilage”
… allegation continued
• If a use continues at the end of a temporary
planning permission then there is no further
MCU – the breach is the failure to comply
with the condition
• Describing the previous use is not essential
but might help to clarify the change
• Description such as “change to a mixed use
including …” is not appropriate
• BoC – specify the condition and then
describe in what way it has not been
complied with
Common Problems - requirements
• S173(3) – specify the steps to achieve the purpose –
precision – Payne [Payne v NAW and Caerphilly CBC [2007]
JPL 117]
• Be clear about what the purpose of the notice is –
remedy the breach or remedy injury to amenity
[s173(4)(a) or (b)]
• In most cases it is to remedy the breach. Why not
state the purpose in the notice? It will help in ground
(f) appeals since any arguments like “I can paint it a
different colour” or “I can reduce its height” would
not remedy the breach
• Never seek an improvement – can only go back to a
previous situation and even then cannot require a
previous use to resume [s173(4)(a)]
… requirements continued
So if the purpose is to Remedy the breach
• Match the requirements to the allegation:
- erect building – demolish building
- change the use – cease that use
- didn’t comply with the condition – comply with the
condition
• If the purpose is to remedy the breach and the
requirements don’t match the allegation be sure that
you know why and that it isn’t a mistake. Common
ones:
- to bring a development into line with a pp
- to require only the additional activities in a mixed
use to cease (Mansi)
- to require works and ops that facilitated the MCU to
be removed (Murfitt and Somak Travel)
… requirements continued
• If the requirements don’t match the allegation – was
it intentional? – was it to under-enforce?
And if the purpose is to Remedy the injury to amenity
• Examples:
- Erection of an extension – reduce the depth by 2m
- Mixed use – only require some of the new activities
to cease or require cessation only on one part of the
site
- BoC non-compliance – require compliance in part
But BEWARE unintentional effects of s173(11)
• Where an EN could have required buildings/works to
be removed or activities to cease and doesn’t do so
then once the requirements are complied with those
matters have unconditional pp
Keeping it simple …
… or not!
Example 1
Erection of a dwellinghouse and use of
associated land for residential purposes (4
years and 10 years cited)
Example 2
(as part of a mixed use) storage of two unroadworthy motor vehicles registration
numbers L757BPN and K807FBF (with
requirement to remove the vehicles with those
registration numbers)
Problem spotting
a recent example …
The allegation:
Without pp, a MCU from a single
dwellinghouse (and purposes incidental to
the enjoyment of the dwelling house) to a
mixed use comprising a dwelling house and
for purposes of vehicle storage
The requirement:
Cease the use for the purposes of vehicle
parking (save for such domestic parking of
no more than 6 vehicles as may be regarded
incidental to the enjoyment of the dwelling
house)
Problem spotting
and another …
The allegation: MCU from agriculture to mixed
use as a caravan site for the stationing of a
caravan capable of being used for residential
purposes and agricultural land used until
recently for the keeping of horses
The requirement: Cease the use for the
stationing of a caravan capable of being used
for residential and storage purposes;
dismantle and cause the caravan to be
removed; remove or cause to be removed any
chattels and ancillary items to the use of the
land as a caravan site
Problem spotting
… seems obvious but
reached PINS before
problem picked up!
The land affected
Outlined in blue
The breach of
planning control
Placing 3 containers
on the land in the
approximate position
marked XXX
Problem spotting
The allegation: The construction of a
dwellinghouse which is not wholly in accordance
with the approved plan
Reason for issue: It appears that the above
breach of planning control has occurred.
Permission for a dwellinghouse was granted on
20 August 2010. The roof design fails to comply
with the approved plan
The requirement: Carry out the necessary works
to the roof to comply with the approved plan
Problem spotting
some are just plain odd …
The allegation: without planning permission,
the erection of a car port to the front of the
building on the land
The requirement: the land must be restored,
in its entirety, to its former use.
Problem spotting
and some seek to do the job of a pp …
The allegation:
- MCU to mixed use dwellinghouse and
commercial hairdressing
The requirements:
- limit floorspace used for hairdressing
- personal ‘permission’
- restricted hours of operation
S176(1)(a) a wide power
• … correct any defect, error or
misdescription …
- Cutting down or expanding the allegation
- Cutting down or expanding the requirements
- Cutting down or expanding the extent of the
land affected
- Combining two or more ENs into one
- BUT it may be a step too far
A step too far?
• Is the appellant in a position to deal with
the implications of the change?
• Does extending the area bring in new
occupiers who did not appeal?
• Does extending the allegation bring in a
s173(11) problem?
• Does widening the scope make the notice
more onerous?
• If MCU/BoC changed to Ops could a ground
(d) appeal have succeeded?
• Is there agreement to the changes?
Top Tips
• Keep it simple
• Use s173 as a check list
• Check the requirements against the
allegation
– if they are different:
Why?
What would be the consequences?
Finally, make a friend of the Inspector
• LPAs: check and double check the EN – get
it right at the start. If you identify a
problem later ask the Inspector to make the
correction early in the appeal process.
• Appellant’s advisors: be practical and
sensible in accommodating changes – avoid
an unwelcome rehearsal of arid
technicalities.
And even more finally…
• Any Questions?

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