Planning Enforcement 9781526506726, 9781526506757, 9781526506740

Citation preview

Planning Enforcement Third edition

Planning Enforcement Third Edition

Richard Harwood QC 39 Essex Chambers

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc Copyright © Bloomsbury Professional 2020 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov. uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PB: 978-1-52650-672-6 ePub: 978-1-52650-673-3 ePDF: 978-1-52650-674-0 Typeset by Evolution Design and Digital Ltd (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters



For Sophie Footballer and freestyler

v

Preface

Enforcement is at the sharp end of the relationship between the individual and the state. Not so much a question of what should be permitted – that is the realm of my companion work, Planning Permission – but what should be stopped. When and how should action be taken against unauthorised activity? How will that be proportionate, effective and fair? Addressing those issues from all perspectives – planning authority, landowner, developer, neighbours and environmental groups – leads to a great deal of law, complexity and tactics. As with previous editions, this book seeks to make sense of these. Legislation, policy and case law have moved on since the second edition in 2013. In England, enforcement reform has been principally confined to listed buildings and conservation areas, whilst Wales has seen the introduction of planning warning notices, significant changes to historic environment enforcement and a new unified set of appeal procedures. Guidance on enforcement has been generally replaced, with most of the English and Welsh advice in the Planning Practice Guidance and Development Management Manual respectively. Case law has continued apace, with numerous cases on the scope of lesser steps in enforcement notices, proceeds of crime issues and injunctions. The most noticeable change in the book is the inclusion of Northern Ireland. The Planning Act (Northern Ireland) 2011 and the secondary legislation which accompanied the 2015 devolution of planning powers to councils have changed the conduct of planning affairs. Whilst contained in separate legislation and guidance, the Northern Irish enforcement provisions are similar to those in England and Wales. It has, therefore, been possible to incorporate Northern Irish references into the text as it goes along, drawing attention to departures. Differences between the regimes in the three nations under consideration do, I hope, enrich discussion of the subject and prompt thoughts as to which approach is more suitable. Of course, to understand planning law in any of the jurisdictions requires an appreciation of case law across the whole of the United Kingdom. To avoid making sentences too cumbersome, I have tended, where appropriate, to use ‘Ministers’ to refer to the Secretary of State and the Welsh Ministers, ‘Inspectors’ to cover English and Welsh Inspectors and Northern Irish Commissioners, and ‘local planning authorities’, although in Northern Ireland they are all councils. The structure of the book will be familiar to readers of the second edition. The principal changes are that the old Chapter 8 on Challenges to Enforcement Notices has now been turned into a chapter on High Court challenges generally and is found at Chapter 24. The one distinctly different provision in Northern Ireland, a notice requiring the submission of a planning application, is dealt with discretely as Chapter 13. I have endeavoured to state the law as at 11 pm on 31 January 2020. Since the last book in this series, Planning Policy, there have been two losses to the planning judiciary. vii

Preface Sir Andrew Gilbart’s death in 2018 deprived planning lawyers generally and personally of a true friend. His physical presence and air of a professional Northerner hid his Cornish ancestry and keen intelligence. He battled through ill-health to become a High Court Judge and contributed many forthright but thoughtful judgments, not least on the Kensington ‘red striped house’ saga. In March 2020 Lord Carnwath retired from the Supreme Court after 25 years as judge. His influence on planning enforcement goes back much further, to his days in practice. In 1989, as Robert Carnwath QC, he conducted the review Enforcing Planning Control, following the well-established practice of government appointing Queen’s Counsel to resolve some of the more intractable legal problems. That report instigated the enforcement changes in the Planning and Compensation Act 1991 and remains one of the key texts in planning enforcement. One of the two cases he heard in his last week in the Supreme Court was an enforcement case, Dill v Secretary of State for Communities and Local Government, which concerns the scope of listed building enforcement notice appeals and the meaning of listed building. It is pleasing that Robert intends to remain involved for many years as an advocate for environmental justice and combating climate change. As always, this book has benefited from conducting enforcement cases with clients, colleagues, opponents, judges and inspectors. Teasing out meanings and consequences in practice has helped to inform much of the analysis and practical guidance in the text which follows. Thanks are very much due to the team at Bloomsbury Professional. Leanne Barrett was good enough to commission a third edition and managed not to sound surprised every time I  promised it was on its way. Maria Skrzypiec has been, as always, an impeccable editor of a highly technical text. Sharon Heaton has handled the marketing side and avoided appearing too exasperated as I struggled to think of a cover photograph which related to enforcement and would not prompt an immediate complaint from a party in the relevant proceedings. Thanks are also due to the other parents of the Southampton Football Club teams who take with quite good humour my anti-social tendency to be sitting in a corner with my laptop writing away whilst the girls are training. The greatest thanks do however go, as always, to Gràinne and to Cathan, James and Sophie for everything. Richard Harwood QC 39 Essex Chambers 81 Chancery Lane London March 2020

viii

Contents

Prefacevii Table of Cases xxi Table of Statutes xlv Table of Statutory Instruments lix Table of European Legislation lxxi Chapter 1

Introduction 1 Purposes of enforcement powers 1 The structure of planning control 2 Main sources of law and policy 3 England and Wales 3 Policy and guidance 4 Planning enforcement powers 5 Principles of public law 8 Illegality error going to jurisdiction 8 Unreasonableness9 Natural justice 9 The court’s powers 10 Nullity, validity and the circumstances in which challenges can be brought 10 Estoppel/res judicata 13 Res judicata/issue estoppel 13

Chapter 2

Breach of Planning Control 16 Development without planning permission – subsection (a) 16 The meaning of development 16 Operational development 17 Building operations 17 Engineering operations 18 Mining operations 18 Other operations 19 Exclusions from operational development 20 Demolition21 Fish farming 23 Material change of use of land 23 Primary and ancillary use 24 The planning unit 24 The carrying on of a use 26 Exceptions to material changes of use 26 Changes of use which are material 29 Short-term lettings in London 29 The need for planning permission 30 Exceptions to the need for planning permission 32 Subsection (b) – breach of a condition or limitation 34 ix

Contents Implementation of a planning permission and the consequences for enforcement Conditions remaining in force Interpretation of planning permissions Interpretation of conditions Chapter 3

Chapter 4

Time Limits on Enforcement Time limits The four-year rule Operational development Change of use to a single dwellinghouse The ten-year rule Breaches of occupancy conditions The five-year limit in Northern Ireland Continuity of breaches Material change of use Breach of condition Breaches involving operation development and a change of use Time limits not running in the event of positive deception Planning enforcement orders in England and Wales No time limit for relevant demolition in conservation areas in England Extensions of the time limits Breach of condition notices following enforcement notices Second bite Time limits for other enforcement proceedings Planning injunctions

35 37 38 39 41 41 41 42 43 44 45 46 46 46 47 48 50 53 56 56 56 57 58 59

The Decision to Enforce and the Developer’s Response 60 Enforcement proceedings as an exercise of discretion 60 Expedient60 The development plan 60 Statutory duties which affect the need to enforce 61 Personal circumstances 62 Human Rights Act 1998 63 Right to respect for private and family life 63 Prohibition of discrimination 63 Protection of property 64 Children Act 2004 65 Equality Act 2010 66 Other potentially relevant and irrelevant matters 69 National Planning Policy Framework 70 Planning Practice Guidance 70 The principles of the Development Management Manual in Wales71 Northern Ireland guidance 74 Consideration on expediency 74 Authorisation to take enforcement action 74 Recording decisions to enforce 75 Recording informal action or no action 75 Local Enforcement Plan 75 x

Contents Enforcement Concordat and Regulators Compliance Code 76 The landowner’s response to the potential for enforcement action76 Chapter 5

Obtaining Information 79 Planning contravention notices 79 Issue80 Contents80 Failure to comply with a planning contravention notice 81 Information of interests and use of land 82 Issue of an information notice 82 Contents83 Failure to comply with an information notice 83 The general power to obtain information of persons interested in land 83 False representations or non-disclosure 84 Rights of entry 84 Ministerial powers of entry 85 Exercise of the powers of entry 86 Entry under warrant 86 Failure to comply 86 Other powers of entry 87 Court orders to obtain information 87 Surveillance87 Other sources of information 88 Council records 88 Photographs88 Land ownership 89 Companies89 Site visit 89 Interviews89 How developers can obtain information 90 The planning register 90 The enforcement register or statutory charges register 90 Council minutes and officers’ reports 90 Freedom of Information Act/Environmental Information Regulations91 Inspector’s decision letters and reports 93 The developer’s records 93 Neighbours and former occupants 93 Obtaining information on appeal 93

Chapter 6

Enforcement Notices The issue of an enforcement notice Actual rather than apprehended breach of planning control Expedience and discretion to issue Drafting the notice Steps required Under enforcement Taking effect Suspension of taking effect Who to serve xi

95 95 95 96 96 98 102 103 104 105

Contents Manner of service Registers of enforcement notices Variation and withdrawal The effect of a subsequent planning permission Effect on subsequent development Enforcement on Crown land The issue of enforcement notices by national authorities ‘Old’ enforcement notices Chapter 7

106 108 109 110 111 111 113 113

Appeal against an Enforcement Notice 114 The right to appeal 114 Who may appeal 115 Submitting the appeal 116 Grounds of appeal 116 The grounds of appeal in detail 117 Appeals in respect of demolition in conservation areas 124 Nullity  124 How to appeal 125 Who determines appeals? 125 How appeals are determined 126 Burden and standard of proof 127 Choosing an inquiry, informal hearing or written representations127 Preparing for an inquiry, hearing or written representations 130 Stages in the appeal process 131 Preliminary stages of an appeal 132 The notice of appeal 132 Statement of appeal in England 132 Full statement of case in Wales 133 Grounds of appeal in Northern Ireland 133 Filling in the form 133 Fees  135 The Inspectorate’s actions on receiving the appeal 137 The starting date 138 Notices to interested parties 139 The local planning authority’s questionnaire 140 Statements of case 140 Local planning authority statements of case in Wales 143 Statements of case in Northern Ireland 143 Third party representations 144 Comments on third party representations 145 Responses to statements and representations 146 Later rule 6 party comments 146 Inspection of documents 146 Further information in inquiry cases 147 Further information in Welsh cases 147 Pre-inquiry meetings 148 Statement of matters in England 149 Timetable149 Persons entitled to appear at the inquiry or hearing 149 Representatives of government departments at the inquiry 151 Date of the inquiry 151 xii

Contents Notification of the inquiry or hearing date 152 Advocates and witnesses 154 The inquiry 155 Assessors155 Proofs and statements of evidence 155 Statement of common ground in English inquiries 157 Skeleton submissions 157 The inquiry proceedings 158 Hearings161 Formal hearings in Northern Ireland 163 Site visits and the adjournment of hearings to the site 164 The decision 165 Ministerial decision-making 165 Inspector’s decision-making 166 The decision 166 Costs  168 Substantive unreasonable behaviour by the local planning authority169 Unreasonable behaviour by the appellant 170 Unreasonable behaviour in procedural matters by the appellant and the local planning authority 170 Cancellation of inquiry or hearing 171 Third parties 171 The costs application 172 Correction of errors in decisions in England and Wales 173 National security cases 174 Chapter 8

Enforcing Enforcement Notices: Prosecution and Direct Action176 Offences176 Owner176 Elements of the owner offence 176 Control or interest 177 Elements of the control offence 178 Charging offences 178 Fixed penalty notices in Northern Ireland 180 Assurances of non-prosecution 182 Defences183 The owner offence 184 Defence of lack of knowledge 185 Liability of directors 186 Procedural rules 186 The information or written charge 187 Mode of trial 187 Form of an indictment 187 Duties of disclosure 188 Sentences189 Checklist for prosecutors in sentencing 190 Proceeds of Crime Act 2002 191 Subsequent development in breach of an enforcement notice 192 Enforcement notices issued by the Secretary of State of the Department193 xiii

Contents Third parties Direct action – carrying out works in default of compliance Securing entry Recovering expenses Direct action and enforcement notices issued by the Secretary of State or the Department Chapter 9

193 193 195 196 196

Environmental Impact Assessment 197 Environmental impact assessment in outline 197 EIA of the grant of planning permission on an enforcement notice appeal 198 The decision whether EIA is required in an enforcement appeal200 Environmental statements in enforcement appeals 201 Environmental impact assessment of revocation, modification and discontinuance orders 202 Whether enforcement proceedings must be taken because an unlawful project would otherwise avoid environmental impact assessment 203 Environmental impact assessment and lawful development certificates206 Environmental impact assessment of steps required or direct action in enforcement matters 206

Chapter 10 Stop Notices 207 Issue of a stop notice 207 The decision to serve 209 Form of the stop notice 212 Service and site notices 213 Enforcement register 213 Taking effect 214 Withdrawal of a stop notice and cessation of effect 215 Withdrawal215 Cessation of effect 215 Validity and challenge 216 Compensation217 Claimants for compensation 218 Entitlement to compensation 219 The effect of a failure to provide information to the local planning authority on compensation 219 The claims procedure 220 Services of stop notices by Ministers or the Department 221 Prosecution for failing to comply with a stop notice 222 Prosecution by the local planning authority 222 Prosecution by third parties 222 The offence 222 Defences223 Sentence224 Chapter 11 Temporary Stop Notices Temporary stop notices Issuing a temporary stop notice xiv

225 226 226

Contents Duration of a temporary stop notice 227 Exceptions to the use of a temporary stop notice 228 Dwelling houses and residential caravans 228 Restrictions on temporary stop notices in Northern Ireland 229 Four years’ activity 229 Second temporary stop notices 230 The decision to issue a temporary stop notice 230 Offences231 Compensation232 Chapter 12 Breach of Condition Notices 235 Service235 Drafting notices 237 The enforcement register 238 Compliance238 Withdrawal or extension of time 238 Effect of planning permission 239 Fixed penalty notices in Northern Ireland 239 Prosecution241 Defences242 Sentence243 Challenge to the validity of a breach of condition notice by judicial review 243 Validity in criminal proceedings 244 Chapter 13 Submission Notices in Northern Ireland 245 The issue of a submission notice 245 Service247 Withdrawal of a submission notice 247 Appeals247 Suspension of the notice 248 High Court challenges 248 Failure to comply with a submission notice 249 Chapter 14 Injunctions 251 Section 222 of the Local Government Act 1972 252 Defendants under section 222 injunctions 253 Statutory planning injunctions under s 187B of the Town and Country Planning Act 1990 253 Scope of the section 187B power 253 The role of the court 254 Defendants256 Area-wide injunctions 256 Injunctions for trees, heritage and hazardous substances 258 Planning injunctions in Northern Ireland 258 The planning and general injunction powers compared 259 Procedure for obtaining an injunction in England and Wales 259 The contents of witness statements or affidavits 259 Exhibits required 260 Injunctions against persons unknown 261 The defendant’s response 261 Interim injunctions 262 xv

Contents Cross-undertaking in damages 263 The final hearing 263 Form of injunctions 264 Penal notice 265 Committal265 Injunctions sought by third parties 265 Relator actions 266 Interim injunctions to prevent works prejudicing court proceedings267 Breaches by public authorities 268 Chapter 15 Discontinuance, Revocation and Maintenance of Land 269 Discontinuance orders 269 Revocation or modification 271 Completion notices 273 Section 215 notices requiring proper maintenance of land 275 Appeal275 Prosecution277 Carrying out the works 277 Chapter 16 Historic Environment 278 Listed building control 278 Available enforcement mechanisms 281 Listed building prosecutions 281 England and Wales 281 Northern Ireland 281 Liability and defences 282 Listed building enforcement notices 283 Failure to comply with a listed building enforcement notice 287 Whether to proceed by a listed building enforcement notice or prosecution 288 Challenges to appeal decisions 288 Validity of listed building enforcement notices 289 Injunctions to support listed building control 289 Intentional damage to a listed building 290 Building preservation notices 291 Conservation area consent in Wales 291 Conservation area consent in Northern Ireland 292 Demolition in conservation areas in England 292 Outstanding applications of conservation area consent provisions in England 294 Scheduled monuments 294 Areas of archaeological importance 296 Archaeological investigations and metal detectors 296 Sentencing297 Certificates of lawfulness of proposed works to listed buildings 299 Chapter 17 Trees and Hedgerows Trees  Tree preservation orders Tree preservation order consents and exemptions Breach of a tree preservation order xvi

302 302 302 304 304

Contents Replacement of trees Trees in conservation areas Tree injunctions Powers of entry in respect of trees Hedgerows in England and Wales

306 307 309 310 310

Chapter 18 Advertising Control 313 The categories of advertisements 315 Standard conditions 317 Deemed consent 318 Areas of special control orders 321 Prosecution321 Sentence322 Power to remove or obliterate placards and posters 322 Power to remove structures used for unauthorised displays 323 Remedying persistent problems with unauthorised advertisements326 Defacement of premises 328 Removal of signs at the owner’s or occupier’s request 330 Powers of entry onto operational land 330 Advertising control enforcement 331 Enforcement remedies 331 Injunctions332 Chapter 19 Planning Obligations and Planning Agreements Old planning agreements Post-1991 Act planning obligations Limitation period Direct action The landowner’s response to planning obligation proceedings Third parties

333 333 334 335 336 337 337

Chapter 20 Hazardous Substances 339 Enforcement of the hazardous substances regime 340 Prosecution340 Hazardous substances contravention notices 341 Injunctions343 Chapter 21 Nationally Significant Infrastructure Projects 344 Outline of the development consent regime 344 Enforcement of the development consent regime 345 Criminal offences 345 Obtaining information 347 Right to enter land 347 Power to require information 347 Notice of unauthorised development and direct action 348 Injunction349 Chapter 22 Community Infrastructure Levy Enforcement of CIL CIL stop notices Reminder notices and liability orders xvii

350 351 351 354

Contents Distress355 Charging orders 355 Imprisonment356 Local land charges 356 Civil liability 356 Interest356 Surcharges357 Appeals against CIL stop notices and surcharges 358 Information requirements for general consents 358 Powers of entry 359 False information 359 Chapter 23 Lawful Development Certificates 360 CLEUD – Certificate of Lawfulness of Existing Use or Development361 CLOPUD – Certificate of Lawfulness of Proposed Use or Development363 The application for a CLEUD or CLOPUD 364 Practical points in applications 365 Fees366 Consultation on applications 366 LDC decision-making 367 Form of the LDC decision 368 The effect of a LDC 369 The Planning Register 370 Lawful development certificates and planning obligations 371 Appeals371 Challenge to appeal decisions 372 Revocation of lawful development certificates 372 Prosecution for providing misleading information 374 Third-party challenge to the validity of a lawful development certificate374 Previous means of determining lawfulness 375 Declaration by the High Court of the lawfulness of proposed actions376 Chapter 24 High Court Challenges 378 Challenges to costs decisions in enforcement and planning appeals379 Challenging the Secretary of State’s decision on an enforcement notice appeal in the High Court 380 Appeal to the High Court under s 289 380 Grounds of challenge 381 Standing382 Bringing proceedings 382 Obtaining permission to appeal 383 The substantive hearing 385 Costs  386 Appealing to the Court of Appeal 387 Application to the High Court under s 288 to quash a grant of planning permission 387 Grounds of challenge 388 xviii

Contents Standing388 Bringing proceedings 389 Costs of High Court appeals and applications 390 Appealing to the Court of Appeal on s 288 391 Validity of enforcement notices 392 Judicial review 393 Judicial review procedures in England and Wales 394 Judicial review in Northern Ireland 395 The costs of re-determining an appeal 396 Nullity issues on an appeal to the Secretary of State 397 Collateral challenge 397 Civil proceedings 397 Criminal proceedings 397 Appendix 1 Town and Country Planning Act 1990 399 Appendix 2 The Town and Country Planning (Enforcement Notices and Appeals (England) Regulations 2002 (SI 2002/2682) 486 Appendix 3 The Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 (SI 2002/2683)492 Appendix 4 The Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002 (SI 2002/2684) 499 Appendix 5 The Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 (SI 2002/2685) 513 Appendix 6 The Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 (SI 2002/2686) 530 Appendix 7 Model Forms 554 Index 

567

xix

Table of Cases

A Addison Lee Ltd v Westminster CC [2012] EWHC 152 (Admin), [2012] 1 WLUK 110, [2012] JPL 969, DC........................................................................................18.19 Aerlink Leisure Ltd (In Liquidation) v First Secretary of State [2004] EWHC 3198 (Admin), [2004] 12 WLUK 643, [2005] 2 P & CR 15, QBD................................2.63 Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566, [2014] 5 WLUK 142, [2014] 2 EGLR 197..............................................7.35 Airwave MMO2 Ltd v First Secretary of State [2005] EWHC 1701 (Admin), [2005] 6 WLUK 719, [2006] JPL 362, (2005) 102(28) LSG 33, QBD.............................13.06 Akhtar v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin), [2017] 7 WLUK 409, QBD.........................................................3.59, 7.50 Allsop v Derbyshire Dales DC [2012] EWHC 3562 (Admin), [2012] 11 WLUK 354, QBD......................................................................................................15.23, 15.26, 18.41 American Cyanamid v Ethicon Ltd [1975] AC 396, [1975] 2 WLR 316, [1975] 1 All ER 504, [1975] 2 WLUK 14, [1975] FSR 101, [1975] RPC 513, (1975) 119 SJ 136, HL............................................................................................................14.34, 14.50 Ardagh Glass Ltd v Chester CC [2010] EWCA Civ 172, [2011] 1 All ER 476, [2011] PTSR 1498, [2010] 2 WLUK 58, [2010] Env LR 32, [2010] 2 P & CR 15, [2010] JPL 1127.....................................................................................................9.06, 9.19, 9.22 Arnold v Secretary of State for Communities and Local Government [2017] EWCA Civ 231, [2017] 3 WLUK 795, [2017] JPL 923.....................................................7.15 Arora v Hackney LBC (1991) 155 JP 808, [1991] COD 342, (1991) 155 JPN 541......18.58 Arthur Maiden Ltd v Lanark County Council [1958] JPL 427......................................18.20 Arun DC v First Secretary of State [2006] EWCA Civ 1172, [2007] 1 WLR 523, [2007] 1 P & CR 10............................................................................................3.12, 3.13, 3.19, 3.37 Ashbridge Investments Ltd v Minister of Housing & Local Government [1965] 1 WLR 1320, [1965] 3 All ER 371, (1965) 129 JP 580, CA..................................24.33 Ashton v Secretary of State for Communities and Local Government see Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities & Local Government Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1  KB 223, [1947] 2 All ER 680, (1947) 63 TLR 623...............................................................1.31 Aston v Secretary of State for Communities and Local Government [2013] EWHC 1936 (Admin), [2013] 7 WLUK 262, [2014] 2 P & CR 10, QBD.........................7.161 Attorney Genera v Codner [1973] 1 NZLR 545.............................................................14.48 Attorney General ex rel Scotland v Barratt Manchester Ltd [1991] 6  WLUK 202, (1992) 63 P & CR 179, [1992] JPL 148, [1991] EG 73 (CS), [1991] NPC 77, CA...........................................................................................................................19.13 Avon County Council v Millard [1985] 2 WLUK 12, 83 LGR 597, (1985) 50 P & CR 275, [1985] 1 EGLR 171, (1985) 274 EG 1025, [1986] JPL 211, (1985) 82 LSG 1173, (1985) 129 SJ 269, CA..................................................................................19.04 Avon Estates Ltd v Welsh Ministers [2011] EWCA Civ 553, [2012] PTSR 958, [2011] 5 WLUK 400, [2011] 2  EGLR 71, [2011] 31  EG 54, [2011] 21  EG 94 (CS), [2011] NPC 49, CA..............................................................................................2.55, 2.68 Aylesbury Vale DC v Miller [1999] 7 WLUK 718.........................................................14.13 B Ball v Secretary of State for the Environment, Transport and the Regions [2000] 1 WLUK 214, [2000] 1 PLR 64, [2000] PLCR 299, (2000) 97(4) LSG 34, QBD.6.15

xxi

Table of Cases Bannister v Secretary of State for the Environment [1995] JPL B13.............................24.34 Barker v Hambleton DC [2011] EWHC 1707 (Admin), [2016] 6 WLUK 571, QBD...24.38 Barn Properties Ltd v Secretary of State for Scotland, 1995 SC 145, 1996 SLT 964, 1995 SCLR 113, [1994] 11 WLUK 356, CSIH......................................................3.63 Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin), [2008] 6  WLUK 505, [2009] 1  P & CR 24, [2009] JPL 243, QBD........................................................................................................................2.70 Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476, [2009] 3 WLUK 591, [2010] 1 P & CR 8, [2009] JPL 1597, [2009] PTSR (CS) 41, CA..................................................................................................2.57 Barnsley MBC v Hadfield [2018] EWHC 866 (QB), [2019] PTSR 111, [2018] 2 WLUK 385....................................................................................................17.04, 17.25 Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, 60 LGR 319, [1963] JPL 256................................................................................................2.08 Beach v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 381, [2001] 5 WLUK 143, [2002] JPL 185, QBD.........................24.11 Belfast CC v Minister of Enterprise, Trade and Investment [2017] NICA 28, [2017] 5 WLUK 433...........................................................................................................24.60 Belfast City Council’s Application for Judicial Review, Re [2018] NIQB 17, [2018] 2 WLUK 579......................................................................................................7.03, 7.175 Bellamile v Ashford Borough Council, 19 September 2019..........................................24.38 Belmont Farm v Minister of Housing and Local Government [1962] 5 WLUK 100, 60 LGR 319, (1962) 13 P & CR 417, [1963] JPL 256, (1962) 106 SJ 469, QBD...2.39, 2.43 Berkley v Poulett [1976] 1 WLUK 13, [1977] 1 EGLR 86, (1977) 241 EG 911, (1976) 120 SJ 836, CA.......................................................................................................16.04 Beronstone Ltd v First Secretary of State [2006] EWHC 2391 (Admin), [2006] 6 WLUK 759, QBD................................................................................................2.15 Berridge v Vision Posters Ltd [1995] 1 WLUK 13, (1995) 159 JP 218, (1995) 159 JPN 163, (1995) 159 LG Rev 229, QBD........................................................................18.19 Binning Property Corp Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 250, [2019] 2 WLUK 472, [2019] JPL 844........24.20 Boddington v British Transport Police [1999] 2 AC 143, [1998] 2 WLR 639, [1998] 2 All ER 203, [1998] 4 WLUK 51, (1998) 162 JP 455, (1998) 10 Admin LR 321, (1998) 148 NLJ 515, HL.........................................................................1.37, 10.40, 13.28 Bolton Metropolitan BC v Secretary of State for the Environment (Costs) [1995] 1 WLR 1176, [1996] 1 All ER 184, [1995] 7 WLUK 63, [1995] 3 PLR 37, [1996] JPL 300, [1995] EG 126 (CS), HL..................................................................24.25, 24.43 Bonsall v Secretary of State for Communities and Local Government. See Jackson v Secretary of State for Communities and Local Government; sub nom Bonsall v Secretary of State for Communities and Local Government Botton v Secretary of State for the Environment [1991] 3 WLUK 1, (1991) 3 Admin LR 848, [1992] 1 PLR 1, [1992] JPL 941, [1992] JPL 236, [1992] COD 249, QBD.................................................................................................................24.05, 24.08 Bowring v Secretary of State for Communities and Local Government [2013] EWHC 1115 (Admin), [2013] 5 WLUK 74, [2013] JPL 1417, QBD.................................6.16 Braun v First Secretary of State [2002] EWHC 2767 (Admin), [2002] 12 WLUK 598, QBD.................................................................................................................16.09, 16.25 Brazil (Concrete) Ltd v Amersham Rural DC (1967) 18 P & CR 396, 65 LGR 365, 202 EG 413.............................................................................................................2.28 Brent LBC v Dowman [2003] EWCA Civ 920, [2003] 7 WLUK 466, [2004] 2 P & CR 8, [2003] 4 PLR 60, [2004] JPL 195, (2003) 147 SJLB 904, CA....................14.39 Brent LBC v Maiden Outdoor Advertising Ltd [2002] EWHC 1240 (Admin), [2002] 5 WLUK 930, [2003] JPL 192, QBD.....................................................................18.13 Bristol Stadium v Brown [1979] 1 WLUK 32, (1979) 252 EG 803, [1980] JPL 107, DC....................................................................................................................10.19, 10.38 Britannia Assets (UK) Ltd v Secretary of State for Communities & Local Government [2011] EWHC 1908 (Admin), [2011] 7 WLUK 676, QBD..............................7.43, 24.50

xxii

Table of Cases Broadland DC v Trott [2011] EWCA Civ 301, [2011] 3 WLUK 583............................24.64 Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12....14.21, 14.39 Broxbourne BC v Robb [2011] EWCA Civ 1355, [2011] 8 WLUK 279................14.36, 14.44 Broxbourne BC v Secretary of State for the Environment [1980] QB 1, [1979] 2 WLR 846, [1979] 2 All ER 13, [1978] 12 WLUK 78, 77 LGR 381, (1979) 38 P & CR 381, (1978) 249 EG 959, [1979] JPL 308, (1979) 123 SJ 34.................................23.32 Bryan v United Kingdom (A/335-A) (1996) 21 EHRR 342, [1996] 1 PLR 47, [1996] 2 EGLR 123............................................................................................................24.08 Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, [1972] 3 All ER 240, 70 LGR 511.....................................................................................................2.31 Burroughs Day v Bristol CC [1996] 1 PLR 78, [1996] 1 EGLR 167, [1996] 19 EG 126.....................................................................................................................2.19, 23.55 Burwell v DPP [2009] EWHC 1069 (Admin), (2009) 173 JP 351, [2009] Crim LR 897..........................................................................................................3.49, 17.11, 18.26 Butler v Derby CC [2005] EWHC 2835 (Admin), [2006] 1  WLR 1346, [2005] 11 WLUK 619, (2006) 170 JP 285, [2006] 1 P & CR 30, [2006] JPL 830, (2006) 170 JPN 513, (2005) 102(48) LSG 19, DC.......................................................4.10, 18.03 C Calderdale Metropolitan BC v Windy Bank Dairy Farm Ltd [2010] EWHC 2929 (Admin), [2010] 11 WLUK 338, [2011] JPL 754, DC...........................................18.13 Campbell Court Property Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 102, [2001] 2 WLUK 257, [2002] PLCR 4, [2001] JPL 1322 (Note), QBD................................................................................2.71 Cardiff CC v National Assembly for Wales [2006] EWHC 1412 (Admin), [2006] 6 WLUK 500, [2007] 1 P & CR 9, [2007] JPL 60, [2006] ACD 99, QBD............15.21 Carltona Ltd v Comrs of Works [1943] 2 All ER 560, [1943] 10 WLUK 5, CA...........1.11 Carroll v Secretary of State for Communities and Local Government [2015] EWHC 316 (Admin), [2015] 2 WLUK 556, QBD.......................................................7.107, 15.27 Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) [2012] 10 WLUK 634, [2013] JPL 420, QBD.............................6.15, 6.38 Challinor v Staffordshire County Council [2007] EWCA Civ 864, [2008] 1 P & CR 10, [2008] JPL 392..................................................................................................6.22 Chambers v Guildford BC [2008] EWHC 826 (QB), [2008] 4 WLUK 552, [2008] JPL 1459, (2008) 152(18) SJLB 30, [2008] NPC 54, QBD..........................................16.73 Chapman v United Kingdom (application 27238/95) [2001] 1 WLUK 393, (2001) 33 EHRR 18, 10 BHRC 48, ECtHR............................................................................4.18 Chelmsford Rural DC v Powell [1963] 1 WLR 123, [1963] 1 All ER 150, [1962] 12 WLUK 22, (1963) 127 JP 157, 61 LGR 96, (1963) 14 P & CR 102, [1963] RVR 71, (1963) 107 SJ 56, DC...............................................................................7.63 Chichester DC v First Secretary of State [2006] EWHC 1876 (Admin), [2006] 7 WLUK 829, [2007] JPL 389, QBD.....................................................................7.182 Chiltern DC v Hodgetts [1983] 2 AC 120, [1983] 2 WLR 577, [1983] 1 All ER 1057, HL...........................................................................................................................8.15 Church Commissioners for England v Secretary of State for the Environment (1996) 71 P & CR 73, [1995] 2 PLR 99, [1996] JPL 669.............................................2.32, 23.39 Cia de Seguros Imperio v Heath (REBX) Ltd (formerly CE Heath & Co (America) Ltd) [2001] 1 WLR 112, [2000] 2 All ER (Comm) 787, [2000] 7 WLUK 600, [2000] CLC 1543, [2001] Lloyd’s Rep IR 109, [2000] Lloyd’s Rep PN 795, (2000-01) 3 ITELR 134, CA...................................................................................19.10 City of London Corp v Bovis Construction Ltd [1992] 3 All ER 697, [1988] 4 WLUK 68, 49 BLR 1, 84 LGR 660, (1988) 4 Const LJ 203, [1989] JPL 263, (1989) 153 LG Rev 166, [1988] EG 56 (CS), CA...................................................14.05, 14.15, 18.59 Clarke v Secretary of State for the Environment (1993) 65 P & CR 85, [1992] 3 PLR 146, [1992] 42 EG 100............................................................................................24.11 Clin v Walter Lilly & Co Ltd [2018] EWCA Civ 490, [2018] 3 WLUK 396, [2018] BLR 321, 177 Con LR 1.........................................................................................14.45

xxiii

Table of Cases Clin v Walter Lilly & Co Ltd [2019] EWHC 945 (TCC), [2019] 4 WLUK 521, 184 Con LR 34, QBD....................................................................................................16.49 Coles v Lichfield DC [2016] EWHC 3059 (Admin), [2016] 11 WLUK 124, QBD...3.47, 3.49 Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1969] 1WLR 746, [1969] 2 All ER 525, (1969) 133 JP 385.................................2.15 Collin v Duke of Westminster [1985] QB 581, [1985] 2 WLR 553, [1985] 1 All ER 463, [1984] 12 WLUK 233, (1985) 17 HLR 246, (1985) 50 P & CR 380, [1985] 1 EGLR 109, (1985) 273 EG 881, [1985] RVR 4, (1985) 82 LSG 767, (1985) 129 SJ 116, CA..............................................................................................................19.10 Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1264 (Admin), [2002] 5 WLUK 853, [2003] JPL 358, QBD........................................................................................................................2.63 Commission of the European Communities v Ireland (Case C-215/06) [2008] ECR I-4911, [2008] 7 WLUK 93, [2009] Env LR D3, ECJ............................................9.06 Commission of the European Communities v UK (Case C-98/04) [2006] ECR I-4003...................................................................................................................9.18, 9.24 Community Windpower Ltd v East Ayrshire Council [2017] CSIH 67, 2018 SCLR 339, [2017] 11 WLUK 216, 2017 GWD 36-562....................................................10.28 Compton Group Ltd v Estates Gazette Ltd [1977] 5 WLUK 177, (1978) 36 P & CR 148, (1977) 244 EG 799, CA..................................................................................6.32 Connors v Secretary of State for Communities and Local Government [2017] EWCA Civ 1850, [2017] 11 WLUK 428, [2018] JPL 516..........................................7.209, 24.08 Cook’s Application [1986] NI 242..................................................................................14.53 Cooperative Retail Services Ltd v Taff-Ely BC [1981] 2 WLUK 45, (1981) 42 P & CR 1, HL.......................................................................................................................2.69 Corus UK Ltd v Erewash BC [2006] EWCA Civ 1175, [2006] 6 WLUK 503, [2006] CP Rep 41, [2007] 1 P & CR 22.............................................................................24.38 Creighton Estates v LCC [1958] 1 WLUK 140..............................................................2.69 Cresswell v Pearson [1997] 3 WLUK 427, (1998) 75 P & CR 404, [1997] JPL 860, QBD........................................................................................................................6.48 Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54, [2019] PTSR 1406, [2019] 2 WLUK 11, [2019] 2 P & CR 9, [2019] JPL 665..........................................................................................................................24.38 Croydon LBC v Gladden [1994] 2 WLUK 83, 92 LGR 561, [1994] 1 PLR 30, (1994) 9 PAD 418, [1994] EG 24 (CS), (1994) 91(16) LSG 37, (1994) 138 SJLB 59...........2.37, 14.09 Cynon Valley BC v Secretary of State for Wales [1986] 6 WLUK 287, 85 LGR 36, (1987) 53 P & CR 68, [1986] 2 EGLR 191, (1986) 280 EG 195, [1986] JPL 760, (1987) 151 LG Rev 90, (1986) 136 NLJ 1157, CA.............................................2.52, 2.54 D Davenport v London Borough of Hammersmith & Fulham (1999) 78 P & CR 421, [1999] 2 PLR 96, [1999] JPL 1122..................................................................12.05, 12.35 De Souza v Secretary of State for Communities and Local Government [2015] EWHC 2245 (Admin), [2015] 7 WLUK 848, [2016] JPL 85, QBD...................................24.31 Debenhams plc v Westminster CC [1987] AC 396, [1986] 3 WLR 1063, [1987] 1 All ER 51, [1986] 12 WLUK 44, 85 LGR 190, [1987] 1 EGLR 248, [1986] RA 249, (1987) 151 LG Rev 188, (1987) 84 LSG 341, (1986) 136 NLJ 1185, (1986) 130 SJ 985, HL.......................................................................................................16.03, 16.04 Dennard & Dennard v Secretary of State for the Environment [1996] JPL B26............24.62 Department of the Environment for Northern Ireland’s Application for Judicial Review, Re [2004] NIQB 51, [2005] NI 119, [2004] 9 WLUK 66, QBD......13.16, 13.17, 13.28 Derby CC v Anthony [2008] EWHC 895 (QB), [2008] 4 WLUK 677..........................16.41 Dilieto v Ealing LBC [2000] QB 381, [1998] 3 WLR 1403, [1998] 2 All ER 885...1.37, 12.35 Dill v Secretary of State for Communities and Local Government [2018] EWCA Civ 2619, [2019] 1 P & CR 15.................................................................................1.37, 16.27

xxiv

Table of Cases Dill v Secretary of State for Communities and Local Government [2017] EWHC 2378 (Admin), [2017] 9 WLUK 436, QBD.....................................................................16.03 Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government [2015] EWCA Civ 1250, [2016] 1 WLR 1839, [2015] 12 WLUK 240, [2016] 1 P & CR 16........................................................................................17.02 Doncaster Metropolitan BC v Green [1991] 11 WLUK 118, (1992) 4 Admin LR 430, (1992) 64 P & CR 73, [1992] 2 PLR 58, [1992] JPL 658, (1992) 156 LG Rev 623, (1992) 89(2) LSG 32, (1991) 135 SJLB 213, CA....................................14.05, 14.09 Doncaster Metropolitan BC v Secretary of State for the Environment sub nom Van Dyck v Secretary of State for the Environment & Southend on Sea BC [1992] 12 WLUK 399, 91 LGR 459, (1993) 66 P & CR 61, [1993] 1 PLR 124, [1993] 21 EG 112, [1993] JPL 565, [1993] COD 272, (1994) 158 LG Rev 141, [1992] EG 165 (CS)....3.10 Dover DC v McKeen [1985] 3 WLUK 55, (1985) 149 JP 486, (1985) 50 P & CR 250, [1985] 2 EGLR 191, (1985) 276 EG 493, [1985] JPL 627, DC.............................6.29 DPP v Boddingto. See Boddington v British Transport Police Duguid v Secretary of State for the Environment, Transport & the Regions (2001) 82 P & CR 6, [2000] 4 PLR 107, [2001] JPL 323.......................................................6.22 E E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044, [2004] 2 WLR 1351, [2004] 2 WLUK 12, [2004] INLR 268, [2004] BLGR 463, (2004) 101(7) LSG 35, (2004) 148 SJLB 180................................................1.29 Earthline Ltd v Secretary of State for the Environment, Transport & the Regions [2002] EWCA Civ 1599, [2003] 1 P & CR 24, [2004] 4 PLR 94.....................1.37, 23.13 East Barnet Urban DC v British Transport Commission [1962] 2  QB 484, [1962] 2 WLR 134, [1961] 3 All ER 878, [1961] 10 WLUK 56, (1962) 126 JP 1, 60 LGR 41, (1962) 13 P & CR 127, (1962) 106 SJ 76, DC........................................4.08 East Hampshire DC v Davies [1990] 11 WLUK 308, (1991) 61 P & CR 481, [1991] 2 PLR 8, [1991] 10 EG 149, CA.............................................................................14.05 East Hertfordshire DC v Doherty [2019] EWHC 2292 (QB), [2019] 9 WLUK 76.......14.32 East Lindsey DC v Thompson [2001] EWHC Admin 81, (2001) 82 P & CR 33, [2001] 2 PLR 26..............................................................................................................6.33, 8.04 East Riding of Yorkshire Council v Hobson [2008] EWHC 1003 (Admin), [2009] PTSR 561, [2008] 4 WLUK 490, [2008] ACD 61, DC..........................................16.09 Egan v Basildon DC [2011] EWHC 2416 (QB), [2012] PTSR 1117, [2011] 9 WLUK 533.......................................................................................................................6.15, 8.64 Elitestone v Morris [1997] 1 WLR 687, [1997] 2 All ER 513, [1997] 4 WLUK 481, (1998) 30 HLR 266, [1997] 2 EGLR 115, [1997] 27 EG 116, [1997] EG 62 (CS), (1997) 94(19) LSG 25, (1997) 147 NLJ 721, (1997) 141 SJLB 113, [1997] NPC 66, HL.....16.04 Elvington Park Ltd v Secretary of State for Communities & Local Government [2011] EWHC 3041 (Admin), [2012] JPL 556.............................................................2.27, 24.24 Epsom and Ewell BC v Persons Unknown [2019] 5 WLUK 342, QBD........................14.21 Evans v Waverley BC [1995] 3 PLR 80, 94 LGR 227, [1996] JPL 655.........................17.04 Exmouth Marina Ltd v First Secretary of State [2004] EWHC 3166 (Admin), [2004] 6 WLUK 310, [2005] 3 PLR 1, [2006] JPL 204, QBD..........................................7.15 F Factorset Ltd v Selby DC [1995] 1 WLUK 423, [1995] 2 PLR 11, [1995] 2 EGLR 190, [1995] 40 EG 133, [1995] RVR 49.................................................................17.07 Fairstate Ltd v First Secretary of State [2005] EWCA Civ 283, [2005] 3 WLUK 690, [2005] 2 PLR 127, [2005] JPL 1333, (2005) 102(23) LSG 28, [2005] NPC 48, CA........................................................................................................................2.49, 2.55 Fenland DC v Reuben Rose (Properties) Ltd [2000] PLCR 376, [2000] EG 46 (CS), (2000) 97 (14) LSG 44.......................................................................................1.37, 16.41 FG Whitley & Sons v Secretary of State for Wales [1992] 3 WLUK 339, (1992) 64 P & CR 296, [1992] 3 PLR 72, [1992] JPL 856, [1992] EG 46 (CS), [1992] NPC 45, CA.....................................................................................................................2.61

xxv

Table of Cases Fidler v First Secretary of State [2004] EWCA Civ 1295, [2005] 1 P & CR 12, [2005] JPL 510.......................................................................................................2.27, 2.43, 6.24 Fidler v Secretary of State for Communities & Local Government [2010] EWHC 143 (Admin), [2010] 2 WLUK 66, [2010] 1 EGLR 94, [2010] 15 EG 96, [2010] JPL 915, [2010] 6 EG 115 (CS), (2010) 160 NLJ 218, [2010] NPC 15, QBD...........3.05, 3.64 Field v First Secretary of State [2004] EWHC 147 (Admin), [2004] 1 WLUK 463, [2004] JPL 1286, [2004] 6 EG 145 (CS), QBD......................................................2.59 Financial Services Authority v Sinaloa Gold plc [2013] UKSC 11, [2013] 2 AC 28, [2013] 2 WLR 678, [2013] 2 All ER 339, [2013] 1 All ER (Comm) 1089, [2013] Bus LR 302, [2013] 2 WLUK 718, [2013] 1 BCLC 353, [2013] Lloyd’s Rep FC 305, (2013) 163 NLJ 267, (2013) 157(9) SJLB 31.................................................14.37 Forest of Dean DC v Wildin [2018] EWHC 2811 (QB), [2018] 10 WLUK 554...........14.17 Forrester v Secretary of State for the Environment (1997) 74 P & CR 434...................1.40 Fowles v Heathrow Airport Ltd [2008] EWHC 219 (Ch), [2008] 2 WLUK 384, [2008] NPC 19, [2008] 1 P & C. DG24...............................................................2.27, 6.48, 12.10 Francovich v Italy (Case C-6/90) [1991] ECR I-5357, [1993] 2 CMLR 66, [1995] ICR 722..........................................................................................................................9.15 Friends of the Earth Ltd’s Application for Judicial Review, Re [2017] NICA 41, [2017] 6 WLUK 582, [2018] Env LR 7..........................................3.10, 9.22, 9.23, 10.09, 10.17, 10.52 G Gabbitas v Secretary of State for the Environment & Newham BC [1985] 1 WLUK 194, [1985] JPL 630, QBD.....................................................................................23.21 Galinski v McHugh [1988] 10 WLUK 39, (1989) 21 HLR 47, (1989) 57 P & CR 359, [1989] 1 EGLR 109, [1989] 05 EG 89, [1988] EG 127 (CS), (1988) 138 NLJ Rep 303, CA...................................................................................................................6.36 Garland v Minister of Housing & Local Government [1968] 10 WLUK 32, 67 LGR 77, (1969) 20 P & CR 93, (1968) 112 SJ 841, CA.................................................2.64 Gidden v Chief Constable of Humberside [2009] EWHC 2924 (Admin), [2010] 2 All ER 75, [2009] 10 WLUK 772, (2009) 173 JP 609, [2010] RTR 9, [2010] ACD 21, (2009) 106(43) LSG 25, DC.............................................................................6.39 Goremsandu v Secretary of State for Communities and Local Government [2015] EWHC 2194 (Admin), [2015] 7 WLUK 884, QBD...............................................6.48 Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 WLR 300, [1977] 3 All ER 70, [1977] 7 WLUK 167, (1977) 121 SJ 543, HL...................................14.47 Grampian RC v Aberdeen DC, Grampian RC v Secretary of State for Scotland, 1984 SC (HL) 58, 1984 SLT 197, [1983] 11 WLUK 260, (1984) 47 P & CR 633, [1984] JPL 590........................................................................................................2.62 Gregory v Secretary of State for Transport for the Environment [1989] 11 WLUK 259, (1990) 60 P & CR 413, [1990] 1 PLR 110, [1990] JPL 326, (1990) 154 LG Rev 993, [1989] EG 163 (CS), CA................................................................................2.33 Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908, [2011] 7 WLUK 868, [2011] 3 EGLR 93, [2011] 43 EG 106, [2012] JPL 39, [2011] 31 EG 53 (CS), CA.....................................................2.62 Griffiths v Secretary of State for the Environment [1983] 2 AC 51, [1983] 2 WLR 172, [1983] 1 All ER 439, [1983] 1 WLUK 994, 81 LGR 369, (1983) 45 P & CR 299, (1983) 266 EG 623, [1983] JPL 237, (1983) 133 NLJ 105, (1983) 127 SJ 87, HL...........................................................................................................................24.16 Guerra v Italy [1998] 2 WLUK 442, (1998) 26 EHRR 357, 4 BHRC 63, [1998] HRCD 277, ECtHR.............................................................................................................4.15 Guildford BC v Smith [1994] JPL 734, (1994) 159 LG Rev 741, [1993] EG 158 (CS).........................................................................................................................14.44 H Hall Hunter Partnership v First Secretary of State. See R (on the application of Hall Hunter Partnership) v First Secretary of State

xxvi

Table of Cases Hall v Secretary of State for the Environment, Transport and the Regions [1998] 3 WLUK 344, [1998] JPL 1055, QBD...................................................................2.51 Hambleton DC v Bird [1995] 3 WLUK 385, [1995] 3 PLR 8, [1996] JPL 675, [1995] EG 67 (CS), [1995] NPC 58, CA..........................................................14.12, 14.13, 14.14 Handoll v Warner Goodman & Streat (A Firm) [1994] 12 WLUK 112, 93 LGR 293, (1995) 70 P & CR 627, [1995] 1 EGLR 173, [1995] 25 EG 157, [1994] NPC 158, CA......................................................................................................................2.64, 12.03 Harlow DC v McGinley [2017] EWHC 1851 (QB), [2017] 6 WLUK 252.............14.17, 14.19 Harlow DC v Stokes [2015] EWHC 953 (QB), [2015] 3 WLUK 36.............................14.19 Harrods Ltd v Secretary of State for the Environment [2001] EWHC Admin 600, [2002] JPL 437, [2001] 31 EG 101 (CS)................................................................2.29 Hartley v Minister of Housing & Local Government [1970] 1 QB 413, [1970] 2 WLR 1, [1969] 3 All ER 1658..........................................................................................2.35 Harvey v Secretary of State for Wales & Cardiff CC [1989] 11 WLUK 79, 88 LGR 253, (1990) 60 P & CR 152, [1991] 2 PLR 1, [1990] 25 EG 79, [1990] JPL 420, [1990] COD 145, (1990) 154 LG Rev 897, CA.....................................................3.17 Hatton v United Kingdom (application 36022/97) (2003) 37 EHRR 28, 15 BHRC 259..........................................................................................................................4.14 Havering LBC v Secretary of State for the Environment [1982] 2 WLUK 206, (1983) 45 P & CR 258, [1983] JPL 240, QBD..................................................................6.48 Havering LBC v Stokes [2019] EWHC 3006 (QB), [2019] 9 WLUK 131.............14.19, 14.26 Hertfordshire CC v Secretary of State for Communities and Local Government [2012] EWHC 277 (Admin), [2012] JPL 836....................................................................2.26 Hertfordshire CC v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473, [2013] JPL 560.......................................................................2.26, 2.27 Hertsmere BC v Brent Walker Group plc [1993] 1  WLUK 717, [1994] 1  PLR 1, [1994] EG 4 (CS), Ch D.........................................................................................19.04 Hillingdon LBC v Secretary of State for Communities and Local Government [2008] EWHC 198 (Admin), [2008] 2 WLUK 237, [2008] JPL 1486, QBD....................2.55 Hillingdon LBC v Secretary of State for Communities and Local Government [2018] EWHC 845 (Admin), [2018] 3 WLUK 368, QBD.................................................22.25 Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities & Local Government sub nom Ashton v Secretary of State for Communities & Local Government [2010] EWCA Civ 600, [2011] 1 P & CR 5, [2010] JPL 1645.............................................................24.34 Hoffman La Roche v Secretary of State for Trade & Industry [1975] AC 295, [1974] 3 WLR 104, [1974] 2 All ER 1128....................................................................1.37, 14.37 Hoser v Minister of Housing & Local Government [1963] Ch 428, [1962] 3 WLR 1337, [1962] 3 All ER 945, [1962] 10 WLUK 29, (1963) 127 JP 24, 60 LGR 542, (1963) 14 P & CR 36, (1962) 106 SJ 1010.............................................................24.10 Hounslow LBC v Secretary of State for the Environment [1981] 1 WLUK 174, [1981] JPL 510, DC............................................................................................................1.37 Howard v Secretary of State for the Environment [1975] QB 235, [1974] 2 WLR 459, [1974] 1 All ER 644.............................................................................................7.08, 7.62 Howell v Sunbury-on-Thames Urban DC [1963] 1 WLUK 11, 62 LGR 119, 188 EG 689, 114 LJ 121, (1963) 107 SJ 90, CA..................................................................18.57 Howes (Robert Reginald) v Secretary of State for the Environment [1984] 1 WLUK 267, [1984] JPL 439................................................................................................3.09 Huddlestone v Bassetlaw DC [2019] EWCA Civ 21, [2019] PTSR 1129, [2019] 1 WLUK 239, [2019] 2 P & CR 10, [2019] RVR 123.....................................10.43, 10.45 Hughes v Doncaster Metropolitan Council [1991] 1  AC 382, [1991] 2  WLR 16, [1991] 1 All ER 295, HL.........................................................................................15.04 Hussain v Secretary of State for the Environment (1971) 23 P & CR 330, (1971) 221 EG 627....................................................................................................................2.29 I Ilyas v Aylesbury Vale DC [2011] EWCA Civ 1377, [2011] 10 WLUK 672............4.21, 14.17

xxvii

Table of Cases I’m Your Man Ltd v Secretary of State for the Environment [1998] 9  WLUK 37, (1999) 77 P & CR 251, [1998] 4 PLR 107, [1999] PLCR 109, [1998] NPC 131, QBD........................................................................................................................2.46 Impey v Secretary of State for the Environment (1980) 47 P & CR 157, [1981] JPL 363..........................................................................................................................2.36 In the Matter of an Application by the Department of the Environment for Northern Ireland for Judicial Revie. See Department of the Environment for Northern Ireland’s Application for Judicial Review, Re International Ferry Traders Ltd v Adur DC [2004] EWCA Civ 288, [2004] 2 PLR 106, [2004] JPL 1610....................................................................................10.44, 10.49, 10.50 International Society for Krishna Consciousness v Secretary of State for the Environment and Hertsmere BC (1992) 64 P & CR 85, [1992] JPL 962, [1992] COD 251.................................................................................................................2.29 Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432, [2014] 10 WLUK 951, [2015] 1 P & CR 10..............................7.15, 7.35, 7.39 Iskcon v United Kingdom (application 20490/92) [1994] 3 WLUK 116, (1994) 18 EHRR CD133.........................................................................................................4.10 Islam v Secretary of State for Communities & Local Government [2012] EWHC 1314 (Admin), [2012] JPL 1378......................................................................................2.08 Islington London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2691 (Admin)............................................3.24 J Jackson v Secretary of State for Communities and Local Government; sub nom Bonsall v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin), [2015] 1 WLUK 115, [2015] 2 P & CR 8, [2015] JPL 830, [2015] ACD 70, QBD.........................................................................................3.39, 3.40, 3.41, 3.50 Jackson v Secretary of State for Communities and Local Government [2015] EWCA Civ 1246, [2016] QB 811, [2016] 2 WLR 1407, [2015] 12 WLUK 239, [2016] 1 P & CR 20, [2016] JPL 506, CA.....................................................................3.41, 3.46, 3.50, 3.52 James Hay Pension Trustees Ltd v First Secretary of State [2006] EWCA Civ 1387, [2006] 10 WLUK 729, [2007] 1 P & CR 23, [2007] JPL 643, (2006) 103(43) LSG 27, [2006] NPC 115........................................................................................23.27 Jarmain v Secretary of State for the Environment, Transport and the Regions (No 1) [2000] 4 WLUK 369, [2000] 2 PLR 126, [2000] JPL 1063, CA............................3.64 JC Decaux UK Ltd v Brent LBC [2004] 12 WLUK 202, [2005] PAD 34.....................18.20 Jefferey v First Secretary of State [2007] EWCA Civ 584, [2007] 6 WLUK 430..........15.07 Jennings Motors Ltd v Secretary of State for the Environment [1982] QB 541, [1982] 2 WLR 131, [1982] 1 All ER 471, [1981] 11 WLUK 253, 80 LGR 226, (1982) 43 P & CR 316, (1982) 261 EG 994, [1982] JPL 181, CA....................................23.05 John Lyon Charity v Westminster CC sub nom John Lyon Free Grammar School v Westminster CC [2012] UKUT 117 (LC), [2012] RVR 283, [2012] JPL 985.......17.07 Johnson v Windsor and Maidenhead RBC [2019] EWHC 160 (Admin), [2019] 2 WLUK 5, QBD....................................................................................................12.33 Johnston v Secretary of State for the Environment [1974] 10 WLUK 34, 73 LGR 22, (1974) 28 P & CR 424, (1974) 118 SJ 717, QBD...............................................2.32, 2.33 Jolly v Fylde BC (A20120016) [1999] EWHC 164 (Admin).........................................15.23 K Kaur (Pritam) v S Russell & Sons Ltd [1973] QB 336, [1973] 2 WLR 147, [1973] 1 All ER 617, (1972) 117 SJ 91, CA.......................................................................24.17 Kaur v Secretary of State for the Environment [1989] 10 WLUK 246, (1991) 61 P & CR 249, [1990] JPL 814, QBD...............................................................................6.20 Kemball v Secretary of State for Communities and Local Government. See R (on the application of Kemball) v Secretary of State for Communities and Local Government

xxviii

Table of Cases Kensington and Chelsea RLBC v CG Hotels (1981) 41 P & CR 40, [1981] JPL 190...2.19 Kensington and Chelsea RLBC v Harvey Nichols & Co Ltd [2001] EWCA Civ 702, [2001] 5 WLUK 114, [2002] 1 P & CR 29, [2001] 3 PLR 71, [2002] JPL 175.....18.59 Kensington and Chelsea RLBC v Secretary of State & Mia Carla [1981] JPL 50.........2.27 Kensington and Chelsea RLBC v Secretary of State for the Environment [1992] 1 WLUK 452, [1992] 2 PLR 116, [1993] JPL 139.................................................24.20 Kent CC v Brockman [1993] 10 WLUK 84, [1996] 1 PLR 1, [1994] Crim LR 296, DC........................................................................................................................8.33, 8.34 Kerrier DC v Secretary of State for the Environment [1980] 11 WLUK 4, (1981) 41 P & CR 284, [1981] JPL 193, DC...........................................................................2.64, 6.14 Kestrel Hydro v Secretary of State for Communities and Local Government [2015] EWHC 1654 (Admin), [2015] 4 WLUK 284, [2015] LLR 522, QBD...................6.14 Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784, [2016] 7 WLUK 620.................................................................3.31, 6.25 King’s Lynn and West Norfolk BC v Secretary of State for the Environment [1995] JPL 730................................................................................................................3.12, 3.17 Kirklees BC v Wickes Building Supplies Ltd [1993] AC 227, [1992] 3 WLR 170, [1992] 3 All ER 717, [1992] 6 WLUK 384, [1992] 2 CMLR 765, 90 LGR 391, (1992) 142 NLJ 967, [1992] NPC 86, HL..............................................................14.37 Kirklees MBC v Brook [2004] EWHC 2841 (Ch), [2004] 12 WLUK 175, [2005] 2 P & CR 17, [2005] 2 PLR 40, Ch D..........................................................................17.25 Knox v Gye (1871-72) LR 5 HL 656, [1872] 7 WLUK 40............................................19.10 Koumis v Secretary of State for Communities & Local Government [2012] EWHC 2686 (Admin), [2012] 10 WLUK 205, [2013] JPL 215, QBD...............................6.26 Koumis v Secretary of State for Communities and Local Government [2014] EWCA Civ 1723, [2014] 12 WLUK 114, [2015] JPL 682..............................................2.71, 6.45 L Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317, [2019] 4 All ER 981, [2019] PTSR 1388, [2019] 7 WLUK 11, [2019] 2 P & CR 18...........................................................2.68, 2.72, 2.73, 23.39 Lawson Builders Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3368 (Admin), [2013] 11 WLUK 130, QBD............................8.34, 12.31 Leigh v Taylor [1902] AC 157, [1902] 2 WLUK 24, HL...............................................16.04 Lenlyn v Secretary of State for the Environment (1985) 50 P & CR 129, [1985] JPL 482, (1985) 82 LSG 358..................................................................................24.08, 24.53 Leon v Hertsmere BC [2016] 3 WLUK 267, [2016] PAD 21.....................................3.41, 5.40 Lilo Blum v Secretary of State for the Environment [1987] 1 WLUK 725, [1987] JPL 278, QBD................................................................................................................2.27 London Borough of Brent v Dowman. See Brent LBC v Dowman London Borough of Camden v Galway-Cooper [2018] EWHC 1355 (Admin).............8.33 London CC v A-G [1902] AC 165, [1902] 2 WLUK 28, HL.........................................14.47 London Corp v Cusack-Smith [1955] AC 337, [1955] 2 WLR 363, [1955] 1 All ER 302..........................................................................................................................6.33 Loose v Williamson [1978] 1 WLR 639, [1978] 3 All ER 89, (1978) 122 SJ 212, Ch D...5.37 Lopez Ostra v Spain (A/303-C) [1994] 12  WLUK 133, (1995) 20 EHRR.277, ECtHR.....................................................................................................................4.15 Lord Advocate v Dumbarton DC [1990] 2 AC 580, [1989] 3 WLR 1346, [1990] 1 All ER 1, 1990 SC (HL) 1, 1990 SLT 158, [1989] 11 WLUK 394, (1990) 2 Admin LR 429, (1990) 87(4) LSG 39, (1990) 134 SJ 165, HL..........................................6.53 Lough v First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557, [2004] 7 WLUK 318, [2005] 1 P & CR 5, [2005] JPL 208, [2004] 31 EG 92 (CS), (2004) 148 SJLB 879, [2004] NPC 115..........................................................................4.15, 4.16 LTSS Print & Supply Services Ltd v Hackney LBC [1976] QB 663, [1976] 2 WLR 253, [1976] 1 All ER 311, [1975] 10 WLUK 116, 74 LGR 210, (1976) 31 P & CR 133, (1975) 119 SJ 866, CA.............................................................................2.55

xxix

Table of Cases Lydcare Ltd v Secretary of State for the Environment (1984) 49 P & CR 186, 83 LGR 33, (1984) 272 EG 175............................................................................................2.29 M M & M (Land) Ltd v Secretary of State for Communities and Local Government [2007] EWHC 489 (Admin), [2007] 2 WLUK 95, [2007] 2 P & CR 18, [2007] JPL 1474, QBD.......................................................................................................23.33 Main v Secretary of State for the Environment, Transport & the Regions (1999) 77 P & CR 300, [1999] JPL 195, (1998) 95 (22) LSG 30..............................................2.28 Maldon DC v Hammond (No 1) [2004] EWCA Civ 1073, [2004] 7 WLUK 908.........6.24 Maltedge & Frost v Wokingham DC (1992) 64 P & CR 487, [1992] 3  PLR 137, [1993] Crim LR 400, DC............................................................................8.04, 8.08, 8.42 Manchester CC v Secretary of State for the Environment [1988] 1 WLUK, [1988] JPL 774, QBD................................................................................................................7.192 Mansi v Elstree Rural DC [1964] 1 WLUK 874, 62 LGR 172, (1965) 16 P & CR 153, 189 EG 341, (1964) 108 SJ 178, QBD...................................................................6.20 Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin), [2015] 11 WLUK 746, QBD..........................................................7.186 McCarthy v Secretary of State for Communities and Local Government [2006] EWHC 3287 (Admin), [2006] 12 WLUK 548, QBD.............................................4.16 Mead v Chelmsford Rural DC [1953] 1 QB 32, [1952] 2 All ER 723, [1952] 2 TLR 700, [1952] 10 WLUK 46, (1952) 116 JP 589, 50 LGR 690, (1952-53) 3 P & CR 239, (1952) 96 SJ 696, DC......................................................................................6.08 Metallic Protectives Ltd v Secretary of State for the Environment [1976] 1 WLUK 138, [1976] JPL 166, DC........................................................................................24.51 Miaris v Secretary of State for Communities and Local Government [2015] EWHC 2094 (Admin), [2015] 1 WLR 4333, [2015] 7 WLUK 604, QBD....................7.34, 24.30 Mid-Bedfordshire DC v Brown [2004] EWCA Civ 1709, [2005] 1 WLR 1460, [2004] 12 WLUK 607, [2005] JPL 1060, (2005) 102(4) LSG 31......................................14.35 Midlothian DC v Stevenson, 1985 SLT 424, [1985] 3 WLUK 259, [1986] JPL 913, CSIH.......................................................................................................................8.64 Mid-Suffolk DC v Upton [2007] EWHC 2296 (QB), [2007] 9 WLUK 209..................11.15 Milebush Properties Ltd v Tameside Metropolitan BC [2010] EWHC 1022 (Ch), [2010] 5 WLUK 267, [2010] 2 EGLR 93, [2010] 30 EG 64, [2010] JPL 1303, [2010] 20 EG 145 (CS), [2010] NPC 58, Ch D......................................................19.13 Millen v Secretary of State for the Environment (1997) 73 P & CR 48.........................6.25 Miller-Mead v Minister of Housing & Local Govenrment [1963] 2 QB 196, [1963] 2 WLR 225, [1963] 1 All ER 459, [1962] 12 WLUK 50, (1963) 127 JP 122, 61 LGR 152, (1963) 14 P & CR 266, [1963] JPL 151, (1962) 106 SJ 1052, CA...2.69, 6.19, 6.26, 7.189 Millington v Secretary of State for the Environment, Transport & the Regions [1999] 6 WLUK 374, [1999] 3 PLR 118, [2000] JPL 297, [1999] EG 95 (CS), (1999) 96(27) LSG 35, [1999] NPC 75, CA......................................................................2.39 Mills & Allen Ltd v City of Glasgow DC, 1980 SLT (Sh Ct) 85, [1980] JPL 409.........18.21 Minister of Labour v Genner Iron & Steel Co (Wollescote) Ltd (No 1) [1967] 1 WLR 1386, [1967] 3 All ER 278, [1967] 7 WLUK 49, (1967) 131 JP 518, (1967) 3 KIR 327, [1967] TR 141, (1967) 111 SJ 718, QBD...............................................24.16 Mirza v Newham LBC [2017] EWCA Crim 924, [2018] 1 WLR 619, [2017] 7 WLUK 81, [2017] 2 Cr App R 29, [2017] JPL 1397...........................................................8.34 Mole Valley DC v Smith (1992) 24 HLR 442, 90 LGR 557, [1992] 3 PLR 22.............14.12 Moody v Godstone Rural DC [1966] 1  WLR 1085, [1966] 2 All ER 696, [1966] 5 WLUK 13, (1966) 130 JP 332, (1967) 18 P & CR 249, (1966) 110 SJ 687, DC...........................................................................................................................6.39 Murfitt v Secretary of State for the Environment and East Cambridgeshire DC [1980] 5 WLUK 47, (1980) 40 P & CR 254, [1980] JPL 598, QBD..............................3.31, 6.12 MWH Associates Ltd v Wrexham County BC [2012] EWCA Civ 1884, [2012] 11 WLUK 805, [2013] Env LR 27, [2013] RVR 112, CA.....................................15.13

xxx

Table of Cases N McPhee v South Downs National Park Authority [2015] EWHC 1661 (Admin), [2015] 4 WLUK 117, QBD.....................................................................................2.08 Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404, [1962] 1 All ER 423, [1961] 12 WLUK 28, (1962) 126 JP 108, 60 LGR 83, (1962) 13 P & CR 151, [1962] RVR 344, (1962) 106 SJ 310, DC............................................7.50 Newbury DC v Secretary of State for the Environment [1981] AC 578, [1980] 2 WLR 379, [1980] 1 All ER 731, [1980] 2 WLUK 286, 78 LGR 306, (1980) 40 P & CR 148, [1980] JPL 325, (1980) 124 SJ 186, HL.....................................................1.37, 2.58, 3.25, 19.03 Newham LBC v Ahmed [2016] EWHC 679 (Admin), [2016] 2 WLUK 66, [2016] ACD 82, DC............................................................................................................6.36 Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions. See R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions Nicholson v Secretary of State for Energy [1977] 1 WLUK 360, 76 LGR 693, (1977) 245 EG 139, [1978] JPL 39, DC.............................................................................7.161 Nicholson v Secretary of State for the Environment, Transport and the Regions [1997] 8 WLUK 103, (1998) 76 P & CR 191, [1998] 2 PLR 6, [1998] JPL 553, QBD....3.25 North Cornwall DC v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2318 (Admin), [2002] 10 WLUK 728, [2003] 1 P & CR 25, [2003] 1 PLR 28, [2003] JPL 600, [2002] 44 EG 171 (CS), (2002) 99(44) LSG 34, QBD..........................................................................................................3.24 North Devon DC v First Secretary of State [2004] EWHC 578 (Admin), [2004] 3 WLUK 326, [2004] 3 PLR 62, [2004] JPL 1396, [2004] 13 EG 126 (CS), QBD....3.16, 3.27 North Kesteven DC v Secretary of State for the Environment [1989] JPL 445.............24.05 Nourish v Adamson [1998] 1 WLUK 459, [1998] 3 PLR 21, [1998] JPL 859, DC..........12.05, 12.29, 12.35 Nuneaton and Bedworth BC v Corcoran [2019] EWHC 917 (QB), [2019] 3 WLUK 308....14.19 O Oldham MBC v Tanna [2017] EWCA Civ 50, [2017] 1 WLR 1970, [2017] 2 WLUK 299, [2017] 2 P & CR 11, [2017] RVR 174, [2017] JPL 696.................................15.24 O’Reilly v Mackman [1983] 2 AC 237, [1982] 3 WLR 1096, [1982] 3 All ER 1124, [1982] 11 WLUK 222, (1982) 126 SJ 820, HL......................................................24.64 P P & O Nedlloyd BV v Arab Metals Co (The UB Tiger) [2006] EWCA Civ 1717, [2007] 1 WLR 2288, [2007] 2 All ER (Comm) 401, [2007] 2 Lloyd’s Rep 231, [2006] 12 WLUK 300, [2006] 2 CLC 985, 116 Con LR 200.................................19.10 Palacegate Properties Ltd v Camden LBC [2000] 7 WLUK 535, (2001) 3 LGLR 18, (2001) 82 P & CR 17, [2000] 4 PLR 59, [2001] JPL 373 (Note), [2001] ACD 23, DC...........................................................................................................................24.47 Parkes v Secretary of State for the Environment [1978] 1 WLR 1308, [1979] 1 All ER 211, [1978] 5 WLUK 51, 77 LGR 39, (1978) 36 P & CR 387, (1978) 248 EG 595, [1979] JPL 33, (1978) 122 SJ 349, CA...........................................................2.03 Parkhurst Road Ltd v Secretary of State for Communities and Local Government [2018] EWHC 991 (Admin), [2018] 4 WLUK 537, [2019] JPL 855, QBD..........7.50 Pathfield Estates Ltd v Haringey LBC [2013] EWHC 2053 (Admin), [2013] 6 WLUK 659, QBD................................................................................................................8.06 Payne v Caerphilly County BC [2009] RVR 66, LCA/109/2006, LCA/158/2006 (Lands Tribunal, 6 January 2009)......................................................................1.41, 10.43 Payne v National Assembly for Wales [2006] EWHC 597 (Admin), [2006] 1 WLUK 13, [2007] 1 P & CR 4, [2007] JPL 117, QBD.......................................................6.20 Payne v Secretary of State for Communities and Local Government [2010] EWHC 3528 (Admin), [2010] 12 WLUK 241, [2011] JPL 767, QBD...............................7.181

xxxi

Table of Cases Peacock Homes Ltd v Secretary of State for the Environment [1984] 5 WLUK 41, 83 LGR 686, (1984) 48 P & CR 20, CA......................................................................2.57 Peacock Homes Ltd v Secretary of State for the Environment [1984] 5 WLUK 41, 83 LGR 686, (1984) 48 P & CR 20, CA...................................................................2.57, 3.17 Pedgrift v Oxfordshire County Council [1991] 7 WLUK 420, (1992) 63 P & CR 246, [1992] JPL 731, [1991] EG 89 (CS), CA................................................................23.55 Pennine Raceway v Kirklees Metropolitan BC [1983] QB 382, [1982] 3 WLR 987, [1982] 3 All ER 628, [1982] 5 WLUK 254, 81 LGR 89, (1983) 45 P & CR 313, (1982) 263 EG 712, [1984] RVR 85, [1982] JPL 780, (1982) 79 LSG 921, (1984) 134 NLJ 969, (1982) 126 SJ 449, CA.....................................................................10.44 Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506, [1966] 1 All ER 701, (1966) 130 JP 179.........................................................................2.28, 2.31 Perkins v Secretary of State for the Environment and the Rother DC [1981] 1 WLUK 288, [1981] JPL 755................................................................................................6.12 Perrin v Northampton BC [2006] EWHC 2331 (TCC), [2007] 1 All ER 929, [2006] 9 WLUK 348, [2006] BLR 504, [2007] Env LR 12, [2007] BLGR 19, [2007] 1 P & CR 28, [2006] 3 EGLR 71, [2006] 48 EG 232, [2007] JPL 723, [2006] 41 EG 224 (CS), QBD........................................................................................................17.06 PG Vallance Ltd v Secretary of State for the Environment [1992] 10 WLUK 146, [1993] 1 PLR 74, [1994] JPL 50, QBD...........................................................7.157, 24.20 Phillips v First Secretary of State [2003] EWHC 2415 (Admin), [2003] 10 WLUK 598, [2003] 4 PLR 75, [2004] JPL 613, [2003] 44 EG 169 (CS), [2003] NPC 122, QBD........................................................................................................................7.107 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, [1984] 3 WLR 32, [1984] 2 All ER 358, [1984] 5 WLUK 273, 82 LGR 488, (1984) 48 P & CR 95, (1984) 272 EG 425, [1984] JPL 651, (1984) 81 LSG 2148, (1984) 128 SJ 416, HL..............................................................................2.04, 2.35, 15.16 Pollway Nominees Ltd v Croydon LBC [1987] AC 79, [1986] 3 WLR 277, [1986] 2 All ER 849, [1986] 7 WLUK 184, (1986) 18 HLR 443, 85 LGR 1, [1986] 2 EGLR 27, (1986) 280 EG 87, [1987] JPL 121, (1987) 151 LG Rev 8, (1986) 83 LSG 2654, (1986) 136 NLJ 703, (1986) 130 SJ 574, HL.......................................6.32 Postermobile plc v Kensington and Chelsea RLBC (2000) 80 P & CR 524, [2001] JPL 196, [2000] COD 500.............................................................................................18.19 Postermobile plc v London Borough of Brent [1998] Crim LR 435.........................1.44, 23.02 Prashar v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1231, [2001] 7 WLUK 473, [2001] 3 PLR 116...................................24.20 Putney Bridge Approach Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 2268, [2019] PTSR 1431, [2018] 10  WLUK 330, [2019] 2 P & CR 15, [2019] JPL 264.............................................................18.22 Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, [1959] 3 WLR 346, [1959] 3 All ER 1, [1959] 7 WLUK 20, (1959) 123 JP 429, 58 LGR 1, (1959) 10 P & CR 319, (1959) 103 SJ 633, HL............................23.54, 23.56 Q Quinton v North Corwall DC [1994] 5 WLUK 123, [1994] CLY 4315..................12.30, 12.31 R R v Ahmed (Mohammed Kamal) [2014] EWCA Crim 1270, [2015] 1  WLR 378, [2014] 2 WLUK 661...............................................................................................8.06 R v Alath Construction Ltd [1990] 1 WLR 1255, [1990] 2 WLUK 272, (1990) 154 JP 911, (1990) 60 P & CR 533, [1991] 1 PLR 25, [1991] 1 EGLR 285, [1990] Crim LR 516, (1990) 154 JPN 505, (1990) 87(14) LSG 42, (1990) 134 SJ 1009, (1990) 134 SJ 735, CA.......................................................................................................17.09 R v Ali (Salah) [2014] EWCA Crim 1658, [2015] 1 WLR 841, [2014] 7 WLUK 1117, [2015] MHLR 446, [2015] JPL 327, [2015] Crim LR 88......................................8.57 R v Ashford Borough Council, ex p Shepway DC [1998] 5 WLUK 109, [1999] PLCR 12, [1998] JPL 1073, QBD.....................................................................................2.69

xxxii

Table of Cases R v Basildon DC, ex p Martin Grant Homes Ltd [1986] 7 WLUK 311, (1987) 53 P & CR 397, [1987] JPL 863, QBD...............................................................................24.48 R v Bayliss (Roy Alfred) (1994) 98 Cr App R 235, (1993) 157 JP 1062, [1994] Crim LR 687.................................................................................................................... 5.44 R v Beaconsfield Magistrates, ex p South Buckinghamshire DC [1993] 2 WLUK 176, [1993] COD 357, (1993) 157 JPN 652, DC............................................................8.16 R v Beard (John) [1996] 5 WLUK 155, [1997] 1 PLR 64, CA...................................8.32, 8.33 R v Bolsover DC, ex p Ashfield DC and Nottinghamshire District Council [1995] 4 WLUK 197, (1995) 70 P & CR 507, [1995] 2 PLR 57, [1995] EG 73 (CS), [1995] NPC 73, QBD..............................................................................................2.41 R v Briscoe (Reginald) [1994] 1 WLUK 464, (1994) 15 Cr App R (S) 699, CA...........8.53 R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin), [2019] PTSR 335....................................................................................................4.20 R v Caradon DC, ex p Knott [1999] 12 WLUK 502, (2000) 80 P & CR 154, [2000] 3 PLR 1, QBD......................................................................................................4.23, 6.07 R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73, [2009] 1 WLR 1, [2009] 2 All ER 645............................................................................................................8.39 R v Chichester Justices, ex p Chichester DC [1990] 1 WLUK 742, (1990) 154 JP 6, (1990) 60 P & CR 342, [1990] 3 PLR 36, [1990] JPL 820, [1990] COD 297, (1990) 154 JPN 722, (1990) 154 LG Rev 957, [1990] EG 13 (CS), DC................6.48 R v Chief Constable of the Merseyside Police, ex p Calveley [1986] QB 424, [1986] 2 WLR 144, [1986] 1 All ER 257, [1985] 11 WLUK 254, [1986] IRLR 177, CA....24.50 R v Clarke (Thomas George) [2002] EWCA Crim 753, [2002] 3 WLUK 85, [2002] JPL 1372.................................................................................................................8.33 R v Clayton (Jonathan James) [2014] EWCA Crim 1030, [2014] 1 WLR 3994, [2014] 5 WLUK 832, [2014] 2 Cr App R 20, [2014] LLR 723.........................................24.49 R v Collett (Michael) [1994] 1 WLR 475, [1994] 2 All ER 372, (1994) 158 JP 581.....8.35 R v Coventry CC, ex p Arrowcroft Group Plc [2000] 7 WLUK 647, [2001] PLCR 7, QBD....7.15 R v Dagim Fish and Deli Ltd [2014] EWCA Crim 2927, [2014] 12 WLUK 552..........8.51 R v Del Basso (Luigi) [2010] EWCA Crim 1119, [2011] 1 Cr App R (S) 41, [2011] Lloyd’s Rep FC 25..................................................................................................8.56 R v Dhar [1993] 3 WLUK 198, [1993] 2 PLR 60, [1993] Crim LR 615, CA.........10.19, 10.37 R v Duckworth (Robert) [1994] 10 WLUK 113, (1995) 16 Cr App R (S) 529, CA......16.67 R v Ealing LBC, ex p Zainuddin 1995] JPL 925, [1994] 3 PLR 1, [1994] EG 130 (CS).....12.33 R v East Susex County Council, ex p ARC Ltd [1999] 7 WLUK 625, [1999] NPC 111, [2000] Env LR D8, QBD........................................................................................24.16 R v Elmbridge Borough Council, ex p Wendy Fair Markets Ltd [1994] 10 WLUK 117, [1994] EG 159 (CS), QBD......................................................................................10.15 R v Epping Forest DC, ex p Strandmill [1989] 6 WLUK 266, [1990] JPL 415, [1989] EG 101 (CS), QBD..........................................................................................10.38, 10.61 R v Evangelou (Evangelos Spyros) [2019] 7 WLUK 308, CA......................................8.56 R v F Howe & Sons (Engineers) Ltd [1999] 2 All ER 249, [1998] 11 WLUK 105, [1999] 2 Cr App R (S) 37, (1999) 163 JP 359, [1999] IRLR 434, [1999] Crim LR 238, (1999) 163 JPN 693, (1998) 95(46) LSG 34, CA...........................................8.52 R v Friskies Petcare (UK) Ltd [2000] 3 WLUK 273, [2000] 2 Cr App R (S) 401, CA.8.53 R v Greenwich LBC, ex p Patel (1986) 51 P & CR 282, 84 LGR 241, [1985] JPL 851....8.68 R v Harfield (Gordon) [1993] 1 WLUK 289, [1993] 2 PLR 23, [1993] JPL 914, CA...6.22 R v Hertfordshire CC, ex p Green Environmental Industries Ltd [2000] 2 AC 412, [2000] 2 WLR 373, [2000] 1 All ER 773, [2000] 2 WLUK 683, [2000] Eu LR 414, [2000] Env LR 426, [2000] EHLR 199, [2000] HRLR 359, [2000] UKHRR 361, (2000) 2 LGLR 754, [2000] BLGR 215, [2000] 1 PLR 108, [2000] COD 223, [2000] EG 27 (CS), (2000) 97(9) LSG 42, (2000) 150 NLJ 277, [2000] NPC 15, HL.....................21.15 R v Hounslow LBC, ex p Dooley [1999] 11 WLUK 917, (2000) 80 P & CR 405, QBD......................................................................................................10.17, 10.18, 10.28 R v Jenner (Walter Rupert) [1983] 1 WLR 873, [1983] 2 All ER 46, [1983] 1 WLUK 1060, (1983) 46 P & CR 411, [1983] JPL 547, [1983] Crim LR 398, (1983) 147 JPN 239, (1983) 127 SJ 324, CA..........................................................10.38, 10.40, 10.61

xxxiii

Table of Cases R v JO Sims Ltd (1993) 96 Cr App R 125, (1993) 14 Cr App R (S) 213, [1993] Env LR 323....................................................................................................................16.67 R v Johnson (John Phillip) [2012] EWCA Crim 580, [2012] 2 Cr App R (S) 87..........16.68 R v Kensington & Chelsea RLBC, ex p Europa Foods Ltd [1996] EG 5(CS), [1996] NPC 4......................................................................................................................23.48 R v Kerrier DC, ex p Uzell (1996) 71 P & CR 566, [1996] JPL 837, [1996] COD 97, QBD........................................................................................................................4.09 R v Kohali (David) [2015] EWCA Crim 1757, [2015] 10 WLUK 98, [2016] 1 Cr App R (S) 30...................................................................................................................8.49 R v Kuxhaus (Alexander) [1988] QB 631, [1988] 2 WLR 1005, [1988] 2 All ER 705, [1988] 2 WLUK 206, (1988) 87 Cr App R 135, (1988) 152 JP 546, 87 LGR 193, (1988) 56 P & CR 229, [1988] 2 PLR 59, [1988] JPL 545, [1988] Crim LR 459, (1988) 152 JPN 668, CA.........................................................................................6.29 R (Lakenheath Parish Council) v Suffolk County Council [2019] EWHC 978 (Admin)...................................................................................................................4.20 R v Lambeth LBC, ex p Sharp [1986] 2 WLUK 179, (1988) 55 P & CR 232, [1987] JPL 440, CA............................................................................................................7.140 R v Leominster DC, ex p Antique Country Buildings Ltd [1987] 12  WLUK 277, (1988) 56 P & CR 240, [1988] 2 PLR 23, [1988] JPL 554, QBD..........................16.24 R v Leominster DC, ex p Pothecary (1998) 10 Admin LR 484, (1998) 76 P & CR 346, [1997] 3 PLR 91......................................................................................................4.22 R v London Borough of Camden, ex p Bellamy [1991] 1 WLUK 521, [1992] JPL 255, [1991] COD 425, DC..............................................................................................16.04 R v London Borough of Lambeth Council, ex p Sharp (1988) 55 P & CR 232, [1987] JPL 440...................................................................................................................7.140 R v London County Quarter Sessions Appeal Committee, ex p Rossi [1956] 1 QB 682, [1956] 2 WLR 800, [1956] 1 All ER 670, [1956] 2 WLUK 125, (1956) 120 JP 239, (1956) 100 SJ 225, CA...............................................................................6.39 R v MA Kelly’s Estates Ltd [2018] EWCA Crim 2722, [2018] 11 WLUK 596.........8.49, 8.51 R v May (Raymond George) [2008] UKHL 28, [2008] 1 AC 1028, [2009] 1 Cr App R (S) 31.......................................................................................................................8.56 R v Newland (Polly) [1987] 3 WLUK 83, (1987) 54 P & CR 222, [1987] JPL 851, CA........................................................................................................................6.51, 8.52 R v North Hertfordshire DC, ex p Hyde [1990] JPL 142, 88 LGR 426, [1989] COD 570.17.21 R v Oxford Crown Court, ex p Smith (1990) 154 JP 422, (1990) 2 Admin LR 389, [1990] COD 211..............................................................................................15.28, 18.46 R v Panayi (Andrew) [2019] EWCA Crim 413, [2019] 4 WLR 85, [2019] 2 WLUK 615, [2019] 2 Cr App R (S) 21, [2019] Lloyd’s Rep F.C. 443................................8.55 R v Rance (Piers) [2012] EWCA Crim 2023, [2013] 1 Cr App R (S) 123, [2013] Crim LR 74................................................................................................................. 8.48, 8.57, 16.69 R v Rochester CC, ex p Hobday (1989) 58 P &C R 424, [1989] 2 PLR 38, [1990] JPL 17............................................................................................................................10.37 R v Rochester CC, ex p Hobday [1989] 2 WLUK 42, (1989) 58 P & CR 424, [1989] 2 PLR 38, [1990] JPL 17, [1989] COD 492, QBD.................................................6.04 R v Runnymede BC, ex p Sarvan Singh [1986] 7 WLUK 161, (1987) 151 JP 80, (1987) 53 P & CR 281, [1987] JPL 283, (1987) 151 JPN 124, (1987) 151 LG Rev 250, QBD................................................................................................................10.22 R v Ruttle, ex p Marshall [1988] 7 WLUK 230, (1989) 153 JP 134, (1989) 57 P & CR 299, [1989] JPL 681, (1989) 153 LG Rev 271, DC................................................8.04 R v Sandhu (Major) [1996] 12 WLUK 155, [1998] 1 PLR 17, [1997] JPL 853, [1997] Crim LR 288, [1996] NPC 179, CA.................................................................8.54, 16.13, 16.17, 16.72 R v Secretary of State for the Environment, ex p Davis (1990) 59 P & CR 306, [1989] 3 PLR 73, [1989] COD 569....................................................................................7.05 R v Secretary of State for the Environment, ex p Ealing LBC, 22 April 1999, unreported ..............................................................................................................24.07

xxxiv

Table of Cases R v Secretary of State for the Environment, ex p Hillingdon BC [1991] 11 WLUK 334, 90 LGR 425, (1992) 64 P & CR 105, [1992] 2 PLR 91, [1992] JPL 668, QBD.................................................................................................................10.36, 10.49 R v Secretary of State for the Environment, ex p JBI Financial Consultants [1988] 10 WLUK 265, (1989) 58 P & CR 84, [1989] 1 PLR 61, [1989] JPL 365, [1989] COD 340, [1988] EG 144 (CS), QBD....................................................................7.08 R v Secretary of State for the Environment, ex p Kent [1988] 5 WLUK 23, (1989) 57 P & CR 431, [1988] 3 PLR 17, [1988] JPL 706, (1989) 153 LG Rev 69, [1988] EG 67 (CS)..............................................................................................................7.140 R v Secretary of State for the Environment, ex p Leeds CC [1995] JPL B61................7.134 R v Secretary of State for the Environment, ex p Slough BC (1995) 70 P & CR 560, 94 LGR 376, [1995] JPL 1128................................................................................2.69 R v Secretary of State for the Environment, ex p Three Rivers DC [1983] JPL 730.....6.50 R v Secretary of State for Wales, ex p Rozhon [1993] 4 WLUK 188, 91 LGR 667, [1994] COD 111, [1993] NPC 72, CA...................................................................24.27 R v Sevenoaks DC, ex p Palley [1995] JPL 915, [1994] EG 148 (CS)..........................24.52 R v Sheffield CC, ex p Russell (1994) 68 P & CR 331, [1996] JPL 123, (1995) 159 LG Rev 281...................................................................................................................23.48 R v Simpson (Charles Barclay) [1993] 1 WLUK 863, (1993) 14 Cr App R (S) 602, CA...........................................................................................................................16.31 R v Smith (Nigel) [2014] EWCA Crim 1508, [2014] 6 WLUK 841..............................8.51 R v Stroud DC, ex p Goodenough, Usborne & Tomlin [1980] 6 WLUK 10, (1982) 43 P & CR 59, [1982] JPL 246, DC............................................................................24.52 R v Surrey County Council, ex p Bridge Court Holdings [2000] 2 WLUK 574, [2000] 4 PLR 30, [2000] PLCR 344, (2000) 97(8) LSG 38, QBD......................6.33, 8.04, 23.43 R v Teignbridge DC, ex p Teignmouth Quay Co Ltd [1995] 2 PLR 1, [1995] JPL 828, [1994] EG 203 (CS).............................................................................................5.07, 6.05 R v Wicks (Peter Edward) [1998] AC 92, [1997] 2 WLR 876, [1997] 2 All ER 801..........1.37, 7.43, 8.06, 8.46, 8.62, 10.40, 13.28, 16.38, 24.47, 24.53, 24.64, 24.69 R v Wood (David) [2001] EWCA Crim 1395, [2001] 5 WLUK 665, [2002] 1 PLR 1, [2002] JPL 219........................................................................................................8.33 R (on the application of A) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1253, [2011] 11 WLUK 39, [2012] J.P.L. 579........................24.37 R (on the application of Ardagh Glass Ltd) v Chester CC [2009] EWHC 745 (Admin), [2009] Env LR 34, [2009] NPC 59...........................................................3.08, 9.19, 24.52 R (on the application of Ashley) v Secretary of State for Communities & Local Government [2012] EWCA Civ 559, [2012] 3 WLUK 902, [2012] JPL 1235......7.107 R (on the application of Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin), [2019] 3 WLR 901, [2019] 6 WLUK 86, [2020] 1 Cr App R 2, [2019] JPL 1441, [2019] ACD 84, DC...............................................................................24.29 R (on the application of Bailey) v Brent LBC [2011] EWCA Civ 1586, [2011] 12 WLUK 614, [2012] Eq LR 168, [2012] BLGR 530..........................................4.20 R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 3320 (Admin), [2009] 12 WLUK 438, [2009] NPC 145, QBD.................9.20 R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (Admin), [2007] 2 WLUK 273, QBD.................4.20 R (on the application of Barker) v Brighton and Hove CC [2014] EWHC 233 (Admin), [2014] 2 WLUK 291, [2014] JPL 877, QBD..........................................................3.07 R (on the application of Batchelor Enterprises Ltd) v North Dorset DC [2003] EWHC 3006 (Admin), [2003] 11 WLUK 857, [2004] JPL 1222, QBD.............................19.12 R (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2013] 11 WLUK 125, [2014] Eq LR 60, (2013) 16 CCL Rep 479..........................................................................................................................4.20

xxxv

Table of Cases R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, [2008] 12 WLUK 546, DC................4.20 R (on the application of C & P Reinforcement Ltd) v East Hertfordshire DC [2009] EWHC 3128 (Admin), [2009] 10 WLUK 468, DC................................................16.24 R (on the application of Cal Brown Ltd (t/a CB Advertising Ltd) v Hounslow LBC [2001] EWHC Admin 864, [2002] 2 P & CR 22, [2002] JPL 867, QBD...............18.19 R (on the application of Chant) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1440 (Admin), [2002] 7  WLUK 30, [2002] 3 PLR 100, [2002] 28 EG 127 (CS), (2002) 99(28) LSG 33, QBD.......................15.02 R (on the application of Clear Channel UK Ltd) v Hammersmith and Fulham LBC [2009] EWCA Civ 2142, [2010] 1 EGLR 89, [2010] JPL 751..............................18.20 R (on the application of D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin), [2018] PTSR 1125, [2017] 12 WLUK 638, [2018] JPL 686, QBD...................................................................24.61 R (on the application of Domb) v Hammersmith and Fulham LBC [2009] EWCA Civ 941, [2009] 9 WLUK 96, [2009] BLGR 843, [2010] ACD 20, (2009) 153(34) SJLB 30...................................................................................................................4.20 R (on the application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, [2006] 10 WLUK 296, [2006] IRLR 934...................4.20 R (on the application of Evans) v Basingstoke and Deane BC [2013] EWCA Civ 1635, [2014] 1 WLR 2034, [2013] 11 WLUK 532, [2015] Env LR 4...................9.21 R (on the application of Fidler) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1159, [2011] 9 WLUK 23...............................3.38, 3.39, 3.42, 3.45 R (on the application of France) v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429, [2017] 1 WLR 3206, [2017] 6 WLUK 163, [2017] JPL 1256, CA...................................................................................................................16.73, 23.14, 23.48 R (on the application of Friends of the Earth England, Wales and Northern Ireland Ltd) v Welsh Ministers [2015] EWHC 776 (Admin), [2015] 3  WLUK 803, [2016] Env LR 1, [2015] PTSR D28, QBD............................................................4.06 R (on the application of Gazelle Properties Ltd) v Bath & North East Somerset Coucil [2010] EWHC 3127 (Admin), [2011] JPL 702, [2010] 50 EG 62 (CS)............6.07, 24.50 R (on the application of Hall Hunter Partnership) v First Secretary of State [2006] EWHC 3482, [2007] 2 P & CR 5, [2007] JPL 1023............................................2.08, 7.23 R (on the application of Hammeton) v London Underground Ltd [2002] EWHC 2307 (Admin), [2002] 11 WLUK 223, [2003] JPL 984, [2002] 47 EG 148 (CS), [2002] NPC 139, QBD.......................................................................................................2.62 R (on the application of Hann) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 930, [2001 11 WLUK 268, QBD....................7.192 R (on the application of Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin), [2005] 4 WLUK 601, [2005] 2 P & CR 31, [2005] JPL 1602, QBD......2.62 R (on the application of Health and Safety Executive) v Wolverhampton CC [2012] UKSC 34, [2012] 1 WLR 2264, [2012] 4 All ER 429, [2012] PTSR 1362, [2012] 7 WLUK 527, [2012] BLGR 843, [2013] JPL 43, [2012] 30 EG 74 (CS), (2012) 162 NLJ 1000, (2012) 156(29) SJLB 27................................................................10.14 R (on the application of Holder) v Gedling BC [2013] EWHC 1611 (Admin), [2013] 6 WLUK 279, [2013] JPL 1426, QBD...................................................................19.05 R (on the application of Howell) v Waveney DC [2018] EWHC 3388 (Admin), [2018] 12 WLUK 88, QBD................................................................................................2.62 R (on the application of Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] 2  WLUK 565, [2012] HRLR 13, [2012] Eq LR 447, [2012] ELR 297, [2012] ACD 50, DC.....................................4.20 R (on the application of JM) v Isle of Wight Council [2011] EWHC 2911 (Admin), [2012] Eq LR 34, (2012) 15 CCL Rep 167............................................................4.21 R (n the application of Johnson) v Royal Borough of Windsor and Maidenhead. See Johnson v Windsor and Maidenhead RBC

xxxvi

Table of Cases R (on the application of JRP Holdings Ltd) v Spelthorne BC [2007] EWCA Civ 1122, [2007] 10 WLUK 35, [2008] JPL 696..................................................10.39, 10.61, 24.48 R (on the application of Kaur) v Ealing LBC [2008] EWHC 2062 (Admin), [2008] 7 WLUK 881, QBD................................................................................................4.20 R (on the application of Kemball) v Secretary of State for Communities and Local Government [2015] EWHC 3338 (Admin), [2015] 10 WLUK 415, [2016] JPL 359, QBD................................................................................................................2.71 R (on the application of Khodari) v Kensington and Chelsea RLBC [2017] EWCA Civ 333, [2018] 1 WLR 584, [2017] 5 WLUK 277, [2018] RTR 5, [2017] JPL 1105....19.05 R (on the application of Koumis) v Secretary of State for Communities and Local Government [2012] EWHC 2686 (Admin), [2012] 10 WLUK 205, [2013] JPL 215, QBD................................................................................................................24.61 R (on the application of KP JR Management Co Ltd) v Richmond upon Thames LBC [2018] EWHC 84 (Admin), [2018] 1 WLUK 347, [2018] JPL 838, QBD............2.33 R (on the application of Lambrou) v Secretary of State for Communities and Local Government [2013] EWHC 325 (Admin), [2013] 10 WLUK 171, [2014] JPL 538, QBD................................................................................................................3.63 R (on the application of Lisle-Mainwaring) v Kensington and Chelsea RLBC [2017] EWHC 904 (Admin), [2017] PTSR 850, [2017] 4 WLUK 414, [2017] JPL 940, [2017] ACD 74, QBD........................................................................................2.09, 15.27 R (on the application of Lynes) v West Berkshire DC [2002] EWHC 1828 (Admin), [2003] 1 PLR 13, [2003] JPL 1137....................................................................6.26, 24.51 R (on the application of Maiden Outdoor Advertising Ltd) v Lambeth LBC [2003] EWHC 1224 (Admin), [2003] 5 WLUK 261, [2004] JPL 820........................18.20, 18.31 R (on the application of Majed) v London Borough of Camden [2009] EWCA Civ 1029, [2009] 7 WLUK 130, [2010] JPL 621..........................................................7.140 R (on the application of Manorgale Ltd) v Thames Magistrates Court [2013] EWHC 535 (admin), [2013] 1 WLUK 346, DC..................................................................8.48 R (on the application of Mata) v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin), [2012] 11 WLUK 98, [2013] JPL 546, QBD................................................................................................................7.34 R (on the application of McCarthy) v Basildon DC [2009] EWCA Civ 13, [2009] BLGR 1013, [2009] JPL 1074................................................................................8.69 R (on the application of McKay) v First Secretary of State [2005] EWCA Civ 774, [2005] 1 P & CR 19, [2006] JPL 52.......................................................................7.62 R (on the application of Meany) v Harlow DC [2009] EWHC 559 (Admin), [2009] 3 WLUK 199, QBD................................................................................................4.20 R (on the application of Mid-Suffolk DC) v Secretary of State for Communities & Local Government [2009] EWHC 3649 (Admin).............................................1.41, 24.07 R (on the application of Millgate Developments Ltd) v Wokingham BC [2011] EWCA Civ 1062, [2011] 7 WLUK 139, [2012] 3 EGLR 87, [2012] 39 EG 120, [2012] JPL 258, (2011) 108(29) LSG 20...........................................................................19.12 R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [2017] PTSR 1166, [2003] 10 WLUK 358, [2004] CP Rep 12, [2004] 2 Costs LR 211, [2004] 2 P & CR 22, [2004] 1 PLR 29, [2004] JPL 470, [2003] 43 EG 137 (CS), (2003) 147 SJLB 1272, [2003] NPC 117........................24.28 R (on the application of National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154, [2005] 2 WLUK 523............................................4.20 R (on the application of Newham LBC) v Stratford Magistrates’ Court [2016] EWHC 302 (Admin), [2016] 1 WLUK 406, DC..............................................................6.32, 8.04 R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, [2017] PTSR 1126, [2001] 2 WLUK 1, QBD...............................................................................1.31 R (on the application of O’Brien) v Basildon DC [2006] EWHC 1346, [2007] 1 P & CR 16, (2006) 150 SJLB 1291....................................................................4.16, 8.68, 8.69 R (on the application of Pepper) v Bolsover DC [2000] 10  WLUK 101, (2001) 3 LGLR 20, [2001] BLGR 43, [2001] JPL 804, [2000] EG 107 (CS), QBD............14.51

xxxvii

Table of Cases R (on the application of Perrett) v Secretary of State for Communities & Local Government [2009] EWCA Civ 1365, [2010] 2 All ER 578, [2010] PTSR 1280..24.24 R (on the application of Prokopp) v London Underground Ltd [2003] EWCA Civ 961, [2004] Env LR 8, [2004] JPL 44...............................................................9.17, 9.19, 14.49 R (on the application of Prudential Assurance Ltd) v Sunderland CC [2010] EWHC 1771 (Admin), [2011] JPL 322..........................................................................2.18, 23.35 R (on the application of Rahimian) v Secretary of State for Communities and Local Government [2016] EWHC 1634 (Admin), [2016] 6 WLUK 236, QBD..............7.07 R (on the application of Rapose) v Wandsworth LBC [2010] EWHC 3126 (Admin), [2010] 12 WLUK 130, [2011] JPL 600, [2010] NPC 121, QBD...........................6.48 R (on the application of Redditch Borough Council) v First Secretary of State [2003] EWHC 650 (Admin), [2003] 1 WLUK 578, [2003] 2 P & CR 25, [2004] JPL 21, QBD...........24.08 R (on the application of Renaissance Habitat Ltd) v West Berkshire [2011] EWHC 242 (Admin), [2011] 2  WLUK 547, [2011] 2  EGLR 80, [2011] 22  EG 104, [2011] JPL 1209, [2011] 8 EG 119 (CS), [2011] NPC 20, QBD...........................19.12 R (on the application of Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8, [2003] 1 WLR 348, [2002] 4 All ER 58................................1.43, 23.01, 23.54, 23.56 R (on the application of Romer) v First Secretary of State [2006] EWHC 3480 (Admin), [2006] 12 WLUK 42, [2007] JPL 1354, [2006] 50 EG 84 (CS), QBD..3.64 R (on the application of Russman) v Hounslow LBC [2011] EWHC 931 (Admin).... 23.41, 23.42 R (on the application of Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139, [2001] 7 WLUK 387, [2001] UKHRR 1150, [2002] INLR 55, (2001) 98(34) LSG 40, (2001) 145 SJLB 208........................................4.16 R (on the application of Samuel Smith Old Brewery (Tadcaster)) v Secretary of State for Communities and Local Government [2009] EWHC 3238 (Admin), [2009] 11 WLUK 675, QBD..............................................................................................8.33 R (on the application of Save Britain’s Heritage) v Secretary of State for Communities & Local Government [2011] EWCA Civ 334, [2011] PTSR 1140, [2011] LGR 493..................................................................................................................... 2.04, 2.24, 16.51 R (on the application of Sheridan) v Basildon DC [2011] EWHC 2938 (Admin), [2011] 10 WLUK 293, QBD.......................................................................4.18, 8.69, 9.25 R (on the application of Stern) v Horsham DC [2013] EWHC 1460 (Admin), [2013] 3 All ER 798, [2013] PTSR 1502, [2013] 5 WLUK 3, [2013] ACD 118, QBD.. 7.08, 7.28 R (on the application of Sumption) v London Borough of Greenwich. See Sumption v Greenwich LBC R (on the application of Tait) v Secretary of State for Communities and Local Government [2012] EWHC 643 (Admin), [2012] 2 WLUK 526, QBD................7.180 R (on the application of Tapp) v Thanet DC (2001) 81 P & CR 37, [2001] PLCR 2, [2001] JPL 225 (Note)............................................................................................2.27 R (on the application of Tewkesbury BC) v Secretary of State for Communities, Housing and Local Government [2019] EWHC 1775 (Admin), [2019] PTSR 2144, [2019] 7 WLUK 375, [2020] JPL 62, QBD..................................................24.08 R (on the application of Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737, [2019] PTSR 1794, [2019] 4 WLUK 422, [2019] JPL 1100......24.55 R (on the application of Usher) v Forest Heath DC [2017] EWHC 2511 (Admin), [2017] 10 WLUK 240, QBD.............................................................................. 8.65, 8.66, 8.67 R (on the application of Wandsworth LBC) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 622 (Admin), [2004] P & CR 32, [2004] JPL 291, QBD.............................................................................................24.31 R (on the application of Webb) v Herefordshire District Council [2013] EWHC 1850 (Admin)...................................................................................................................15.14 R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2005] All ER (EC) 323, [2004] ECR I-723, [2004] 1 CMLR 31..................................................................................................9.15

xxxviii

Table of Cases R (on the application of Wilson) v Wychavon DC [2007] EWCA Civ 52, [2007] QB 801, [2007] 2 WLR 798, [2007] 2 WLUK 126, [2007] HRLR 16, [2007] UKHRR 835, [2007] BLGR 540, [2007] 2 P & CR 13, [2007] JPL 1158, [2007] 7 EG 142 (CS), [2007] NPC 15..............................................................................10.08 R (on the application of Woolley Valley Action Group Ltd) v Bath & North East Somerset Council [2012] EWHC 2161 (Admin), [2013] Env LR 8, [2012] ACD 124.............................................................................................................2.04, 2.08, 2.15, 23.57, 24.52 R (on the application of Vieira) v Camden LBC [2012] EWHC 287 (Admin), [2012] 2 WLUK 620, QBD................................................................................................7.140 R (on the application of Wrenn) v Wiltshire Council [2011] EWHC 2198 (Admin).....2.71 R (on the application of XPL Ltd) v Harlow Council [2016] EWCA Civ 378, [2016] 4 WLUK 307, [2016] JPL 878................................................................................12.33 Ragsdale v Creswick (1984) 148 JP 564, (1984) 271 EG 1268, [1984] JPL 883, DC...8.09 Rahman v Sterling Credit Ltd [2001] 1 WLR 496, [2000] 7 WLUK 544, (2001) 33 HLR 63, (2000) 97(32) LSG 37, (2000) 144 SJLB 243, [2000] NPC 84, (2001) 81 P & CR DG4, CA..............................................................................................19.10 Reigate & Banstead BC v Drift Bridge Garage Ltd [1994] JPL B133...........................6.63 Rhymney Valley DC v Secretary of State for Wales [1985] 1 WLUK 580, [1985] JPL 27...7.41, 24.62 Richmond upon Thames LBC v Secretary of State for the Environment (1972) 22 EG 1555....7.15 Richmond upon Thames LBC v Secretary of State for the Environment, Transport and the Regions [2000] 3 WLUK 825, [2000] 2 PLR 115, [2001] JPL 84, [2000] EG 47 (CS), (2000) 97(14) LSG 44, QBD....................................................................2.45 Ringroad Investments & Courtburn v Secretary of State for the Environment [1979] 7 WLUK 241, (1980) 40 P & CR 99, [1979] JPL 770, DC....................................24.16 Royal Borough of Kingston upon Thames v National Solus Sites [1993] 6 WLUK 151, (1994) 158 JP 70, [1994] JPL 251, [1994] COD 78, (1993) 157 JPN 801, (1994) 158 LG Rev 85, DC.....................................................................................18.26 RSPCA v Johnson [2009] EWHC 2702 (Admin), [2009] 10 WLUK 430, DC.......3.49, 17.11, 18.26 Runnymede BC v Ball [1986] 1 WLR 353, [1986] 1 All ER 629, [1986] JPL 288..1.03, 14.06 Runnymede BC v Harwood [1994] 2 WLUK 89, 92 LGR 561, (1994) 6 Admin LR 697, (1994) 68 P & CR 300, [1994] 1 PLR 22, (1995) 159 LG Rev 345, [1994] EG 23 (CS), (1994) 91(14) LSG 48, (1994) 138 SJLB 59, CA..............................14.10 Runnymede BC v Smith [1986] 2 WLUK 310, (1987) 53 P & CR 132, [1986] JPL 592, Ch D................................................................................................................14.05 Rydon Homes Ltd v Secretary of State for the Environment and Sevenoaks DC [1995] 6 WLUK 137, (1995) 70 P & CR 657, [1997] JPL 145, QBD...............................7.172 S Sage v Secretary of State for the Environment, Transport & the Regions [2003] UKHL 22, [2003] 1 WLR 983, [2003] 2 All ER 689.....................................................2.17, 2.65, 3.05, 21.08 Sarodia v Redbridge LBC [2017] EWHC 2347 (Admin), [2017] 9 WLUK 207, QBD.......1.37, 6.19, 7.189 Save Britain’s Heritage v Secretary of State for the Environment sub nom Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, [1991] 2 All ER 10, [1991] 2 WLUK 360, 89 LGR 809, (1991) 3 Admin LR 437, (1991) 62 P & CR 105, [1991] 3 PLR 17, (1991) 155 LG Rev 429, [1991] EG 24 (CS), (1991) 88(15) LSG 31, (1991) 135 SJ 312, HL..................................................................24.34 Scarborough BC v Adams & Adams (1983) 147 JP 449, (1984) 47 P & CR 133, [1983] JPL 673.....................................................................................................6.34, 6.35 Scott Markets Ltd v Waltham Forest LBC [1979] 2 WLUK 177, 77 LGR 565, (1979) 38 P & CR 597, [1979] JPL 392, CA.....................................................................10.07 Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, [1976] 3 WLR 641, [1976] 3 All ER 665, [1976] 10 WLUK 91, (1976) 120 SJ 735, HL...................................................................................................................4.20

xxxix

Table of Cases Secretary of State for the Environment v Holding & Thurrock BC [2002] EWCA Civ 226, [2002] 2 PLR 43, [2002] JPL 1278.................................................................3.02 Secretary of State for the Environment, Transport and the Regions v Hughes [2000] 1 WLUK 363, (2000) 80 P & CR 397, [2000] 1 PLR 76, [2000] JPL 826, [2000] EG 9 (CS), (2000) 97(5) LSG 35, (2000) 144 SJLB 59, CA..................................2.35 Seddon Properties Ltd v Secretary of State for the Environment 1978] 5 WLUK 182, (1981) 42 P & CR 26, (1978) 248 EG 951, [1978] JPL 835, QBD........................24.33 Shepherd and Love v Secretary of State for the Environment and Ashford BC [1992] 1 WLUK 370, [1992] JPL 827................................................................................6.15 Sheppard v Secretary of State for the Environment [1974] 1 WLUK 540, (1974) 233 EG 1167, [1975] JPL 352.......................................................................................2.58 Sherwood & Sherwood v Secretary of State for the Environment [1995] 8 WLUK 102, [1996] JPL 925, QBD.....................................................................................17.21 Shimizu (UK) Ltd v Westminster CC [1997] 1 WLR 168, [1997] 1 All ER 481, [1997] 2 WLUK 113, [1997] RVR 128, [1997] JPL 523, (1997) 94(10) LSG 31, (1997) 147 NLJ 218, (1997) 141 SJLB 56, [1997] NPC 11, HL.....................16.03, 16.08, 16.49 Shopsearch UK Ltd v Greenwich LBC [2009] 5 WLUK 196, [2009] RVR 198, [2009] JPL 1375.................................................................................................................11.22 Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2001] QB 59, [2000] 3 WLR 511, [2000] 2 WLUK 950, (2000) 80 P & CR 516, [2000] 2 PLR 84, [2000] JPL 789, [2000] EG 31 (CS), (2000) 97(10) LSG 38, [2000] NPC 19, CA......................................................................16.04 Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 102, [2000] JPL 1025, [2000] EG 43 (CS).....................2.07, 2.08 Slough BC v Secretary of State for the Environment[1995] 5 WLUK 302, 94 LGR 376, (1995) 70 P & CR 560, [1995] 3 PLR 28, [1995] JPL 1128, [1996] COD 174, (1995) 159 LG Rev 969, [1995] EG 95 (CS), (1995) 92(23) LSG 32, (1995) 139 SJLB 130, [1995] NPC 96, CA........................................................................2.69 Slough Estates Ltd v Slough BC (No 1) [1971] AC 958, [1970] 2 WLR 1187, [1970] 2 All ER 216, [1970] 5 WLUK 12, 68 LGR 669, (1970) 21 P & CR 573, (1970) 114 SJ 435, HL.......................................................................................................2.69 Smith v Secretary of State for the Environment (1987) The Times, 6 July 1987....24.16, 24.17 Smith v Secretary of State for the Environment [1982] 12 WLUK 192, (1984) 47 P & CR 194, [1983] JPL 462, QBD...............................................................................2.54 Smith v Secretary of State for the Environment [1994] JPL 640...................................23.10 Smout v Welsh Ministers [2011] EWCA Civ 1750, [2011] 11 WLUK 868...............9.13, 9.14 Somak Travel Ltd v Secretary of State for the Environment [1987] 5 WLUK 176, (1988) 55 P & CR 250, [1987] JPL 630, QBD.......................................................6.13 South Buckinghamshire DC v Porter (No 1) sub nom Wrexham County BC v Berry [2001] EWCA Civ 1549, [2002] 1  WLR 1359, [2002] 1 All ER 425, [2001] 10 WLUK 381, [2002] BLGR 443, [2002] 2 P & CR 16, [2002] 3 PLR 1, [2002] JPL 608, (2001) 98(46) LSG 35......................................................................14.14, 14.15 South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953, [2004] 4 All ER 775, [2004] 7 WLUK 44, [2005] 1 P & CR 6, [2004] 4 PLR 50, [2004] 28 EG 177 (CS), (2004) 101(31) LSG 25, (2004) 148 SJLB 825, [2004] NPC 108, HL..........................................................................................................7.187 South Cambridgeshire DC v Gammell [2005] EWCA Civ 1429, [2006] 1 WLR 658, [2005] 10 WLUK 916, [2006] BLGR 193, [2006] JPL 873............................14.16, 14.44 South Cambridgeshire DC v Gammell [2008] EWCA Civ 1159, [2009] BLGR 141, (2008) 152 (42) SJLB 31........................................................................................4.19 South Hams DC v [1995] 7 WLUK 88, [1996] JPL 761, [1995] NPC 133, CA............14.17 South Lakeland DC v Secretary of State for the Environment [1992] 2 AC 141, [1992] 2 WLR 204, [1992] 1 All ER 573, [1992] 1 WLUK 829, 90 LGR 201, (1992) 64 P & CR 128, [1992] 1 PLR 143, (1992) 156 LG Rev 602, (1992) 142 NLJ 159, (1992) 136 SJLB 61, [1992] NPC 16, HL.........................................................4.06, 17.21 Spackman v Secretary of State for the Environment [1977] 1 All ER 257, [1976] 10 WLUK 75, (1977) 33 P & CR 430, [1977] JPL 174, QBD...............................2.63

xl

Table of Cases Sporrong & Lönroth v Sweden (A/52) (1983) 5 EHRR 35............................................4.14 St Anselm Development Co Ltd v First Secretary of State [2003] EWHC 1592 (Admin), [2003] 6 WLUK 346, [2004] RTR 10, [2004] 1 P & CR 24, [2004] JPL 33, QBD...............................................................................................................3.26, 6.18 St Hermans Estate Co v Havant & Waterloo Urban DC (1970) 69 LGR 286................23.55 Staffordshire CC v Challinor [2007] EWCA Civ 864, [2007] 8 WLUK 157, [2008] 1 P & CR 10, [2008] JPL 392, [2007] NPC 101...........................................................6.22 Staffordshire Moorlands DC v Cartwright [1991] 5 WLUK 308, (1992) 63 P & CR 285, [1992] JPL 138, CA........................................................................................2.69 Stevenage BC v Secretary of State for Communities and Local Government [2010] EWHC 1289 (Admin), [2010] 6 WLUK 39, QBD.................................................2.68 Stevens v Bromley LBC [1972] Ch 400, [1972] 2 WLR 605, [1972] 1 All ER 712.. 6.34, 10.44 Stewart’s Application for Judicial Review, Re [2003] NICA 4, [2003] NI 149, [2003] 1 WLUK 737, CA..............................................................................................7.55, 7.174 Stockton on Tees BC v Secretary of State for Communities and Local Government [2010] EWHC 1766 (Admin), [2010] 3 WLUK 675, [2011] JPL 183, QBD........2.25 Stoke-on-Trent CC v B & Q (Retail) Ltd [1984] AC 754, [1984] 2 WLR 929, [1984] 2 All ER 332, [1984] 5 WLUK 173, 82 LGR 473, (1984) 128 SJ 364, (1985) 4 Tr L 9, HL.............................................................................................................14.04, 14.05 Stoke-on-Trent CC v W & J Wass Ltd (No 2) [1992] 1 WLUK 388, [1992] 2 PLR 22, HC...14.34 Sumal & Sons (Properties) Ltd v Newham LBC [2012] EWCA Crim 1840, [2013] 1 WLR 2078, [2012] 8 WLUK 109, [2012] Lloyd’s Rep FC 692, [2012] HLR 46, [2012] CTLC 206, [2012] 2 P & CR DG19............................................................8.57 Sumption v Greenwich LBC [2007] EWHC 2776 (Admin), [2007] 11 WLUK 804, [2008] 1 P & CR 20, [2008] JPL 783, QBD....................................................16.04, 23.23 Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568, [2006] JPL 886...................................................................................................................3.22 Swindon Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1677 (Admin)............................................................23.39 T Taggart’s Application for Judicial Review, Re [2011] NIQB 82, [2011] 9 WLUK 531, QBD........................................................................................................................3.07 Tandridge DC v Delaney [1999] 8 WLUK 28, [2000] 1 PLR 11, QBD.........................14.13 Tandridge DC v Verrechia [2000] QB 318, [1999] 3 WLR 1090, [1999] 3 All ER 247, [1999] 3 WLUK 577, [1999] 3 PLR 27, [2000] PLCR 1, (1999) 96(24) LSG 38, CA........................................................................................................................6.19, 6.24 Tanna v Richmond LBC [2016] EWHC 1268 (Admin), [2016] 3 WLUK 474, QBD...3.49 Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744, [2006] 12 WLUK 571, [2007] 2 P & CR 7, (2007) 151 SJLB 64, [2007] NPC 4...............................7.36 Tarmac Heavy Building Materials UK Ltd v Secretary of State for the Environment, Transport & the Regions (209) 79 P & CR 260, [2000] PLCR 157, [1999] EG 97 (CS).........................................................................................................................1.37 Teignbridge DC v First Secretary of State [2006] EWHC 2745 (Admin)......................15.07 Tesco Stores Ltd v North Norfolk DC (1999) 78 P & CR 359, [1999] JPL 920, [1999] EG 39 (CS)..............................................................................................................23.55 Test Valley Investments Ltd v Tanner (1964) 15 P & CR 279, [1964] Crim LR 62, DC......................................................................................................................8.09, 12.04 Tewkesbury BC v Keeley [2004] EWHC 2954 (QB), [2005] JPL 831..........................2.15 Texas Homecare Ltd v Lewes DC [1985] 10 WLUK 147, (1986) 51 P & CR 205, [1986] 1 EGLR 205, (1985) 277 EG 421, [1985] RVR 195, [1986] JPL 50..........10.49 Thames Heliport v London Borough of Tower Hamlets (1997) 74 P & CR 164, [1997] 2 PLR 72, [1997] JPL 448.................................................................................2.03, 23.55 Thomas (T/A RT Properties) v National Assembly for Wales [2009] EWHC 1734 (Admin)...................................................................................................................18.18 Thomas David (Porthcawl) Ltd v Penybont Rural DC [1972] 1 WLR 1526, [1972] 3 All ER 1092, 71 LGR 89...................................................................................2.14, 3.10

xli

Table of Cases Thrasyvoulou v Secretary of State for the Environment [1990] 2  AC 273, [1990] 2 WLR 1, [1990] 1 All ER 65.................................................................1.39, 7.127, 23.56 Thurrock BC v Secretary of State for the Environment [2002] EWCA Civ 226, [2002] 2 PLR 43, [2002] JPL 1278................................................................................2.34, 3.02, 3.22, 3.23 Tidswell v Secretary of State for the Environment (1976) 34 P & CR 152, (1976) 241 EG 83, [1977] JPL 104...........................................................................................6.04 Tile Wise Ltd v South Somerset DC [2010] EWHC 1618 (Admin), [2011] PTSR 381, [2010] 6 WLUK 328, DC.......................................................................................18.13 Times Investment Ltd v Secretary of State for the Environment [1990] 6 WLUK 106, (1991) 61 P & CR 98, [1990] 3  PLR 111, [1991] JPL 67, [1991] COD 158, (1991) 155 LG Rev 870, CA...................................................................................24.34 Toni & Guy (South) Ltd v Hammersmith and Fulham LBC [2009] EWHC 203 (Admin), [2009] 2 WLUK 265, [2009] 7 EG 91 (CS), [2009] 1 P & CR DG25, QBD........................................................................................................................15.24 Trim v North Dorset DC [2010] EWCA Civ 1446, [2011] 1 WLR 1901, [2011] PTSR 1110....................................................................................................................1.37, 3.28, 12.34, 24.64 Trott v Broadland DC [2011] EWCA Civ 301, [2011] 3 WLUK 583.....................14.10, 14.11 Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85, [2017] 1 All ER 307, 2016 SC (UKSC) 25, 2016 SLT 9, 2016 SCLR 67, [2015] 12 WLUK 525, [2016] JPL 555, 2016 GWD 1-26........2.69, 2.72, 2.73 U UKI (Kingsway) Ltd v Westminster CC [2018] UKSC 67, [2019] 1 WLR 104, [2019] 2 All ER 421, [2019] PTSR 128, [2018] 12 WLUK 267, [2019] RA 53, [2019] 1 P & CR DG17...................................................................................................6.36, 6.41 V Val Wyatt Marines v Wokingham BC [2017] 4 WLUK 360, [2017] PAD 27................2.08 Vale of White Horse v Treble-Parker [1997] JPL 660, [1997] JPL 660, [1996] EG 40 (CS).........................................................................................................................24.47 Valentina of London v Secretary of State for the Environment and Islington LBC [1992] 1 WLUK 412, [1992] JPL 1151, [1992] EG 77 (CS), QBD.......................6.18 Vergos v Greece (application 65501/01) [2004] 6 WLUK 540, (2005) 41 EHRR 41....4.10 Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin), [2007] 4 WLUK 457, [2007] NPC 50, QBD......................................................................7.50 W Wallington v Secretary of State for the Environment [1990] 11 WLUK 77, (1991) 62 P & CR 150, [1991] 1 PLR 87, [1991] JPL 942, [1990] EG 134 (CS), CA...........2.37 Walsall Metropolitan BC v Secretary of State for Communities and Local Government [2013] EWCA Civ 370, [2013] 2 WLUK 128, [2013] JPL 1183...........................24.20 Walter Lilly & Co v Clin. See Clin v Walter Lilly & Co Ltd Walton v Scottish Ministers [2012] UKSC 44, [2013] PTSR 51, [2013] JPL 323.........24.34 Wandsworth LBC v Adrenalin Advertising Ltd [2011] EWHC 1040 (Admin), [2011] 3 WLUK 927, [2011] LLR 675, [2011] JPL 1308, DC..........................................18.20 Wandsworth LBC v Asghar [1989] EG 95 (CS).............................................................8.70 Wandsworth LBC v South Western Magistrates’ Court [2007] EWHC 1079 (Admin), [2007] 5 WLUK 30, [2007] NPC 60, DC...............................................................18.03 Wandsworth LBC v Winder (No 1) [1985] AC 461, [1984] 3 WLR 1254, [1984] 3 All ER 976...............................................................................................................1.37, 24.64 Watling v King’s Lynn and West Norfolk BC [2016] 5 WLUK 268, [2016] PAD 30....3.41 Waverley BC v Hilden [1988] 1 WLR 246, [1988] 1 All ER 807, [1987] 6 WLUK 45, 86 LGR 271, [1988] JPL 175, (1988) 152 LG Rev 190, (1988) 132 SJ 192..........24.64 Wealden DC v Secretary of State for the Environment [1987] 12 WLUK 155, (1988) 56 P & CR 286, [1988] 1 PLR 87, [1988] 08 EG 112, [1988] JPL 268, CA.........2.39

xlii

Table of Cases Wells v Minister of Housing and Local Government [1967] 1 WLR 1000, [1967] 2 All ER 1041, [1967] 5 WLUK 39, (1967) 131 JP 431, 65 LGR 408, (1967) 18 P & CR 401, (1967) 111 SJ 519, CA......................................................................23.51, 23.52 Welwyn Hatfield Council v Secretary for State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304, [2011] 2 WLR 905, [2011] 4 All ER 851, [2011] PTSR 825, [2011] 4 WLUK 139, [2011] BLGR 459, [2011] 2 P & CR 10, [2011] 2 EGLR 151, [2011] JPL 1183, [2011] 15 EG 93 (CS), (2011) 108(16) LSG 16, (2011) 161 NLJ 550, (2011) 155(14) SJLB 30, [2011] NPC 40 SC.....2.66, 2.68, 3.01, 3.14, 3.30, 3.33, 3.34, 3.35, 3.36, 3.37, 3.38, 3.39, 3.42, 3.45, 3.46, 3.55, 6.15 Wendy Fair Markets Ltd v Secretary of State for the Environment [1995] 2 WLUK 359, [1996] JPL 649, (1995) 159 LG Rev 769, (1995) 139 SJLB 93, CA......10.16, 24.20 West v First Secretary of State [2005] EWHC 729 (Admin), [2005] 4 WLUK 636, [2005] NPC 58, QBD..............................................................................................7.51 Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204, 77 LGR 185, (1978) 38 P & CR 7.......................................................................................................1.42, 23.52 Westminster CC v Addbins Ltd [2012] EWHC 3716 (QB), [2013] JPL 654..........14.44, 18.59 Westminster CC v British Waterways Board [1985] AC 676, [1984] 3 WLR 1047, [1984] 3 All ER 737, [1984] 10 WLUK 273, 83 LGR 113, (1985) 49 P & CR 117, (1984) 272 EG 1279, [1985] JPL 102, (1984) 81 LSG 3501, (1984) 128 SJ 783, HL...................................................................................................................2.26 Westminster CC v Davenport [2011] EWCA Civ 458, [2011] 4 WLUK 568, [2011] JPL 1325, [2011] NPC 45.......................................................................................2.54 Westminster CC v Moran [1998] 6 WLUK 219, (1999) 77 P & CR 294, [1998] 4 PLR 79, [1999] JPL 41, DC............................................................................................18.20 Westminster CC v Secretary of State for Communities and Local Government [2013] EWHC 23 (Admin), [2013] 1 WLUK 268, [2013] JPL 842...............................2.34, 3.23, 23.29, 23.38 Wetsminster CC v Great Portland Estates plc [1985] AC 661, [1984] 3 WLR 1035, [1984] 3 All ER 744, HL.........................................................................................4.08 Westminster CC v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin), [2013] 3 WLUK 768, QBD.................................................19.05 Westminster CCl v Secretary of State for Housing, Communities and Local Government [2019] EWHC 176 (Admin), [2019] PTSR 1510, [2019] 2 WLUK 16, [2019] JPL 764, QBD.......................................................................................18.19 White v South Derbyshire DC [2012] EWHC 3495 (Admin), [2013] PTSR 536, [2013] ACD 37........................................................................................................1.37 Whitfield v Gowling (1974) 28 P & CR 386, 72 LGR 765, (1974) 118 SJ 716, DC.....8.04 William Boyer (Transport) Ltd v Secretary of State for the Environment [1994] 11 WLUK 306, (1995) 69 P & CR 630, [1994] EG 199 (CS).............................3.61, 3.62 Williams v Minister of Housing & Local Government [1967] 7 WLUK 5, 65 LGR 495, (1967) 18 P & CR 514, (1967) 111 SJ 559, DC.............................................2.39 Williams v Secretary of State for Communities and Local Government [2009] EWHC 475 (Admin), [2009] 2 WLUK 626, QBD..............................................................24.28 Wilson v West Sussex CC [1963] 2 QB 764, [1963] 2 WLR 669, [1963] 1 All ER 751, [1963] 1 WLUK 972, (1963) 127 JP 243, 61 LGR 287, (1963) 14 P & CR 301, [1963] RVR 278, (1963) 107 SJ 114, CA...............................................................2.69 Winchester CC v Secretary of State for Communities and Local Government [2007] EWHC 2303 (Admin), [2007] 9 WLUK 328, [2008] 1 P & CR 15, [2008] JPL 315, (2007) 104(38) LSG 32, QBD........................................................................2.40 Winfield v Secretary of State for Communities & Local Government [2012] EWCA Civ 1415, [2013] 1 WLR 948, [2012] 11 WLUK 178, [2013] JPL 455, [2012] 46 EG 120 (CS)..................................................................................................3.24, 18.20 Wipperman v Barking LBC [1965] 11 WLUK 28, (1966) 130 JP 102, 64 LGR 97, (1966) 17 P & CR 225, DC.....................................................................................23.29

xliii

Table of Cases Wokingham BC v Scott [2019] EWCA Crim 205, [2019] 1 WLUK 440..................8.10, 8.11, 8.12, 8.14 Wolverhampton CC v Persons Unknown [2018] EWHC 3777 (QB), [2018] 10 WLUK 779..........................................................................................................................14.21 Worthing BC v Secretary of State for the Environment (1992) 63 P & CR 446, [1992] 2 PLR 40, [1992] JPL 353......................................................................................3.13 Wrexham County BC v Berry see South Buckinghamshire DC v Porter (No 1) Wyatt Bros (Oxford) Ltd v Secretary of State for the Environment, Transport and The Regions [2001] EWCA Civ 1560, [2002] PLCR 18, (2001) 98 (43) LSG 35.....6.11, 7.34 Wycombe DC v Wells [2005] EWHC 1012 (Admin), [2005] JPL 1640, [2005] NPC 75............................................................................................................................8.33 Y Ynys Mon BC v Secretary of State for Wales [1992] 1 WLUK 438, [1992] 3 PLR 1, [1992] COD 410, Ch D...........................................................................................24.16 Young v Secretary of State for the Environment [1983] 2 AC 662. [1983] 3 WLR 382, [1983] 2 All ER 1105, [1983] 7 WLUK 285, 81 LGR 779, (1984) 47 P & CR 165, (1984) 269 EG 219, [1983] JPL 667, (1983) 127 SJ 537, HL........................2.55 Young v Secretary of State for the Environment [1990] 2 WLUK 275, (1990) 60 P & CR 560, [1990] 1 PLR 82, [1990] JPL 673, (1990) 154 LG Rev 474, CA............24.08 Z ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [2011] 2 WLR 148, [2011] 2 All ER 783, [2011] 2 WLUK 49, [2011] 1 FLR 2170, [2011] 1 FCR 221, [2011] HRLR 15, [2011] UKHRR 371, [2011] Imm AR 395, [2011] INLR 369, [2011] Fam Law 468, (2011) 108(7) LSG 17, (2011) 155(5) SJLB 30, SC....................................................................................4.18

xliv

Table of Statutes

A Ancient Monuments and Archaeological Areas Act 1979.... 16.62, 16.63 s 1.................................................. 16.57 2............................................. 1.27, 16.57 (1)...................................... 16.57, 16.58 (3)(b)......................................... 16.57 (6)...................................... 16.57, 16.58 (10)........................................... 16.57 9ZC............................................. 16.58 (3), (5).................................. 16.58 9ZC–9ZM................................... 1.27 9ZF(2)......................................... 16.59 9ZG............................................. 16.59 9ZI(2).......................................... 16.60 Pt II (ss 33–41).............................. 16.61 s 42................................................ 1.27 (1)–(3)..................................... 16.64 (6)–(8)..................................... 16.65 C Caravans Act (Northern Ireland) 1963 s 3(3)............................................. 23.33 Caravan Sites and Control of Development Act 1960 s 3(3)............................................. 23.33 33................................................ 23.56 Charging Orders Act 1979 s 1.................................................. 22.20 Children Act 2004............................. 14.17 s 11................................................ 4.18 (2)(a)....................................... 4.18 Contempt of Court Act 1981 s 14(1), (2)..................................... 14.44 Control of Pollution Act 1974 s 5(2)............................................. 23.33 Coroners and Justice Act 2009 s 120.............................................. 16.71 Countryside and Rights of Way Act 2000 s 85................................................ 4.06 Criminal Damage Act 1971.............. 16.42 s 4(2)............................................. 16.42 Criminal Justice Act 2003 s 142(1)......................................... 8.47 143(1)–(3)................................... 8.51 144(1)......................................... 8.51 154(1)......................................... 16.53 164(1)......................................... 8.50 (2)–(4)................................... 8.47

Criminal Procedure and Investigations Act 1996 s 5, 6.............................................. 8.45 D Data Protection Act 1998.................. 5.52 Deregulation Act 2015...................... 2.48 E Electricity Act 1989 s 36................................................ 21.02 Enterprise and Regulatory Reform Act 2013...................... 1.13, 2.24, 16.52 s 61................................................ 16.73 Sch 17 para 1......................................... 16.54 Environment Act 1995...................... 17.27 s 67................................................ 1.09 97................................................ 17.27 Sch 9 para 14....................................... 20.02 Environmental Protection Act 1990.. 21.15 s 36(2)(a)....................................... 23.33 Equality Act 2010 s 149......................................... 4.19, 14.17 F Food and Environment Protection Act 1985 Pt II (ss 5–15)................................ 18.41 Fraud Act 2006 s 1(1)............................................. 5.20 2(1)............................................. 5.21 (2)–(4)....................................... 5.22 3.................................................. 5.23 Freedom of Information Act 2000.... 5.51 s 2(2)............................................. 5.53 10, 12, 14.................................... 5.51 Pt II (ss 21–44).............................. 5.52 s 30(1), (2)..................................... 5.52 31, 36.......................................... 5.52 39............................................. 5.52, 5.53 40–42.......................................... 5.52 G Greater London Council (General Powers) Act 1973 s 25................................................ 2.48 25A, 25B.................................... 2.48 Growth and Infrastructure Act 2013. 1.13 s 26, 27.......................................... 21.01

xlv

Table of Statutes H Highways Act 1980 s 132.............................................. 18.39 (1)......................................... 18.39 Historic Environment (Wales) Act 2016.......................................... 1.14 s 12................................................ 16.58 13................................................ 16.60 Housing Act 1974............................. 8.57 s 126.............................................. 19.02 (1), (2)................................... 19.03 Housing Act 2004............................. 8.57 Housing and Planning Act 2016....... 1.13 Human Rights Act 1998..............4.10, 14.14, 14.17, 24.38, 24.53 s 6(1)............................................. 4.10 I Interpretation Act 1978 s 7.................................................. 6.39 Interpretation Act (Northern Ireland) 1954 s 24(2)........................................... 6.40 J Justice (Northern Ireland) Act 2002 s 37................................................ 8.10 L Land Compensation Act 1961 s 2, 4.............................................. 10.51 5 r 4............................................. 15.04 Land Registration Act 1925 s 113, 129...................................... 5.41 Land Registration Act (Northern Ireland) 1970 Sch 11 entry 27(d)................................. 6.43 Lands Tribunal and Compensation Act (Northern Ireland) 1964..... 10.51 Law of Property Act 1925................. 22.22 Legal Aid, Sentencing and Punishment of Offenders Act 2012.......................................... 8.47 s 85.......................................... 5.11, 17.10, 21.10, 21.17 Legislative and Regulatory Reform Act 2006.................................... 18.32 s 21(2)........................................... 4.44 22................................................ 4.45 Limitation Act 1980.......................... 22.17 s 8.................................................. 19.09 36................................................ 19.10 (1)........................................... 19.09 Local Government Act 1972............. 24.32 s 100A(4)...................................... 5.48 100C, 100D................................ 5.48

222........................................ 8.70, 14.03, 14.04, 14.05, 14.06, 14.07, 14.10, 14.11, 14.21, 14.24, 14.25, 14.48, 16.41, 18.59 224.............................................. 14.24 233........................................... 6.36, 6.39 (2), (4)................................... 6.39 250.............................................. 7.161 (2)......................................... 5.59 (5)......................................... 7.190 Sch 12A......................................... 5.48 Local Government Act 1974 s 36................................................ 8.71 Local Government (Miscellaneous Provisions) Act 1976 s 16............................................ 5.11, 5.19, 10.47, 11.32 (1)........................................... 5.19 (2)........................................... 5.20 Localism Act 2011............... 1.13, 3.42, 3.44, 7.13, 7.16, 8.27, 17.11, 18.32, 18.47 s 123.............................................. 7.13 126(2)......................................... 12.32 Sch 25 Pt 19.......................................... 18.32 London Local Authorities Act 1995.. 18.32 M Magistrates’ Courts Act 1980 s 111(2)......................................... 15.28 127.............................................. 18.26 Marine and Coastal Access Act 2009.......................................... 18.41 N National Heritage Act 1983 s 33................................................ 16.54 (2A)................................. 16.20, 16.40 National Parks and Access to the Countryside Act 1949 s 11A(1), (2).................................. 4.06 Natural Environment and Rural Communities Act 2006 s 40(1)........................................... 4.06 Neighbourhood Planning Act 2017... 1.13 Norfolk and Suffolk Broads Act 1988 s 17A(1)........................................ 4.06 P Planning Act 2008....................... 1.13, 16.10, 16.29, 17.12, 17.15, 21.01, 21.02, 23.36 Pt 3 (ss 15–30).............................. 21.01 s 31................................................ 21.01 32(2), (3)..................................... 21.01

xlvi

Table of Statutes Planning Act 2008 – contd s 33(1)........................................... 21.11 53........................................... 2.54, 21.02 Pt 7 (ss 120–159).......................... 21.02 s 145(4)......................................... 21.06 160............................. 1.27, 21.06, 21.07, 21.11, 21.13, 21.17, 21.19 (1)......................................... 21.04 (2).................................. 21.06, 21.10 161............................. 1.27, 21.06, 21.07, 21.11, 21.13, 21.17, 21.19 (1)......................................... 21.05 (2)......................................... 21.06 (3).................................. 21.06, 21.10 162.............................................. 1.27 (1), (2)................................... 21.07 (3), (4)................................... 21.09 163.............................................. 1.27 (1)–(3)................................... 21.11 164.............................................. 1.27 (1), (2), (4)............................ 21.11 (5)......................................... 21.12 165.............................................. 1.27 (1)–(6)................................... 21.12 166......................................... 1.27, 21.12 167......................................... 1.27, 21.09 (1)–(3)................................... 21.13 (4)....................... 21.13, 21.14, 21.15 (6)......................................... 21.14 168.............................................. 1.27 (1), (2)................................... 21.14 (4), (5)................................... 21.16 169.............................................. 1.27 (1)–(5)................................... 21.17 170.............................................. 1.27 (1)......................................... 21.18 (2)(a)..................................... 21.18 (6), (7)................................... 21.18 171......................................... 1.27, 21.09 (1)–(3)................................... 21.19 173.............................................. 21.03 196.............................................. 16.29 Pt 11 (ss 205–225)........................ 22.01 s 205(2)......................................... 22.01 206.............................................. 22.02 218......................................... 1.27, 22.01 227.............................................. 21.12 Sch 10............................................ 16.29 Planning Act (Northern Ireland) 2011............................. 1.14, 7.03, 6.08, 8.38, 16.50, 20.01 s 1.................................................. 6.26 6(4)............................. 4.04, 15.10, 18.08 23................................................ 16.10 (1)........................................... 2.02

Planning Act 2008 – contd s 23(2)........................................... 2.06 (3)........................................... 2.16 (a)....................................... 2.16 (b)....................................... 2.22 (c), (d), (e).......................... 2.37 (f), (g)................................. 2.23 (6)...................................... 2.47, 18.57 24................................................ 7.23 (1)........................................... 2.49 (2)........................................... 2.54 (3)........................................... 2.54 (4)........................................... 2.54 (5)........................................... 2.54 26........................................... 2.50, 13.08 32................................................ 2.50 (4)........................................... 2.57 33................................................ 2.50 34................................................ 2.50 35................................................ 2.50 36................................................ 2.50 37................................................ 2.50 38................................................ 2.50 39................................................ 2.50 (10)......................................... 15.18 43........................................... 1.26, 13.02 (1).................................... 13.03, 13.06 (2)........................................... 13.11 (3)........................................... 13.09 (4).................................... 13.10, 13.12 (5)......................... 13.08, 13.25, 13.29 (6)........................................... 13.26 (7)........................................... 13.26 (8)........................................... 13.29 (9).................................... 13.09, 13.12 (10)......................................... 13.12 (11).................................. 13.09, 13.18 (12)......................................... 13.07 44........................................... 1.26, 13.02 (1)........................................... 13.18 (2)........................................... 13.15 (3)........................................... 13.18 (4)........................................... 13.19 (5)........................................... 13.21 (6)........................................... 13.20 (7)......................... 13.21, 13.28, 16.38 45................................................ 2.56 52................................................ 2.56 54................................................ 12.15 55................................................ 12.15 58(1)(b), (c)................................ 13.04 63(2)........................................... 2.60 64................................................ 15.17 (1)........................................... 15.18 (2)........................................... 15.19 (4)........................................... 15.20 (5), (6)..................................... 15.22

xlvii

Table of Statutes Planning Act 2008 – contd s 65(1)........................................... 15.19 (2)–(5)..................................... 15.21 66................................................ 15.17 68........................................... 1.27, 15.08 (1)........................................... 15.09 (2).................................... 15.10, 15.11 69................................................ 1.27 70........................................... 1.27, 15.12 71........................................... 1.27, 15.12 72................................................ 1.27 73........................................... 1.27, 12.15 (1)........................................... 15.02 73A............................................. 12.15 74........................................... 1.27, 15.03 (4)........................................... 15.03 75........................................... 1.27, 15.05 76................................ 1.27, 14.23, 19.01 (1)........................................... 19.06 (4), (6)..................................... 19.07 (7)–(9)..................................... 19.11 77................................................ 19.12 (4), (5)..................................... 19.12 78................................................ 19.12 80................................................ 16.02 (7)........................................... 16.04 81(1), (2)..................................... 16.46 (3), (4)..................................... 16.47 (5)........................................... 16.46 83(2)........................................... 16.47 85........................................... 1.27, 16.28 (1)......................... 16.06, 16.15, 16.40 (2).................................... 16.06, 16.15 (5)........................................... 16.40 (6)........................................... 16.18 (a), (b)................................ 16.18 (7)........................................... 16.16 (8)........................................... 16.50 103.............................................. 1.27 (1).................................. 16.44, 16.45 (2)......................................... 16.44 (3)......................................... 16.45 104(11)....................................... 4.06 105.............................................. 1.27 (1), (2)................................... 16.50 (8)......................................... 16.50 Pt 4 Ch 2 (ss 108–120).................. 20.01 s 108(1)......................................... 20.01 117......................................... 1.27, 20.01 (1), (2)................................... 20.04 (3)......................................... 20.05 (4)......................................... 20.09 (5)......................................... 20.06 (6)(a)..................................... 20.07 (b)..................................... 20.08 (7)......................................... 20.08 121–128...................................... 17.02

Planning Act 2008 – contd s 122(1)......................................... 17.04 (a)..................................... 17.19 (3)......................................... 17.04 (5)......................................... 17.06 123.............................................. 17.04 124.............................................. 17.04 125......................................... 1.27, 17.12 (1)(a), (b).............................. 17.12 126......................................... 1.27, 17.25 (1).................................. 17.08, 17.10 (2)......................................... 17.10 (3)......................................... 17.11 127.............................. 1.27, 17.19, 17.25 (1)......................................... 17.19 (2)......................................... 17.19 (3)......................................... 17.20 128.............................................. 17.19 129.............................................. 17.19 130................................ 1.27, 2.48, 18.01 (1)......................................... 18.05 (6)......................................... 18.58 131(1)..................................... 1.19, 2.01, 2.56, 6.08 (2)......................................... 1.21 132................................. 3.01, 3.20, 7.25, 12.06, 23.08 (1)......................................... 13.11 (4)......................................... 7.25 (a)....................... 3.58, 7.25, 12.06 (b).................................. 3.59, 6.45 133......................................... 1.26, 10.48 (1)...................................... 5.06, 5.08 (2), (3)................................... 5.09 (4)......................................... 5.10 (6)......................................... 5.11 (7)......................................... 5.08 134.............................................. 1.26 (1), (3)–(6)............................ 5.11 135.............................. 1.26, 11.03, 11.07 (1)......................................... 11.04 (3)......................................... 11.05 (4)......................................... 11.08 (5).................................. 11.07, 11.24 (6)......................................... 11.07 (7)......................................... 11.09 136......................................... 1.26, 11.03 (1)......................................... 11.16 (2).................................... 3.65, 11.17 (3)......................................... 11.17 (4)......................................... 11.17 (5)......................................... 11.19 137......................................... 1.26, 11.03 (1).................................. 11.07, 11.24 (2)......................................... 11.26 (3).................................. 11.26, 11.27 (5)......................................... 11.29

xlviii

Table of Statutes Planning Act 2008 – contd s 137(7)......................................... 11.29 138.................................. 1.26, 6.02, 7.27 (1)...................................... 4.04, 6.07 (2)............................ 6.31, 7.05, 7.28, 16.26, 16.28 (3)......................... 6.26, 16.26, 16.28 (b)..................................... 10.31 139........................................... 6.02, 7.27 (1)...................................... 6.03, 6.61 (a)..................................... 6.04 (2).................................... 6.62, 16.28 (3)...................................... 7.05, 7.28 (4).................................... 6.26, 16.28 (5)......................................... 8.74 140.............................................. 6.02 (1)(a), (b).............................. 6.08 (2)......................................... 6.08 (3)...................................... 6.08, 6.11 (4)......................................... 6.11 (5)(a)–(d).............................. 6.17 (6)......................................... 6.17 (7)......................................... 6.17 (8)...................................... 3.58, 6.08 (9)............................. 6.08, 6.28, 7.37 (11)....................................... 6.23 (12)....................................... 6.18 141.............................. 6.02, 12.14, 16.26 (1)......................................... 6.45 (3).................................... 6.45, 10.32 (4)......................................... 6.45 142................................ 6.02, 6.45, 12.14 142........................................... 6.02, 6.45 143........................................... 6.02, 7.02 (1)...................................... 7.05, 7.07 (2)......................................... 7.05 (3)........................... 7.09, 7.29, 24.48 (e)..................................... 7.27 (4)...................................... 7.07, 7.66 (5).................................... 7.55, 16.29 (7).................................... 6.29, 16.29 (8).................................... 6.30, 24.47 144........................................... 6.02, 7.02 145........................................... 6.02, 7.02 (1)......................................... 7.12 (a)–(c).............................. 7.189 (5)......................................... 7.13 (6)...................................... 7.19, 7.72 146......................................... 6.02, 16.34 (1)...................................... 8.63, 8.71 (3)......................................... 8.72 (4)......................................... 8.72 (6)......................................... 8.73 (7)...................................... 8.72, 8.73 (9)......................................... 8.70 147................................ 6.02, 8.18, 16.34 (1)......................................... 8.03

Planning Act 2008 – contd s 147(2)...................................... 8.03, 8.06 (3).................................... 8.32, 12.31 (4)......................................... 8.07 (5)......................................... 8.07 (6)...................................... 8.15, 8.16 (7)............................. 6.35, 6.43, 8.35 (9)......................................... 8.48 148.............................................. 6.02 (1).................................... 6.47, 12.15 (2)......................................... 12.15 (3).................................... 6.51, 12.15 149........................................... 1.26, 6.02 (1)–(3)................................... 6.52 (5)............................. 8.05, 8.59, 8.66 150......................................... 1.26, 10.03 (1)....................... 10.06, 10.07, 10.24 (2)......................................... 10.07 (3)......................................... 10.07 (4)......................................... 10.07 (5)......................................... 10.27 (6)......................................... 10.30 (7).................................... 3.65, 10.07 (8).................................... 3.65, 10.07 (9).................................. 10.32, 10.33 (d)..................................... 10.35 (10)....................................... 10.24 (11)....................................... 10.32 (12)....................................... 10.56 (13)................................ 10.58, 10.59 (14)....................................... 10.57 (15)....................................... 10.62 (16)....................................... 10.62 (17)....................................... 10.59 (18)....................................... 10.61 151......................................... 1.26, 10.03 (2)......................................... 10.52 (3)......................................... 10.52 152......................................... 1.26, 12.02 (1)......................................... 12.03 (2)....................... 12.03, 12.04, 12.09 (3)......................................... 12.13 (4)......................................... 12.05 (5)......................................... 12.09 (6)......................................... 12.14 (7)....................... 12.08, 12.09, 12.14 (b)..................................... 12.14 (8)......................................... 12.27 (9)......................................... 12.17 (10)....................................... 12.30 (11)(a), (b)............................ 12.31 (12)....................................... 12.32 (13)....................................... 12.04 (a)................................... 12.01 153........................................... 1.26, 6.02 (1)......................................... 8.18 (2)(a), (b).............................. 8.20

xlix

Table of Statutes Planning Act 2008 – contd s 165(1)......................................... 17.14 166.............................................. 1.27 167.............................................. 1.27 168......................................... 1.27, 15.06 (1), (2)................................... 17.23 (3).................................. 15.06, 17.23 (5)......................................... 15.06 169.............................. 1.27, 11.32, 23.04 (1)......................................... 23.05 (2)......................................... 23.06 (3)......................................... 23.07 (4)......................................... 23.10 (5)......................................... 23.26 (b)..................................... 23.29 (6)......................................... 23.32 (7)......................................... 23.33 170......................................... 1.27, 23.04 (1)......................................... 23.12 (3)......................................... 23.26 (b)..................................... 23.29 (4)......................................... 23.33 171......................................... 1.27, 23.04 (1)......................................... 23.15 (5)......................................... 23.28 (7)......................................... 23.40 172......................................... 1.27, 23.04 (1)......................................... 23.45 (2)......................................... 23.47 173......................................... 1.27, 23.04 (1)......................................... 23.36 (2), (3)................................... 23.38 (4)......................................... 23.36 174.............................. 1.27, 15.13, 23.04 175......................................... 1.27, 18.01 (2)....................... 18.25, 18.26, 18.29 (3), (4)................................... 18.25 176......................................... 5.28, 17.26 (1)...................................... 5.28, 5.30 (2)......................................... 5.29 (3)......................................... 5.29 (4)......................................... 5.31 177......................................... 5.32, 17.26 (1)......................................... 5.32 (2), (3)................................... 5.33 178.............................................. 17.26 (2), (5)–(7)............................ 5.34 183.............................................. 2.50 185(1)....................... 10.42, 10.44, 10.45 (3)......................................... 10.49 (4).................................. 10.44, 10.45 (5)(a)..................................... 10.43 (b)................................ 5.11, 10.48 187(1)......................................... 11.32 (4)......................................... 11.31 (7)......................................... 5.11 (a), (b).............................. 11.33

Planning Act 2008 – contd s 153(3)......................................... 8.19 (4)......................................... 8.19 (5)...................................... 8.21, 8.23 (6)......................................... 8.24 (7)......................................... 8.24 (8)......................................... 8.19 (12)....................................... 8.18 154.............................................. 1.26 (1)......................................... 12.17 (2)(a), (b).............................. 12.20 (3)......................................... 12.18 (4)......................................... 12.18 (5)......................................... 12.22 (6)......................................... 12.23 (7)......................................... 12.23 (8)......................................... 12.19 (12)....................................... 12.17 155(2)(a), (b)......................... 8.26, 12.26 156............................. 1.26, 11.20, 14.03, 14.23, 20.01 (1)......................................... 14.23 (b).............................. 16.40, 17.25 (c)..................................... 20.15 (2)......................................... 14.23 (4)......................................... 14.23 157......................................... 1.27, 16.21 (1)......................................... 16.24 (b).............................. 16.28, 16.34 (ii), (iii)........................ 16.28 (2)......................................... 16.24 (3)......................................... 16.25 (5).................................. 16.26, 16.28 (6)....................... 16.26, 16.28, 16.34 (4)(a), (b).............................. 16.26 158......................................... 1.27, 16.21 (4).................................. 16.28, 16.34 159.............................................. 1.27 (1)......................................... 16.28 (3)......................................... 16.29 (7)......................................... 16.38 160.............................................. 1.27 162......................................... 1.27, 20.01 (3)......................................... 20.10 (4).................................. 20.10, 20.11 (d).............................. 20.10, 20.11 (5)......................................... 20.10 (b)..................................... 20.11 (6), (7)................................... 20.10 163......................................... 1.27, 20.01 164.............................................. 1.27 (1)......................................... 17.13 (2)......................................... 17.14 (3)......................................... 17.13 (4)......................................... 17.14 (5)......................................... 17.16 165......................................... 1.27, 17.15

l

Table of Statutes Planning (Hazardous Substances) Act 1990....................... 1.12, 4.06, 8.38, 20.01, 24.55 s 3.................................................. 20.02 4.................................................. 20.01 22................................................ 24.04 23................................................ 1.27 (1), (2)..................................... 20.04 (3)........................................... 20.05 (3)........................................... 20.05 (4)........................................... 20.09 (4A)........................................ 20.09 (5)........................................... 20.06 (6)(a)....................................... 20.07 (b)....................................... 20.08 (7)........................................... 20.08 24................................................ 1.27 (1)........................................... 20.10 (4).................................... 20.10, 20.11 (5)........................................... 20.10 (b)....................................... 20.11 (6), (7)..................................... 20.10 25................................................ 1.27 26................................................ 1.27 26A............................................. 1.27 26AA.........................1.02, 14.03, 14.22, 14.25, 14.28, 20.14 (1)...................................... 20.14 (2)...................................... 20.15 36, 36A, 36B.............................. 5.27 37............................................. 5.14, 8.38 Sch 1 para 6......................................... 5.60 Planning (Listed Buildings and Conservation Areas) Act 1990... 1.12, 4.06, 8.38, 16.10, 16.20 s 1................................................ 16.02,.55 (5)............................................. 16.03 (5A)(a)...................................... 16.03 3(1), (2)....................................... 16.46 (3), (4)....................................... 16.47 (5)............................................. 16.46 (8)............................................. 16.47 7............................... 16.05, 16.05, 16.08, 16.12, 16.17 (2)............................................. 16.10 8(2)(d)......................................... 16.14 9................................. 1.27, 16.05, 16.18, 16.29, 16.33, 16.35, 16.36, 16.42, 16.48, 16.53 (1).......................... 16.12, 16.13, 16.14, 16.22, 16.27, 16.39 (2)..................................... 16.14, 16.22, 16.27, 16.39 (3)...................................... 16.16, 16.41

Planning Act 2008 – contd s 187(8)......................................... 11.34 192(2)......................................... 23.13 203.............................................. 1.11 204(1), (2)................................... 7.169 (5)......................................... 7.03 205.............................................. 7.190 206....................................... 7.190, 7.198 211.............................................. 6.54 215(1), (3), (6), (7)..................... 6.58 223(5)......................................... 13.06 236.............................................. 5.36 (1)(a)–(c).............................. 5.36 (2)......................................... 5.36 239(1), (3)................................... 6.41 240................................. 5.11, 5.12, 5.14, 8.04, 10.48 (1)............................. 5.13, 5.15, 5.17 (3), (4)................................... 5.18 242.............................................. 5.46 (1)(f)..................................... 6.42 (g)..................................... 10.26 (n)..................................... 12.12 (o)..................................... 23.34 (3)......................................... 6.43 245........................................... 5.47, 6.43 250(1)............................ 2.07, 2.10, 2.12, 2.13, 6.31, 8.04, 13.10, 16.03, 18.02 Planning and Compensation Act 1991...................................... 1.13, 2.55, 5.05, 7.13, 10.07, 12.01, 14.03, 14.08, 16.39, 16.48, 19.01, 23.05 s 4(2)............................................. 3.18 80................................................ 10.46 Sch 18 Pt 1............................................ 10.46 Planning and Compulsory Purchase Act 2004....................... 1.13, 2.20, 6.53, 6.54, 7.207, 7.210, 11.03 s 38(6)....................................... 4.04, 7.09, 15.10, 18.08 56................................................ 7.207 (3)(c)....................................... 7.208 (4)........................................... 7.208 (6)........................................... 7.208 57(1)........................................... 7.208 58................................................ 7.208 59(4), (5)..................................... 7.207 Planning (Consequential Provisions) Act 1990................................. 1.12, 4.06 s 2.................................................. 6.63 Sch 3 para 3......................................... 19.02

li

Table of Statutes Proceeds of Crime Act 2002....... 8.55, 10.62, 17.10 s 6.................................................. 8.55 (4)............................................. 8.55 7.................................................. 8.56 75................................................ 8.55 156........................................... 8.55, 8.56 233.............................................. 8.55 Prosecution of Offences Act 1985 s 6(2)............................................. 8.62 10................................................ 8.10 Public Health Act 1875 s 275, 291...................................... 18.43 Public Health Act 1936..................... 16.33 s 276.............................................. 21.18 (1), (2)................................... 8.72 289......................................... 8.33, 21.18 294......................................... 8.73, 21.18

Planning (Listed Buildings and Conservation Areas) Act 1990 – contd s 9(4), (5)....................................... 16.18 26H...................................... 16.73, 16.77 (1)................................. 16.73, 16.74 (2)........................................ 16.73 (3), (4).................................. 16.75 (5)........................................ 16.76 26I(1).......................................... 16.74 (6).......................................... 16.76 26J(1)–(3)................................... 16.77 26K(1), (4), (7)........................... 16.78 29................................................ 16.47 Pt I Ch IV (ss 38–46).................... 1.27 s 38(1)........................................... 16.22 (2)........................................... 16.24 (b), (c)................................ 16.27 (3)(a), (b)................................ 16.26 (4).................................... 16.26, 16.27 (5)........................................... 16.26 (7)........................................... 16.26 39................................................ 16.27 (1)........................................... 16.27 (3)........................................... 16.29 40(2)........................................... 16.29 41(6)(c)....................................... 16.27 42................................................ 16.33 43(1), (2)..................................... 16.30 (4)........................................... 16.32 (5)........................................... 16.33 44A.......................... 14.03, 14.22, 14.25, 14.28, 16.40, 16.41 (1)........................................ 16.39 (2), (4).................................. 16.40 45, 46.......................................... 16.21 59......................................... 16.42, 16.43 (1)........................................... 16.43 (4)........................................... 16.43 63................................................ 24.04 64......................................... 16.37, 16.38 65......................................... 16.37, 24.04 72(1)........................................... 4.06 74........................................... 1.27, 16.52 (1)........................................... 16.48 (3)........................................... 14.22 75................................................ 16.52 88, 88A, 88B.............................. 5.27 88D............................................. 16.29 89................................................ 5.14 (1)........................................ 5.60, 8.38 91................................................ 16.03 Planning (Wales) Act 2015............ 1.14, 7.13 s 215.............................................. 1.14 Police and Criminal Evidence Act 1984.......................................... 5.44 s 67(9)........................................... 5.44 78................................................ 21.15

R Race Relations Act 1976 s 71................................................ 4.19 Regulation of Investigatory Powers Act 2000.................................... 5.38 s 26................................................ 5.38 (9)........................................... 5.38 29................................................ 5.38 32A............................................. 5.38 83(2)........................................... 5.38 Rehabilitation of Offenders Act 1974 s 4(1)............................................. 14.26 S Senior Courts Act 1981 s 31......................................... 24.45, 24.54 (2A)........................................ 24.55 (2B.......................................... 24.55 (3D)........................................ 24.55 (3E)......................................... 24.55 Statutory Declarations Act 1835....... 23.18 T Town and Country Planning Act 1932....................................... 2.55, 3.10 s 34......................................... 19.02, 19.13 Town and Country Planning Act 1947............................ 1.01, 1.05, 2.54, 3.10, 19.02 s 17................................................ 23.51 23(4)........................................... 23.56 25................................................ 19.02 (2)........................................... 19.03 77(1)........................................... 2.55 Town and Country Planning Act 1962 s 43................................................ 23.51 Town and Country Planning Act 1968 s 17................................................ 23.50

lii

Table of Statutes Town and Country Planning Act 1990 – contd s 78................................................ 24.31 (1)........................................... 7.16 (2)........................................ 7.16, 7.17 90................................................ 2.50 (3)........................................... 11.31 91................................................ 2.67 92................................................ 2.67 94................................................ 15.17 (1)(a)–(d)................................ 15.18 (2), (3)..................................... 15.19 (5)........................................... 15.22 (6)........................................... 15.22 95(1)........................................... 15.19 (2), (3)..................................... 15.21 (4).................................... 15.20, 15.21 (5)........................................... 15.21 96................................................ 15.17 97.................................. 1.27, 9.14, 15.08 (1), (2)..................................... 15.08 (3)........................................... 15.10 (4)........................................... 15.11 98, 99..................................... 1.27, 15.12 100.............................................. 1.27 101.............................................. 1.27 102.............................................. 1.27 (1)......................................... 15.01 (8)......................................... 15.02 103......................................... 1.27, 15.03 (4)......................................... 15.03 104................................ 1.27, 9.14, 15.05 106........................................ 1.27, 19.01, 19.02, 19.12 (1)......................................... 19.05 (3)......................................... 19.07 (5).................................. 19.07, 19.10 (6)......................................... 19.11 (b)..................................... 19.11 (7), (8)................................... 19.11 (12), (13)............................... 19.11 106A........................................... 19.12 (4)(b).................................. 19.12 106B........................................... 19.12 107.............................................. 15.13 115.............................................. 15.04 118............................ 18.30, 18.33, 18.43 Pt VII (ss 171A–196C).... 1.13, 5.26, 5.35, 11.03, 14.15 s 171A............................... 2.56, 3.60, 6.09 (1).......................... 1.19, 2.01, 6.08 (2)...................................... 1.19 171B.............................. 3.01, 3.17, 3.41, 3.43, 3.54, 3.65, 6.09, 7.25, 12.06, 21.08, 23.08 (1).......................... 3.03, 3.05, 3.12, 3.30, 3.34, 6.14

Town and Country Planning Act 1971....................................... 1.12, 6.63 s 52......................................... 19.02, 19.10 (1)........................................... 19.02 (2)........................................... 19.03 53................................................ 23.51 90(2)........................................... 10.38 92A(2)................................... 6.42, 10.26 94................................................ 23.50 Sch 24 para 88....................................... 19.02 Town and Country Planning Act 1990............................. 1.12, 1.25, 4.06, 6.54, 10.36, 20.11, 20.13, 21.07, 21.12, 23.33, 24.55 s 1.................................................. 1.09 2.................................................. 24.45 2E................................................ 19.05 (5)........................................... 1.10 6, 7, 7A, 8A................................ 1.10 55................................. 2.20, 6.23, 16.10, 16.48, 21.01 (1)............................... 2.02, 2.24, 3.04 (1A)..................................... 2.06, 2.24 (2)........................................ 2.16, 2.37 (a)........................... 2.16, 3.05, 6.13 (b)....................................... 2.21 (c)....................................... 2.22 (g)....................................... 2.23 (2A)........................................ 2.20 (3)........................................... 2.45 (a)....................................... 3.13 (4)........................................... 2.11 (4A)........................................ 2.25 (5)...................................... 2.47, 18.57 56(4)........................................... 2.59 57................................................ 7.23 (1)........................................... 2.49 (1A), (2).................................. 2.54 (3)........................................ 2.52, 2.54 (5), (6)..................................... 2.54 (7)........................................... 2.55 60(1)........................................... 2.57 61Q............................................. 2.54 62A............................................. 2.50 62D............................................. 2.50 62M............................................ 2.50 64................................................ 23.11 69................................................ 5.46 70............................................. 1.30, 2.56 70C(1)...................................... 7.16, 7.18 (2)......................................... 7.16 72................................................ 2.56 73........................................... 2.68, 12.15 73A............................... 2.68, 9.06, 12.15 77................................................ 24.31

liii

Table of Statutes Town and Country Planning Act 1990 – contd s 172(1)(a)..................................... 6.04 (b)..................................... 4.04 (2)...................................... 6.31, 7.28 (a)..................................... 7.05 (3)......................................... 6.26 (b)..................................... 10.31 (4)(b)..................................... 3.17 172A............................... 1.26, 8.27, 8.30 (1).......................... 8.27, 8.28, 8.29 (a).................................. 8.29 (2)–(4)................................ 8.30 (5)...................................... 8.27 173.......................................... 1.26, 6.02, 6.09, 11.32 (1)(a), (b).............................. 6.08 (2)......................................... 6.08 (3)............................. 6.08, 6.11, 7.32 (4)...................................... 6.11, 7.32 (5)(a)–(d).............................. 6.17 (6), (7)................................... 6.17 (8)......................................... 6.08 (9)............................ 3.58, 6.08, 6.26, 6.28, 7.37 (11).................................... 6.23, 7.35 (12)....................................... 6.18 173A...................................... 1.26, 12.14 (1)................................. 6.45, 10.32 (3), (4)................................ 6.45 173ZA...................................... 1.26, 4.29 174................................. 1.26, 6.02, 6.09, 7.02, 10.42, 24.47 (1)......................................... 7.05 (2)............................ 7.09, 7.18, 7.22, 24.47, 24.48 (2A)...................................... 7.16 (2B)....................................... 7.16 (2C)......................... 7.09, 7.40, 16.54 (3).................................... 6.26, 20.12 (a)–(c).............................. 7.07 (4)........................... 7.61, 7.72, 20.12 (6)......................................... 7.05 175.......................................... 1.26, 6.02, 6.09, 7.02 (1)(a), (b).............................. 7.72 (d).................................. 7.72, 7.77 (3A), (3B)............................. 7.52 (4)...................................... 3.58, 6.29 (7)......................................... 7.190 176.......................................... 1.26, 6.02, 6.09, 7.02 (1).................................... 7.74, 7.189 (2)......................................... 7.189 (3)(a)..................................... 7.62 (b)..................................... 7.77 (5).................................... 7.29, 24.66

Town and Country Planning Act 1990 – contd s 171B(2).......................... 3.03, 3.11, 3.12, 3.14, 3.34, 3.37 (2A)...................... 3.01, 3.56, 16.55 (3)........................... 3.04, 3.15, 3.14 (4).................................... 3.61, 7.25 (a).................... 3.58, 7.25, 12.06 (b).............................. 3.59, 3.61, 6.45, 12.14 171BA......................................... 3.42 (1)............................... 3.43, 23.08 (3)–(5)............................. 3.43 171BB......................................... 3.42 (1).................................... 3.48 (2).................................... 3.49 (4), (5)............................. 3.51 171BC......................................... 3.42 (1).................................... 3.44 (2).................................... 3.53 171C...................................... 1.26, 10.47 (1).................................... 5.06, 5.08 (2).................................... 5.09, 5.11 (3)....................................... 5.09 (4)....................................... 5.10 (6)....................................... 5.11 (7)....................................... 5.08 171D........................................... 1.26 (1), (3)–(6)......................... 5.11 171E............................ 1.26, 11.03, 11.07 (1)....................................... 11.04 (3)....................................... 11.05 (4)....................................... 11.08 (5)................................ 11.07, 11.24 (6)................................ 11.07, 11.31 (7)....................................... 11.09 171F....................................... 1.26, 11.03 (1)....................................... 11.13 (2).................................. 3.65, 11.17 (3)....................................... 11.17 (4).................................. 3.65, 11.17 (5)....................................... 11.19 (6)....................................... 11.20 171G...................................... 1.26, 11.03 (1)............................... 11.07, 11.24 (2)...................................... 11.26 (3)...................................... 11.26 (4)...................................... 11.26 (5)...................................... 11.27 (6)...................................... 11.29 (7)...................................... 11.29 171H...................................... 1.26, 11.03 (1)(a), (b)........................... 11.31 (2), (4)................................ 11.31 (5)............................... 11.33, 11.34 172................................. 1.26, 3.18, 6.02, 6.09, 7.27, 7.72 (1)............................. 6.03, 6.07, 6.60

liv

Table of Statutes Town and Country Planning Act 1990 – contd s 185......................................... 1.26, 10.03 (1)–(3)................................... 10.52 186............................... 1.26, 1.41, 10.03, 10.49, 11.34 (1)......................................... 10.42 (2).................................. 10.44, 10.45 (3)......................................... 10.49 (4).................................. 10.44, 10.45 (5)(a).............................. 10.43, 11.33 (b)..................... 5.11, 10.46, 11.33 (6)......................................... 10.51 187(1)......................................... 10.55 (1A)............................... 10.58, 10.59 (1B)....................................... 10.57 (2), (2A)................................ 10.62 (3)......................................... 10.59 187A...................................... 1.26, 12.02 (1)...................................... 12.03 (2).................... 12.03, 12.04, 12.09 (a), (b)........................... 12.29 (3)...................................... 12.13 (4)...................................... 12.05 (5)...................................... 12.09 (6)...................................... 12.14 (7)............................... 12.09, 12.14 (a).................................. 12.07 (b).................................. 12.14 (8)...................................... 12.27 (9)...................................... 12.27 (10).................................... 12.30 (11).................................... 12.31 (a), (b)......................... 12.31 (12).................................... 12.32 (13)(a)................................ 12.01 187B.............................. 1.26, 1.41, 3.66, 8.70, 11.20, 14.03, 14.08, 14.09, 14.10, 14.14, 14.15, 14.18, 14.22, 14.24, 14.25, 14.39, 18.59, 19.08, 20.14, 21.20, 22.13 (1).................... 14.08, 14.15, 14.18, 16.39, 17.25 (2)....................................... 14.08 (3)....................................... 14.18 188........................................... 8.35, 8.36 (1)..................................... 5.47, 6.42, 6.43, 12.12 (c)..................................... 10.26 (3)......................................... 5.47 189.............................................. 15.06 (1)(a)..................................... 15.06 (2)......................................... 15.06 (4)......................................... 15.06

Town and Country Planning Act 1990 – contd s 177................................. 1.26, 6.02, 6.09, 7.02, 9.06 (1)......................................... 7.12 (a)–(c).............................. 7.189 (1C)....................................... 7.13 (2)......................................... 7.12 (5)......................................... 7.13 (5A)................................... 7.19, 7.72 178................................. 1.26, 4.18, 6.02, 8.64, 8.68, 9.25, 16.33, 20.13, 21.17 (1)...................................... 8.63, 8.71 (3)(a)..................................... 8.72 (c)..................................... 8.73 (5)......................................... 8.72 (6)......................................... 8.70 179................................ 1.26, 6.02, 20.13 (1).................................... 8.03, 24.69 (2)............................. 8.03, 8.05, 8.06 (3)........................... 8.32, 8.60, 12.31 (4), (5)................................... 8.07 (6)...................................... 8.15, 8.16 (7)..................................... 6.35, 6.43, 8.35, 8.60 (8)......................................... 8.47 (9)...................................... 8.48, 8.49 180................................ 1.26, 6.02, 20.13 (1).................................... 6.47, 12.15 (2)......................................... 12.15 (3).................................... 6.51, 12.15 181................................ 1.26, 6.02, 20.13 (1)–(3)................................... 6.52 (4)......................................... 8.66 (5)......................................... 8.59 (a), (b).............................. 8.05 182................................ 1.26, 6.02, 14.47 (1)......................................... 6.59 (2), (3)................................... 6.62 (4)......................................... 8.74 183.............................. 1.26, 10.03, 10.16 (1).................................. 10.05, 10.07 (2)–(4)................................... 10.07 (5)................................... 3.65, 10.07, 10.39, 11.17 (5A)............................... 10.07, 11.17 (6)......................................... 10.24 (7)......................................... 10.32 184......................................... 1.26, 10.03 (1)......................................... 10.24 (2), (3)................................... 10.27 (4)......................................... 10.32 (b)..................................... 10.36 (5)......................................... 10.35 (6)......................................... 10.24 (7)......................................... 10.32 (8)......................................... 10.61

lv

Table of Statutes Town and Country Planning Act 1990 – contd s 199(1)......................................... 17.04 200.............................................. 17.02 201....................................... 17.02, 17.04 202....................................... 17.02, 17.04 202A–202G................................ 17.02 202C........................................... 17.19 203....................................... 17.02, 17.07 204.............................................. 17.02 205....................................... 17.02, 17.07 206............................ 17.02, 17.12, 17.13 (1)......................................... 17.12 (a), (b).............................. 17.12 207....................................... 17.02, 17.12 (1).................................. 17.12, 17.13 (2)......................................... 17.14 (3)......................................... 17.14 (4)......................................... 17.14 (5)......................................... 17.16 208....................................... 17.02, 17.15 (1)......................................... 17.14 209....................................... 17.02, 17.16 (6)......................................... 17.16 210...................................... 14.22, 17.02, 17.19, 17.22 (1).................................. 17.08, 17.22 (2), (3)................................... 17.10 (4).................................. 17.11, 17.22 (4A)–(4E)............................. 17.11 211............................ 14.22, 17.02, 17.18 (1)......................................... 17.19 (1A)...................................... 17.19 (2)......................................... 17.19 (3)......................................... 17.20 (4)......................................... 17.19 212....................................... 17.02, 17.18 213.............................................. 17.02 (1)–(3)................................... 17.23 214.............................................. 17.02 214A........................ 14.03, 14.22, 14.25, 14.28, 17.24 (1)...................................... 17.24 214B, 214C................. 5.27, 17.02, 17.26 214D........................... 5.27, 17.02, 17.26 (1)...................................... 5.30 215................................. 1.25, 1.26, 1.27, 15.01, 15.23, 15.24, 15.25, 15.26, 15.27, 18.36, 18.41, 18.46 (1), (2)................................... 15.23 (3), (4)................................... 15.24 216................................ 1.26, 1.27, 15.29 (2), (5)................................... 15.30 217................................ 1.26, 1.27, 15.29 (1)......................................... 15.25 (2)......................................... 15.25 (3), (5)................................... 15.28

Town and Country Planning Act 1990 – contd s 190.............................................. 15.06 191................................. 1.27, 2.55, 3.18, 3.66, 3.67, 11.31, 23.04, 23.05, 23.16, 23.35, 23.45 (1)......................................... 23.05 (a)–(c).............................. 23.16 (2)......................................... 23.06 (3)......................................... 23.07 (b)..................................... 23.29 (3A)...................................... 23.08 (4).................................. 23.05, 23.10 (5)......................................... 23.26 (b)..................................... 23.29 (6)......................................... 23.32 (7).................................. 23.10, 23.33 192............................. 1.27, 23.04, 23.16, 23.35, 23.45 (1)......................................... 23.12 (2)......................................... 23.13 (3)......................................... 23.26 (4)......................................... 23.33 193......................................... 1.27, 23.04 (1)......................................... 23.15 (5)......................................... 23.28 (7)......................................... 23.40 194......................................... 1.27, 23.04 (1)......................................... 23.45 (2)......................................... 23.47 195........................................ 1.27, 11.31, 23.04, 23.39 (1), (1B)–(1F)....................... 23.36 (2)......................................... 23.38 (3)......................................... 23.38 (4)......................................... 23.36 196.............................................. 23.04 196A............................. 5.25, 5.27, 17.26 (1)...................................... 5.30 (2), (3)................................ 5.29 (4)...................................... 5.31 196B............................. 5.27, 5.32, 17.26 (1)....................................... 5.32 (2)....................................... 5.33 (3)....................................... 5.33 196C...................................... 5.27, 17.26 (2), (5)–(7)......................... 5.34 196D........................... 1.26, 16.54, 16.55 (1)–(3)................................ 16.52 (4)–(6), (8), (9).................. 16.53 s 197(a).......................................... 17.02 197–214D................................... 17.02 198.............................................. 17.02 (1)......................................... 17.04 (3)(a)..................................... 17.19 (6)......................................... 17.06 199.............................................. 17.02

lvi

Table of Statutes Town and Country Planning Act 1990 – contd s 217(6)......................................... 15.29 218................................ 1.26, 1.27, 15.28 219................................ 1.26, 1.27, 15.31 220........................................ 1.27, 18.01, 18.32, 18.35 (1)......................................... 18.03 221......................................... 1.27, 18.01 222.......................................... 1.27, 2.48, 18.01, 18.58 223.............................. 1.27, 18.01, 18.22 224........................................ 1.27, 14.24, 18.01, 18.56 (3)...................... 18.25, 18.26, 18.27, 18.28, 18.39 (4)–(6)................................... 18.25 (7), (8)................................... 18.26 (11)....................................... 18.26 225.............................. 1.27, 18.01, 18.30 (1).................................. 18.29, 18.50 (2), (3), (5), (7)..................... 18.29 (9)–(11)................................. 18.30 225A..................................... 1.27, 18.01, 18.32, 18.53 (1)............................... 18.33, 18.37 (2)–(6), (9)–(12)................ 18.33 (13)–(15)............................ 18.32 225B.......................... 1.27, 18.01, 18.32, 18.34, 18.36, 18.46 (1)....................................... 18.34 (3)....................................... 18.35 (4), (5)................................ 18.36 (6)....................................... 18.37 225C.......................... 1.27, 18.01, 18.32, 18.38, 18.41, 18.53 (1)....................................... 18.38 (2)–(6)................................ 18.40 (8)....................................... 18.41 (10)(b)................................ 18.43 (12), (13)............................ 18.43 (14)..................................... 18.43 (15)..................................... 18.43 (16).............................. 18.39, 18.43 225D........................... 1.27, 18.01, 18.32 (1)...................................... 18.44 (2)...................................... 18.45 (3), (4)................................ 18.46 (5)...................................... 18.43 225E............................ 1.27, 18.01, 18.32 (2), (3)................................ 18.42 (10)..................................... 18.42 225F........................... 1.27, 15.01, 18.47, 18.48, 18.49, 18.52, 18.53 (1)....................................... 18.48 (2)–(4), (6), (8)................... 18.48 (10), (11)............................ 18.49

Town and Country Planning Act 1990 – contd s 225F(12).............................. 18.47, 18.48 225G...................................... 1.27, 18.47 (1)...................................... 18.49 (b).................................. 18.49 225H...................................... 1.27, 18.47 (1)...................................... 18.50 (c).................................. 18.50 225I........................................ 1.27, 18.47 (1), (2)................................. 18.50 (3)–(5)................................. 18.51 225J............................................ 18.52 (1), (3), (4).......................... 18.52 225K(2)...................................... 18.53 (3)...................................... 18.54 (4)...................................... 18.55 (5), (6)................................ 18.54 (7)...................................... 18.53 233(2), (4)................................... 6.39 250(5)......................................... 7.190 262(1), (5B)................................ 18.49 266.............................................. 7.44 284.............................................. 24.45 (1)......................................... 17.05 (2).................................. 15.03, 17.05 (3)......................................... 24.31 (g)..................................... 23.39 285................................. 1.37, 8.46, 8.62, 24.48, 24.50 (1)............................ 6.30, 7.28, 8.33, 15.29, 16.38, 24.46, 24.47, 24.53, 24.63, 24.64, 24.65 (2).......................... 8.45, 8.60, 24.65, 24.66, 24.67 (3), (4)................................... 15.29 286(2)......................................... 24.49 288........................... 15.03, 16.37, 17.05, 23.39, 23.48, 24.04, 24.16, 24.31, 24.32, 24.34, 24.37, 24.43, 24.44, 24.45, 24.54, 24.61 (1).................................. 24.32, 24.34 (1A)............................... 23.39, 24.05 (3)......................................... 24.38 (4)......................................... 24.31 (5)....................... 17.05, 24.33, 24.42 (6)......................................... 17.05 (9)......................................... 24.32 289............................... 1.36, 6.29, 10.15, 10.16, 16.37, 24.04, 24.05, 24.06, 24.08, 24.10, 24.12, 24.27, 24.31, 24.45, 24.46, 24.61 (1)....................... 24.08, 24.09, 24.12

lvii

Table of Statutes Town and Country Planning Act 1990 – contd s 289(2)......................................... 17.15 (4A)........................ 6.29, 6.30, 24.21 (6).................................. 24.16, 24.30 292A........................................... 6.54 293.............................................. 6.58 (1)......................................... 6.55 293A........................................... 2.50 296A(1), (2), (6)......................... 6.58 302.............................................. 6.58 319A........................................... 7.52 (6)...................................... 7.53 319B........................................... 7.52 (6)....................................... 7.53 320......................................... 5.60, 7.190 321.............................................. 7.210 (5)......................................... 7.211 322.............................................. 7.190 322A......................... 7.190, 7.198, 7.211 322B........................................... 7.211 324.............................................. 5.35 (1)(c)..................................... 5.35 (3).................................. 18.30, 18.53 329......................................... 6.36, 10.57 (1)......................................... 6.37 (cc)................................... 6.41 (2)(a)..................................... 6.38 (b)..................................... 6.38 (ii)................................ 6.38 (3)......................................... 6.39 (3B)(b).................................. 6.41 (4)...................................... 6.36, 6.39 330................................. 5.11, 5.12, 8.04, 10.47, 10.48, 11.33 (1)...................................... 5.13, 5.15

Town and Country Planning Act 1990 – contd s 330(3)......................................... 5.17 (4), (5)................................... 5.18 331.............................................. 17.31 (1)......................................... 8.38 336........................................... 2.03, 6.33 (1)............................ 2.07, 2.10, 2.13, 3.12, 4.06, 6.31, 8.04, 16.03, 18.02 Sch 1 para 3, 11................................... 1.07 16(1).................................. 10.52 (2)(b)............................. 10.52 Sch 3 para 3......................................... 19.02 Sch 4.............................................. 2.56 Sch 6......................................... 7.44, 17.13 para 1......................................... 23.37 (2).................................... 7.44 2......................................... 24.48 6......................................... 7.144 (2).................................... 7.169 Sch 9.............................................. 15.02 Town and Country Planning (Interim Development) Act 1943 s 1, 2.............................................. 2.55 Town and Country Planning (Scotland) Act 1972.................. 6.53 Tribunals and Inquiries Act 1992...... 24.32 W Wildlife and Countryside Act 1981 s 28G(1), (2).................................. 4.06 28H............................................. 8.69 28I............................................... 4.06

lviii

Table of Statutory Instruments

C Civil Procedure Rules 1998, SI 1998/3132.......................... 14.25, 24.10 Pt 2 r 2.11......................................... 14.38 Pt 3 r 3.1(2)....................................... 24.17 Pt 7................................................ 14.25 Pt 8............................. 14.25, 19.08, 24.35, 24.37, 24.54 r 8.1(6)................................ 14.25, 19.08 8.2(b)(ii).................................. 24.37 (c)....................................... 14.25 8.2A........................................ 14.28 8.3........................................... 14.31 8.4........................................... 14.31 8.5........................................... 14.38 (3)–(6)................................ 14.31 8.6(2), (3)................................ 14.38 8.9(a)(ii).................................. 14.31 PD 8A........................................ 14.25 para 4.2.................................. 14.25 5.2.................................. 14.31 7..................................... 14.25 7.4.................................. 14.38 7.5.................................. 14.38 8..................................... 14.38 9.1, 9.4.................... 14.25, 19.08 20.2................................ 14.28 20.4................................ 14.28 20.5................................ 14.28 20.6................................ 14.29 20.7................................ 14.38 20.8................................ 14.38 20.10.............................. 14.38 22................................... 24.35 PD 8C........................................ 24.45 para 2.2.................................. 24.36 5.2.................................. 24.39 5.3.................................. 24.39 5.5.................................. 24.39 7.1.................................. 24.39 7.5.................................. 24.39 8.2.................................. 24.28 12.1................................ 24.40 Pt 23 r 23.3......................................... 14.32 23.7(1)..................................... 14.32 Pt 25 r 25.3(1), (3).............................. 14.32

PD 25A para 4.5.................................. 14.33 5.3.................................. 14.50 Pt 44 r 44.2(2)(a)................................ 24.25 Pt 45.............................................. 8.07 r 45.43–45.45............................ 14.50 Pt 52....................................... 24.13, 24.22 r 52.3(6)..................................... 24.44 52.6......................................... 24.19 52.11(2)................................... 24.22 52.15B(3)................................ 24.39 52.28(1)................................... 24.10 PD 52A............................... 24.13, 24.45 para 5.1.................................. 24.17 PD 52B............................... 24.13, 24.22 para 1.1........................... 24.13, 24.27 8.1.................................. 24.27 PD 52C...................................... 24.45 para 20................................... 24.27 PD 52D......................................  , 24.13 para 2.1.................................. 24.17 26.1................................ 24.13 (1)........................... 24.16 (2).................... 24.13, 24.17 (3)........................... 24.15 (4).................... 24.13, 24.17 (7).................... 24.18, 24.28 (8)........................... 24.18 (9)........................... 24.18 (11)(a)–(c).............. 24.21 (12)......................... 24.15, 24.21 (14)......................... 24.23 (15)......................... 24.11, 24.20 (16)......................... 24.23 PD 52E...................................... 24.10 para 3.1.................................. 24.10 Pt 54.............................................. 24.54 r 54.5(5)..................................... 24.55 PD 54A...................................... 24.45, 24.54 Pt 81.............................................. 14.44 r 81.9......................................... 14.42 PD 81 para 1..................................... 14.43 2.2.................................. 14.43 Judicial Review Pre-Action Protocol......................................... 24.55

lix

Table of Statutory Instruments Community Infrastructure Levy Regulations 2010, SI 2010/948 – contd reg 107(2)–(7)............................... 22.22 108A........................................ 22.28 109.......................................... 22.29 (1)...................................... 22.29 (e), (f)........................... 22.28 (3), (3A)............................ 22.28 (4)–(8)............................... 22.30 110(1), (2)............................... 22.31 111.......................................... 22.02 112(1), (3)............................... 22.27 117–119.................................. 22.26 120(1), (4), (5), (7), (9)........... 22.27 Criminal Justice and Courts Act 2015 (Commencement No 1, Saving and Transitional Provisions) Order 2015, SI 2015/778 art 4............................................... 24.55 Sch 2 para 6......................................... 24.55 Criminal Procedure Rules 2012, SI 2012/1726............................. 8.40 Pt 1 (rr 1.1–1.3)............................. 8.41 Pt 7 (rr 7.1–7.4)............................. 8.41 r 7.3(1)....................................... 8.42 Pt 9 (rr 9.1–9.15)........................... 8.41 Pt 10 (rr 10.1–10.5)....................... 8.41 Pt 14 (rr 14.1, 14.2)....................... 8.41 Pt 21 (rr 21.1–21.3)....................... 8.41 Pt 22 (rr 22.1–22.9)....................... 8.41 r 22.5......................................... 8.45 Pt 27 (rr 27.1–27.4)....................... 8.41 Pt 37 (rr 37.1–37.15)..................... 8.41 Pt 39 (rr 39.1–39.3)....................... 8.41 Pt 63 (rr 63.1–63.10)..................... 8.41 Pt 64 (rr 64.1–64.5)....................... 8.41 Crown Court (Advance Notice of Expert Evidence) Rules 1987, SI 1987/716............................... 8.46 r 3(1).............................................. 8.46

Community Infrastructure Levy Regulations 2010, SI 2010/948.22.01, 22.02, 22.03, 22.05 reg 2(1).......................................... 22.25 4.............................................. 22.03 5(3).......................................... 22.02 8.............................................. 22.03 9, 10........................................ 22.02 31............................................ 22.03 35............................................ 22.25 48............................................ 22.25 53, 54...................................... 22.25 57............................................ 22.25 64(2)........................................ 22.29 (8)........................................ 22.28 66............................................ 22.22 69............................................ 22.04 70............................................ 22.03 80............................................ 22.25 81............................................ 22.25 (3)........................................ 22.25 82(1), (2)................................. 22.25 83(1), (2)................................. 22.25 84............................................ 22.25 85............................................ 22.25 86............................................ 22.25 87(1), (3)................................. 22.24 88............................................ 22.25 (1)........................................ 22.25 89(1)–(3)................................. 22.06 (4)........................................ 22.06 (e)................................... 22.06 (5)........................................ 22.06 90(1)–(3)................................. 22.07 (4)–(7)................................. 22.08 (8)........................................ 22.09 91(1)–(4)................................. 22.13 92(1), (2)................................. 22.16 93(1)........................................ 22.09 (2)–(4)................................. 22.10 (5)........................................ 22.11 (6), (7)................................. 22.12 94............................................ 22.14 (3)........................................ 22.14 96............................................ 22.17 (1)–(3), (9).......................... 22.17 97(5)–(8)................................. 22.18 98............................................ 22.19 (3)–(6)................................. 22.19 99............................................ 22.19 100(1), (3)–(6), (8).................. 22.21 103.......................................... 22.20 (4), (6), (7)........................ 22.20 104(1), (2)............................... 22.20 105.......................................... 22.18 106.......................................... 22.15, 22.23

E Environment (Northern Ireland) Order 2002, SI 2002/3153......... 4.06 art 39............................................. 8.69 Environmental Information Regulations 2004, SI 2004/3391................................. 5.49, 5.53 reg 2.............................................. 5.49 5, 12, 13.................................. 5.50 Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 Sch 9 para 3(2).................................... 23.33

lx

Table of Statutory Instruments F Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, SI 2004/3244 reg 3.............................................. 5.51

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, SI 2015/664 – contd Sch 4 – contd Pt I – contd para 19............................ 16.18, 16.33 20................................... 20.09 80............................ 22.12, 22.31 Legislative and Regulatory Reform (Regulatory Functions) Order 2007, SI 2007/3544................... 4.46 Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007, SI 2007/399.5.48 Sch 1.............................................. 4.35 Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012, SI 2012/2089................................. 5.48 Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI 2000/2853 Sch 1.............................................. 4.35 Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012, SI 2012/628 art 8............................................... 3.54 13(3)......................................... 3.54

H Hedgerows Regulations 1997, SI 1997/1160................................. 17.27 reg 3.............................................. 17.27 5.............................................. 17.32 (1), (9)............................ 17.28, 17.29 6.............................................. 17.28 (1), (2)................................... 17.30 7(1).......................................... 17.29 (2).......................................... 17.31 (4)................................... 17.29, 17.31 (5)–(7)................................... 17.31 8(1)–(3)................................... 17.32 9(1)–(5)................................... 17.33 11–13...................................... 17.34 Sch 1 Pt II............................................ 17.27 Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, SI 1995/1625............................. 16.57 art 4.......................................... 1.27, 16.57 (1)...................................... 1.27, 16.57 (3)(b)................................. 1.27, 16.57 (6)...................................... 1.27, 16.57 (9)...................................... 1.27, 16.57 29............................................. 1.27 41............................................. 16.66 (1)......................................... 16.66 42............................................. 16.66

M Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675 art 19(1)(a).................................... 18.26 Magistrates’ Courts Rules 1981, SI 1981/552 r 34......................................... 15.28, 18.34

I Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010, SI 2010/105 reg 5.............................................. 21.18

N Nature Conservation and Amenity Lands (Northern Ireland) Order 1985, SI 1985/170 art 12, 14....................................... 4.06 Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, SI 1989/1058 Sch 3.............................................. 22.19

L Lands Tribunal Rules (Northern Ireland) 1976, SI 1976/146....... 10.51 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, SI 2015/664 Sch 4 Pt I para 18............................. 8.47, 10.62, 11.29, 17.10

O Openness of Local Government Bodies Regulations 2014, SI 2014/2095................................. 8.67 reg 7.............................................. 4.37

lxi

Table of Statutory Instruments P Planning (Amendment) (Northern Ireland) Order 2003, SI 2003/430................................... 23.49 Planning (Amount of Fixed Penalty) Regulations (Northern Ireland) 2015, SI 2015/280 reg 2(a).......................................... 8.19 (b).......................................... 12.18 Planning (Application to the Houses of Parliament) Order 2006, SI 2006/1469................................. 6.55 Planning Compensation Act 1991 (Commencement No 5 and Transitional Provisions) Order 1991, SI 1991/2905 art 5(b)........................................... 3.18 Planning (Conservation Areas) (Demolition) Regulations (Northern Ireland) 2015, SI 2015/107................................... 16.50 Planning (Control of Advertisements) Regulations (Northern Ireland) 1973, SI 1973/324..................... 14.53 Planning (Control of Advertisements) Regulations (Northern Ireland) 2015, SI 2015/66....... 2.48, 18.01, 18.11 reg 3(1), (2)................................... 18.08 6.............................................. 18.21 Sch 1.............................................. 18.17 Sch 2............................ 18.11, 18.13, 18.22 Sch 3.............................................. 18.19 Planning (Development Management) Regulations (Northern Ireland) 2015, SI 2015/71 reg 3.............................................. 13.08 Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2017, SI 2017/83 (the Northern Irish EIA Regulations)...................... 9.02 reg 2(1).......................................... 9.08 3(1).......................................... 9.08 8(3).......................................... 9.08 32......................................... 9.08, 9.16 33............................................ 9.07 34............................................ 9.08 (1)........................................ 9.08 (2)........................................ 9.08 (6)........................................ 9.09 35......................................... 9.09, 9.10 36(1)........................................ 9.10 37(1)........................................ 9.11 38(1)........................................ 9.11 39............................................ 9.11 (1)(e)................................... 9.12 42............................................ 9.16

Planning (Fees) (Amendment) Regulations (Northern Ireland) 2019, SI 2019/112..................... 7.69 Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) SI 2015, 2015/136..................... 7.68 reg 3(2).......................................... 7.69 7.............................................. 7.69 8(1).......................................... 7.72 (2).......................................... 7.74 (4).............................. 7.41, 7.72, 7.73 (5).......................................... 7.74 9(1).......................................... 7.69 (3).......................................... 7.71 Schedule para 2......................................... 7.69 4......................................... 7.70 Planning (Fees) Regulations (Northern Ireland) 2015, SI 2015/73 art 12............................................. 23.22 (3)(a)................................... 23.22 (4)........................................ 23.22 (5)........................................ 23.22 Planning (General Development Procedure) Order (Northern Ireland) 2015, SI 2015/72......... 23.04 art 11(2)(c)............................. 23.20, 23.23 (5)......................................... 23.31 (7)–(9).................................. 23.43 20(1).................................. 23.20, 23.36 (b).................................... 23.36 26............................................. 6.42 (f)......................................... 10.26 27...................................... 12.12, 23.34 30(1), (2)........................... 10.49, 11.34 Planning (General Permitted Development) Order (Northern Ireland) 2015, SI 1995/70......... 2.50 art 3(2)........................................ 2.54, 2.57 Sch 1 Pt 21.......................................... 2.22 Pt 22.......................................... 2.22 Pt 33.......................................... 2.24 Sch 2 Pt 3 Class C.................................. 2.09 Planning General Regulations (Northern Ireland) 2015, SI 2015/39 reg 11............................................ 15.12 Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015/344...................... 20.02 reg 20(1)–(3)................................. 20.10 22............................................ 20.11 Sch 3.............................................. 20.11 Sch 4.............................................. 20.11

lxii

Table of Statutory Instruments Planning (Hazardous Substances) Regulations 1992, SI 1992/656 reg 19(1)–(3)................................. 20.12 Sch 4 Pt 2............................................ 20.13 Planning (Hazardous Substances) Regulations 2015, SI 2015/627.20.02 reg 14(1)–(3)................................. 20.10 15............................................ 20.11 19............................................ 24.20 20............................................ 20.13 Sch 4.............................................. 20.11 Planning (Hazardous Substances) (Wales) Regulations 2015, SI 2015/1597................................. 20.02 reg 15(2), (3)................................. 20.10 16............................................ 20.11 20............................................ 24.20 Sch 4.............................................. 20.11 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, SI 2014/552 reg 2.............................................. 16.74 (1)(d)..................................... 16.75 (5).......................................... 16.78 (6).......................................... 16.75 3(1), (2)................................... 16.78 4.............................................. 16.76 Planning (Listed Buildings) Regulations (Northern Ireland) 2015, SI 2015/108..................... 16.04 Planning (Northern Ireland) Order 1991, SI 1991/1220................... 23.49 art 41...................................... 23.51, 23.53 67B........................................... 3.20 112A........................................ 6.54 Planning Reform (Northern Ireland) Order 2006, SI 2006/1252 art 21............................................. 6.54 Planning (Trees) Regulations (Northern Ireland) 2015, SI 2015/84.............................. 17.02, 17.07 reg 2.............................................. 17.04 3(2)(c)..................................... 17.04 Planning (Use Classes) Order (Northern Ireland) 2015......... 2.41, 2.42 Police and Criminal Evidence (Northern Ireland) Order 1989, SI 1991/1341 (NI 12)................ 5.44 R Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 art 7A............................................ 5.38

Representation of the People (England and Wales) Regulations 2001, SI 2001/341 reg 107(4)...................................... 5.39 Rules of the Court of Judicature (Northern Ireland) 1980, SI 1980/346 Ord 53........................................... 24.59 r 4(1).......................................... 24.58 5(5).......................................... 24.59 Rules of the Court of Judicature (Northern Ireland) (Amendment) 2017, SI 2017/213 r 2.................................................. 24.58 Rules of the Supreme Court 1965, SI 1965/1776 Order 55 r 4(4).......................................... 24.16 T Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783...... 2.48, 18.01, 18.06 reg 1(3).......................................... 18.10 (b), (c)............................... 18.15 3(1), (2)................................... 18.06 4.............................................. 18.27 (1)................................... 18.10, 18.12 (2).......................................... 18.10 6.............................. 18.10, 18.13, 8.14 7.............................................. 18.21 8.............................................. 18.22 17............................................ 18.22 20............................................ 18.23 (4)........................................ 18.24 21............................................ 18.23 30............................................ 18.27 Sch 1............................ 18.10, 18.13, 18.22 Sch 2....................................... 18.10, 18.15 Sch 3........................... 18.10, 18.11, 18.13, 8.14, 18.19 Town and Country Planning (Control of Advertisements) Regulations 1992, SI 1992/666............... 2.48, 18.01, 18.07, 18.33 reg 4(1).......................................... 18.06 5.............................................. 18.27 6...................................... 18.10, 18.13, 8.14 7.............................................. 18.21 8.............................................. 18.22 15............................................ 18.22 18............................................ 18.23 (4)........................................ 18.24 19............................................ 18.23 27............................................ 18.27 Sch 1.............................................. 18.16

lxiii

Table of Statutory Instruments Town and Country Planning (Control of Advertisements) Regulations 1992, SI 1992/666 – contd Sch 2...................................... 18.10, 18.11, 18.13, 18.22 Sch 3...................................... 18.11, 18.13, 8.14, 18.19 Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, SI 1997/420 reg 3.............................................. 23.37 4.............................................. 7.44 Town and Country Planning (Determination of Appeal Procedure) (Prescribed Period) (England) Regulations 2009, SI 2009/454 reg 2.............................................. 7.52 Town and Country Planning (Determination of Procedure) (Wales) Order 2014, SI 2014/2773 Sch 1 para 5......................................... 7.52 Town and Country Planning (Development Management Procedure) (England) Order 2010, SI 2010/2184 art 4............................................... 2.71 Town and Country Planning (Development Management Procedure) (England) Order 2015, SI 2015/595................ 7.17, 23.04 art 34(2)......................................... 7.17 39............................................. 23.15 (1)......................................... 23.17 (2)......................................... 23.17 (c)............................. 23.18, 23.23 (3)......................................... 23.19 (4)......................................... 23.18 (6)......................................... 23.15 (8)......................................... 23.20 (9)......................................... 23.20 (10)................................ 23.20, 23.36 (13)....................................... 23.31 (14)....................................... 23.27 (15)–(17).............................. 23.43 40............................................. 5.46 (7)......................................... 23.34 42............................................. 5.47 43............................................. 8.36 (1)......................................... 3.53 (2)......................................... 6.42 (h).................................... 10.26 (3)......................................... 12.12 (4).................................... 6.42, 12.12

Town and Country Planning (Development Management Procedure) (England) Order 2015, SI 2015/595 – contd (8).................................... 6.43, 10.26 44............................................. 2.20 Sch 8.............................................. 23.27 Town and Country Planning (Development Management Procedure) (Wales) Order 2012, SI 2012/801............................... 23.04 art 2A............................................ 2.20 3............................................... 2.71 28(1).................................. 23.15, 23.17 (2)......................................... 23.17 (c)............................. 23.18, 23.23 (3)......................................... 23.19 (4)......................................... 23.18 (7)–(9).................................. 23.20 (10)................................ 23.20, 23.36 (13)....................................... 23.31 (14)....................................... 23.27 (15)–(17).............................. 23.43 29.......................................... 5.46, 5.47 (9)......................................... 23.34 30............................................. 8.36 (1)......................................... 6.42 (h).................................... 10.26 (2)......................................... 12.12 (3).................................... 6.42, 12.12 (5).................................... 6.43, 10.26 Sch 2.............................................. 23.27 Sch 7.............................................. 23.27 Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685 .... 7.02, 7.56, 16.29 r 2(1).............................................. 7.93 r 4.................................................. 7.78 (1).............................................. 7.80 (2)........................................... 7.82, 7.86 5.................................................. 7.141 6................................. 7.98, 7.103, 7.109, 7.125, 7.145, 7.161, 7.199 (1), (3)....................................... 7.93 (5).............................................. 7.111 (6).............................................. 7.103 (8)....................................... 7.103, 7.112 (10), (11)................................... 7.103 (13A)......................................... 7.110 (14)............................................ 7.107 (15)............................................ 7.109 7.................................................. 7.166 (1).............................................. 7.120 (2).............................................. 7.115

lxiv

Table of Statutory Instruments Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685 – contd r 7(3).............................................. 7.118 8.................................................. 7.121 9(1).............................................. 7.132 (2).............................................. 7.135 (3), (3A).................................... 7.135 (4).............................................. 7.134 (5).............................................. 7.136 (6).............................................. 7.137 (7).............................................. 7.139 10................................................ 7.144 11(1)............................................ 7.122 13(1)–(3)..................................... 7.130 15(1)–(3)..................................... 7.151 (5)............................................ 7.160 16................................................ 7.152 17(2), (3)..................................... 7.156 (4)..................................... 7.158, 7.166 (5)............................................ 7.161 (6)..................................... 7.159, 7.161 (14).......................................... 7.166 18(2)............................................ 7.179 19(3), (4)..................................... 7.185 20......................................... 7.186, 7.188 Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (Wales) Rules 2003, SI 2003/1270............................. 16.29 Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002, SI 2002/2684................ 7.02, 7.56 r 2(1).............................................. 7.91 4.................................................. 7.78 (1).............................................. 7.80 (2)........................................... 7.82, 7.86 (b)......................................... 7.92 5(1).............................................. 7.91 (3).............................................. 7.92 (4).............................................. 7.105 (6A)........................................... 7.110 6.................................................. 7.139 (1)....................................... 7.132, 7.170 (2)....................................... 7.135, 7.170 (2A)........................................... 7.135 (3)....................................... 7.134, 7.135 (4).............................................. 7.135 (5)....................................... 7.137, 7.171 (6).............................................. 7.137 7.................................................. 7.141 (1).............................................. 7.169 9(1).............................................. 7.123

Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002, SI 2002/2684 – contd r 9(2)....................................... 7.102, 7.172 (3).............................................. 7.175 11(2)–(6)..................................... 7.172 12(1)............................................ 7.178 (2)............................................ 7.179 13................................................ 7.184 14(3)–(5)..................................... 7.185 15................................................ 7.188 (2)............................................ 7.186 16................................................ 7.188 (2)............................................ 7.186 Town and Country Planning (Enforcement) (Hearings Procedure) (Wales) Rules 2003, SI 2003/1268............................. 16.29 Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685..... 7.02, 7.56, 16.29 r 2(1).............................................. 7.93 4.................................................. 7.78 (1).............................................. 7.80 (2)........................................... 7.78, 7.86 5.................................................. 7.141 6(1).............................................. 7.115 (2)(a).................................. 7.118, 7.120 (b)......................................... 7.118 (c)......................................... 7.116 (4).............................................. 7.116 (5).............................................. 7.116 7(15)............................................ 7.109 8(1), (3)....................................... 7.93 (5).............................................. 7.111 (6).............................................. 7.103 (8)....................................... 7.103, 7.112 (10), (11)................................... 7.103 (12)............................................ 7.120 (13A)......................................... 7.110 (14)............................................ 7.107 9(1).............................................. 7.115 (2).............................................. 7.118 10................................................ 7.121 11(1)............................................ 7.132 (2)............................................ 7.132 (3), (3A).................................. 7.135 (4)..................................... 7.134, 7.135 (5)..................................... 7.134, 7.135 (6)............................................ 7.136 (7)............................................ 7.137 (8)............................................ 7.139 12................................................ 7.144 13(1)............................................ 7.122 (2)............................................ 7.126

lxv

Table of Statutory Instruments Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685 – contd r 15(1)..................................... 7.129, 7.130 (2)............................................ 7.130 (3)............................................ 7.130 16(1), (3)..................................... 7.151 (5)............................................ 7.160 17................................................ 7.152 18(2)............................................ 7.156 (3)............................................ 7.156 (4)..................................... 7.158, 7.166 (5)............................................ 7.161 (6)..................................... 7.159, 7.161 (14).......................................... 7.166 19(2)............................................ 7.179 (1), (2), (4).............................. 7.183 (5)–(9)..................................... 7.184 21......................................... 7.186, 7.188 Town and Country Planning (Enforcement) (Inquiries Procedure) (Wales) Rules 2003, SI 2003/1269............................. 16.29 Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002, SI 2002/2682..... 6.02, 6.08, 7.167 reg 4(a)–(c).................................... 6.08 5.............................................. 6.09 6.............................................. 7.61 7(1).......................................... 7.76 (2).......................................... 7.76 8.............................................. 7.77 9.............................................. 7.87 (3).......................................... 7.78 10............................................ 7.78 11............................................ 7.87 Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2003, SI 2003/394..................... 16.29 reg 6(a)–(c).................................... 6.08 10............................................ 15.28 Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, SI 2017/530......... 6.02, 6.08, 7.02 reg 6(2).......................................... 7.76 7........................................... 6.09, 7.77 8.............................................. 7.87 (1).......................................... 7.64 (2).......................................... 7.65 (3).......................................... 7.78 (a)..................................... 7.65 (4).......................................... 7.65 10............................................ 7.78

Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, SI 2017/530 – contd reg 11............................................ 7.87 15(2)........................................ 7.80 Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002, SI 2002/2683................... 7.02, 7.56, 16.29 reg 4.............................................. 7.80 5.............................................. 7.82 6.............................................. 7.86 7(1), (3)................................... 7.88 (4).......................................... 7.89 (5).......................................... 7.90 8(2), (3)................................... 7.105 Town and Country Planning (Enforcement) (Written Representations Procedure) (Wales) Regulations 2003, SI 2003/395................................... 16.29 Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995, SI 1995/2258................... 9.07 Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293 reg 25............................................ 9.07 (9)........................................ 9.09 (12)...................................... 9.10 47............................................ 9.10 51(1)........................................ 9.11 Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations).............................. 9.02 Pt 8 (regs 34–46)........................... 9.07 reg 2(1).......................................... 9.08 4(2)(a)..................................... 9.11 5(7)....................................... 9.08, 9.09 25(1)........................................ 9.11 (11)...................................... 9.11 34............................................ 9.16 35............................................ 9.16 36............................................ 9.07 37......................................... 9.08, 9.09 (1)........................................ 9.08 (3)........................................ 9.08 39............................................ 9.10 40(1)........................................ 9.09 41......................................... 9.09, 9.10

lxvi

Table of Statutory Instruments Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) – contd eg 42(b)........................................ 9.11 44............................................ 9.11 (1)(e)–(g)............................. 9.12 45............................................ 9.12 (3)........................................ 9.12 46............................................ 9.11 68............................................ 7.17 Sch 2.............................................. 9.08 Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations, 2017, SI 2017/567................................... 9.02 reg 2(1).......................................... 9.08 5(1).......................................... 9.08 (11)........................................ 9.09 (12)........................................ 9.08 40............................................ 9.14 (1), (2)................................. 9.14 43............................................ 9.16 44............................................ 9.07 45............................................ 9.08 (2)........................................ 9.08 46............................................ 9.09 50............................................ 9.11 (a)........................................ 9.11 52............................................ 9.11 (1)(f).................................... 9.12 53............................................ 9.12 Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989, SI 1989/193 reg 10............................................ 6.09 Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015, SI 2015/1522............................. 7.68 reg 8(3).......................................... 6.09 10............................................ 7.68 (4)........................................ 7.68 (5)..................................... 7.68, 7.71 (10)...................................... 7.72 (b)................................. 7.74 (c)..................... 7.41, 7.72, 7.73 (12)...................................... 7.74 (13)...................................... 7.75 (14)...................................... 7.75 10A(5)(c)................................ 23.22 (3)..................................... 23.22 (4)..................................... 23.22

Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015, SI 2015/1522 – contd reg 10A(6)..................................... 23.22 (8)..................................... 23.22 11............................................ 23.22 Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, SI 2012/2920 .... 7.23, 7.68, 23.22 reg 10............................................ 7.68 (3)........................................ 7.68 (4)........................................ 7.71 (5)........................................ 7.68 (7)........................................ 7.70 (8)........................................ 7.72 (9)........................................ 7.74 (12).......................... 7.41, 7.72, 7.73 (13)...................................... 7.74 (14)...................................... 7.75 11............................................ 23.22 (3)(a), c).............................. 23.22 (4), (5)................................. 23.22 (6)........................................ 23.22 (7)........................................ 23.22 Sch 1 para 1(4).................................... 7.68 Town and Country Planning General Development (Amendment) (No 2) Order 1981, SI 1981/1569........................ 6.42, 10.26 Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596................. 2.50, 2.54, 22.02 art 3(2)........................................... 2.57 Sch 2 Pt 2 Class C.................................. 2.09 Pt 9............................................ 2.22 Pt 11.......................................... 2.22 Class A.................................. 2.24 B, C.............................. 16.55 Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418................. 2.50, 2.54, 16.51, 22.02 art 3(2)........................................... 2.57 Sch 2 Pt 2 Class C.................................. 2.09 Pt 12.......................................... 2.22 Pt 13.......................................... 2.22 Pt 31.......................................... 6.16

lxvii

Table of Statutory Instruments Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418 – contd Class A.................................. 2.24 Town and Country Planning General Regulations 1992, SI 1992/1492 reg 12(1)........................................ 10.49 (2)................................. 10.49, 11.34 13............................................ 6.38 14(1)..................................... 8.72, 8.73 (2)........................................ 8.72 Town and Country Planning (Listed Buildings and Conservation Areas) (Wales) Regulations 2012, SI 2012/793..................... 16.48 Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, SI 1992/2832 reg 2A............................................ 19.12 Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019, SI 2019/907 reg 17(2)........................................ 18.19 Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, SI 2017/544  7.02, 7.57, 7.99, 7.167, 15.28 reg 3(1)........................... 7.84, 7.95, 7.106, 7.108, 7.133 5.............................................. 7.135 7....................................... 7.166, 7.173 8.............................................. 7.177 9(1)................................... 7.104, 7.113 (2)(b)..................................... 7.113 (3).......................................... 7.113 (4)(a)–(d)............................... 7.113 (5).......................................... 7.113 (6).......................................... 7.113 (7).......................................... 7.113 10(1), (2)................................. 7.110 11(2)........................................ 7.126 13............................................ 7.52 14............................................ 7.52 (1)........................................ 7.52 (2)................................... 7.52, 7.114 Pt 2 (reg 15–17)............................ 7.57 reg 15............................................ 7.80 16............................................ 7.86 17(1), (2)................................. 7.84 Pt 4 (reg 21–25)......................... 7.02, 7.57 reg 22(3)(b)................................... 7.95

Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, SI 2017/544 – contd reg 22(5)........................................ 7.95 (6)........................................ 7.95 (7)........................................ 7.95 23(1)–(3)................................. 7.99 24(1)................................. 7.107, 7.108 25............................................ 7.54 Pt 5 (reg 26–34)............................ 7.02 reg 27............................................ 7.169 28............................................ 7.169 29(1)................................. 7.133, 7.170 (2)........................................ 7.170 (4)................................. 7.135, 7.170 (5)................................. 7.141, 7.170 (7)........................................ 7.135 30(1)........................................ 7.138 (a)–(c)............................. 7.171 (5)........................................ 7.139 31(1), (2)................................. 7.102 (3)........................................ 7.175 33(3)........................................ 7.172 (6)........................................ 7.172 (14)...................................... 7.175 34............................................ 7.54 Pt 6 (reg 35–46)......................... 7.02, 7.57 reg 36(1)........................................ 7.144 37............................................ 7.144 38(1)........................................ 7.104 (a)–(c)............................. 7.124 (2)........................................ 7.124 40(1)........................................ 7.117 (2)........................................ 7.118 (3)........................................ 7.117 41(3)........................................ 7.121 42(1)........................................ 7.133 (4)........................................ 7.135 (5)........................................ 7.141 (6)........................................ 7.135 (7)........................................ 7.135 43(1)........................................ 7.138 (5)........................................ 7.139 44............................................ 7.104 (4)................................. 7.126, 7.151 (6)........................................ 7.160 45(2)........................................ 7.156 (4)........................................ 7.159 (6)........................................ 7.161 (7)........................................ 7.161 (15)...................................... 7.166 46............................................ 7.54 47(2)........................................ 7.186 (7)–(9)................................. 7.185 48(1), (2)................................. 7.183 (8)–(11)............................... 7.184

lxviii

Table of Statutory Instruments Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, SI 2017/544 – contd reg 51............................................ 7.212 Sch 2.............................................. 7.212 Town and Country Planning (Temporary Stop Notice) (England) Regulations 2005, SI 2005/206............................ 11.14, 11.15 reg 2(2).......................................... 11.14 Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013, SI 2013/830...11.15 Town and Country Planning (Tree Preservation) (England) Regulations 2012, SI 2012/605... 17.02 reg 3(1).......................................... 17.04 4(1), (2)................................... 17.04 5, 7.......................................... 17.04 13............................................ 17.06 14..................................... 17.06, 17.19 15(1), (2)................................. 17.19 24............................................ 17.07 (9)........................................ 17.07 25............................................ 17.12 Schedule para 3......................................... 17.06

Town and Country Planning (Trees) Regulations 1999, SI 1999/1892............................. 17.02 reg 2(1).......................................... 17.04 3.............................................. 17.04 5(1).......................................... 17.04 10............................................ 17.19 Schedule para 4......................................... 17.06 5......................................... 17.06 Town and Country Planning (Use Classes) Order 1987, SI 1987/764.................. 2.29, 2.41, 2.43, 2.44, 2.45, 2.52 art 3(1)........................................... 2.41 (3)........................................... 2.43 (6)........................................... 2.42 4............................................... 2.44 Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, SI 2010/2600............................. 10.51 W Waste and Contaminated Land (Northern Ireland) Order 1997, SI 1997/2778 art 8(3)........................................... 23.33

lxix

Table of European Legislation

TREATIES AND CONVENTIONS European Convention on Human Rights (Rome, 4 September 1950).................................... 4.10, 10.08 art 1.......................................... 4.10, 14.14 6............................................ 4.10, 7.55 (1)........................................... 24.08 8.................................. 4.10, 4.11, 4.14, 4.15, 4.17, 11.15, 14.14, 14.17 (2)........................................... 4.18 9............................................... 4.10 10........................................ 4.10, 18.48 13............................................. 4.14 14................................. 4.10, 4.12, 4.14 Protocol 1 art 1....................................... 4.13, 4.14, 4.15, 14.14 Treaty establishing the European Community (Rome, 25 March 1957) art 249........................................... 9.18 Treaty on European Union art 4(3)........................................... 9.15 191(2)....................................... 9.23 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (Aarhus, 25 June 1998)............. 14.50 art 9............................. 14.50, 24.34, 24.53 (3)........................................... 14.50

DIRECTIVES Directive 85/337/EEC....................... 9.03 Directive 97/11/EC........................... 9.03 Directive 2003/4/EC......................... 5.49 Directive 2003/35/EC....................... 9.03 Directive 2009/31/EC....................... 9.03 Directive 2011/92/EU.......... 2.04, 2.24, 9.03, 9.06, 9.25 art 2(1)............................... 9.03, 9.18, 9.19 4................................... 9.03, 9.05, 9.18 11...................................... 14.50, 24.53 Annex I....................................... 9.04, 9.08 Annex II..................................... 9.04, 9.08 Directive 2014/52/EC.................... 9.03, 9.05 REGULATIONS Regulation 2016/679/EU.................. 5.55

lxxi

Chapter 1

Introduction

PURPOSES OF ENFORCEMENT POWERS 1.01 The nationwide system of planning control introduced in the Town and Country Planning Act 1947 is based on the view that the use of land is a matter of public interest. Most obviously, activities on land have a visual impact. But they can also affect neighbours by noise, fumes and disturbance. There are wider effects: for example, most development generates traffic on roads, and an out-oftown shopping centre could affect the quality of retailing in the town centre. Wildlife habitats or archaeological remains may be threatened. There is also a need to provide the business premises, housing, shops, schools, and transport infrastructure that a modern society requires. Food must be grown, minerals worked and waste recycled or disposed of. 1.02 Much of this requires proper consideration in planning applications made to public bodies. The need for this consideration carries with it the expectation that the procedures are gone through and that landowners and occupiers do not simply go ahead without the necessary permission. It is also essential that when permissions are obtained, they are adhered to. 1.03 Planning enforcement is concerned with keeping to these procedures. It seeks to prevent development from occurring without a necessary planning permission and to ensure that the requirements of a planning permission are met. A useful description of the responsibilities of councils in enforcing planning controls was given by Purchas LJ in Runnymede Borough Council v Ball:1 ‘the duties of the Council under the planning legislation was not merely to enforce penalties for past offences but was also to do all within their power to ensure through properly observed planning control the natural amenities of their area.’

1.04

The Secretary of State’s Planning Practice Guidance advises:2

‘Effective enforcement is important to: •

tackle breaches of planning control which would otherwise have unacceptable impact on the amenity of the area;

•

maintain the integrity of the decision-making process;

•

help ensure that public acceptance of the decision-making process is maintained.’

[1986] JPL 288. ID 17b-005-20140306.

1 2

1

1.05  Introduction 1.05 Planning enforcement is, though, a matter for the discretion of the planning authorities. There is no general duty to enforce, and it might only be in very limited circumstances that enforcement is required under European law or as the only rational, and so lawful, response to a particular situation. As the planning system as a whole is concerned with the public interest, so enforcement powers are to be exercised in the public interest. There is no point in enforcing against development which is, and which will remain, innocuous. THE STRUCTURE OF PLANNING CONTROL 1.06

In England planning control is in the hands of three tiers of government:

•

district or unitary councils;

•

county councils (in two-tier areas); and

•

the Secretary of State for Housing, Communities and Local Government.3

1.07 At the local level, most planning matters are dealt with by district councils. County councils deal with minerals and waste planning (‘county matters’) as well as their own projects. Planning enforcement powers are generally exercisable by district councils, except for county matters.4 Unitary authorities have the responsibilities of district and county councils. There is a mix of different local authority structures across England. In Greater London and the former metropolitan counties (Greater Manchester, Merseyside, South Yorkshire, and Tyne and Wear, West Midlands – the Birmingham conurbation – and West Yorkshire) there are unitary authorities. The rest of England is a mixed bag of counties with a two-tier (county/district) system throughout: counties with a two-tier system but some unitary authorities (usually major cities) and counties that are administered by one or more unitary authorities. Planning control in Wales is carried out by unitary councils, which are either county councils or county borough councils, and by the Welsh Government, these powers being exercised by the ‘Welsh Ministers’.5 1.08 In Northern Ireland planning control is in the hands of the district councils, which are unitary authorities, and the Northern Ireland Executive (or in the event of direct rule, the Secretary of State). The transfer of most planning responsibilities to the councils took place in 2015. The Department for Infrastructure is the executive department responsible for planning and tends to be referred to as ‘the Department’.

The name of the department responsible for planning has changed frequently in recent years. Prior to 1970 the Ministry of Housing and Local Government dealt with these matters. It then became the responsibility of the large Department of the Environment. In 1997 the Department for the Environment, Transport and the Regions was created under John Prescott. In 2001 the ministry’s scope was cut down to become the Department for Transport, Local Government and the Regions. This department was abolished in 2002 and the planning powers were exercised by the Office of the Deputy Prime Minister, with the Minister, John Prescott, exercising his powers as First Secretary of State. In 2006 the powers were transferred to a new Department of Communities and Local Government and in January 2018 this was renamed the Ministry of Housing, Communities and Local Government. MHCLG’s remit is quite similar to that of the old Ministry of Housing and Local Government. 4 Town and Country Planning Act 1990, Sch1, paras 3, 11. Whilst parish and town councils and neighbourhood forums prepare neighbourhood development plans, they have no enforcement powers. 5 Where powers are in substance the same in England, Wales and (sometimes) Northern Ireland I will often refer to the Secretary of State and the Welsh Ministers as ‘the Minister’. 3

2

Main sources of law and policy 1.13 1.09 At the local level, enforcement powers are exercised by local planning authorities (LPAs), who are usually district, county or unitary authorities. The Northern Irish legislation refers to councils rather than local planning authorities but for convenience this book will often refer to local planning authorities across the three nations.6 In England and Wales the powers of local planning authorities are sometimes exercised by other bodies. In national parks, national park authorities are the planning authority for all purposes.7 1.10 Urban development corporations are normally made, by order under the Town and Country Planning Act, the local planning authority for their area. The Secretary of State and Welsh Ministers are also empowered to make enterprise zone authorities, housing action trusts and (in England) Homes England the local planning authority for particular areas.8 The Mayor of London and various combined authorities in major cities may make a mayoral development corporation the local planning authority for an area.9 How planning powers are exercised within these bodies’ areas will vary. Enforcement and smaller planning applications might be left to the existing councils. 1.11 The powers of the various ministers need not be exercised by the Minister personally; civil servants can act in his name without express delegation.10 In England and Wales certain appeals are heard by Inspectors, who will either make the decision or report to the Minister. These Inspectors are employed by the Planning Inspectorate, which is joint executive agency of the Ministry of Housing, Communities and Local Government and the Welsh Government. Similar functions are carried out in Northern Ireland by Commissioners who are members of the Planning Appeals Commission (PAC). Unlike the Inspectorate, the PAC is a statutory body.11 MAIN SOURCES OF LAW AND POLICY England and Wales 1.12 In England and Wales planning legislation is principally contained in the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act), the Planning (Hazardous Substances) Act 1990 (the Hazardous Substances Act) and the Planning (Consequential Provisions) Act 1990. This comprised the first consolidation of planning legislation since the Town and Country Planning Act 1971. 1.13 The principal enforcement provisions are contained in Part VII of the Town and Country Planning Act 1990, ss 171A–196C. This legislation has been amended several times since 1990. The principal changes have been in: 8 9

Town and Country Planning Act 1990, s 1. Environment Act 1995, s 67. Town and Country Planning Act 1990, ss 6–8A. Town and Country Planning Act 1990, s 7A. The Mayor may become the local planning authority for particular strategic planning applications but does not have enforcement powers except in respect of planning obligations entered into in relation to planning applications for which he has become the local planning authority: Town and Country Planning Act 1990, s 2E(5). 10 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. 11 Planning Act (Northern Ireland) 2011, s 203. Where the same powers arise in the three nations, I will use the expression Inspectors to include Commissioners. 6 7

3

1.14  Introduction •

the Planning and Compensation Act 1991 – amongst other matters, this implemented the report by Robert Carnwath QC on planning enforcement;

•

the Planning and Compulsory Purchase Act 2004, which introduced temporary stop notices;

•

the Planning Act 2008, introducing the new regime for major infrastructure and the Community Infrastructure Levy;

•

the Localism Act 2011, which for enforcement dealt with exceptions to time periods and mechanisms for dealing with advertisements;

•

the Enterprise and Regulatory Reform Act 2013, abolishing conservation area consent and changing listed buildings processes;

•

the Growth and Infrastructure Act 2013, which did not directly affect enforcement;

•

the Housing and Planning Act 2016, which introduced permission in principle as another means of authorising development and so capable of being the subject of enforcement; and

•

the Neighbourhood Planning Act 2017, which altered the definition of the development plan and allowed the use of conditions to be restricted.

1.14 From the Localism Act onwards, these changes have affected only England. The Planning (Wales) Act 2015 introduced planning warning notices and altered enforcement notice and section 215 amenity notice appeals.12 A thorough revision of enforcement in respect of ancient monuments and listed buildings was carried out by the Historic Environment (Wales) Act 2016. Primary legislation on planning in Northern Ireland is contained in the Planning Act (Northern Ireland) 2011. Policy and guidance 1.15 The Secretary of State, Welsh and Northern Irish Ministers, planning inspectors and commissioners and local planning authorities are expected to take into account government policy and guidance. To use the language of the courts: it is a material consideration in the exercise of the decision-maker’s discretion. Guidance also expresses the government’s view as to the law. Frequently this is a useful and concise guide to the legislation, but it must be approached with caution. Only the courts can determine what the law is and it is not unknown for the guidance to be wrong. Government guidance in England is contained in the National Planning Policy Framework,13 the Planning Policy for Traveller Sites, the National Planning Policy for Waste, the Planning Practice Guidance, national planning statements on major infrastructure and circulars. 1.16 Enforcement is mentioned briefly in the National Planning Policy Framework. Useful guidance on when to take enforcement steps and a brief overview The Welsh reforms followed the Independent Advisory Group report Towards a Welsh Planning Act: Ensuring the Planning System Delivers (June 2012) and work by Arup and Fortismere Associates Research into the Review of the Planning Enforcement System in Wales: Final Report (May 2013). 13  2019. 12

4

Main sources of law and policy 1.20 of the regime is given in the Planning Practice Guidance. More detailed guidance had been provided in Department of the Environment circular 10/97 Enforcing Planning Control: Legislative Provisions and Procedural Requirements, various other circulars14 and Enforcing Planning Control: Good Practice Guidance for Local Planning Authorities. These have now been cancelled and the current guidance is less extensive. Occasionally the old circulars did contain some useful practical points which remain in Welsh policy. 1.17 In Wales, non-statutory planning policy is contained in Planning Policy Wales15 and Technical Advice Notes (TANs) along with some circulars published by the Welsh Office prior to devolution. Advice on enforcement is in section 3.6 of the PPW. Guidance which had been contained in TAN9 Enforcement of Planning Control is now in the Development Management Manual. Detailed procedural guidance is contained in Welsh Office Circular 24/97 Enforcing Planning Control Legislative Provisions and Procedural Requirements, which is materially the same as the cancelled DoE Circular 10/97. This guidance is dated and needs to be used with care.16 Advice on enforcement mechanisms which were introduced in 2015 is given by Development Management Manual Section 14 Annex: Enforcement Tools. 1.18 Planning enforcement in Northern Ireland is discussed in the Strategic Planning Policy Statement for Northern Ireland Planning for Sustainable Development (SPPS).17 Further detail is provided in four Enforcement Practice Notes. Planning Policy Statement (PPS) 9: The Enforcement of Planning Control was cancelled by the introduction of the SPPS. Planning enforcement powers 1.19 Planning enforcement is principally concerned with local planning authorities taking action against physical works or activities on land which do not have the required planning permission or which have been carried on in breach of a condition attached to a planning permission. These are known as breaches of planning control.18 1.20 There are five powers that authorities in all three nations can use against such breaches: (i) issue an enforcement notice requiring the breach to cease and remedying any harm caused. Enforcement notices can be appealed to the Minister, or in Northern Ireland to the Planning Appeals Commission, and do not come into force until any appeals have been determined; (ii) serve a breach of condition notice. As the name suggests, this may only be used against breaches of conditions on planning permissions, rather than things

For example, Circular 02/02: Enforcement appeals procedures, Circular 02/05 Temporary Stop Notices, Procedural Guidance: Enforcement appeals and determination of appeal procedure (PINS 02/2009). 15 10th edn, December 2018. 16 In addition to case law developments, Annex 7 control of development on Crown Land has been cancelled. 17 September 2015. Enforcement arrangements are explained in the Department for Infrastructure’s Overview of Planning Enforcement Responsibilities (October 2016). 18 Town and Country Planning Act 1990, s 171A(1); Planning Act (Northern Ireland) 2011, s 131(1). 14

5

1.21  Introduction done without planning permission. There is no right of appeal against such a notice; (iii) serve a stop notice. An enforcement notice will take at least 28 days to take effect, so a stop notice may be served with or after it to prohibit unlawful activity until the enforcement notice has to be complied with; (iv) serve a temporary stop notice. Temporary stop notices work like stop notices but can be served before any enforcement notice. They have effect for up to 28 days; (v) apply to the court for an injunction. The High Court or the county court can grant an injunction restraining breaches of planning control. This is the only power available before a breach takes place. Additionally in Northern Ireland a submission notice may be issued, requiring the submission of a planning application for development which has been carried out. An enforcement warning notice may be issued in Wales, to encourage (but not require) the making of a planning application. 1.21 Issuing an enforcement notice, serving a breach of condition notice or (in Wales) issuing an enforcement warning notice all constitute ‘taking enforcement action’.19 1.22 In England the demolition of a building within a conservation area without planning permission or without complying with conditions is a criminal offence. In Wales and Northern Ireland similar offences arise under the requirements for conservation area consent. 1.23 Authorities have information-gathering powers, in particular by serving planning contravention notices to require explanations from those suspected of being in breach. 1.24 Failure to comply with any of the notices is a criminal offence. Where an enforcement notice has been breached, the local planning authority may carry out the works in the notice. 1.25 There are a number of other powers which, whilst not directed to unlawful development, may be used against it or related problems. In the Town and Country Planning Act 1990 these are the making of discontinuance or revocation orders and issuing notices to clean up land.20 Special regimes of control, authorisation and enforcement apply to trees, advertisements, listed buildings, demolition in conservation areas, scheduled monuments, the keeping of hazardous substances and nationally significant infrastructure projects. These give rise to immediate criminal liability and powers to seek injunctions and, in most cases, to serve notices. 1.26 The various planning enforcement powers, their relevant primary legislation and principal rules or regulations are set out below, along with the relevant chapters in this book.

Town and Country Planning Act 1990, s 171A(2); Planning Act (Northern Ireland) 2011, s 131(2). The definition of enforcement action is significant for time limits, see Chapter 3 below. 20 Known in England and Wales as section 215 notices. 19

6

Main sources of law and policy 1.27 Power

England

Wales

Northern Ireland

Chapter

Planning contravention notices

TCPA 1990, ss 171C–171D

TCPA 1990, ss 171C–171D

PA(NI) ss 133, 134

5

Enforcement notices

TCPA 1990, ss 172–182

TCPA 1990, ss 172–182

PA(NI) ss 138149, 153

6–9

Stop notices

TCPA 1990, ss 183–186

TCPA 1990, ss 183–186

PA(NI) ss 150151

10

Temporary stop notices

TCPA 1990, ss 171E–171H

TCPA 1990, ss 171E–171H

PA(NI) ss 135137

11

Breach of condition notices

TCPA 1990, s 187A

TCPA 1990, s 187A

PA(NI) ss 152, 154

12

Prosecution for demolition in conservation areas

TCPA 1990, s 196D

As conservation area consent (see below)

As conservation area consent (see below)

16

Submission notices

N/A

N/A

PA(NI) ss 43, 44

13

Enforcement warning notices

N/A

TCPA 1990, s 173ZA

N/A

4

Injunctions

TCPA 1990, s 187B

TCPA 1990, s 187B

PA(NI) s 156

14

1.27

Other powers covered in this book are:

Power

England

Wales

Northern Ireland

chapter

Revocation and discontinuance

TCPA 1990, ss 97–104

TCPA 1990, ss 97–104

PA(NI), ss 68–75, 168

15

Amenity notices

TCPA 1990, ss 215–219

TCPA 1990, ss 215–219

N/A

15

Listed buildings P(LBCA)A ss 9, 38–46

P(LBCA)A ss 9, 38–46

PA(NI), ss 85, 103, 157–160

16

Conservation area consent

N/A

P(LBCA)A s 74

PA(NI), s 105

16

Ancient monuments

AMAAA, ss 2, 42

AMAAA, ss 2, 9ZC–9ZM, 42

HMAO(NI) 1995, art 4, 29

16

Trees

TCPA 1990, ss 197–214D

TCPA 1990, ss 197–214D

PA(NI), ss 125– 127, 164–167

17

Advertising

TCPA 1990, ss 220–225I

TCPA 1990, ss 220–225I

PA(NI), ss 130, 175

18

Enforcement of planning agreements/ obligations

TCPA 1990, s 106 TCPA 1990, s 106 PA(NI), s 76

19

Hazardous substances

P(HS)A, ss 23– 26AA

20

P(HS)A, ss 23– 26AA

7

PA(NI), ss 117, 162, 163

1.28  Introduction Power

England

Wales

Northern Ireland

Nationally Significant Infrastructure Projects

PA, ss 160–171

PA, ss 160–171

N/A

chapter

Community Infrastructure Levy

PA, s 218

PA, s 218

N/A

22

Lawful development certificates

TCPA 1990, ss 191–195

TCPA 1990, ss 191–195

PA(NI), ss 169– 174

23

Key: AMAAA – Ancient Monuments and Archaeological Areas Act 1979; HMAO – Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995; P(LBCA)A – Planning (Listed Buildings and Conservation Areas) Act 199; PA(NI) – Planning Act (Northern Ireland); TCPA – Town and Country Planning Act 1990, PA – Planning Act 2008 Principles of public law 1.28 The grounds on which public law decisions can be reviewed by the High Court are essentially derived from judicial decisions and so the terminology used varies according to fashion and taste. It is also possible for a single substantive error to be characterised as a variety of different legal errors. There are three main categories of challenge. Illegality error going to jurisdiction 1.29 This ground, historically known as an error going to jurisdiction, has two categories: (i)

error of law: if the decision-maker makes an error of law in coming to the decision then it will be outside the decision-maker’s power and so ultra vires. These errors include misunderstanding legal powers and duties, and a misinterpretation of policy can be characterised as an error of law;

(ii) error of fact: traditionally this has been viewed narrowly, only allowing the court to consider errors going to the decision maker’s jurisdiction, ie  a fact essential to the decision-maker’s ability to exercise his power is correct. For example, the court can determine whether the site is within the local planning authority’s area. However, a broader approach is now taken to a mistake of fact giving rise to unfairness. In E v Secretary of State for the Home Department the Court of Appeal held:21 ‘First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning’. [2004] EWCA Civ 49, [2004] QB 1044 at para 66.

21

8

Main sources of law and policy 1.33 Unreasonableness 1.30 This ground, also called irrationality, is concerned with defects in the way the decision was thought through. Usually this is concerned with the exercise of discretion, although similar principles are applied when the court is reviewing the lawfulness of a judgment formed by a public authority (such as a decision that there are not likely to be significant effects and so EIA is not required). Unreasonableness in its broad sense includes acting for an improper purpose; failing to take account of relevant considerations (known by the Town and Country Planning Act 1990, s 70 as material considerations); taking account of immaterial considerations; opposing the policy of Parliament; and making a finding of fact on no evidence. 1.31 Unreasonableness in its narrow sense means making a decision that no reasonable person could have come to. This is known as ‘Wednesbury unreasonableness’,22 or sometimes as perversity. The premise of this narrow category is that, having been unable to identify another specific error, the overall decision was not one that the decision-maker could have come to if they had been approaching their task properly. This narrow category is hard to demonstrate, particularly in planning cases where the courts are concerned not to be seen to be deciding the planning merits of the scheme. An Inspector’s or Commissioner’s decision will be based on factual and expert evidence they have heard, the site visit and their professional judgement and expertise.23 Natural justice 1.32 This ground, which is also known as procedural impropriety, is concerned with errors in the way the decision was made and comprises three categories: (i)

failure to comply with procedural requirements: these requirements may be set out in statute or in rules or regulations – for example, how notice is given of a hearing. A failure to give adequate and intelligible reasons when required to do so;

(ii) failure to give a fair hearing: even if any procedural requirements have been met, the decision-maker may have failed to give a party a fair opportunity to state their case and challenge any opposing case; (iii) the appearance of bias: this is a real danger, from their interests or from their behaviour, that the decision-maker is biased against a party.24 1.33 Whilst public law challenges, including planning cases, are concerned with the legality of decision-making rather than its merits, the decisive issues between the parties tend to be how the facts are understood rather than what the law is. Some cases do turn on major points of legal principle, such as the scope of development or duties to give reasons for Environmental Impact Assessment screening, but even in some of the major, quotable judgments the law was relatively uncontroversial. The

From Lord Greene MR’s judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 at 229. 23 See Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC (Admin) 74, [2017] PTSR 1126 at paras 6–8 per Sullivan J. 24 This principle, and its application to local planning authorities, is discussed in Chapter 24. 22

9

1.34  Introduction outcome of most cases is determined by the interpretation of the facts: what did the committee report mean; did the inspector understand the position or explain their conclusion? 1.34 In respect of any ground therefore, the claimant needs to closely analyse what the decision-maker knew, said or what happened in the process to identify the error or errors of law and their consequences for the decision. In preparing grounds it is usually useful to think about what went wrong in non-technical terms: an issue was overlooked or misunderstood; someone did not get a chance to deal with new material. Such substantive errors might be characterised in a number of legal ways – and pleaded as such – but at heart there is often a simple error which can be summarised in very human terms. The court’s powers 1.35 In judicial review if a decision is ultra vires then the High Court has a discretion whether to quash it. If quashed, the decision is considered to be void ab initio, to have had no legal effect from the date of its making. In judicial review proceedings the court can make the following orders: •

a quashing order (in Northern Ireland, certiorari) – to quash a decision;

•

prohibition – to prevent the public body from making a decision or doing an act;

•

a mandatory order (in Northern Ireland, mandamus) – instructing the public body to make a decision or do an act;

•

injunction – instructing the public body to do or not do an act;

•

declaration – setting out the law in a particular situation or stating the validity of a decision; and

•

damages – if there is a private right of action, for example, in tort or contract.

1.36 Where the power to apply or appeal to the Court to challenge a decision is contained in legislation then the Court’s powers are set out in statute. On an appeal to the High Court against an enforcement notice appeal decision25 in England or Wales, the Court is empowered to remit the appeal decision back to the Minister for redetermination. Nullity, validity and the circumstances in which challenges can be brought 1.37 The ability to challenge an unlawful decision can be contentious, particularly where the challenge arises at a relatively late stage. In the enforcement context this includes questioning the validity of notices when they are being enforced or the planning conditions which underlie the enforcement action. It may be helpful to set out the circumstances in which an authority’s decisions can or have to be challenged and the principles underlying these: •

the Government must act in accordance with the law;

Town and Country Planning Act 1990, s 289.

25

10

Main sources of law and policy 1.37 •

unless excluded by legislation, a person with sufficient interest in the matter is able to challenge the lawfulness of a government decision;

•

as a general rule, a decision will be treated as valid unless and until it is set aside by a court of competent jurisdiction. Once it is set aside it will be treated as never having had legal effect;26

•

if legislation provides a mechanism to challenge the decision in the Administrative Court of the High Court then it should be used (a statutory application or appeal), otherwise a challenge may be brought by judicial review. The relevant procedural requirements have to be followed, not least in the timing of the proceedings, subject to any ability of the Court to disapply the requirement;

•

in judicial review the court has a discretion whether to set aside the unlawful decision, although it will normally do so;

•

the ability to challenge a decision except by applying to the Administrative Court is limited;

•

a decision or document is a nullity if it is so defective on its face that it is not the type of decision that its maker would have wished it to be. For example, an enforcement notice issued against a claimed breach of planning control would be a nullity if, correctly interpreted, it failed to identify the land, set out the steps which had to be taken or the activity required to cease (or was hopelessly ambiguous about these),27 or say by when this had to be done. A  document is a nullity if on its face it fails to include an element (or contains conflicting material28) which means that it cannot be given effect. In those circumstances it must be ignored;

•

a person may defend themselves in any civil or criminal proceedings by establishing that the public law decision which is the basis of the allegation against them is unlawful, unless statute provides expressly or by implication that the point cannot be raised. In Boddington v British Transport Police29 the House of Lords affirmed the principle that a defendant in criminal proceedings can rely on the unlawfulness of a public law decision which has not been quashed by the Administrative Court as a defence in criminal proceedings. The unlawfulness of an act can also be raised as a defence in civil proceedings.30 For example, the validity of a breach of condition notice can be challenged in defence to a prosecution, including contesting the lawfulness of the planning condition which it seeks to enforce.31 However, because of the legislative regime, the validity of a planning enforcement notice cannot be challenged in criminal proceedings except in limited circumstances;32

Hoffmann-la Roche v Secretary of State for Trade and Industry [1975]  AC  295 at 365 per Lord Diplock. 27 London Borough of Hounslow v Secretary of State for the Environment and the Indian Gymkhana Club Ltd [1981] JPL 510 at 511 per Ackner LJ. 28 For example, Sarodia v Redbridge London Borough Council [2017] EWHC 2347 (Admin). 29 [1999] 2 AC 143. 30 Wandsworth London Borough Council v Winder [1985] AC 461. 31 Dilieto v Ealing London Borough Council [2000] QB 381, approved in Earthline Ltd v Secretary of State for the Environment, Transport and the Regions and West Berkshire Council [2002] EWCA Civ 1599, [2003] 1 P & CR 24 at para 15 per Brooke LJ. 32 Town and Country Planning Act 1990, s 285; R v Wicks [1998] AC 92. 26

11

1.37  Introduction •

the bringing of a challenge by an ordinary claim is likely to be an abuse of process if there is no private law cause of action alleged and it may be appropriate to transfer to public law proceedings if a private law claim relies on public law illegality. In Trim v North Dorset District Council33 it was held to be an abuse of process to seek a declaration in ordinary proceedings that a breach of condition notice had been served out of time. On occasions local authorities have threatened to carry out works on a site pursuant to a notice and landowners have sought injunctions in private law proceedings to prevent the works on the basis that the decision is unlawful in public law terms and so the works would be trespass. The courts have often been prepared to entertain such claims, albeit with dicta that the claim should have been brought, and an injunction sought, in judicial review;

•

landowners have been able to contend before local planning authorities, Ministers and Inspectors that conditions on earlier planning permissions are unlawful. This again is a collateral challenge reflecting the principle that a person should not be subject to an unlawful decision. For example, such unlawfulness may be raised in response to an enforcement notice (Newbury District Council v Secretary of State for the Environment)34 or in a later planning application (Earthline v Secretary of State for Transport, Local Government and the Regions).35 In Tarmac Heavy Building Materials UK Ltd v Secretary of State for the Environment, Transport and the Regions the High Court ruled in an enforcement notice appeal that a condition imposed 47 years earlier was invalid;36

•

it is questionable whether a public authority or third party should be able to raise the unlawfulness of a decision in proceedings other than by way of judicial review or statutory application to the High Court. The scenario would be that a public authority grants a consent and then brings proceedings against the person acting in reliance upon it, saying that the consent was unlawful. The doctrine of ultra vires provides that if a decision is quashed then it had no effect – so if development takes place under a planning permission which is subsequently quashed then that development was without planning permission and can be enforced against. However the Administrative Court only acts if a person with standing brings proceedings in time (or with an extension of time) and it exercises a discretion to quash. Any other court or body dealing with an allegedly unlawful decision does not have these procedural controls, nor any discretion as to how it deals with illegality. If a public authority wishes to enforce on the basis that its decision was unlawful then it might be thought that an Administrative Court challenge would have to be brought first, unless the decision was a nullity on its face. In White v South Derbyshire District Council37 the Divisional Court quashed convictions for operating a caravan

[2010] EWCA Civ 1446, [2011] 1 WLR 1901. [1981] AC 578 at 601A–601E per Viscount Dilhorne, 609G per Lord Fraser of Tullybelton. 35 [2002] EWCA Civ 1599, [2003] 1 P&CR 24 at paras 15–21 per Brooke LJ, and para 22 per Keene LJ. In that case a local planning authority had imposed an unlawful time limit on a review of an old mining permission, and on a subsequent application to vary the condition the Inspector on appeal failed to recognise the error. Related issues are raised in Dill v Secretary of State for Communities and Local Government [2018] EWCA Civ 2619, [2019] 1 P & CR 15 (Supreme Court appeal pending) concerning whether the Inspector in a listed building enforcement notice appeal can consider whether the items listed (two lead finials resting on limestone piers) were buildings. 36 (2000) 79 P & CR 260. 37 [2012] EWHC 3495 (Admin). 33 34

12

Estoppel/res judicata 1.39 site without a site licence which had been obtained on the basis that there had been no power to grant the site licence nine years previously. The authority should have arranged for judicial review proceedings to be brought if it wished to challenge the licence. However in Fenland District Council v Reuben Rose (Properties) Ltd38 a local planning authority had granted listed building consent without notifying the Secretary of State prior to doing so as was required by legislation. Four years later the council raised the validity of the consent and then took almost a year to assert that it was invalid. The developer said that the consent had been implemented and more works would be carried out under it. The Council then applied to the county court for an injunction and a declaration that the consent was void. The Court of Appeal held that an injunction could be granted on the basis that there was no valid consent and so a criminal offence would be committed. The decision seems to bypass the protections of judicial review. Any challenger to the decision five years after its grant would have to deal with the immense delay in bringing proceedings and establish why the decision should be quashed. That would have been a difficult task. Those issues were bypassed by finding that the county court could treat the consent as invalid. The Council could have arranged for judicial review of its own decision, perhaps by a councillor, and for an interim injunction to be sought to hold the line in the meantime. ESTOPPEL/RES JUDICATA 1.38 Estoppel is the concept that a previous decision or representation prevents a party from subsequently contending for a different position. It is a private law concept and its application to public law regulatory matters is limited to formal judicial or planning appeal decisions. As explained below, the courts have rejected the application of estoppel by representation to public law processes. Res judicata/issue estoppel 1.39 Estoppel per rem judicata prevents the reopening of matters which have been determined by a competent body. It has two elements, cause of action estoppel in respect of the claim, and issue estoppel, which covers individual conditions establishing a claim. It applies to court proceedings and findings by Inspectors (or by the Secretary of State on appeal) which are essential to their decision. The House of Lords in Thrasyvoulou v Secretary of State for the Environment held that res judicata is applicable to determinations in public law, in that case a planning enforcement appeal as Lord Bridge of Harwich said:39 ‘The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro una et eadem causa”.40 These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply

[2000] PLCR 376. Thrasyvoulou at 289. 40 Loosely translated as ‘it is in the public interest that there be an end to litigation’ and ‘no one shall be tried or punished twice in regards to the same event’. 38 39

13

1.40  Introduction equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.’

1.40 In enforcement an estoppel can arise on one of the ‘legal’ grounds of appeal. Consequently an Inspector’s finding that there was no breach of planning control, or that the time for enforcement action had expired, cannot be re-opened by the issue of a fresh enforcement notice.41 However, a decision that planning permission should not be granted cannot give rise to estoppel per rem judicata as it is a matter of discretion and planning judgment, allowing different bodies to lawfully come to different views. 1.41 A  decision of the High Court as to the planning status of law will bind the parties in later proceedings. In Payne v Caerphilly County Borough Council42 the President of the Lands Tribunal, George Bartlett QC, held that a permanent injunction under the Town and Country Planning Act 1990, s 187B gave rise to the doctrine of res judicata in respect of the determination of the lawfulness of activities for the purposes of stop notice compensation under s 186. The issue was left slightly open in R (Mid-Suffolk District Council) v Secretary of State for Communities and Local Government,43 where an Inspector on a lawful development certificate appeal wrongly dismissed as irrelevant a High Court ruling on the meaning of a planning permission in injunction proceedings. 1.42 In estoppel by representation, a party is prevented from going back on a statement because another person has relied on it to their detriment. This was often said to arise when a local planning authority made an informal statement as to whether a particular development or use of land was lawful and it was argued that the authority could not resile from that view in later enforcement action. A narrow view of estoppel by representation as it applied to public bodies exercising their statutory functions was taken by the Court of Appeal in Western Fish Products Ltd v Penwith District Council.44 1.43 However in R (Reprotech (Pebsham) Ltd) v East Sussex County Council45 it was argued that the local planning authority was bound by its planning officer’s opinion that the generation of electricity at a waste transfer station was not a material change of use. The House of Lords disagreed and rejected the application of estoppel by representation to public authorities. Lord Hoffmann said:46 ‘I think that it is unhelpful to introduce private law concepts of estoppel into planning law. … It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet’.

See also Forrester v Secretary of State for the Environment (1997) 74 P & CR 434 (previous Inspector’s finding as to the planning unit gave rise to issue estoppel). 42 [2009] RVR 66, LCA/109/2006, LCA/158/2006 (Lands Tribunal, 6 January 2009). 43 [2009] EWHC 3649 (Admin) at paras 27–29 per Mitting J. 44 (1978) 38 P & CR 7. 45 [2002] UKHL 8, [2003] 1 WLR 348. 46 Reprotech, at paras 33–35. 41

14

Estoppel/res judicata 1.44 1.44 A  representation by a public authority may have an effect in public law. It may give rise to a legitimate expectation, or it may be unreasonable or unfair to resile from it. Broadly speaking, a public authority would be expected to follow the procedure it has promised although it is much less likely to be bound as to its outcome. It might also be an abuse of process to prosecute a person who relied on the local planning authority having said that what was going to be done was lawful.47

Postermobile plc v London Borough of Brent [1998] Crim LR 435, where the local authority had said that temporary advertising hoardings (up for less than a month) did not need consent.

47

15

Chapter 2

Breach of Planning Control

2.01 The key concept in planning enforcement is ‘breach of planning control’. This is the prerequisite to taking enforcement proceedings. Breach of planning control is defined as:1 ‘(a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted.’

This chapter considers: what is development; the need for planning permission for development; and the concept of breach of condition and limitation. DEVELOPMENT WITHOUT PLANNING PERMISSION – SUBSECTION (A) The meaning of development 2.02 The first element is the carrying out of development without the required planning permission. Subject to various exceptions, ‘development’ is defined by Town and Country Planning Act 1990, s 55(1) and Planning Act (Northern Ireland) 2011, s 23(1) as: ‘the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land’.

2.03 This definition divides into two categories: operational development – ‘building, engineering, mining or other operations’; and the making of a material change of use. Lord Denning MR observed in Parkes v Secretary of State for the Environment:2 ‘in the first half “operations” comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself: whereas in the second half “use” comprises activities which are done in, alongside or on the land but do not interfere with the actual physical characteristics of the land.’

Land includes land covered by water (tidal or otherwise) in a river.3 2.04

Several general principles apply to interpreting the meaning of development:

Town and Country Planning Act 1990, s 171A(1); Planning Act (Northern Ireland) 2011, s 131(1). [1978] 1 WLR 1308 at 1311. 3 Thames Heliport v London Borough of Tower Hamlets [1997] JPL 448. A definition of land as meaning any corporeal hereditament is provided in the Town and Country Planning Act 1990, s 336, but omitted in Northern Ireland. 1 2

16

Development without planning permission – subsection (a) 2.07 (a) planning is concerned with works which physically alter the land or which change its use; (b)

planning is concerned with protecting the public interest and development will, therefore, tend to be interpreted in a way which includes activities and works which should be regulated in the public interest;

(c) the relevant Planning Acts and the secondary legislation made under them provide a ‘comprehensive code of planning control’. The courts must give effect to the intention of Parliament as evinced by that comprehensive statutory code;4 (d) to give effect to European law, ‘development’ should be construed as far as possible as including all projects which fall within the Environmental Impact Assessment Directive unless they are subject to other domestic legislation requiring EIA.5 Operational development 2.05 Operational development involves making a physical change to land. It must, though, fall within one of the four categories of operational development. Building operations 2.06

‘Building operations’ includes:6

‘(a) demolition of buildings; (b) rebuilding; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder.’

Consequently building operations is defined in an inclusive fashion, rather than by a closed list. 2.07 Whether building operations have been carried out can often be answered by asking whether they have resulted in a building. Building must be considered in its wide statutory definition as including any structure or erection or part of a building, but excluding ‘plant or machinery comprised in a building’.7 Whether an object is a building is often judged by reference to three factors: size; the nature and degree of attachment; and the degree of permanence. Permanence was concerned with ‘a sufficient length of time to be of significance in the planning context’8 and this may be something erected on a seasonal basis.

Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at 140–141 per Lord Scarman. 5 R  (SAVE  Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334, [2011] PTSR 1140; R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), [2013] Env LR 8 at paras 112–114 per Lang J. 6 Town and Country Planning Act 1990, s 55(1A); Planning Act (Northern Ireland) 2011, s 23(2). 7 Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1). 8 Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions [2000] JPL 1025 at 1034 per Schiemann LJ. 4

17

2.08  Breach of Planning Control 2.08 Examples of structures which the courts have said could be buildings include a seven-bay marquee erected in the grounds of a hotel for eight months in a year,9 a tower crane resting on a steel track10 and polytunnels erected over large areas of farmland for nine months a  year.11 The setting up of umbrellas and side panels to create a marquee-type structure in the rear garden of a shisha lounge was also a building operation.12 ‘Poultry units’ each housing up to 1,000 birds and said to be moved periodically around their paddocks could also be buildings (or the product of building operations).13 2.09 Some building operations do not result in buildings. For example, laying a tarmac drive is normally undertaken by a builder. Similarly the categories include structural alterations to buildings. Painting the exterior of a building has permitted development  rights,14 so legislators must have assumed that painting could be development, even though it would not be a structural alteration. Engineering operations 2.10 It is perhaps too simplistic to suggest that engineering operations are operations carried out by engineers. The only definition in the legislation is a very limited one that engineering operations ‘includes the formation or laying out of means of access to highways’.15 Operations in planning are concerned with effects on land, so engineering operations tend to fall within the civil engineering disciplines. Those operations include the construction of roads, earthworks, lakes and ponds, so are usually physical works to land which do not result in buildings, structures or erections. Many of these operations will not be carried out by engineers at all. Mining operations 2.11

In England and Wales mining operations include:16

‘(a) the removal of material of any description— (i) from a mineral-working deposit; (ii) from a deposit of pulverised fuel ash or other furnace ash or clinker; or (iii) from a deposit of iron, steel or other metallic slags; and (b) the extraction of minerals from a disused railway embankment’.

Skerritts of Nottingham, ibid. Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710. 11 Hall Hunter Partnership v First Secretary of State [2006] EWHC 3482 (Admin), [2007] 2 P & CR 5. 12 Islam v Secretary of State for Communities and Local Government [2012]  EWHC  1314 (Admin), [2012] JPL 1378. For an inspector’s discussion of an unusually fixed houseboat see Val Wyatt Marines and Caddick v Wokingham Borough Council [2017] PAD 27. 13 R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), [2013] Env LR  8. See also R  (McPhee) v South Downs National Park Authority [2015] EWHC 1661 (Admin) concerning pig arcs. 14 Town and Country Planning (General Permitted Development) (England) Order 2015, Sch 2, Pt 2, Class C; Town and Country Planning (General Permitted Development) Order 1995, Sch 2, Pt 2, Class C; Planning (General Permitted Development) Order (Northern Ireland) 2015, Sch 2, Pt 3, Class C. See the Kensington red striped house case, R (on the application of Lisle-Mainwaring) v Crown Court at Isleworth [2017] EWHC 904 (Admin), [2017] PTSR 850 at paras 71–73, 108 per Gilbart J. 15 Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1). 16 Town and Country Planning Act 1990, s 55(4). 9

10

18

Development without planning permission – subsection (a) 2.15 2.12

Conversely, mining operations are exclusively defined in Northern Ireland as:17

‘(a) the winning and working of minerals in, on, or under land whether by surface or underground working; and (b) the management of waste resulting from the winning, working, treatment and storage of minerals, and, for the purposes of paragraph (b), treatment does not include smelting, thermal manufacturing processes (other than the burning of limestone) and metallurgical processes’.

2.13 Mineral working deposit and minerals are further defined in the three nations:18 ‘“mineral-working deposit” means any deposit of material remaining after minerals have been extracted from land or otherwise deriving from the carrying out of operations for the winning and working of minerals in, on or under land; “minerals” includes all substances of a kind ordinarily worked for removal by underground or surface working, except that it does not include peat19 cut for purposes other than sale’.

Minerals therefore include sand, gravel, stone and coal but also oil and gas. 2.14 The extraction of further minerals from an existing quarry or the digging of the ground to gain access to it is a mining operation. Even where mining has taken place on land, it is still a mining operation to carry out further extraction on that land, such as by digging deeper. Lord Denning MR said in Thomas David (Porthcawl) Ltd v Penybont Rural District Council:20 ‘Every shovelful is a mining operation.’

Other operations 2.15 Such is the breadth of building, engineering or mining operations that the final category of ‘other operations’ has rarely been relied upon. This residual category is not limited to operations of the same class as building, engineering or mining operations.21 Beronstone22 concerned the erection of hundreds of wooden stakes to mark out plots of land and accessways, which amounted to other operations.23 In Save Woolley Valley the construction or installation of the poultry units could have been other operations if it were not within building operations.24

19 20 21

Planning Act (Northern Ireland) 2011, s 250(1). Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1). In Northern Ireland, the word ‘turf’ is used and ‘peat’ is omitted. [1972] 1 WLR 1526 at 1531. Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1969] 1  WLR  746 and Beronstone Ltd v First Secretary of State [2006]  EWHC  2391 (Admin), R  (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012]  EWHC  2161 (Admin), [2013] Env LR 8 at para 74 (the latter decision disagreeing with Tewkesbury Borough Council v Keeley [2004] EWHC 2954 (QB), [2005] JPL 831 at para 37, which appears to decide to the contrary). 22 Beronstone v First Secretary of State [2006] EWHC 2391 (Admin). 23 Small plots had been sold on the dubious potential of development in the green belt and stakes were used to mark the plots to avoid restrictions on permitted development rights for fences. 24 At para 74 per Lang J. 17 18

19

2.16  Breach of Planning Control Exclusions from operational development 2.16 Various operations or uses of land which do not involve development are set out in Town and Country Planning Act 1990, s 55(2) and Planning Act (Northern Ireland) 2011, s  23(3). The operational development exclusions are considered below. Section 55(2)(a) excludes: ‘(a) the carrying out for the maintenance, improvement or other alteration of any building of works which— (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building, and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground;’

In Northern Ireland, s 23(3)(a) is to almost the same effect but omits the provisos on war damage and providing additional underground space inside buildings. Therefore if the underground works are in an existing building, they will not be development in that jurisdiction. 2.17 The sub-para (a) exception is of considerable practical importance as it excludes from control a very large number of building operations, although its meaning and application have been open to some debate. In Sage v Secretary of State for the Environment, Transport and the Regions25 the House of Lords held that the sub-paragraph only applied to an existing building. This was described in Sage as a ‘fully detailed structure of a certain character’.26 Consequently it would not be possible to partly construct a building and then use sub-paragraph (a) to alter the internal layout from the approved plans, although that could be done as soon as the building was complete. 2.18 There has been some debate as to whether internal works are development if they are part of a project which includes external alterations which are development. The issue has arisen in unusual circumstances, as if planning permission is granted for the external works it rarely matters whether it is actually required for the internal works. However the view was taken in R (Prudential Assurance Ltd) v Sunderland City Council27 that planning permission was required for the insertion of internal walls in a retail unit, as part of a sub-division which involved material alterations to the exterior of the building. 2.19 Under the second proviso to the exception, materially affecting the external appearance of a building involves an impact capable of having some effect in planning terms. Whether an alteration is material does depend upon the building, its character, the change and the available viewpoints. For example an alteration which is only visible from an aircraft would not be material.28 In Royal Borough of Kensington and Chelsea v CG Hotels,29 11 floodlights had been fixed to the walls of a hotel or placed on balconies, but as these were unnoticeable and virtually invisible

27 28 29 25 26

[2003] UKHL 22, [2003] 2 All ER 689. Sage at paras 18, 23 per Lord Hobhouse of Woodborough. [2010] EWHC 1771 (Admin), [2011] JPL 322. Burroughs Day v Bristol City Council [1996] 1 PLR 78. (1981) 41 P & CR 40.

20

Development without planning permission – subsection (a) 2.23 from the street during the day an inspector held that they were not development because of the paragraph (a) exception. This was upheld by the Divisional Court, who considered that the effect of floodlighting at night did not alter the external appearance of the building. 2.20 The exception for internal works allowed the installation of mezzanine floors in retail warehouses (unless restrained by planning condition) which could significantly increase sales floorspace and so retail and traffic impact. Section 55 was consequently amended by the Planning and Compulsory Purchase Act 2004 to allow specified floorspace additions to be removed from the exception from development.30 Subsequently, in England, operations which have the effect of increasing the gross floor space of a building by more than 200 square metres are capable of being operational development if the building is used for the retail sale of goods other than hot food.31 The same provisions were applied in Wales from 22 June 2015.32 2.21

Sub-paragraph (b) provides as follows:

‘(b) the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment’.

2.22 Sub-paragraph (b) provides a general exception for maintenance or improvement works carried out by the highways authority33 within the existing boundaries of a road. Permitted development rights apply to works which may have significant adverse effects, maintenance or improvement works adjoining the road and street furniture.34 ‘(c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose’.35

This exception relates to existing apparatus. There are extensive permitted development rights for new apparatus. Demolition 2.23

The Town and Country Planning Act 1990, s 55(2)(g) provides that:36

32 33

Inserting Town and Country Planning Act 1990, s 55(2A). Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 44. Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 2A. Highways England is the highways authority for motorways and trunk roads in England; Transport for London (as part of the Greater London Authority) is the highways authority for certain important roads in Greater London, whilst the county or unitary council is the highways authority for the remainder of the country. There is no equivalent to sub-s (b) in Northern Ireland. 34 Town and Country Planning (General Permitted Development) (England) Order 2015, Sch 2, Part 9; Town and Country Planning (General Permitted Development) Order 1995, Sch 2, Parts 12 and 13; Planning (General Permitted Development) Order (Northern Ireland) 2015, Sch 1, Parts 21, 23. 35 The equivalent Northern Irish provision is Planning Act (Northern Ireland) 2011, s 23(3)(b). 36 The Planning Act (Northern Ireland) 2011, s 23(3)(f) is to the same effect as s 55(2)(g) but the Northern Irish legislation allows directions to be made which exclude partial demolition from the definition of development, see s 23(3)(g): ‘a structural alteration of any description of building specified in a direction given by the Department to councils generally or to a particular council, where the alteration consists of demolishing part of the building’. 30 31

21

2.24  Breach of Planning Control ‘(g) the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities generally or to a particular local planning authority’.

2.24

Demolition is dealt with in planning in this way:37

•

considering s 55(1) on its own, demolition will tend to fall within the categories of operational development. The demolition of buildings is a building operation under sub-s (1A), and the demolition of other works (such as a road or bund) may be an engineering operation or other operation;

•

the demolition of the whole of a building with a cubic content (measured externally) which does not exceed 50m3, or the demolition in whole or part of any gate, fence, wall or other means of enclosure, is excluded from the definition of development by the Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (in England) and the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (in Wales).38 In Northern Ireland a 115 m3 threshold is applied and whole or partial demolition of buildings below that size is not development;39

•

where demolition is development, it will need planning permission, even if scheduled monument, listed building or conservation area consent40 is also required;

•

planning permission may be granted on application to the local planning authority or by permitted development rights. The permitted development rights may be withdrawn by an Article 4 Direction or may need to be subject to a determination that Environmental Impact Assessment is not required;

•

unless planning permission, scheduled monument, listed building or conservation area consent has already been granted for the demolition, or demolition is required by a planning obligation, the local planning authority must be asked whether prior approval of the method of demolition and any proposed restoration of the site is required.41

This issue is discussed in more detail in Richard Harwood, Historic Environment Law (Institute of Art and Law, 2012) at pp 160–170. 38 For Wales, the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 must be read omitting parts which the Court of Appeal has declared to be unlawful. The Direction had excluded from the definition of development demolition which was authorised by scheduled monument, listed building or conservation area consent or the demolition of any building which was not a dwellinghouse or adjoining a dwellinghouse. The effect was that most commercial, infrastructure and public buildings could be demolished without being subject to planning control. The Court of Appeal in R (SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334, [2011] JPL 1016 held that these exclusions were contrary to the Environmental Impact Assessment Directive as those projects could avoid a need for EIA. Those parts of the Demolition Direction were declared unlawful, bringing almost all demolition within the need for planning permission. 39 Planning (Demolition – Description of Buildings) Direction 2015. In an area of townscape character or an area of village character, the demolition or partial demolition of a means of enclosure is not development only if it is less than 2 metres high, or 1 metre adjacent to a road or public open space. 40 The Enterprise and Regulatory Reform Act 2013 abolished conservation area consent in England, replacing it with strengthened enforcement provisions for demolition in conservation areas: see Chapter 16. 41 Town and Country Planning (General Permitted Development) (England) Order 2015, Sch 2, Part 11, Class A; Town and Country Planning (General Permitted Development) Order 1995, Sch 2, Part 31, Class A; Planning (General Permitted Development) Order (Northern Ireland) 2015, Sch 1, Part 33. 37

22

Material change of use of land 2.27 Fish farming 2.25 One inclusion within operational development is fish farming (including shellfish) in non-tidal waters. ‘The placing or assembly of any tank in any part of any inland waters for the purpose of fish farming’ is treated as engineering operations if it would not otherwise be development.42 In this context ‘tank’ includes any cage and any other structure for use in fish farming. MATERIAL CHANGE OF USE OF LAND 2.26 Material change of use requires a ‘material change in the definable character of the use of the land’.43 The character of a use is broad and does not allow the planning authorities to exercise detailed control over the use of land in the way that conditions on a planning permission may do. The concept of a use is broad and primarily concerned with what happens on the site. See Lord Bridge of Harwich in Westminster City Council v British Waterways Board:44 ‘So long as the mixture of uses on the premises , which the judge held to be the relevant planning unit, remain substantially unchanged, there would be no material change of use. Those uses, as already indicated, included workshops, offices, stores, messing facilities and parking for a variety of vehicles both under cover and in the open. This is just such a mixture of uses as would be required by a wide variety of undertakings whose business was the operation of some kind of vehicular transport and who required a base from which to operate. Whether, in any particular case, the proposed use of the premises by such an undertaking would involve a material change of use would depend on the detailed nature of the proposal. But it would be of no relevance to the use of the premises to inquire for what purpose the vehicles parked there were to be used when they left their base.’

2.27 Usually a material change of use will involve a change in the description of the use, for example from office to residential, or shop to café. In some cases the character of the use may change because the purpose of the activity may affect its extent. For example, a home occupier using his garage for repairing his cars would usually be within the residential use, but if he repairs other people’s cars, particularly for payment, then this is likely to be a material change of use.45 It is possible that a mere intensification of a use of land can be a material change of use – doing more of the same thing – but such cases will be very rare. Usually the new use is capable of being described differently by the activity or its purpose. It is possible that a material change of use resulting from changes in intensity can affect the overall character of the use, even though the descriptions of the uses do not change.46 However, it is Town and Country Planning Act 1990, s 55(4A). Hertfordshire County Council v Secretary of State for Communities and Local Government [2012]  EWHC  277 (Admin), [2012]  JPL  836 at para  46 per Ouseley J, approved by the Court of Appeal [2012] EWCA Civ 1473 at para 11 per Pill LJ. 44 [1985] AC  676 at 684. Followed in Fowles v Heathrow Airport [2008]  EWHC  219 (Ch) at paras 100–102 per Lewison J when changes within a mixed use were not material. 45 See the comments of Sullivan J in R v Thanet District Council, ex p Tapp (2001) 81 P & CR 37 at para 54. 46 See Fidler v First Secretary of State [2004] EWCA Civ 1295, [2005] 1 P & CR 12 at para 29 per Carnwath LJ doubting the relevance to the post-1991 legislation of Donaldson LJ’s comment in Kensington and Chelsea RBC  v Secretary of State and Mia Carla Ltd [1981]  JPL  50 that: ‘If the planners were incapable of formulating what was use after intensification and what was use before intensification then there had been no material change of use’. 42 43

23

2.28  Breach of Planning Control important to remember that any intensification must change the character of the use.47 In assessing whether there has been a change of character in the use, the impact of the use on other premises is relevant, but cannot be considered in isolation from what is happening on the land.48 Primary and ancillary uses 2.28 A use of land includes uses which are ordinarily incidental or ancillary to the primary use. This is a judge-made concept49 designed to cater for the common situation that different and smaller uses will be part of a main use (for example, a shop may have an office for its management;50 a sports centre might have a store for equipment). There must be a relationship between the potential ancillary use and the main use,51 otherwise there would be two separate uses or a mixed use. 2.29 ‘Ordinarily’ excludes particularly unusual uses, but is wider than ‘commonly’. In Harrods Ltd v Secretary of State for the Environment52 the courts held that whilst a car park was an incidental part of the retail use of a department store, a helicopter landing pad on the roof for the Harrods chairman was not. Sullivan J focused his judgment on the ordinarily incidental issue. In the Court of Appeal, Schiemann LJ agreed in broad terms with the High Court analysis, but said the proper approach was to consider whether, ignoring the Use Classes Order, what is involved amounts to a material change of use.53 Examples of activities found not to be ancillary to the main use are: the keeping and slaughtering of chickens for sale (some 300 per week) was not incidental to the shop use of the premises;54 providing coin-operated booths for viewing films in a shop;55 and holding major festivals at a residential theological college.56 The planning unit 2.30 In considering whether a material change of use has taken place, the local planning authority should identify the appropriate planning unit. This is the most appropriate physical area against which to determine whether a material change has taken place. The planning unit is a judge-made concept – it is not in the legislation – but which enables the identification of the relevant land in s 55.

Lilo Blum v Secretary of State for the Environment [1987]  JPL  278 at 280 per Simon Brown J. Intensification was found in Elvington Park Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3041 (Admin), [2012] JPL 556. 48 Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473 at para 26 per Pill LJ. 49 First appearing in Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506 at 512 per Lord Denning MR and 514 per Diplock LJ. 50 An example used in Brazil Concrete Ltd v Amersham Rural District Council (1967) 18 P & CR 396 at 399 per Lord Denning MR. 51 Main v Secretary of State for the Environment (1999) 77 P & CR 300. 52 [2001] EWHC Admin 600, [2002] JPL 437. 53 Court of Appeal at paras 20, 21. 54 Hussain v Secretary of State for the Environment (1971) 23 P & CR 330. 55 Lydcare Ltd v Secretary of State for the Environment (1984) 49 P & CR 186. 56 International Society for Krishna Consciousness v Secretary of State [1992] JPL 962. 47

24

Material change of use of land 2.33 2.31 Three broad categories for determining the planning unit were identified by Bridge J in Burdle v Secretary of State for the Environment:57 ‘First, whenever it is possible to recognise a single main purpose of the occupier’s use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. That proposition emerges clearly from G  Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506, where Diplock LJ said, at p 513: “What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a ‘material change in the use of any buildings or other land’? As I suggested in the course of the argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.” However, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.’

2.32 Often there may be different occupiers within the same structure. For example, in Johnston v Secretary of State for the Environment 44 garages were originally used by their owner for housing his taxis. Subsequently some were let privately either as garages or for repair works. The local planning authority had been entitled to treat each individual unit of occupation (either a single garage, pair or group of garages) as separate planning units.58 Lord Widgery also said that ‘almost every case of a block of flats, the flats being let to separate and different tenants, the planning unit would be the flat in question’.59 Similarly, the Secretary of State was entitled to find that each individual unit in a shopping centre was a separate planning unit.60 2.33 Other situations are more complex. For example, a caravan site may be a single planning unit even though individual plots are in separate occupation and ownership.61 In R  (KP JR  Management Company Ltd) v London Borough of Richmond-Upon-Thames62 it was lawful to find that a site comprising a walkway,

[1972] 1 WLR 1207. (1974) 28 P & CR 424 at 428 per Lord Widgery LCJ. 59 At 427. 60 Church Commissioners for England v Secretary of State for the Environment (1996) 71 P & CR 73. 61 Gregory v Secretary of State for the Environment (1990) 60 P & CR 413. The case had unusual features (at 415 per Butler-Sloss LJ) as on one of the sites: (i) the site was in common ownership until individual plots were sold during 1986; (ii) the common parts of the site – certainly the roadway and probably the bunding – remained in that single ownership. The whole set up on site was unusable without the roadway; (iii) the whole development had plainly been thought out and carried through as a concerted whole with a single common purpose; (iv) the area was not in fact physically subdivided until the month that the enforcement notices were issued. Even then many parts of the site remained undivided. 62 [2018] EWHC 84 (Admin) at paras 59–60 per Lang J. 57 58

25

2.34  Breach of Planning Control landing stage, mooring pontoon and various houseboats moored against the pontoon were one planning unit. The courts have emphasised that the identification of the planning unit is a matter of fact and degree for the local planning authority or, on appeal, the Inspector or Minister.63 The carrying on of a use 2.34 A use may be carried on even if at that moment there is no activity on site. For example, a building and land would still be in a factory use if the factory was closed for the weekend or for a summer holiday.64 Similarly, an area of pavement was used for seating ancillary to a restaurant even though the tables and chairs were put away at night and during cold weather.65 2.35 A  lawful use will survive a lengthy period of inactivity on the land. Abandonment is possible in relation to prior use66 though not in relation to rights acquired under a planning permission still capable of being implemented according to its terms.67 There is some debate as to whether a use instituted under a planning permission can be abandoned by lack of use.68 Conversely, if a use is not lawful then it will need to be actively carried out for the limitation period to become lawful. This is considered further in Chapter 3 below. 2.36 Identifying in legal terms the start of a use is not straightforward. It could not be later than the actual commencement of a use (for example, when the shop started trading). However, the physical conversion of a building might give rise to a change of use before the use by the occupiers commences, for example, carrying out works to convert a building to residential use. The point in the process that the change takes place has not been firmly resolved by the courts: Donaldson LJ suggested in Impey v Secretary of State for the Environment69 that the test may be whether the premises are usable for the new use. Exceptions to material changes of use 2.37 By the Town and Country Planning Act 1990, s 55(2) various matters are not material changes of use:70 ‘(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such’.

Johnston v Secretary of State for the Environment; Gregory v Secretary of State for the Environment. Thurrock Borough Council v Secretary of State for the Environment [2002]  EWCA  Civ 226, [2002] JPL 1278, at para 28 per Schiemann LJ. 65 Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 23 (Admin) at paras 57–61. 66 Hartley v Minister of Housing and Local Government [1970] 1 QB 413; Secretary of State for the Environment, Transport and the Regions v Hughes (2000) 80 P & CR 397. 67 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at 143. 68 See Stockton on Tees Borough Council v Secretary of State for Communities and Local Government [2010] EWHC 1766 (Admin), [2011] JPL 183. 69 (1980) 47 P & CR 157. 70 The Planning Act (Northern Ireland) 2011, s 23(3)(c)–(e) are to the same effect as s 55(2)(d)–(f). 63

64

26

Material change of use of land 2.41 Such uses include gardens, swimming pools for the use of occupants, the keeping of family pets, car parking and storage. The use must be incidental to the enjoyment of the dwellinghouse as such, rather than the particular interests of the owner. It is legitimate to consider what people normally do in dwellinghouses, and so the keeping of 40 dogs or having a replica Spitfire aircraft in the back garden were not incidental.71 2.38 ‘(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used’.

Agriculture has a special, and relaxed, status in planning law. A material change of use from any use to agriculture or forestry is not development and agricultural and forestry operational development has substantial permitted development rights. The definition of ‘agriculture’:72 ‘includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.’

2.39 The sale of produce grown on a site is part of the agricultural use, but the sale of products grown elsewhere is not.73 The stationing of a caravan for mixing cattle food and for the farmer to shelter in during the day (but not to live) was also an agricultural use.74 In Millington v Secretary of State for the Environment, Transport and the Regions75 the growing of grapes for winemaking and the making of wine at the farm from those grapes was an agricultural use, the latter being ancillary to the farming activities. The keeping of horses is not agricultural unless they are used in farming,76 as at least in the UK they are not kept for the production of food or skins. 2.40 There may be exceptions to agricultural uses. For example, in Winchester City Council v Secretary of State for Communities and Local Government77 the production of pathogen-free eggs was an industrial rather than an agricultural process. 2.41 ‘(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.’

The use classes are set out in the Town and Country Planning (Use Classes) Order 1987 and the Planning (Use Classes) Order (Northern Ireland) 2015. Where a Wallington v Secretary of State for Wales [1991] JPL 942 and London Borough of Croydon v Gladden (1994) 68 P & CR 300 respectively. 72 Town and Country Planning Act 1990, s 336(1). 73 Williams v Minister of Housing and Local Government (1967) 18 P & CR 514. 74 Wealden District Council v Secretary of State for the Environment [1988] JPL 268, CA. 75 [2000] JPL 297. The case contains a useful examination of the agricultural use authorities. 76 Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P & CR 417. 77 [2007] EWHC 2303 (Admin), [2008] JPL 315. 71

27

2.42  Breach of Planning Control building or other land is in use within one use class a change of use to another use within the same use class is not development.78 In R v Bolsover District Council, ex p Ashfield District Council,79 it was left open whether a use needed to have commenced by activity (in that case by shops starting to trade) before the Use Classes Order could be relied upon. 2.42 The use classes are not comprehensive. There will be uses of land or buildings which fall outside the wording of all of the classes. Certain uses are excluded by the Use Classes Orders in the three nations, even if they would otherwise be within a class: theatre, amusement arcade or centre, or a funfair, launderette, sale of fuel for motor vehicles, sale or display for sale of motor vehicles, taxi business or business for the hire of motor vehicles, scrapyard, or a yard for the storage or distribution of minerals or the breaking of motor vehicles, a registrable alkali works, a hostel, waste disposal installation using incineration or chemical treatment, the landfill of hazardous waste. Additionally the following uses are excluded from the use classes in England: a retail warehouse club, a night club or a casino.80 The Northern Irish exclusions are wider than the common list, adding betting offices, funeral undertakers, hotels, houses in multiple occupation, the sale of food or drink for consumption on the premises or of hot food for consumption off the premises, a swimming baths, skating rink, gymnasium or area for other indoor or outdoor sports or recreations including those involving motorised vehicles or firearms, or for or in connection with public worship or religious instruction, but confining the omission of hostels to those where a significant element of care is provided.81 Uses which are outside the individual use classes, whether specifically excluded or simply outside their terms, are also referred to as sui generis. 2.43 The concept of primary and ancillary uses remains, so land will be within a use class because of its primary use and may still have ordinarily incidental uses.82 A mixed use comprising one or more use classes, or a use class and a sui generis use does not have the benefit of the use classes order.83 For example, if a sandwich shop was in mixed A1/A3 use, the use classes order could not be relied on to change to an A1 or A3 use. 2.44 The Use Classes Order applies to part of a building as well as the whole, so sub-division of a building is not a material change of use.84 Since internal works would not be operational development, the only element giving rise to the need for planning permission may be external alterations.

Town and Country Planning (Use Classes) Order 1987, Art 3(1); Planning (Use Classes) Order (Northern Ireland) 2015, Art 3(1). 79 (1995) 70 P & CR 507. 80 Town and Country Planning (Use Classes) Order 1987, Art 3(6). 81 Planning (Use Classes) Order (Northern Ireland) 2015, Art 3(4). 82 Town and Country Planning (Use Classes) Order 1987, Art 3(3). 83 Fidler v First Secretary of State [2004] EWCA Civ 1295, [2005] JPL 510 at para 28 per Carnwath LJ, endorsing Belmont Farm v First Secretary of State [2003] EWHC 1895 (Admin), [2004] JPL 593. 84 Except for the sub-division of a dwelling where the operation of the Use Classes Order is excluded by Art 4. 78

28

Material change of use of land 2.48 Changes of use which are material 2.45 Section 55(3) (and s 23(5) in Northern Ireland) provides that the following are material changes of use (whether they would be otherwise): ‘(a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used’.

The conversion of a dwellinghouse into flats is, therefore, development (and is also excluded from the Use Classes Order), as would be the subdivision of an existing flat within a building. A change of use to another form of residential use, such as a house in multiple occupation or lodgings, is not covered by this subsection although such changes will often be material in any event. Changing from two or more dwellinghouses into a single dwellinghouse is not within the subsection. Whether such a change is material has to be considered on its own facts.85 2.46 ‘(b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if— (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site.’

The deposit of waste on a temporary or permanent basis tends to be seen as a use of land. To provide a degree of planning control over long-established sites, the area and height of waste deposits is restricted. 2.47

Additionally, by s 55(5):86

‘the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building.’

This enables the planning enforcement powers to be used against unlawful advertisements in addition to advertising controls. If the advertisements are displayed in accordance with the relevant Advertisements Regulations then they have deemed planning permission.87 Short-term lettings in London 2.48 A local variation to the meaning of development is provided by the Greater London Council (General Powers) Act 1973, s 25, which makes the use of residential In Richmond upon Thames London Borough Council v Secretary of State for the Environment, Transport and the Regions [2001]  JPL  84 an Inspector’s decision that the conversion of a house back from seven flats to a single dwelling was not development was quashed as the Inspector did not consider that small flats may fulfil a planning purpose. 86 Planning Act 2011 (Northern Ireland), s 23(6) is to the same effect. 87 Town and Country Planning Act 1990, s  222; Planning Act 2011 (Northern Ireland), s  130. The regulations are the Town and Country Planning (Control of Advertisements) (England) Regulations 2007; in Wales, the Town and Country Planning (Control of Advertisements) Regulations 1992; and the Planning (Control of Advertisements) Regulations (Northern Ireland) 2015. See Chapter 18 below. 85

29

2.49  Breach of Planning Control premises in Greater London for short-term lets a material change of use, a current issue with the growth of AirBnB type internet lettings. The section provides: ‘(1) For the purposes of section 55(1) of the Town and Country Planning Act 1990, the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part thereof which is so used. (2) In this section — (a) “use as temporary sleeping accommodation” means use of sleeping accommodation which is occupied by the same person for less than 90 consecutive nights and which is provided (with or without other services) for a consideration arising either — (i) by way of trade for money or money’s worth; or (ii) by reason of the employment of the occupant; whether or not the relationship of landlord and tenant is thereby created; (b) “residential premises” means a building, or any part of a building, which was previously used, or designed or constructed for use, as one or more permanent residences.’

The Deregulation Act 2015 introduced a limited exception by inserting s 25A, which provides that no material change of use occurs if the total number of nights use as temporary sleeping accommodation in that calendar year is no more than 90 and one or more of the persons providing the sleeping accommodation was liable to pay council tax for the premises.88 Even if a change from temporary sleeping accommodation to longer-term residential accommodation is not a material change of use, a reversion to temporary sleeping accommodation would be a material change of use.89 The need for planning permission 2.49 In England and Wales s 57(1) of the Town and Country Planning Act 1990 provides:90 ‘Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.’

This subsection demonstrates that the concept of development is central to the planning system. Essentially, and with very limited exceptions, if development is carried out then it requires planning permission. Conversely, if what is done is not development then it does not need planning permission.

Greater London (General Powers) Act 1973, s  25A. This 90 days exception may be removed by direction: Greater London (General Powers) Act 1973, s 25B. 89 Fairstate Ltd v First Secretary of State [2005]  EWCA  Civ 283, [2005]  JPL  1333, affirming [2005] JPL 369. In Fairstate, the occupation of temporary sleeping accommodation for 155 days by one person meant that the next short period of occupation was a material change of use. 90 The Northern Irish provision is ‘Subject to this Act, planning permission is required for the carrying out of any development of land’: Planning Act 2011 (Northern Ireland), s 24(1). 88

30

Material change of use of land 2.51 2.50 Planning permission can be granted either following an application made (usually to the local planning authority91) or under permitted development rights. Permitted development rights are contained in the Town and Country Planning (General Permitted Development) (England) Order 2015; in Wales by the Town and Country Planning (General Permitted Development) Order 1995; and in the Planning (General Permitted Development) Order (Northern Ireland) 2015, all referred to as the GPDO. The GPDO grants planning permission for specified classes of development subject to various conditions and in certain cases the approval of details. These permitted development rights can be restricted by ‘Article  4 directions’ made by the local planning authority under the Order. In England planning permission may also be granted either for particular projects or specific classes of development by permission in principle, local development orders, neighbourhood planning orders, community right to build orders, special development orders or simplified planning zones.92 Where consent is granted by the Secretary of State or Welsh Ministers under particular enactments they may also grant a deemed planning permission under the Town and Country Planning Act 1990, s 90. 2.51 The development authorised by a planning permission can normally only be carried out once. For example, when planning permission was granted for a garage and, following the construction of the garage, part of it was demolished with a view to rebuilding to enable an order to be made diverting a public footpath, the permission did not authorise the rebuilding of the garage: Hall v Secretary of State for the Environment, Transport and the Regions.93 Most obviously this applies where the relevant part of the development has been completed: a building is constructed and is subsequently demolished in whole or part and rebuilt. In Hall, Nigel MacLeod QC said: ‘it does seem to me that it is right that when a discrete and substantial part of a planning permission is completed in accordance with that permission, then that part of the permission has been completed and achieved, and is spent in so far as that aspect of the permission is concerned. To knock the garage down and rebuild it is not in my judgment authorised by this planning permission.’

A  different situation may arise if part-way through construction part of the works have to be taken down and rebuilt, for example because they turn out to be unstable or are damaged by fire. In those circumstances the authorised building will not have been constructed until the works, including the repeated works, have been concluded.

In certain circumstances planning applications may be made to the national government: applications in areas of underperforming local authorities in England (Town and Country Planning Act 1990, s 62A) or in Wales (Town and Country Planning Act 1990, s 62M); developments of national significance in Wales (Town and Country Planning Act 1990, s 62D); developments of regional significance under the Planning Act 2011 (Northern Ireland), s 26; and urgent Crown development: Town and Country Planning Act 1990, s 293A, Planning Act 2011 (Northern Ireland), s 183. 92 For these procedures see Harwood, Planning Permission (Bloomsbury, 2016) Chapter 26, with further discussion of permission in principle in Harwood and Hutton, Planning Policy (Bloomsbury, 2018) Chapter 8. Local development orders, simplified planning zones and special development orders are available in Wales. Northern Ireland has special development orders, simplified planning zones and the grant of planning permission by enterprise zone orders: Planning Act 2011 (Northern Ireland), ss 32–39. 93 [1998] JPL 1055. 91

31

2.52  Breach of Planning Control 2.52 Similarly in Cynon Valley Borough Council v Secretary of State for Wales94 planning permission had been granted to make a material change of use to a fish and chip shop (an A3 use class95). The use of the shop had reverted to A1 retail use (in this case an antiques shop) under permitted development rights. It then changed to a Chinese takeaway (again, an A3 use). Both changes were material changes of use (and the local planning authority enforced against the change to a takeaway). The Court of Appeal held that original planning permission was spent when the change of use to a fish and chip shop took place could not be used to authorise a subsequent change back to an A3 use.96 2.53 There is, however, no reason in principle why a planning permission should not expressly authorise repeated development. This might be a seasonal use of land or a building erected and dismantled on a seasonal basis (such as a large marquee, tennis dome or agricultural polytunnels) but if this is done then the consent ought to be explicit. Exceptions to the need for planning permission 2.54 There are several exceptions to the requirement for planning permission which are concerned with an alternative means of approval and returning to earlier uses following temporary or unlawful activity: •

if development consent is required in England and Wales as part of a nationally significant infrastructure project then no planning permission is required;97

•

where planning permission has been ‘granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted’.98 A permission for a limited period will most obviously include a permission for a defined period of time. In Westminster City Council v Davenport,99 the Court of Appeal held that this provision applied to a permission for diplomatic uses, which was personal to the Commissioner of particular governments. The temporary permission must be implemented for the subsection to be relied upon.100 ‘Normal use’ does not include any use begun in breach of planning control101 so it is not possible to revert to the previous use of the land if that was started without planning permission, even if it had become lawful by the passage of time before the temporary permission was granted. The provision can be relied upon even if the temporary use had

(1987) 53 P & CR 68. In England, hot food takeaways including fish and chip shops and Chinese takeaways are now in the A5 use class: Town and Country Planning (Use Classes) Order 1987. 96 Cynon Valley at 76. The reversion to an A3 use was lawful for another reason, based on what is now s 57(3) of the Town and Country Planning Act 1990, as discussed below. 97 Town and Country Planning Act 1990, s 57(1A). The requirement for development consent rather than planning permission is in the Planning Act 2008, s 33(1). 98 Town and Country Planning Act 1990, s 57(2); Planning Act 2011 (Northern Ireland), s 24(2). 99 [2011] EWCA Civ 458, [2011] JPL 1325. 100 Smith v Secretary of State for the Environment (1984) 47 P & CR 194 at 204–205 per Woolf J. 101 Town and Country Planning Act 1990, s  57(5); Planning Act 2011 (Northern Ireland), s  24(5). In England and Wales this includes any breach of planning control under the Town and Country Planning Act since the 1947 Act: Town and Country Planning Act 1990, s 57(6). 94 95

32

Material change of use of land 2.55 ceased to be carried on before or after the permission required cessation, and does not have to be carried out immediately the period expires;102 •

if a development order, local development order or neighbourhood development order grants planning permission to develop land subject to limitations, planning permission is not required for the use of the land for its normal use.103 The General Permitted Development Orders grant permissions ‘subject to any relevant exception, limitation or condition specified’ in the relevant Schedule.104 In Cynon Valley Borough Council v Secretary of State for Wales,105 it was held that the permitted development rights to change uses imported the limitations in the Use Classes Order. Since Class A1 of the Use Classes Order provided for use as a shop except for certain purposes, the planning permission was subject to limitations. It was therefore possible to revert to the previous use of the shop, namely class A3 hot food. The text of the Use Classes Order has subsequently changed and the particular limitation in the Cynon Valley case no longer arises;

•

A right to resume a use applies following the issue of an enforcement notice:106 ‘Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out.’

2.55 Where an enforcement notice has been issued the legislation, therefore, permits a reversion to the previous use if that was a lawful use. There is no right to revert to the previous lawful use if no enforcement notice has been issued. One consequence is that if two successive unlawful material changes of use take place (neither becoming lawful by passage of time) and an enforcement notice is issued against the second material change of use, then there is no right to revert to the original lawful use.107 This applies even if the original and final uses are the same.108 A lawful use for these purposes includes uses which have become lawful by passage of time.109 Land which was in a particular use on 1 July 1948 was able to continue in that use, subject to compliance with the previous systems of planning control.110 Smith v Secretary of State for the Environment (1984) 47 P & CR 194 at 205 per Woolf J. Town and Country Planning Act 1990, s  57(3); Planning Act (Northern Ireland) 2011, s  24(3). Community right to build orders are ‘a particular type of neighbourhood development order’ (Town and Country Planning Act 1990, s 61Q) so are also subject to s 57(3). 104 Town and Country Planning (General Permitted Development) (England) Order 2015, Town and Country Planning (General Permitted Development) Order 1995, Planning (General Permitted Development) Order (Northern Ireland), all Art 3(2). 105 (1987) 53 P & CR 68. 106 Town and Country Planning Act 1990, s 57(3); Planning Act (Northern Ireland) 2011, s 24(4). 107 Young v Secretary of State for Environment [1983] 2 AC 662. 108 Fairstate Ltd v First Secretary of State [2004] EWHC 1807 (Admin), [2005] JPL 369 at paras 27, 28 per Sullivan J. 109 Hillingdon London Borough Council v Secretary of State for Communities and Local Government [2008] EWHC 198 (Admin), [2008] JPL 1486. This is the effect of the passage of time conferring lawfulness rather than merely immunity as a result of the new s 191 introduced by the Planning and Compensation Act 1991. LTSS Print and Supply Services Ltd v Hackney London Borough Council [1976] QB 663 on the previous legislation is no longer good law. 110 The Town and Country Planning Act 1932 had allowed local authorities to introduce schemes over land, meaning that authorisation would be required. However the Town and Country Planning (Interim Development) Act 1943 provided that all land was deemed to be subject to a scheme and permitted applications for permission under interim development orders: ss  1, 2. By s  77(1) of the Town and Country Planning Act 1947, planning permission was deemed to be granted for development authorised by an interim development permission which had been approved after 21 July 1943. 102 103

33

2.56  Breach of Planning Control The resumption of various uses which had been carried on before 1 July 1948 was permitted if begun before 6 December 1968.111 SUBSECTION (B) – BREACH OF A CONDITION OR LIMITATION 2.56 The second breach of planning control112 is failing to comply with a condition or limitation. Conditions can be attached to a grant of planning permission.113 These can require the development to be carried out in a certain way (for example that materials in an extension should match the existing building) or make it subject to other acts being done first (‘negative conditions’). Some permitted development rights are subject to conditions in the relevant GPDO. 2.57 ‘Limitation’ includes limitations specified in the General Permitted Development Order.114 There is considerable uncertainty as to whether ‘limitation’ includes the ambit of the permission granted. One view is that a limitation must be in the form of a condition.115 The High Court in I’m Your Man v Secretary of State for the Environment116 held that limitations were only those identified in the GPDO. In that case planning permission had been granted for a use for what the description of development said was a temporary period of seven years. No condition was imposed requiring the cessation of the use at the end of that period. When the use duly continued, Robin Purchas QC held that it was not a breach of planning control. Crucially, it was common ground that in the particular circumstances the change from a temporary use to a permanent use was not a material change of use. In the absence of a time limiting condition, nothing prevented the change to a permanent use. I’m Your Man does not mean that the description of development does not matter – on the contrary it is important in determining what the planning permission authorises and so part of the basis for deciding whether subsequent changes are development. 2.58 Whether there has been a failure to comply with a condition depends upon the planning permission having been implemented and the interpretation of the permission. Development is only carried out in breach of a condition or limitation in a permission if the development or use was carried out under the permission so that it is in force: see Newbury District Council v Secretary of State for the Environment117 where a condition requiring the removal of buildings by a particular date did not apply when the planning permission was unnecessary.

Town and Country Planning Act 1990, s 57(7) and Sch 4. Given the 10-year time limit, these provisions are now redundant. 112 As defined by Town and Country Planning Act 1990, s  171A(1); Planning Act (Northern Ireland) 2011, s 131(1). 113 Town and Country Planning Act 1990, ss 70, 72; Planning Act 2011 (Northern Ireland), ss 45, 52. 114 Town and Country Planning (General Permitted Development) (England) Order 2015, Art 3(2) and the same reference in the Town and Country Planning (General Permitted Development) Order 1995 (in Wales) and the Planning (General Permitted Development) Order (Northern Ireland) 2015. The power to impose limitations in a development order is in the Town and Country Planning Act 1990, s 60(1); Planning Act 2011 (Northern Ireland), s 32(4). These are the only limitations identified in Welsh Office Circular 24/97: see Sch 2, para 2.7. 115 Peacock Homes Ltd v Secretary of State for the Environment (1984) 48 P & CR 20. 116 (1999) 77 P & CR 251. The judgment contains an extensive consideration of the history of limitations in planning legislation. 117 [1981] AC 578. See also Sheppard v Secretary of State for the Environment [1975] JPL 352. 111

34

Subsection (b) – breach of a condition or limitation 2.62 Implementation of a planning permission and the consequences for enforcement 2.59 The implementation of a planning permission is taken to require the carrying out of development comprised in the planning permission, although this can be at a very limited level. Examples of material operations which can constitute the beginning of development are in s 56(4) of the Town and Country Planning Act 1990:118 ‘(a) any work of construction in the course of the erection of a building; (aa) any work of demolition of a building; (b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building; (c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b); (d) any operation in the course of laying out or constructing a road or part of a road; (e) any change in the use of any land which constitutes material development’

2.60

The Northern Irish list of works is:119

‘(a) where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building; (b) where the development consists of or includes alterations to a building, any work involved in the alterations; (c) where the development consists of or includes a change of use of any building or other land, that change of use; (d) where the development consists of or includes mining operations, any of those operations.’

A retrospective planning permission will take immediate effect so does not have a time limit for implementation. 2.61 As a general principle the implementation must also comply with any conditions in the planning permission. This principle was explained for planning permissions by the Court of Appeal in FG Whitley & Sons v Secretary of State for Wales.120 Woolf LJ held: ‘It is only necessary to ask the single question: are the operations … permitted by the planning permission read together with its conditions. If the operations concerned contravene the conditions, they cannot be properly described as commencing the development authorised by the permission.’

2.62 The question of compliance with conditions and implementation tends to arise if negative conditions prohibit the commencement of development before something has happened (such as an approval of details) or require something to happen before

That they are examples was identified by Sullivan J in Field v First Secretary of State [2004] EWHC 147 (Admin), [2004] JPL 1286. 119 Planning Act 2011 (Northern Ireland), s 63(2). 120 (1992) 64 P & CR 296. 118

35

2.63  Breach of Planning Control development commences.121 In limited circumstances, non-compliance with a precommencement condition does not prevent the implementation of the permission. This is most easily explained where it would be irrational in public law terms to enforce against the particular breach,122 although there may be some other cases where the effect of a breach of condition might not invalidate the implementation.123 If a failure to comply with a condition means that the permission is not implemented, then the breach of planning control is the carrying out of development without planning permission, rather than a breach of condition. 2.63 Departure from the approved plans might mean that a planning permission is not implemented at all or affect the lawfulness of part or all of the works. The case law has not been consistent, or often fully reasoned as to where distinctions are drawn. An initial departure from the plans has been held to still be works commencing development under a planning permission when considered as a whole.124 2.64 In Handoll v Warner Goodman & Streat125 permission was given for a dwelling and garage subject to a condition that it should only be occupied by persons engaged in agriculture (‘an agricultural occupancy condition’). The dwelling was built some 90ft west of the approved location. The Court of Appeal held that it was materially different to the planning permission granted and so that permission was not implemented. Overruling Kerrier District Council v Secretary of State for the Environment,126 they held that the condition did not therefore apply. Similarly a development which exceeds the size thresholds in the General Permitted Development Order would be unlawful in its entirety – not simply in the excess – if there is a difference in substance. Lord Denning MR said in Garland v Minister of Housing and Local Government:127 ‘Suppose that a man is given permission to build a bungalow, and, instead, he builds a two-storey house. He has built the house without any permission at all. Suppose next that a man is given permission to make an extension which is two storeys high, and, instead, he makes an extension of three storeys. Again, he has built the extension without any permission at all. This is the very thing which has happened in this very case. On the figures which have been given in the inspector’s report, Mr. Garland, under the General Development Order, was given permission to make an extension of 11,711 cubic feet, and, instead, he has made an extension of 14,491 cubic feet. This seems to me to be, as in the other examples, so substantial an excess that the whole was without any permission at all. If there were only a trifling excess, it would be different. There might then be only an excess over a limitation. But, when there is a difference in substance, then the whole is done without any permission at all.’

Negative conditions are often referred to as Grampian conditions following the House of Lords decision in Grampian Regional Council v Secretary of State for Scotland 1984 SC (HL) 58. 122 See R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin), [2003] JPL 984. 123 The ambit of any wider approach than the irrationality of enforcing against the breach is open to debate: see R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin), [2005] JPL 1602, Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908, [2012] JPL 39 and R (Howell) v Waveney District Council [2018] EWHC 3388 (Admin). 124 Spackman v Wiltshire County Council (1977) 33 P & CR 430; Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1264 (Admin), [2003] JPL 358; Aerlink Leisure Ltd v First Secretary of State [2004] EWHC 3198 (Admin), [2005] 2 P & CR 15. 125 (1994) 70 P & CR 627. 126 (1980) 41 P & CR 284. 127 (1969) 20 P & CR 93 at 101–102. 121

36

Subsection (b) – breach of a condition or limitation 2.68 2.65 Sage v Secretary of State for the Environment, Transport and the Regions concerned time limits on a building constructed without planning permission. Whilst considering a holistic approach to what are operations, Lord Hobhouse commented, obiter and without reference to the case law:128 ‘if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful.’

2.66 In Welwyn Hatfield Mr Beesley had planning permission for a hay barn but whilst externally it looked like the approved barn it was internally constructed as a dwellinghouse. This was therefore constructed without planning permission.129 2.67 Except where a planning permission includes the retrospective authorisation of development which has been carried out, a time limit condition for the commencement of development is deemed to be included if it is not express on the permission.130 After that period the permission is considered to have lapsed, and any subsequent development should be viewed as development without planning permission rather than development in breach of the condition. Conditions remaining in force 2.68 A planning condition must remain in force for a contravention of it to be a breach of planning control. A condition may cease to have effect in the following circumstances: •

where a planning permission is granted for the same development but with a different condition under the Town and Country Planning Act 1990, s  73, and that permission is implemented, or a retrospective permission is granted under s 73A, the later permission would usually supersede the earlier consent. However, in Lambeth London Borough Council v Secretary of State for Communities and Local Government131 the Supreme Court expressed the provisional view that conditions on the original planning permission remained in effect insofar as they were not inconsistent with the later s 73 permission;

•

where another planning permission supersedes the earlier permission or the relevant part of it. Whether it does depends upon the scope of the later permission and the relationship between the two consents;132

•

where new development extinguishes the original permission;133

•

when the time period under a temporary planning permission expires, it may be that conditions governing the use also expire.134

[2003] UKHL 22, [2003] 1 WLR 983 at para 23. Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010]  EWCA  Civ 26, [2010]  PTSR  1296 at para  25 per Richards LJ; [2011]  UKSC  15, [2011] 2 AC 304 at paras 11–13 per Lord Mance. 130 Town and Country Planning Act 1990, ss 91, 92. 131 [2019] UKSC 33, [2019] 1 WLR at paras 38–41 per Lord Carnwath JSC. 132 See Stevenage Borough Council v Secretary of State for Communities and Local Government [2010] EWHC 1289 (Admin). 133 See the discussion in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304 at para 23 per Lord Mance JSC. 134 Avon Estates Ltd v Welsh Ministers [2011] EWCA Civ 553, [2012] PTSR 958. 128 129

37

2.69  Breach of Planning Control Interpretation of planning permissions 2.69 The classic summary of the principles applicable to the interpretation of planning permissions was given by Keene J in R v Ashford Borough Council, ex p Shepway District Council:135 ‘1. The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v Secretary of State for the Environment [1995] JPL 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196. 2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council [1963] 2 QB 764; and Slough Estates Limited v Slough Borough Council [1971] AC 958. 3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as “… in accordance with the plans and application …” or “… on the terms of the application …”, and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: See Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante). 4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright [1992] JPL 138 at 139; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Ltd v London County Council (1958) Times, 20 March 1958. 5. If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P & CR 223 affirmed (1981) 42 P & CR 1.’136

2.70 This statement applies to outline planning permissions and is subject to important qualifications. A planning application must include all the drawings and details necessary to describe the development to be authorised. In Barnett v Secretary of State for Communities and Local Government,137 Sullivan J pointed out that the cases cited in Ashford and Ashford itself concerned outline planning permissions: ‘If it is plain on the face of a permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face,

[1999]  PLCR  12, approved in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85 at para 33 per Lord Mance JSC. 136 Paragraph 5 is about the lawfulness of planning permissions, rather than their interpretation. 137 [2008] EWHC 1601 (Admin), [2009] JPL 243. 135

38

Subsection (b) – breach of a condition or limitation 2.72 an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an ‘ambiguity’. On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by Section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.’

These observations were followed by the Court of Appeal in that case, in particular by Keene LJ.138 Consequently application drawings are approved in full planning permissions, whether or not this is stated expressly. 2.71 From 2006, outline planning applications in England and Wales were required to state the approximate location of buildings, routes and open spaces, and the upper and lower dimensions for buildings, along with the location of access points to the development even when layout, scale and access were reserved. Those requirements have now been removed in England (other than for access) but remain in Wales.139 If those provisions applied to the planning application at the relevant time then those parameters would be approved.140 Extrinsic evidence might be required to resolve an ambiguity in a permission. Additionally, secondary evidence may be relevant if material is missing. If documents are missing or it is unclear which one of several versions of a document was approved it may be necessary to look at evidence of related consents or what happened on the ground.141 Interpretation of conditions 2.72 The documents considered in interpreting a planning condition are the same as for the planning permission as a whole. Lord Hodge JSC said in Trump International Golf Club Scotland v Scottish Ministers:142 ‘When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the

Barnett v Secretary of State for Communities and Local Government [2009]  EWCA  Civ 476, [2009] JPL 1597 at paras 17–22 per Keene LJ. 139 Town and Country Planning (Development Management Procedure) (England) Order 2010, Art 4 (from 31 January 2013); Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 3. 140 Discussed in R (Wrenn) v Wiltshire Council [2011] EWHC 2198 (Admin). 141 Campbell Court Property v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 102, [2002] PLCR 4 at paras 50–60 per Sullivan J; Koumis v Secretary of State for Communities and Local Government [2014] EWCA Civ 1723, [2015] JPL 682 at paras 45–48 per Sullivan LJ; Kemball v Secretary of State for Communities and Local Government [2015] EWHC 3338 (Admin), [2016] JPL 359 at paras 32, 58 per Holgate J. 142 [2015]  UKSC  74, [2016] 1  WLR  85 at para  34, applied to England and Wales planning cases in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317 at para 16 per Lord Carnwath JSC. 138

39

2.73  Breach of Planning Control overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.’

In the same case Lord Carnwath JSC emphasised ‘incompetent drafting should not prevent the court from giving the condition a sensible meaning if at all possible’.143 2.73 Subsequently in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government Lord Carnwath emphasised that:144 ‘the starting point – and usually the end point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.’

A reader should be ‘assumed to start by taking the document at face value before being driven’ to an elaborate analysis based on knowledge of planning law and policy.145 Words may be implied into a planning permission, including into a condition,146 although it is difficult to envisage circumstances in which an entirely new condition will be implied into a consent.147

145 146 147 143 144

At para 55. [2019] UKSC 33, [2019] 1 WLR 4317 at para 19. Lambeth at para 28 per Lord Carnwath JSC. Trump at para 36 per Lord Mance JSC. Lambeth at para 27 per Lord Carnwath JSC.

40

Chapter 3

Time Limits on Enforcement

TIME LIMITS 3.01 Enforcement action must be taken within a certain time of the breach of planning control occurring. In England and Wales there are two principal time periods in the Town and Country Planning Act 1990, s  171B: four years for operational development without planning permission and any change of use to a dwellinghouse; and ten years for other breaches. A five-year time limit applies for all breaches in Northern Ireland.1 In limited circumstances it may be possible to take action outside those periods where: (i)

the time limits do not run because of positive deception of the planning process under Welwyn Hatfield;2

(ii) a planning enforcement order has been obtained in England because of deliberate concealment of the breach; (iii) relevant demolition takes place without planning permission or in breach of conditions in a conservation area in England.3 3.02 The purpose of the time limits was explained by Schiemann LJ in Secretary of State for the Environment v Holding and Thurrock Borough Council:4 ‘The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action consequently and it would be unfair and/or could be regarded as unnecessary to permit enforcement. … [the authority’s] position is much the same as that of a landowner who lets the world regularly walk along a path over his land. There comes a time when he has lost his right to object.’

THE FOUR-YEAR RULE IN ENGLAND AND WALES 3.03 Enforcement action in respect of operational development undertaken without planning permission or the change of use of any building to use as a single dwellinghouse can only be taken within four years.5 Planning Act (Northern Ireland) 2011, s 132. Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304. 3 Town and Country Planning Act 1990, 171B(2A). 4 [2002] EWCA Civ 226, [2002] JPL 1278 at paras 15, 25. 5 Town and Country Planning Act 1990, s 171B(1), (2), subject to the three exceptions in para 3.01 above. 1 2

41

3.04  Time Limits on Enforcement Operational development 3.04

Section 171B(1) of the Town and Country Planning Act 1990 provides:

‘Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed’.

The actions enforced against are, therefore, those in the operational development limb of s  55(1). The time limit applies to operations carried on without planning permission. Operational development carried out in breach of a planning condition is subject to the ten-year period in s 171B(3). 3.05 The time limit runs for operational development from the date when the operations were substantially completed.6 Enforcement action can still be taken from the start of the breach, which will usually be long before the operations have been substantially completed. The meaning of ‘substantially completed’ arose in Sage v Secretary of State for the Environment, Transport and the Regions, where there had been constructed what the House of Lords described as an ‘unfinished dwellinghouse’ which was unfit for habitation:7 the floor at ground level consisted of rubble; there were no service fittings or staircase; and the interior walls were unfinished, without lining or plaster. None of the windows were glazed (although there was some dispute whether they had ever been glazed). The High Court and Court of Appeal had allowed Mr Sage’s appeal on the basis that the internal works had not required planning permission because of the exception to development in s 55(2)(a) of the 1990 Act and so the building was substantially completed. However the Lords held that the internal works exception only applied to buildings once they were completed. 3.06 In Fidler v Secretary of State for Communities and Local Government,8 a house had been constructed without planning permission behind a screen of hay bales. The landowner claimed that the operations were substantially completed when the house was built and occupied. The Inspector and the High Court disagreed, considering that substantial completion took place when the hay bales were removed some four years later. 3.07 In Barker, a local planning authority was entitled to conclude that a house was substantially completed when roof, walls, windows, doors and internal fittings were in place, but one wall had still to be rendered and have its fascias fitted.9 Unless there is photographic evidence of a final completion of the works more than four or five years, as appropriate, before enforcement action is taken, an appeal decision maker may have to extrapolate from dated evidence available, the works required and explanations of what happened on site, whether substantial completion had been achieved by that time.10

8 9

Town and Country Planning Act 1990, s 171B(1). [2003] UKHL 22, [2003] 1 WLR 983 at para 16 per Lord Hobhouse. [2010] EWHC 143 (Admin), [2010] JPL 915. R (Barker) v Brighton and Hove City Council [2014] EWHC 233 (Admin), [2014] JPL 877 at para 40 per Lang J. 10 See Application by Taggart for Judicial Review [2011] NIQB 82 at paras 14–18 per Treacy J. 6 7

42

The four-year rule in England and Wales 3.12 3.08 There may be circumstances in which the enforcement period for operations on a site may expire at different times. For example, a scheme or planning permission may comprise a number of separate buildings. If the first is built without complying with the approved drawings then enforcement against it would have to take place within four years of the building’s substantial completion, rather than from the finish of the last building. To what extent elements of an approved development will be substantially completed prior to the completion of the totality of the scheme will depend on the circumstances.11 3.09 Unless the project can be divided up then if some of the operations are carried out within the time limit, then all the works, including those carried out more than four years ago, can be enforced against. In Robert Reginald Howes v Secretary of State for the Environment12 a vehicular access to a garden had been created by removing the hedge and tipping hardcore onto the grass. Hodgson J held that if the substantial completion, by laying hardcore, took place within the four-year limit, then the whole operation, including the opening of the fence, could be the subject of enforcement action. 3.10 Mining operations are treated differently to building or engineering operations. Each shovelful or bulldozer cut is a separate operation.13 This has the consequence that any enforcement action can only deal with the last four years’ activities (unless there is a breach of condition), but also means that carrying on mining operations in the future on a site cannot be lawful because of previous working.14 An operator has no right to dig deeper because land has already been worked.15 Change of use to a single dwellinghouse 3.11

Section 171B(2) provides:

‘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 the breach.’

The single dwellinghouse time limit of four years is more generous to developers than the usual material change of use time limit of ten years. This is to protect longterm residential occupation. 3.12 The relevant breach is a ‘change of use’ rather than a ‘material change of use’. Consequently a change of use to residential occupation in breach of a condition is subject to the four-year rule. In Arun District Council v First Secretary of State16 planning permission had been granted for an extension of a house subject See R (Ardagh Glass Ltd) v Chester City Council [2009] EWHC 745 (Admin), [2009] Env LR 34 at paras 47–56 per Judge Mole QC. 12 [1984] JPL 439. 13 Thomas David (Porthcawl) Ltd v Penybont RDC [1972] 1 WLR 1526. 14 For example, continuing sand extraction in Lough Neagh was unlawful even though it had been carried on for 80 years without planning permission: Friends of the Earth [2017]  NICA  41 at para  3 per Weatherup LJ. 15 Prior to 1948, mining had been seen as a use of land as mining operations were not separately identified in the definition of development in the Town and Country Planning Act 1932. They were included in the operational development categories in the Town and Country Planning Act 1947. 16 [2006] EWCA Civ 1172, [2007] 1 WLR 523. 11

43

3.13  Time Limits on Enforcement to conditions that it should only be occupied by a named dependent relative of the householder and then when she vacated the extension it was to be used at all times for purposes incidental to the house as a single dwellinghouse and not be occupied or disposed of as separate residential accommodation. The extension was not in fact used by the relative but as part of the house until it began to be let to students, who occupied it independently as separate living accommodation. Eight years after that separate use began, the Council issued an enforcement notice. The Court of Appeal held that the four-year period applied to that breach.17 Subsection (2) is concerned with a ‘change of use’ not merely a ‘material change of use’ and omits the reference to ‘without planning permission’ which is in sub-s (1). Since the change of use to a dwellinghouse took place eight years before the enforcement action it was now lawful. In reaching this conclusion the Court of Appeal followed dicta of Keene J  in King’s Lynn and West Norfolk Borough Council v Secretary of State for the Environment.18 As building in the Planning Act includes ‘any part of a building’, unless the contrary intention appears19 the separate residential use of part of the house was subject to the four-year rule. 3.13 Welsh Office Circular 24/97 considers that a breach of an occupancy condition attached to a dwellinghouse is governed by the ten-year rule.20 Another aspect of a building including part of a building is that the conversion of a building into flats (which is a material change of use21) is governed by the four-year rule: see the conjoined appeals of Doncaster Borough Council and Van Dyck v Secretary of State for the Environment.22 However a change to a residential use which is not a dwellinghouse is subject to the ten-year limit.23 3.14 Subsection (2) relates solely to the change of use of a building and so the building must have been in a non-dwellinghouse use prior to the change. Therefore if a building is constructed as a dwellinghouse and put to that use there is no change of use of a building to use as a dwellinghouse. The four-year time period in sub-s (2) does not apply and the use of the building is subject to the ten-year period in sub-s (3).24 THE TEN-YEAR RULE 3.15

Section 171B(3) provides:

‘In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.’

Arun in particular per Auld LJ at paras 22–27, Sedley LJ at para 35 and a very useful discussion of the history of four-year time limits by Carnwath LJ at paras 37–51. 18 King’s Lynn and West Norfolk Borough Council v Secretary of State for the Environment [1995] JPL 730. 19 Town and Country Planning Act 1990, s 336(1). 20 WO Circular 24/97, Annex 2, para 2.4. 21 Town and Country Planning Act 1990, s 55(3)(a). 22 (1993) 66  P  & CR  61. This followed contradictory decisions at first instance in Doncaster (1991) 63 P & CR 61, Van Dyck [1992] 2 PLR 5 and Worthing Borough Council v Secretary of State for the Environment (1992) 63 P & CR 446. 23 See Arun at para 39 per Carnwath LJ, obiter. 24 Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304 at paras 14, 17 per Lord Mance JSC. 17

44

The ten-year rule 3.19 These categories are material changes of use and failing to comply with conditions or limitations, other than conversion to a single dwellinghouse. 3.16 Where the change of use occurred and then continued without alteration, it is straightforward to determine if the time limit bites. However, change of use, such as from storage to a scrapyard, may be gradual and vary over time. Here the question is whether the present use is materially different from that of ten years previously. If it is, that material change can be enforced against. Sullivan J rationalised the ten-year period as:25 ‘felt to be fair to both parties, since it would give the local planning authority sufficient time to identify any significant planning problem arising as a result of the breach of planning control, whilst at the same time it would not place an undue evidential burden upon the landowner, who could rest assured that after 10 years he would be free of the threat of enforcement action.’

3.17 All breaches of conditions or limitations, except a condition preventing the change of use of any building to use as a single dwellinghouse, are subject to the ten-year rule. Section 171B, introduced by the 1991 Act, therefore altered the previous position in respect of operational development. Formerly a condition or limitation which related to operational development was governed by the four-year rule.26 A condition prohibiting the occupation of a building before access works are carried out does relate to the carrying out of operations.27 3.18 Until 27  July 1992, unauthorised changes of use had to have begun by the end of 1963 to have the benefit of a time limit.28 A rolling ten-year period was introduced following the recommendations of the Carnwath Report. This led local planning authorities to rush out hundreds of enforcement notices against unauthorised uses which had begun between 1963 and 1982 in the spring of 1992. However, if the breach had become immune from enforcement by reason of the earlier four-year rule by 27  July 1992 (when the section was brought fully into effect), then no further enforcement action could be taken.29 Breaches of occupancy conditions 3.19 A breach of a condition which prohibits a change of use of a building to a dwelling is subject to the four-year rule: see Arun District Council v First Secretary of State.30 A condition which restricts who may occupy a dwellinghouse is subject to the ten-year rule, as a breach would not be a change of use to a dwellinghouse. These conditions most often restrict occupation to those employed in agriculture or another

North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin), [2004] JPL 1396 at para 21. 26 Town and Country Planning Act 1990, s 172(4)(b) as originally enacted: see Harvey v Secretary of State for Wales [1991] 2 PLR 1, CA and Peacock Homes Ltd v Secretary of State for the Environment (1984) 48 P & CR 20, CA. 27 King’s Lynn and West Norfolk Borough Council v Secretary of State for the Environment [1995] JPL 730. 28 Town and Country Planning Act 1990, ss 172, 191 before substitution by the 1991 Act; SI 1991/2905, Art 5(b). 29 Planning and Compensation Act 1991, s 4(2); Planning and Compensation Act 1991 (Commencement No 5 and Transitional Provisions) Order 1991 (SI 1991/2905). 30 [2006] EWCA Civ 1172, [2007] 1 WLR 523 and discussed above. 25

45

3.20  Time Limits on Enforcement rural activity where the building has been allowed as an exception to the restrictions on residential development in the countryside. The five-year time limit in Northern Ireland 3.20 Five-year time limits are applied in Northern Ireland to the same three categories of breaches by the Planning Act (Northern Ireland) 2011, s 132: ‘(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of 5 years beginning with the date on which the operations were substantially completed. (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling-house, no enforcement action may be taken after the end of the period of 5 years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of 5 years beginning with the date of the breach.’ As elsewhere, the expiry of the period for enforcing against operational development carried on without planning permission is taken from the substantial completion of the works, whilst other breaches are judged from the date of the breach. The five-year period was introduced from 1 December 2011, replacing four- and tenyear periods which had been modelled on the English and Welsh legislation.31 Continuity of breaches 3.21 The time period is based on the particular breach of planning control which is being enforced against. For operational development, time runs from substantial completion and is discussed above. A material change of use will start and a condition may first be breached on a particular day. In applying the time limits the question is whether it is the same breach as any which took place four or ten years earlier or whether a fresh breach has taken place. Material change of use 3.22 The land must be in unlawful use for the duration of the relevant four-, five- or ten-year period. The breach of planning control whose lawfulness is being considered must be the same breach of control as at the start of the period. Whether a use is being carried out within this period is synonymous with whether enforcement action can be taken. If at that particular time an enforcement notice could be issued, then time is counting towards the limitation period.32 For example, if there is a material change of use to a caravan site without planning permission, the caravan use ceases before the time limit expires and then resumes then the lawfulness of that use will be judged from the date of the resumption, not from the date of the first change to Planning (Northern Ireland) Order 1991, Art 67B. See Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226 at paras 15(iii), 25 per Schiemann LJ; Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568, [2006] JPL 886 at para 25 per Keene LJ.

31 32

46

The ten-year rule 3.26 a caravan site. The resumed use will be a fresh breach of planning control and could be the subject of enforcement action. 3.23 There may be periods where the activity is not being carried out but the use continues, for example, because it is the weekend or the factory’s summer holiday.33 The use of a pavement for tables and chairs for restaurant customers continued though the items were removed and stored in the restaurant overnight when it was closed.34 There may also be situations where a use is seasonal, and continuity is then considered in respect of the season. 3.24 Continuity will be affected by the nature of the breach. For example, a residential use of a building will be taking place if the building is equipped and furnished for domestic use, even if there is no one living there.35 In some cases there may be gaps in occupation, for example in breaks between tenants or when refurbishment works are being carried out. It will be a matter of fact and degree whether such a period brings the use to an end before the time limit expires.36 Where the use has become lawful before the break, then a temporary cessation (without any new use intervening) will not end the use. Stopping the activity in response to a threat of enforcement action is likely to be a cessation of the use, even if it only occurs for a short period.37 Breach of condition 3.25 In Nicholson v Secretary of State for the Environment,38 Robin Purchas QC suggested a three-stage test to judge whether enforcement action could be taken against a breach of condition: (1) identify the failure to comply; (2) look to see when, as a matter of fact and degree, that failure began; and (3) decide whether a period of ten years (or four years, as appropriate) has since expired. 3.26 The starting point for applying the time limit is to identify what the breach of condition is. Some conditions can be breached to different degrees. For example, in St Anselm Development Co Ltd v First Secretary of State,39 a residential and office building was constructed with 19 car parking spaces in the basement. A condition required the whole of the parking to be retained for the vehicles of the users and occupiers of the building. In practice the parking spaces were let out to unconnected Thurrock at para 28 per Schiemann LJ. Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 23 (Admin), [2013] JPL 842 at para 61 per Judge Anthony Thornton QC. 35 See North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2318 (Admin), [2003] JPL 600 at para 32 per Sullivan J. 36 In Islington London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2691 (Admin), renovation works had been so extensive that the use of the premises would not have been apparent and so it could have been the case that enforcement was not possible in that period and the time period was broken. 37 See Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415, [2013] 1 WLR 948 at para 11 per Maurice Kay LJ and at para 25 per Elias LJ on the time limit in advertising consent cases. 38 [1998] JPL 553 at 560. 39 [2003] EWHC 1592 (Admin), [2004] JPL 33. 33 34

47

3.27  Time Limits on Enforcement persons most of the time. Fourteen of the spaces had been let out in breach of the condition continuously for more than ten years, but the other five spaces had been let out over a shorter period. Sullivan J held that whilst the condition applied to the whole car park, and the first breach of the condition arose more than ten years ago, the use of each space was a particular breach of the condition and so the more recent breaches could be enforced against. The judge said: ‘The question is not: could an enforcement notice alleging a failure to comply with this condition have been issued 10 years ago, but could this enforcement notice alleging this failure to comply with the condition and requiring this failure to be remedied by taking these steps, have been issued 10 years ago?’40 [original emphases]

3.27 Time runs on a breach of condition as long as it is the same breach of condition. Often it is said that a breach has to have continued or been continuous for the period, but neither term is in the statute. Legislation simply refers to a period beginning with the date of the breach. Whether a breach has continued or been continuous may be a helpful way of applying the test in most cases, but it is not the test itself. Some breaches continue at every moment after the period for compliance (for example, a condition requiring noise attenuation to be installed prior to the occupation of a building would be breached from the time that occupation began until the installation of the measures). Other breaches have been considered to have taken place even if they have not been carried on at every moment. For example, breach of a condition restricting the occupation of holiday bungalows to a period between March and November each year was lawful because it had been carried on for more than 10 years. A fresh breach did not start each November and end in March of the following year.41 Similarly a condition prohibiting the operation of a factory on Sundays or a restaurant being open beyond midnight could be breached for more than 10 years even though the breach would only be carried on at particular times or days.42 3.28 Where there are gaps in the occasions that the breach was being carried on, a judgment needs to be made as to whether it is still the same breach. In Trim v North Dorset District Council,43 Carnwath LJ suggested it was arguable that an occupancy condition was breached on each day that the unlawful occupation occurred, so the ten-year period would start again each day and there would be no time limit. In the absence of argument he expressed no view. Such an outcome would be inconsistent within the protection of uses carried on in breach of condition, for example, in Arun.44 Breaches involving operational development and a change of use 3.29 It may be that a breach of planning control consists of both operational development and a change of use. Where the time periods are the same length (in the case of a change of use of a building to a dwellinghouse) and expire at the same time then there is in practice no problem. Complications arise when the breach

St Anselm at para 27. North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin), [2004] JPL 1396. 42 See North Devon at paras 24, 25 per Sullivan J. 43 [2010] EWCA Civ 1446, [2011] 1 WLR 1901 at paras 14, 15. 44 See paras 3.12 and 3.19 above. 40 41

48

The ten-year rule 3.32 is potentially both operational development subject to the four-year period and a material change of use subject to the ten-year period. Two distinct questions arise: (a)

what time period or periods apply; and

(b) whether operational development can be removed as part of enforcement action against the material change of use? 3.30 In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government, the Secretary of State argued that when an unlawfully constructed building had become lawful under s  171B(1) the use of the building was also lawful. The Court of Appeal declined to express a view on that point.45 The Supreme Court proceeded on the basis that a four-year period could apply the operational development of constructing a building but use would still be governed by the ten-year period. However Lord Mance suggested, going to the discretion to enforce, that:46 ‘there is a potential answer to this apparent anomaly, one which would apply as much to a dwellinghouse as to any other building. It is that, once a planning authority has allowed the four-year period for enforcement against the building to pass, principles of fairness and good governance could, in appropriate circumstances, preclude it from subsequently taking enforcement steps to render the building useless.’

Lord Brown agreed with Lord Mance, saying: ‘Parliament appears to have contemplated that a dwellinghouse built by way of unpermitted operational development would be enforced against, if at all, within the requisite fouryear period provided for by section 171B(1) – failing which the authority probably would not seek ordinarily to enforce against its continued use as a house.’47

3.31 An enforcement notice against a material change of use can require the land or buildings to be restored to their condition prior to the change of use, even if that requires the removal of operational development which would have been lawful by the passage of time.48 This is not a change to the time limits, but an application of the power for an enforcement notice to require land to be restored to its condition prior to the breach.49 It applies where the works concerned are integral to or part and parcel of the unauthorised use50 or, put another way, ancillary operational development.51 3.32 There are a range of potential circumstances, from modest operational development in support of a material change of use to a situation where a substantial building or structure has been erected and the material change of use flows from that. The potential outcomes are that the operational development can be enforced against within the same time limit as the change of use, that separate time limits apply or possibly that the operational development time limit applies either formally or because it would be irrational to enforce against the use if the building had become lawful. 47 48 49

[2010] 2 P & CR 10 at para 26 per Richards LJ. [2011] 2 AC 304 at para 17 and see also para 30. [2011] 2 AC 304 at para 68. Murfitt v Secretary of State for the Environment (1980) 40 P & CR 254. Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 764 at para 28 per Lindblom LJ. This is discussed further at para 6.14 below. 50 Kestrel Hydro at para 28. 51 See Waller LJ in Murfitt. 45 46

49

3.33  Time Limits on Enforcement Time limits not running in the event of positive deception 3.33 The time limits had been applied in practice without any regard as to why no enforcement action had been taken within the necessary period. In some cases landowners had lied about what had taken place and then changed their explanation when enforcement action was taken or a lawful development certificate sought. The issue came to attention in two high profile cases which began in the late 2000s. In the first case, a Mr Fidler, living in the Green Belt in Surrey, had engaged in a series of planning enforcement battles before he constructed an entire house in a space enclosed by hay bales and covered with a tarpaulin. Four years after occupying the house, he removed the hay bales and claimed the house had become lawful. In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government, Mr and Mrs Beesley had obtained planning permission for an agricultural barn as a cover for their actual intentions. They then constructed a building which externally looked like the barn for which they had been granted planning permission, but which was from the outset internally constructed and fitted out as a dwellinghouse. Again they sought to rely on the four-year rule. 3.34 Both cases were contested initially on interpretation and application of the four-year rules in s 171B(1) and (2). Whilst allowing the Beesley’s appeal, Mummery LJ expressed his puzzlement that there had been no argument that ‘Mr Beesley’s reprehensible conduct in obtaining planning permission by deception’ prevented reliance on the time limits.52 This inspired the local authority to argue in the Supreme Court that the time limits did not apply in the case of fraud. The Supreme Court allowed the authority’s appeal. Since the application of the decision is often debated in practice, it is useful to consider it in some detail. 3.35

The reprehensible conduct was summarised by Lord Mance JSC as:53

’31 … First, Mr Beesley intended to deceive the council from the outset, that is (at least) when he made each of his successive planning applications in March 2000 and January 2001; in each application he described the proposed building as a hay barn, said that the application involved no change of use of land, and, in relation to sewage disposal, answered not applicable. Secondly, when building his house, he deliberately refrained from giving the notice under the building regulations, applicable to a house but not an agricultural barn, so committing an offence triable summarily and punishable by a fine. Thirdly, he did not register for council tax or on the electoral register at the building. Fourthly, he gave the council as his address his office, whereas all other correspondence was to and from the house. Fifthly, he lived a low-key existence, the house being at the end of a lane or track apparently accessible from the road only by a locked gate. 32. The aim of this conduct was, firstly, to obtain a planning permission which would not have been granted had the application been for a dwellinghouse, secondly, to conceal the fact that what was being built was and was to be a dwellinghouse and, thirdly to live in the house without being detected or therefore having enforcement steps taken for the four-year periods.’

Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26, [2010] JPL 1095 at paras 43–47. 53 Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15, [2011] 2 AC 304 at paras 31, 32. 52

50

The ten-year rule 3.38 3.36

However Lord Mance found that:54

‘The real gravamen of the council’s case is to be found in the deception involved in the obtaining of false planning permissions which Mr Beesley never intended to implement, but which were designed to and did mislead the council into thinking that the building was a genuine hay barn and so into taking no enforcement step for over four years. This was deception in the planning process and directly intended to undermine its regular operation.’

3.37 The other aspects in paragraph  31 (building regulations, council tax, electoral register, address and being low-key) were ancillary and Lord Mance was not prepared to assume for the present case that they would, without more, disentitle reliance on the time limits.55 Lord Mance held, and the rest of the Court concurred, that Mr Beesley could not rely on the time limits on public policy grounds where his conduct ‘consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process’.56 He considered that there was no need for a criminal offence to have been committed.57 Lord Rodger agreed, as Mr Beesley ‘deliberately set out to conceal the true nature of the development during the whole four-year period, with the aim that the council would be prevented (as happened) from taking enforcement action within the four-year period’. Lord Brown emphasised that: ‘it would be impossible to superimpose upon the statutory scheme any sort of broad principle to the effect that no one guilty of wrongdoing can be allowed to benefit from the limitation provisions of the 1990 Act.’58

He considered the principle would only apply in ‘highly exceptional circumstances’ and, for example, would not have included the letting of a granny flat to students in Arun District Council v Secretary of State for Communities and Local Government (as discussed under s 171B(2) above).59 3.38 Permission to appeal to the Court of Appeal had been granted to Mr Fidler before the Supreme Court decision in Welwyn Hatfield. The Secretary of State then successfully applied to set aside that permission. Sullivan LJ said:60 ‘12. … In the present case the deception was not the making of a false planning application, but the deliberate hiding of building operations behind a shield of straw bales the top of which was covered by a tarpaulin. On the appellant’s own evidence, the bales were deliberately erected to conceal the construction of the dwelling; this was not a case of someone merely refraining from drawing attention to themselves by, for example, not applying for building regulations approval; here, there was positive conduct, and the avowed intention of that positive conduct was to deceive the local planning authority so

56 57 58 59 60 54 55

At para 43. At para 44. At para 56. At para 53. At para 73. Welwyn Hatfield at paras 75–79, 84. Fidler v Secretary of State for Communities and Local Government [2011] EWCA Civ 1159 at paras 12, 13. Longmore LJ added at para 15: ‘A deliberate deception by conduct can be just as serious as deliberate deception by a written misrepresentation’.

51

3.39  Time Limits on Enforcement that it would not realise building operations had been carried out until after the four-year period had expired. 13. It seems to me that upon the facts found by the Inspector, this is a paradigm case of deception which disentitles an appellant from relying upon the four-year rule; it simply does not lie in this appellant’s mouth to say that this local planning authority should have spotted the building which he had so carefully concealed at some earlier stage, were he to do so it would indeed frustrate the underlying statutory purpose. It is therefore of no consequence whatsoever whether the bales were or were not part of the building operations; the short point is that this was a deliberate deception which plainly falls within the principles set out in the Welwyn Hatfield case, the consequence of which is that this appeal has no prospect whatsoever of succeeding.’

3.39 Welwyn Hatfield and Fidler concerned the construction of new buildings, with new uses of the land, without planning permission. The principle, though, applies to all breaches of planning control, such as alterations to buildings or the material change of use of buildings.61 Left open is whether the time limits would start to run at some point after the deception had ceased.62 The public policy reasons for the interpretation of the time limits are to avoid any benefit from particularly reprehensible behaviour. If the effect of the deception has ended, in that the local planning authority knows of the breach with sufficient information to take action, including that it is in time to do so, then it would seem appropriate for the time limits to begin to run. What is sufficient and when time would run would have to be considered on an individual case. 3.40 A  series of cases have considered the practical operation of the Welwyn Hatfield principle. The unsuccessful appellant in Bonsall v Secretary of State for Communities and Local Government63 had gone to extreme lengths to conceal that he had converted an agricultural building into a dwellinghouse and was living in it, to the extent of asking visitors to use the pub car park half a mile away. In Jackson v Secretary of State for Communities and Local Government,64 the deception included lying to the planning authority that the residential building was still in agricultural use and a planning application for the retention of dormer windows without seeking permission for the then unlawful change of use. 3.41 There have been unsuccessful attempts by local planning authorities to take Welwyn Hatfield too far. In Hertsmere65 the conversion of a large storage space above a garage into a flat had not involved deception. The Inspector found that the building had been genuinely applied for as a garage and storage and that having most of the windows facing away from the road was a sensible design rather than concealment. Whilst the property had not been put on the Council Tax register, it had been on the electoral register. In another case an Inspector found that the principle did not apply even though ‘the appellant’s evidence about the need for planning permission was implausible; that he took steps to ensure that the development on the appeal site was not readily visible in public views; and that he kept a very low profile so far as matters such as council tax and refuse collection were concerned’.66 Jackson v Secretary of State for Communities and Local Government [2015]  EWHC  20 (Admin), [2015] JPL 831 at para 72 per Holgate J. 62 See Jackson v Secretary of State for Communities and Local Government at para 38 per Holgate J. 63 [2014] EWHC 2022 (Admin). 64 [2015] EWHC 20 (Admin), [2015] JPL 831 at paras 72–77 per Holgate J. 65 Leon v Hertsmere Borough Council [2016] PAD 21. Costs were awarded against the Council as the Welwyn Hatfield point was taken unreasonably. 66 Watling v King’s Lynn and West Norfolk Borough Council [2016] PAD 30. 61

52

Planning enforcement orders in England and Wales 3.45 The Welwyn Hatfield principle was not implied revoked by the introduction of planning enforcement orders.67 In enacting these provisions, Parliament had not intended to change the meaning of section 171B.68

PLANNING ENFORCEMENT ORDERS IN ENGLAND AND WALES 3.42 Concern about landowners benefiting from planning breaches which they had concealed or lied about was shared in government. The Fidler and Welwyn Hatfield cases had received a great deal of press attention, including in their early stages when it looked as if the landowners might get away with it. Prior to the Supreme Court decision in Welwyn Hatfield, the government had devised its own solution to the problems thrown up by those cases. The Localism Act 2011 introduced new ss 171BA–171BC into the Town and Country Planning Act 1990 to allow local authorities to apply to the magistrates’ court for a planning enforcement order to allow enforcement action to be taken which would otherwise be out of time where concealment of the breach has taken place. A  planning enforcement order allows a local planning authority to take enforcement action. It does not itself order the landowner to do, or refrain from doing, anything. 3.43 The relevant local planning authority may apply to a magistrates’ court for a planning enforcement order.69 Such an order allows the authority to take enforcement action in respect of the apparent breach and any of the matters constituting the apparent breach in a one-year period beginning 22 days after the decision to make the order or the day on which any appeal to the High Court by case stated is finally resolved (‘the enforcement year’).70 Enforcement action can be taken within the ‘enforcement year’ whether or not the time limits in s 171B have expired.71 3.44

A planning enforcement order may only be made if:72

‘(a) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and (b) the court considers it just to make the order having regard to all the circumstances.’

The language of sub-s (a) was tightened up during the Bill’s passage. At one point it would be met if the court was satisfied ‘that the actions of a person or persons have resulted in, or contributed to, full or partial concealment of the apparent breach or any of the matters constituting the apparent breach’.73 3.45 There must now be deliberate concealment. Concealment involves some active step and intention must be established. However questions do remain. It would appear that concealment will occur if a false answer is given (such as a denial that works have been carried out or claiming that the use of the property is agricultural Jackson v Secretary of State for Communities and Local Government [2015]  EWCA  Civ 1246, [2016] QB 811. The judgment dealt with appeals in Jackson and Bonsall. 68 Jackson at para 43 per Richards LJ. 69 Town and Country Planning Act 1990, s 171BA(1). 70 Town and Country Planning Act 1990, s 171BA(3), (4). 71 Town and Country Planning Act 1990, s 171BA(5). 72 Town and Country Planning Act 1990, s 171BC(1). 73 Localism Bill 2011, cl 109, as introduced in the House of Lords. 67

53

3.46  Time Limits on Enforcement when it is now residential). A failure to respond to a statutory request for information might be concealment, although the question becomes more debatable where the request is informal. An issue may be whether a failure to register a building or its occupiers is concealment (such as non-domestic rates, council tax or electoral registration). There might also be the question of who the matters are being concealed from. A long leaseholder might not tell its landlord about works or changes in use. There might also be mixed cases, where the local authority is told about the use or development for particular purposes (such as Council Tax) but not for others (most obviously, planning control). Of course, the Welwyn Hatfield approach to fraud is highly fact sensitive and its application at the margins is not straightforward, but the planning enforcement order approach does not provide a clearer solution. The ultimate test of the provision is not whether it catches the flagrant breaches (there would have been deliberate concealment in Welwyn Hatfield and Fidler), but whether it avoids catching people whose conduct has not been so morally reprehensible as to justify belated enforcement action. 3.46 There is an overlap between planning enforcement orders and the Welwyn Hatfield principle, but matters are left outside of each. In Jackson Richards LJ said:74 ‘On the one hand, the PEO procedure is narrower than the Welwyn principle, since it applies only where an apparent breach of planning control has been deliberately concealed, whereas the Welwyn principle extends to cases of dishonesty or criminality, such as bribery or coercion, which would not necessarily amount to deliberate concealment. On the other hand, the Welwyn principle applies only to particularly serious cases, whereas the PEO procedure applies where an apparent breach of planning control has “to any extent” been deliberately concealed.’

3.47 What is just in all the circumstances is not defined, but relevant circumstances could include whether the concealment was by the landowners or occupiers and whether they still have the site, or whether an innocent purchaser might become the subject of enforcement action. The extent to which the alleged breach of planning control was deliberate and the scale of the concealment may be relevant.75 3.48 The local planning authority may only apply for a planning enforcement order:76 ‘within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority’s knowledge’.

3.49 There may be debate as to when the authority had sufficient evidence of the breach to justify the application. It is evidence of the breach which matters, not evidence that the conventional time limits might have expired. In some cases an authority will suddenly become aware of an issue. In others it may be an accumulation of material, or it might be that the authority had information suggesting a breach long before it appreciated that there might be a breach. A certificate signed on behalf of the authority, ‘stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, is conclusive evidence

[2015] EWCA Civ 1246, [2016] QB 811 at para 45. Coles v Lichfield District Council [2016] EWHC 3059 (Admin) at paras 39, 50 per Elisabeth Laing J. 76 Town and Country Planning Act 1990, s 171BB(1). 74 75

54

Planning enforcement orders in England and Wales 3.53 of that fact’.77 That assertion is not as robust as it appears on the face of the Act. The certificate is amenable to challenge in the magistrates’ court proceedings or by judicial review, as an abuse of process or, if there is fraud, additionally the certificate must comply in substance and form with the statutory requirements.78 3.50 The ability to apply for a planning enforcement order is not defeated by an application for a certificate of lawfulness of existing use or development having been made for the particular breach prior to the local planning authority becoming aware of the deliberate concealment.79 3.51 When making the application, the authority are required to serve a copy of the application on the owner and occupier of the land and any other person having an interest in the land which they consider may be affected by enforcement action against the apparent breach.80 The persons entitled to appear ‘include’ the local planning authority who applied, any person served with the application and ‘any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach’.81 That the list of persons entitled to appear is inclusive rather than comprehensive could be significant. There are other categories of person who might wish to appear, such as those accused of deliberate concealment or previous owners who disposed of the property on the basis of representations about its planning status. 3.52 A  decision of the magistrates’ court may be challenged by appeal to the Crown Court or by appeal to the High Court on a case stated. If a planning enforcement order is granted, and an enforcement notice issued within the enforcement year then it will not be possible to argue that the notice is out of time under ground (d) in an enforcement appeal.82 3.53 A planning enforcement order will identify the apparent breach of planning control to which it relates and state the date on which the court’s decision to make the order was given.83 The date of the decision will be when the court pronounces its decision rather than when the order is drawn up. The local planning authority’s register of enforcement and stop notices will include details of every planning enforcement order. On the register will be the address or identification by plan of the land, the name of the authority which applied for the order and the court which made it. The date of the court’s decision, the beginning and end of the enforcement year and any postponement of the date by an appeal will be included, along with Town and Country Planning Act 1990, s 171BB(2). On planning enforcement orders see Tanna v Richmond LBC [2016] EWHC 1268 (Admin) at para 32 to 37 per Collins J; Coles v Lichfield District Council [2016] EWHC 3059 (Admin) at para 46 per Elisabeth Laing J. More generally see Burwell v Director of Public Prosecutions [2009] EWHC 1069 (Admin). There is a degree of judgment involved in assessing what evidence justifies making the application: see RSPCA v Johnson [2009] EWHC 2702 (Admin). A challenge to the certificate failed in Tonna, but only narrowly in the High Court, where more than six months had passed since the appellant said that a certificate of lawfulness of existing use or development would be applied for. 79 Jackson v Secretary of State for Communities and Local Government [2015]  EWCA  Civ 1246, [2016]  QB  811 at para  36 per Richards LJ recording the parties’ disagreement with comments in Jackson [2015] EWHC 20 (Admin); [2015] JPL 831 at paras 63–68 per Holgate J. 80 Town and Country Planning Act 1990, s 171BB(4). 81 Town and Country Planning Act 1990, s 171BB(5). 82 Jackson v Secretary of State for Communities and Local Government [2016] QB 811 at para 48 per Richards LJ. 83 Town and Country Planning Act 1990, s 171BC(2). 77 78

55

3.54  Time Limits on Enforcement the apparent breach of planning control and details of where in the register any enforcement notice or breach of condition notice issued in relation to that breach can be found.84 3.54 The planning enforcement order provisions came into force in England and Wales on 6 April 2012.85 If the time limits under s 171B for enforcing against a breach of planning control expired before 6 April 2012 then the planning enforcement order provisions cannot be used to enable enforcement action to take place.86 3.55 Deliberate concealment does involve a lower degree of culpability than the Welwyn Hatfield principle. The question, which only practice will resolve, is whether there are intended targets of the orders who would not be caught by Welwyn Hatfield. At the time of the Localism Bill’s passing and subsequently it has been commented that the provisions are unnecessary and to the extent that they go wider than Welwyn Hatfield, are undesirable.87 No time limit for relevant demolition in conservation areas in England 3.56 No time limit applies in respect of enforcement action against the unlawful demolition of buildings in conservation areas in England. Section 171B(2A) provides: ‘There is no restriction on when enforcement action may be taken in relation to a breach of planning control in respect of relevant demolition (within the meaning of section 196D).’

This replicates the lack of a time limit to enforce against breaches of the previous requirement for conservation area consent. EXTENSIONS OF THE TIME LIMITS 3.57

There are two extensions to the time limits.

Breach of condition notices following enforcement notices 3.58 If an enforcement notice is in effect, a breach of condition notice can be served in respect of the same breach of planning control at any time as the time limits do not prevent:88 ‘the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice in respect of the breach is in effect.’

Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43(1). No similar provisions have yet been made for Wales. 85 Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012, Art 8. 86 Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012, Art 13(3). 87 For example, the case comment [2011]  JPL  1183 at 1208–1209 and Emma Hatfield, ‘Concealed Development: did we really need section 124?’ [2013] JPL 19. 88 Town and Country Planning Act 1990, s 171B(4)(a); Planning Act (Northern Ireland) 2011, s 132(4)(a). 84

56

Extensions of the time limits 3.62 An enforcement notice is ‘in effect’ when the time for compliance with it has started to run, either at the end of the initial period set out in the notice or following the final determination or withdrawal of an appeal.89 The enforcement notice must have been issued within the time limit to take effect. Second bite 3.59 Enforcement action may be taken for a breach of planning control if the local planning authority had taken or purported to take enforcement action in respect of that breach in the previous four years (five years in Northern Ireland).90 This is even if the conventional time limit has expired by the time of the later notice. It is primarily intended to allow errors to be remedied by fresh notices. So a second attempt may be carried out if the previous notice was dismissed on appeal, withdrawn or found to be a nullity.91 3.60 This second bite provision makes it possible to issue an enforcement notice within four years of the issue of a planning warning notice in Wales, since issuing such a notice is the taking of enforcement action.92 This does have the consequence that a notice which does not impose an obligation to act, and which is not subject to appeal, can extend the time for more substantive action to be taken by up to four years.93 Less contentiously by the second bite provisions it is also possible to follow a breach of condition notice with an enforcement notice. 3.61 In William Boyer (Transport) Ltd v Secretary of State for the Environment,94 enforcement notices alleging a material change of use to car breaking since 1963 were issued on 24  July 1992. They were then withdrawn and new enforcement notices issued in August 1992. The Court of Appeal, upholding Jeremy Sullivan QC, sitting as a Deputy High Court Judge, held that the original enforcement notices must have been issued within the time for enforcing under the new time limits for it to be possible to issue further notices under s 171B(4)(b). The second bite provisions cannot be used to create a new time limit for development which was lawful at the time of the original notices. 3.62 It is not yet determined whether a local planning authority can have a third bite of the cherry by issuing a second enforcement notice on this basis and issuing a further enforcement notice within four years of the issue of the second notice

Town and Country Planning Act 1990, ss  173(9), 175(4); Planning Act (Northern Ireland) 2011, s 140(8). 90 Town and Country Planning Act 1990, s 171B(4)(b); Planning Act (Northern Ireland) 2011, s 132(4)(b). 91 An example of the original notice being a nullity and the second bite being used is Akhtar v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin) at para 33 per Nathalie Lieven QC. 92 Town and Country Planning Act 1990, s 171A(2)(aa). 93 The Law Commission have questioned whether this is appropriate and asked whether the legislation should provide that service of an enforcement warning notice does not extend the period for taking enforcement action: The Law Commission has suggested that the s 330 and planning contravention notice provisions be merged: Planning Law in Wales Consultation Paper Law Com No 233 (November 2017), para 12.36. 94 The Times 7 February 1996, CA; (1994) 69 P & CR 630, Jeremy Sullivan QC, sitting as a Deputy High Court Judge. 89

57

3.63  Time Limits on Enforcement relying on the same provision. The wording appears to allow it (and the first instance judge in William Boyer accepted this as the case), but as a matter of principle it is objectionable. 3.63 The second bite provisions apply where the authority has taken or purported to take enforcement action. ‘Purported’ concerns ‘intention or purpose’.95 It is important in the working of the provision as a second notice may be served because the first notice had a fatal legal defect, whether characterised as invalidity or a nullity.96 That error may well have been in the description of the site or the breach of planning control. The provision is intended to allow local authorities to remedy such errors by a subsequent notice and that may result in a second notice which identifies different land or characterises the breach in a different way. However it must not be used to challenge a different breach. Perhaps the best approach is to consider what in substance the authority were trying to enforce against in the first notice and then ask whether the second notice is directed towards the same issue. David Elvin QC said in Lambrou:97 ‘The question of purported action self-evidently must encompass cases where an enforcement notice is erroneous or fails in its purpose, providing that the intention was broadly the same as that which is the subject of the second bite notice – it must be purported enforcement action “in respect of that breach”.’

3.64 In Jarmain v Secretary of State for the Environment, Transport and the Regions98 a council originally issued an enforcement notice for breach of a condition in failing to remove a mobile home at the expiry of a planning permission. The owner had replaced that caravan with another caravan, altered to be a permanent structure. A  second enforcement notice against operational development was able to use the second bite provisions. The notices were challenging the same matter on the ground. In Fidler v First Secretary of State,99 the local planning authority had issued enforcement notices against particular uses on particular land within a larger planning unit. Those notices were vague and a subsequent notice which dealt with a mixed use comprising those and other uses could not use the second bite provisions as it was ‘wider in substance than the totality of breaches alleged’ in the earlier notices.100 A second bite notice was upheld in Romer v First Secretary of State101 where the appellant had owned two adjacent properties and constructed a building in mixed residential and workshop use at the rear of one of the plots. The planning authority’s original enforcement notice had been against the wrong plot. Judge Gilbart QC held that the second notice was dealing with the same development and indeed, the same owner. TIME LIMITS FOR OTHER ENFORCEMENT PROCEEDINGS 3.65 The s  171B and s  132 time limits only apply to enforcement action, the issuing of enforcement notices or the serving of breach of condition notices (or in Barn Properties Ltd v Secretary of State for Scotland [1995] SC 145 at 148 per Lord Morton on the equivalent Scottish provisions; followed in Lambrou v Secretary of State for Communities and Local Government [2013] EWHC 325 (Admin), [2014] JPL 538 at para 38 per David Elvin QC. 96 Lambrou at para 50. 97 At para 41. 98 [2000] JPL 1063. 99 [2003] EWHC 2003 (Admin), [2004] JPL 630. 100 At para 47 per Richards J. 101 [2006] EWHC 3480 (Admin), [2007] JPL 1354. 95

58

Planning injunctions 3.67 Wales issuing an enforcement warning notice). Action for the breach of one of those notices, for example criminal prosecution, is not subject to the enforcement time limits. But a prosecution for a summary only offence must be brought within six months of the date on which the offence is alleged. A stop notice may not prohibit activity which was carried on more than four years before the notice was served.102 No time limits apply to unlawful works to listed buildings or the unlawful demolition of a building in a conservation area. PLANNING INJUNCTIONS 3.66 No express time limit is provided for seeking injunctions under the planning legislation, however it would make little sense if use or development or a breach of a condition which was lawful under the Town and Country Planning Act 1990, s 191 could be the subject of a s 187B injunction.103 3.67 Lawfulness arises under s  191 when the time limit for enforcement action has expired and the activity does not contravene an enforcement notice or breach of condition notice which is in force. The realistic interpretation is that a planning injunction cannot be sought against a breach of planning control that has become lawful.

Town and Country Planning Act 1990, s  183(5); Planning Act (Northern Ireland) 2011, s  150(7). Similarly a temporary stop notice may not prohibit any activity which was being carried out (whether continuously or not) for four years (five in Northern Ireland) without authorisation prior to the display of the notice: Town and Country Planning Act 1990, s 171F(2), (4); Planning Act (Northern Ireland) 2011, s 136(2). 103 Or the equivalents in Planning Act (Northern Ireland) 2011, ss  169 (lawful development) and 156 (injunctions). 102

59

Chapter 4

The Decision to Enforce and the Developer’s Response

4.01 This chapter considers how planning authorities should decide whether to take enforcement proceedings and also how developers and landowners should respond to the possibility that action may be taken. ENFORCEMENT PROCEEDINGS AS AN EXERCISE OF DISCRETION 4.02 There is no statutory duty on local planning authorities to take action against a breach of planning control in any particular circumstances. Authorities do have a general responsibility for planning in their area, which includes enforcing planning control as well as setting policy and dealing with applications before them. If authorities fail to enforce at all then the planning system would fall into disrepute. However, there is no expectation that every breach of planning control must be regularised by the grant of planning permission or terminated. Essentially, authorities are expected to consider the extent of harm which does or might result from the breach. That will need to be balanced, to varying degrees, against the impact of taking enforcement proceedings. EXPEDIENT 4.03 It is common in the planning enforcement provisions for local planning authorities to have to consider it ‘expedient’ to take action: enforcement notices; stop notices; temporary stop notices; and injunctions (‘necessary or expedient’). For breach of condition notices the local planning authority is given a simple discretion ‘may’, but that makes little practical difference. The development plan 4.04 In deciding whether to issue an enforcement notice, the authority is required to have ‘regard to the provisions of the development plan’.1 The duty to have regard to the development plan means that the statutory presumption in favour of the development plan in s 38(6) of the Planning and Compulsory Purchase Act 2004 applies: 2 Town and Country Planning Act 1990, s 172(1)(b). In Northern Ireland the local development plan: Planning Act (Northern Ireland) 2011, s 138(1)(b). 2 Also see Planning Act (Northern Ireland) 2011, s 6(4): ‘Where, in making any determination under this Act, regard is to be had to the local development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise’. 1

60

Expedient 4.06 ‘If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.’

The primary consideration is therefore the acceptability of the unlawful development in planning terms, viewed in the light of policy, so with rigour. 4.05 There is no statutory duty to consider the development plan when making other enforcement decisions, in particular issuing breach of condition notices, stop notices or seeking an injunction, however the planning merits of the development will be highly relevant. That will almost always involve considering the development plan and other material considerations. Statutory duties which affect the need to enforce 4.06 Local planning authorities are under various general duties when exercising their planning functions, including enforcement powers, which may weigh in favour of taking action. These include: •

conservation areas: Local planning authorities exercising their functions under the planning Acts3 in England and Wales ‘with respect to any buildings or other land in a conservation area … special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area’.4 Preserving or enhancing involves avoiding harm and a high priority given to this.5 The Northern Ireland legislation requires enhancement rather than preservation if the opportunity arises6 although enforcement is more likely to be concerned with preservation, in the sense of seeking to undo or mitigate harm;

•

where their powers affect land in a National Park in England or Wales, local planning authorities should have regard to the purposes of ‘conserving and enhancing the natural beauty, wildlife and cultural heritage’ of those areas and promoting the understanding and enjoyment by the public of those special areas’.7 Similarly in performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, they shall have regard to the purpose of conserving and enhancing the natural beauty of the AONB;8

•

in exercising their functions so far as their exercise is likely to affect the flora, fauna or geological or physiographical features by reason of which a

The planning Acts are the Town and Country Planning Act 1990, Planning (Listed Buildings and Conservation Areas) Act 1990, Planning (Hazardous Substances) Act 1990 and Planning (Consequential Provisions) Act 1990: Town and Country Planning Act 1990, s 336(1). 4 Planning (Listed Buildings and Conservation Areas) Act 1990, s 72(1). 5 South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 at 146, 150 per Lord Bridge. 6 Planning Act (Northern Ireland) 2011, s 104(11): ‘Where any area is for the time being designated as a conservation area, special regard must be had, in the exercise, with respect to any buildings or other land in that area, of any powers under this Act, to the desirability of— (a) preserving the character or appearance of that area in cases where an opportunity for enhancing its character or appearance does not arise; (b) enhancing the character or appearance of that area in cases where an opportunity to do so does arise.’ 7 National Parks and Access to the Countryside Act 1949, s 11A(1), (2). A similar duty applies in the Broads: Norfolk and Suffolk Broads Act 1988, s 17A(1). 8 Countryside and Rights of Way Act 2000, s 85 in respect of England and Wales. National Parks and AONBs can be designated under Nature Conservation and Amenity Lands (Northern Ireland) Order 1985, Arts 12, 14 but there is no equivalent statutory duty. 3

61

4.07  The Decision to Enforce and the Developer’s Response site of special scientific interest (SSSI) is of special interest, an English or Welsh authority is under a duty9 to ‘take reasonable steps, consistent with the proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest’.10 A similar duty applies in Northern Ireland to areas of special scientific interest.11 Where the effect of a proposed notice is to require (and so permit) operations which would otherwise need the local planning authority’s consent and which are likely to damage a designated site or area of special scientific interest, then the natural conservation bodies must be notified at least 28 days in advance;12 •

all English and Welsh public authorities are required to have regard to the purpose of conserving biodiversity insofar as it is consistent with the proper exercise of their functions.13 In Northern Ireland every public body is under a duty, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.14

The need to take action to avoid projects which require Environmental Impact Assessment proceeding without it is discussed in Chapter 10 below. 4.07 Some guidance on expediency is given for England in the National Planning Policy Framework, para 58 and the Planning Practice Guidance. Welsh guidance is contained in the Development Management Manual, section 14; and in Northern Ireland, Enforcement Practice Note 1. This is considered below. PERSONAL CIRCUMSTANCES 4.08 Planning considerations are normally concerned with the character of the use of the land and not the particular personal circumstances of a particular occupier.15 Personal circumstances may, however, be relevant in some cases. Such circumstances may be relevant in two respects: they may affect whether the development is acceptable in planning terms;16 and, even if the development is unacceptable, whether enforcement proceedings should be taken and the nature and extent of those proceedings. A  need to consider may arise as a matter of general planning considerations and by reason of various statutory duties. 4.09 The importance of considering the personal circumstances of occupants was emphasised in R v Kerrier District Council, ex p Uzell.17 In that case the District Council, as local planning authority, had issued an enforcement notice requiring the removal of caravans occupied by travellers from land owned by Cornwall County Wildlife and Countryside Act 1981, s 28G(1). Wildlife and Countryside Act 1981, s  28G(2). See R  (on the application of Friends of the Earth England, Wales and Northern Ireland) v Welsh Ministers [2015]  EWHC  776 (Admin), [2016] Env LR 1 at para 133 per Hickinbottom J. 11 Environment (Northern Ireland) Order 2002, Art 38(2). 12 Wildlife and Countryside Act 1981, s 28I; Environment (Northern Ireland) Order 2002, Art 40. 13 Natural Environment and Rural Communities Act 2006, s 40(1). 14 Wildlife and Natural Environment Act (Northern Ireland) 2011, s 1(1). 15 East Barnet Urban District Council v British Transport Commission [1962] 2  QB  484 per Lord Parker CJ. 16 Westminster City Council v Great Portland Estates plc [1985] 1 AC 661 at 670 per Lord Scarman. 17 (1996) 71 P & CR 566, [1996] JPL 837. 9

10

62

Personal circumstances 4.12 Council. When the local planning authority resolved to prosecute or seek an injunction against the County Council if it did not evict the travellers, several occupants of the site challenged the decision by judicial review. Latham J held that considerations of common humanity, particularly the need for shelter, were material in decisions to take enforcement action and in pursuing enforcement matters. Human Rights Act 1998 4.10 The European Convention on Human Rights has a greater prominence in enforcement than in other areas of planning as it affects existing buildings and uses, and many enforcement cases have involved gypsies or travellers. Section 6(1) of the Human Rights Act 1998 imposes the general duty: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

Convention rights which more usually arise in enforcement cases are Article 8 ‘Right to respect for private and family life’, Article 14 ‘Prohibition of discrimination’ and Article 1 of the First Protocol ‘Protection of property’. The procedural right to a fair trial under Article 6 applies, but in planning cases has added little to the common law, apart from a requirement to deal with cases within a reasonable time.18 Occasionally other rights are raised in planning enforcement, such as Article  9 ‘Freedom of thought, conscience and religion’19 and Article 10 ‘Freedom of expression’.20 Right to respect for private and family life 4.11 ‘Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Prohibition of discrimination 4.12 ‘Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ See Vergos v Greece (2005) 41 EHRR 41. See Iskcon v United Kingdom (1994) 18  EHRR CD133 where a complaint against enforcement action which limited the number and size of religious festivals at a residential college was held to be inadmissible. 20 For freedom of expression and advertising control, see Butler v Derby City Council [2005] EWHC 2835 (Admin), [2006] 1 WLR 1346. 18 19

63

4.13  The Decision to Enforce and the Developer’s Response Protection of property 4.13 ‘Protocol, Article 1 Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

4.14 The substantive rights (Articles 8, 13, Protocol 1 Article 1) which arise in planning cases are all qualified rights, in that a balance has to be struck between the right and the public interest. The Convention has been interpreted to give states a wide discretion in regulating planning matters.21 Article 14 prevents discrimination in respect of the rights enjoyed under the Convention, rather than creating a freestanding right against discrimination. 4.15 A preliminary question is whether the rights are engaged in the particular case and in respect of which persons. A person whose land is enforced against will have their Protocol 1 Article  1 rights ‘engaged’. Similarly someone who is being forced out of their home (including a residential caravan) will have Article 8 rights engaged. The impact of development on neighbours may be so substantial as to engage their Article 8 or Protocol 1 Article 1 rights, usually where there is severe environmental pollution.22 4.16 The general approach to considering qualified rights was identified by Dyson LJ in Samaroo v Secretary of State for the Home Department:23 ‘At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual’s rights? … The question at [the second] stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?’

This approach is relevant to considering the effect of enforcement on the human rights of the person being enforced against24 but is of less use when a balance is being struck between the human rights of persons living close to a site and the ability of the landowner to develop.25 See Sporrong and Lönroth v Sweden (A/52): (1983) 5  EHRR  35 and Hatton v United Kingdom (36022/97) (2003) 37 EHRR 28. 22 Lopez Ostra v Spain (1994) 20 EHRR 277 and Guerra v Italy (1998) 26 EHRR 357, considered in Lough v First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557. 23 [2001] EWCA Civ 1139, [2001] UKHRR 1150 at paras 19, 20. 24 R (O’Brien) v Basildon District Council [2006] EWHC 1346, [2007] 1 P & CR 16 at para 142 per Ouseley J: ‘The value, to my mind, of the decision in Samaroo is that it points out that whether a decision is proportionate and lawful may involve both the proportionality of the end and the proportionality of the means deployed to achieve that end. Whatever the logical sequence of consideration of the stages in Samaroo, the decision was not intended to impose a sequential straitjacket on the stages of decision making in all cases, especially outside the deportation context’. Cf McCarthy v Secretary of State for Communities and Local Government [2006] EWHC 3287 (Admin). 25 Lough v First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557 at para 50 per Pill LJ and para 55 per Keene LJ. 21

64

Personal circumstances 4.18 4.17 The relationship between planning and Article  8 rights was considered by the European Court of Human Rights in Chapman v United Kingdom, when it recognised the vulnerability of gypsies and the need for respect for their way of life but continued:26 ‘102. Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community. 103. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.’

Children Act 2004 4.18 County, district and unitary councils in England are required by section 11 of the Children Act 2004 to make arrangements for ensuring that:27 ‘their functions are discharged having regard to the need to safeguard and promote the welfare of children’.

This duty is relevant where planning enforcement would result in displacing children, such as requiring the removal of residential caravans from land. A decision needs to meet s 11 to be in accordance with the law for the purposes of Article 8(2), and the best interests or wellbeing of the child needed to be not just a consideration but a primary consideration. A  primary consideration was not the same as the primary consideration.28 As with other duties, what matters is substance rather than form. For example in the Dale Farm litigation, Ouseley J  considered that whilst there had not been explicit consideration of the duty, the crucial factors for children in the case were health and education and that those had been treated as primary considerations.

(2001) 33 EHRR 18. Children Act 2004, s 11(2)(a). 28 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. This immigration case is cited in one of the Dale Farm cases, R (Sheridan) v Basildon District Council [2011] EWHC 2938 (Admin) at para 98 per Ouseley J. Dale Farm was a large traveller site cleared by Basildon Council using direct action powers under s 178 of the Town and Country Planning Act 1990 in October 2011. The high-profile site prompted a series of High Court cases. 26 27

65

4.19  The Decision to Enforce and the Developer’s Response Equality Act 2010 4.19 The Public Sector Equality Duty is introduced by s 149 of the Equality Act 2010. It replaces and widens previous duties with respect to race relations29 to extend to various ‘protected characteristics’: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. It provides that: ‘(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A  person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— age; disability; gender reassignment; pregnancy and maternity; race; Under the Race Relations Act 1976, s  71, discussed in the planning injunction case of South Cambridgeshire District Council v Gammell [2008] EWCA Civ 1159.

29

66

Personal circumstances 4.20 religion or belief; sex; sexual orientation. (8) A reference to conduct that is prohibited by or under this Act includes a reference to— (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule.’

4.20 A convenient summary of the PSED duties was given by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions:30 (1) As stated by Arden LJ in R  (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of antidiscrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R  (BAPIO  Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005]  EWCA  Civ 154 at [26–27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB  Ealing [2008] EWHC 2062 (Admin) at [23–24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R  (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows: (i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; (iv) The duty is non-delegable; and (v) Is a continuing one. (vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty. [2013] EWCA Civ 1345, [2014] Eq LR 60 at para 26. Followed in the planning permission cases of R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin), [2019] PTSR 335 at paras 35, 36 and 42 per Lewis J  and R  (Lakenheath Parish Council) v Suffolk County Council [2019] EWHC 978 (Admin).

30

67

4.21  The Decision to Enforce and the Developer’s Response (6) “[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75].) (7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”: R  (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ. (8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R  (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows: (i) At paragraphs [77–78] “[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.” (ii) At paragraphs [89–90] “[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]): ‘… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.’ [90] I respectfully agree…”.

4.21 There is a need to comply with the duty in substance, not in form – a failure to mention it is not in itself determinative – conversely it needs to be apparent how the duty has been addressed. The duty must be performed with vigour and an open 68

Other potentially relevant and irrelevant matters 4.23 mind. General awareness of the duty does not amount to the necessary due regard, being a ‘substantial rigorous and open-minded approach’. If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution.31 There needs to be a basis for equalities issues to arise. A late assertion in a challenge is not likely to be persuasive.32 OTHER POTENTIALLY RELEVANT AND IRRELEVANT MATTERS 4.22 The fact that the development has taken place is essential to the ability to enforce, but may also be relevant to whether retrospective planning permission should be granted. In deciding whether to grant retrospective planning permission a local planning authority is entitled to ask whether it would consider it expedient to take enforcement action to require the removal of the development. Schiemann LJ said in R v Leominster District Council, ex p Pothecary:33 ‘I therefore reject the submission that a planning authority is never entitled to consider the likelihood of enforcement action at the time when the application for retrospective planning permission for a building erected without planning permission is before them. It is not rare that buildings are put up without the appropriate planning permission. Sometimes there is no planning objection at all. Sometimes there is an insuperable objection. There are many situations between the two ends of what is a continuum. There are situations where the authority would not have given permission for the development if asked for permission for precisely that which has been built, but the development is not so objectionable that it is reasonable to require it to be pulled down. To require this would be a disproportionate sanction for the breach of the law concerned. That is why Parliament has imposed the requirement of expediency. What weight the authority gives to the existence of the building is a matter for the authority.’

Walker LJ also said: 34 ‘I  agree that the planning authority was not merely entitled, but in practice bound, to take account of the existence of the large metal and wood lambing shed which had been constructed without planning permission having been granted. It was a relevant fact that had to be taken into account. The weight to be attached to the fait accompli was another matter. The policy of the law must be to discourage any belief that persons who carry out development without planning permission are likely to obtain an advantage by breaking the law. Nevertheless, circumstances vary: the range of possible cases extends from a flagrant and deliberate breach of planning control to an inadvertent breach in some minor respect, for instance an error of a few metres in siting a building.’

Of course, the effect of a few metres difference in siting will depend on the location and proximity of neighbours. 4.23 In R v Caradon District Council, ex p Knott,35 Sullivan J held that it was not lawful to issue an enforcement notice ‘for the sole purpose of reducing the compensation payable to that landowner if his land was going to be acquired by the local planning authority, for example, under a compulsory purchase order’. R (JM & NT) v Isle of Wight Council [2011] EWHC 2911 (Admin) at paras 95–105 per Lang J. See Ilyas v Aylesbury Vale District Council [2011] EWCA Civ 1377 at para 26 per Richards LJ. 33 (1998) 76 P & CR 346 at 357. 34 At 359. 35 (2000) 80 P & CR 154 at 171. 31 32

69

4.24  The Decision to Enforce and the Developer’s Response The emphasis on sole purpose is important. If the development is unacceptable in planning terms then a collateral benefit of reducing compensation is permissible. NATIONAL PLANNING POLICY FRAMEWORK 4.24 The National Planning Policy Framework says ‘the purpose of the planning system is to contribute to the achievement of sustainable development’.36 This has three dimensions: economic, social and environmental. In considering the merits of any unauthorised development the policies of the NPPF will be relevant. Its only guidance on enforcement is at para 58: ‘Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.’

Planning Practice Guidance 4.25 The Planning Practice Guidance emphasises that enforcement is concerned with remedying or avoiding planning harm, not with an insistence on compliance for the sake of it. It advises:37 ‘When might formal enforcement action not be appropriate? Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case. In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where: •

there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;

•

development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;

•

in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.

A  planning application ought not to be requested if it would be granted without any conditions being imposed. However if a development would only be acceptable if conditions required works to be carried out or limited the extent or hours of operations, then an application should be sought. A  failure to apply might lead to a need for enforcement action, either imposing limits or requiring the breach to cease without planning permission being granted.’

NPPF, 2019, para 7. ID 17b-011-20140306.

36 37

70

The principles of the Development Management Manual in Wales 4.28 4.26 The Planning Practice Guidance’s examples of when costs may be awarded against local planning authorities in enforcement notice appeals bears on the desirability of enforcement action: •

withdrawing an enforcement notice without good reason;38

•

‘For enforcement action, local planning authorities must carry out adequate prior investigation. They are at risk of an award of costs if it is concluded that an appeal could have been avoided by more diligent investigation that would have either avoided the need to serve the notice in the first place, or ensured that it was accurate’;39

•

acting contrary to, or not following, well-established case law.40

THE PRINCIPLES OF THE DEVELOPMENT MANAGEMENT MANUAL IN WALES 4.27 The Development Management Manual’s section 14 replaced Technical Advice Note 9 Enforcement of Planning Control in setting out the general approach to breach of planning control that local planning authorities in Wales should take. It is important for authorities to show that they have followed its advice in deciding on enforcement proceedings. There were many similarities with the advice in the English, but now cancelled, Planning Policy Guidance Note 18 (PPG18) Enforcing Planning Control. Since the current English and Northern Irish guidance is short, the Manual may be of some use elsewhere. 4.28 The Development Management Manual sets out a number of general principles: (i) ‘Effective enforcement underpins the whole DM function ensuring that unacceptable development does not prevent the delivery of the vision for the LPA set out in the development plan’ (para 14.1.1); (ii) ‘Although it is not a criminal offence to carry out development without first obtaining any necessary planning permission, such action is to be discouraged. Wilful disregard for the need for planning permission is not to be condoned.’ (para 14.2.2); (iii) ‘In considering enforcement action, the decisive issue for the LPA should be whether the breach of planning control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest’ (para 14.2.3); (iv) ‘Enforcement action should be commensurate with the planning impacts caused by the unauthorised development; it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to public amenity. The intention should be to remedy the effects of the unauthorised development, not to punish the person(s) carrying out the breach. Nor should enforcement action be taken simply to regularise development for

Planning Practice Guidance, 16-047-20140306. Planning Practice Guidance, 16-048-20140306. 40 Planning Practice Guidance, 16-049-20140306. 38 39

71

4.29  The Decision to Enforce and the Developer’s Response which permission had not been sought but which is otherwise unacceptable’ (para 14.2.3); (v) ‘Some unauthorised development is deliberate but, in some cases, works have been carried out in good faith because the developer believed that planning permission was not needed. While that latter factor is not relevant in determining whether or not to take enforcement action, the cost to the developer of responding to enforcement action may represent a substantial financial burden and this should be taken into account by the LPA when deciding how to handle a particular case. It should not, however, prevent action being taken when it is clearly necessary to do so’ (para 14.2.4); (vi) ‘When investigating whether development is unauthorised the aim should be to make an early decision both on the need for planning permission, and if required, on whether the development is acceptable. As part of this investigation phase, the LPA should explore with the owner or occupier of the land, what steps, if any, could be taken to reduce any adverse effects on public amenity to an acceptable level. Negotiation and informal means can bring swift compliance, especially in cases of honest mistakes. However, it is vital that this stage is quick and efficient and not a source of delay or indecision. It is possible to complete this stage with two communications with the developer: an information request and then an informal request for compliance’ (para 1.2.5). 4.29 The Manual characterises the circumstances where enforcement action may have to be taken into the following categories: (a)

Where acceptable, but unauthorised, development has been carried out The Manual advises that if an unconditional planning permission is likely to be granted, the correct approach is to suggest to the developer that they prompt submit a planning application41 even though it would be generally regarded as unreasonable to enforce solely to remedy the absence of a valid planning permission.42 The guidance says it should be pointed out that the absence of a planning permission may affect disposal of the land.43

(b) Where unauthorised development can be made acceptable by the imposition of conditions Where an LPA considers that an unauthorised development causes unacceptable injury to public amenity, or damage to a statutorily designated site but could be satisfactorily removed or alleviated by imposing conditions on a grant of planning permission, it should serve44 an enforcement warning notice (EWN).45 It must appear to the local planning authority that ‘there is a Development Management Manual, para 14.3.1. Development Management Manual, para 14.3.3. 43 Development Management Manual, para 14.3.2. Of course, in those circumstances a landowner might simply record when the works were done and wait for the time limit to expire. 44 Strictly, the local planning authority issues an enforcement warning notice and then serves copies of it on the owner and occupier of the land and on any other person having an interest in the land, being an interest that, in the opinion of the authority, would be materially affected by the taking of any further enforcement action: Town and Country Planning Act 1990, s 173ZA(3). 45 Under Town and Country Planning Act 1990, s 173ZA. The notice will: ‘(a) state the matters that appear to the authority to constitute the breach of planning control, and (b) state that, unless an application for planning permission is made within a period specified in the notice, further enforcement action may be taken’: s 173ZA(4). 41 42

72

The principles of the Development Management Manual in Wales 4.32 reasonable prospect that, if an application for planning permission in respect of the development concerned were made, planning permission would be granted’46 although the Manual emphasises that the service of an EWN does not guarantee that permission will be granted.47 (c)

Where the unauthorised development would be acceptable on alternative sites The local planning authority should set a reasonable time limit for relocation. Particular regard should be had to the effect of enforcement on small businesses or the self-employed.48

(d) Where the unauthorised development is unacceptable and relocation is not feasible ‘Where the LPA considers unacceptable unauthorised development has been carried out, and there is no realistic prospect of its being relocated to a suitable site … the owner or occupier of the land should be informed that the LPA is not prepared to allow the operation or activity to continue at its present level of activity or, if that is the case, at all. If the unauthorised development provides valued local employment, the owner or occupier should be advised of the length of time the LPA is prepared to wait before the operation or activity must stop. If agreement can be reached between the operator and the LPA about this period and the agreement is honoured, formal enforcement action may be avoided.’49

(e)

Where unacceptable unauthorised development warrants immediate action ‘Where an LPA considers that an unauthorised development is causing unacceptable harm to public amenity, and there is little likelihood of the matter being resolved through negotiations or voluntarily, they should take vigorous enforcement action to remedy the breach urgently, or prevent further serious harm to public amenity.’50

4.30 When considering enforcement action against private householders who appear to have relied on permitted development rights but exceeded a specific limitation, local planning authorities should have regard to what could have been done under those rights. Action should not normally be taken to remedy development only slightly exceeding the householder’s permitted development rights.51 4.31 The TAN draws attention to the potentially irremediable nature of mineral working, the speed at which damage can be caused and the lack of restoration and aftercare provisions. Effective liaison to avoid breaches and speedy enforcement action may be required.52 4.32 The guidance in the Development Management Manual on the award of costs in appeals advises that costs may be awarded against local planning authorities

Town and Country Planning Act 1990, s 173ZA(1)(b). Development Management Manual, para  14.4.3. For enforcement warning notices see also Development Management Manual, Annex 14, section 5 and the model notice in Schedule 2 of that Annex. 48 Development Management Manual, para 14.5. 49 Development Management Manual, paras 14.6.1, 14.6.2. 50 Development Management Manual, para 14.7.1. 51 Development Management Manual, para 14.8.1. 52 Development Management Manual, para 14.9. 46 47

73

4.33  The Decision to Enforce and the Developer’s Response for unreasonable decisions to issue enforcement notices. This includes acting against development which should clearly be permitted and:53 ‘Where an enforcement appeal could have been avoided due to inadequate investigation or insufficient communication on the part of the local planning authority.’

NORTHERN IRELAND GUIDANCE 4.33 Enforcement Practice Note 1 identifies as amongst matters relevant to deciding whether to take formal action:54 ‘whether the breach of planning control would be clearly contrary to planning policy or unacceptably affect public amenity (including road safety and nature conservation issues) or the existing use of land and buildings meriting protection in the public interest; the extent of the breach; the willingness of the offender(s) to remedy the breach of control voluntarily or through negotiations; and the statutory time limits for taking enforcement.’

CONSIDERATIONS ON EXPEDIENCY 4.34 Matters to consider in deciding whether it is expedient to enforce therefore include: •

development plan or draft plan policies on the merits of the development or on enforcement;

•

whether the development accords with development plan or draft plan policies;

•

the council’s enforcement policies;

•

previous local planning authority and appeal decisions on the site and on similar sites;

•

the local planning authority ‘s prospects of success on appeal and the risk of costs being awarded against it in an appeal;

•

the possibility that failure to take enforcement action that is plainly necessary will amount to maladministration in the view of the Local Commissioner for Administration; and

•

the personal circumstances (insofar as they are known) of the occupants, particularly if the notice will require persons living on the subject land to move.

Authorisation to take enforcement action 4.35 Enforcement proceedings may only be taken following a decision of a committee or officer who is authorised to exercise that power. The delegation arrangements for the authority should identify who has those powers.55 Development Management Manual, Annex 12, para 3.11. EPN1, para 7.1 55 Where councils operate executive arrangements, planning enforcement powers are not executive functions: Local Authorities (Functions and Responsibilities) (England) Regulations 2000, Sch  1; Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007, Sch 1. 53 54

74

Considerations on expediency 4.41 4.36 It has been held that scheme of delegation which authorised an officer to take ‘enforcement action’ was not necessarily confined to the statutory definition of enforcement action as issuing an enforcement notice or serving a breach of condition notice but did not, in that case extend to bringing injunctive proceedings.56 However, schemes of delegation should be clear, either as sufficiently precise to identify each power or as a generally expressed authority which covers all enforcement powers. Recording decisions to enforce 4.37 A decision to take enforcement proceedings should be recorded in writing, with the name of any officer making the decision identified. In England where an enforcement decision by an officer affects the rights of an individual then a written record must include the reasons for the decision and details of any alternatives considered.57 Recording informal action or no action 4.38 The local planning authority should keep records of decisions not to take enforcement action and sufficient information to indicate why that conclusion was reached. First of all, the authority may have to explain the decision, if not immediately to a complainant, then potentially later in response to a complaint about the failure to take action, to the ombudsman or in legal proceedings. 4.39 Additionally, noting why action was not taken may provide useful information if issues arise in the future. It might identify that the use is not happening or has ceased, or record the scale of the activity or works. 4.40 Similarly informal steps should be recorded.58 They will be part of the explanation for future action. If the breach ceases as a consequence of a warning letter, then that would important to address any claim in the future that a breach had become lawful by passage of time. Local Enforcement Plan 4.41

In England the Planning Practice Guidance advises:59

‘Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.’

Local planning authorities are encouraged to have regard to their Local Enforcement Plan when deciding whether to take action and may include it in their development plan.60 Kirklees Metropolitan Borough Council v Brook [2004] EWCA Civ 2841. Openness of Local Government Bodies Regulations 2014, reg  7. See Richard Harwood, Planning Permission (2016, Bloomsbury) paras 8.115–8.118. 58 The recording of informal action and decisions not to take action is encouraged by the Planning Practice Guidance, ID 17b-010-20140306. 59 Planning Practice Guidance, 17b-003-20140306 60 Planning Practice Guidance, para 17b-003-20140306. 56 57

75

4.42  The Decision to Enforce and the Developer’s Response Enforcement Concordat and Regulators Compliance Code 4.42 As part of a general approach to regulatory enforcement, central government has promoted various initiatives to encourage effective but proportionate actions by central and local government. These were primarily aimed at regulation of business, but in the planning context will include all landowners and users. 4.43 The Enforcement Concordat was published in 1998. It set out Principles of Good Enforcement, which in policy were standards (of performance by regulators), openness, helpfulness, complaints about service, proportionality and consistency.61 The Concordat has been widely adopted by local government. 4.44 In March 2005 the Government published a report by Philip Hampton entitled Reducing Administrative Burdens: Effective Inspection and Enforcement. In response, the Legislative and Regulatory Reform Act 2006 set principles for the exercise of regulatory functions:62 ‘(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent; (b) regulatory activities should be targeted only at cases in which action is needed.’

4.45 Ministers were able to publish a statutory code of practice to be considered when setting general policies, principles and standards with respect of exercising regulatory functions or giving guidance.63 A  code was published in 2007 as the Regulators’ Compliance Code, with specific obligations on allowing economic progress, comprehensive risk assessment, giving advice and guidance, inspections to be for a reason, not requiring unnecessary information or duplication of information requirements, use of proportionate sanctions, and regulators’ accountability. 4.46 The principles and the code apply to various national bodies with planning interests (the Environment Agency, Historic England). Whilst they apply to local authorities in respect of numerous functions, these do not include town and country planning.64 The landowner’s response to the potential for enforcement action 4.47 When faced with the potential for enforcement action to be taken, landowners and occupiers have four broad options: (i)

Do nothing and wait for the time limit to expire A  great number of breaches of planning control are neither regularised by obtaining a retrospective consent nor subjected to enforcement proceedings. They might simply not be noticed by nor reported to the local planning authority, or they may involve development which is seen as harmless or beneficial in planning terms. Any harm might be so small that the local planning authority

The text of the Concordat is in Enforcement Concordat: Good Practice Guide for England and Wales (DTI). 62 Legislative and Regulatory Reform Act 2006, s 21(2). 63 Legislative and Regulatory Reform Act 2006, s 22. 64 Legislative and Regulatory Reform (Regulatory Functions) Order 2007. 61

76

Considerations on expediency 4.47 would not take action. An approach of masterly inactivity may be the best one to adopt. It can be cheaper, and even less stressful, than trying to regularise a position which would not have been challenged. Several points do need to be borne in mind: (a) if consent was not required or there was no breach of a condition, then a record should be kept at the time (for example, photographs of measurements showing a tree was below the size requirements for notice to be given of it being cut down in a conservation area); (b)

if reliance is going to be placed on the breach becoming lawful by passage of time then a record must be kept of when the works were substantially completed, the use begun or the matters relating to the condition incurred. The greater the risk of enforcement action being taken, the more detailed should be the evidence collected;

(c) it is important not to prevent time limits from running by fraudulent conduct or allow a planning enforcement order to be made due to deliberate concealment; (d) no time limits apply to listed building or conservation area control breaches or unlawful demolition in a conservation area in England; (e)

an apparent breach of planning control may have to be addressed when the property is sold, let or mortgaged. Insurance can be purchased against enforcement proceedings, and where there has been no intimation of action and the works do not appear harmful then this can be readily and inexpensively obtained. Where action appears to be a real possibility, then insurance is unlikely to be available.

(ii) Seek to dissuade the local planning authority from taking action The landowner may seek to persuade the authority that there was no breach or that no action should be taken about any breach. This will usually need some correspondence although a meeting on site is also likely to be required. Depending upon the particular issues there may be a need to provide information, submit arguments or even produce a legal opinion. It is important to ensure that false information is not provided nor is information concealed which affects the running of the time limits. That said, it is a legitimate tactic to keep discussions going until a time limit expires. On some occasions it may be useful to seek a lawful development certificate (‘LDC’).65 If granted, that will state the position. An application also provides a formal mechanism for debating the lawfulness of what has been done before enforcement action has been taken. That said, lawful actions do not need a certificate to validate them. A landowner or developer who considers the position to be clear might decide not to spend their money on an LDC application (iii) Seek to regularise the position by applying for consent If consent appears to be needed or there has been a breach of condition, the developer may wish to make a retrospective application for approval. If granted, that will resolve the issues (subject to any pre-existing criminal liability). See Chapter 23.

65

77

4.47  The Decision to Enforce and the Developer’s Response If refused, it may appear more attractive to fight an appeal on a retrospective application rather than being forced into trying to demonstrate the planning merits in an enforcement appeal. (iv) Comply with planning control This is affected by the extent of any benefit from the breach, the chances and expense of seeking to retain that benefit, the costs and losses of compliance and whether any compromise position can be reached.

78

Chapter 5

Obtaining Information

5.01 The first that the local planning authority may know of a suspected breach of planning control is a complaint by a member of the public or a councillor. The information may be sketchy or incomplete. The local planning authority will want the following information: (a)

whether a breach of planning control is taking, or has taken, place;

(b) whether any time limits make the breach lawful; (c)

material to judge whether it is expedient to take action;

(d) if a breach could be regularised, whether a planning application will be made; (e)

who is involved in the land; and

(f)

sufficient evidence to support enforcement proceedings.

5.02 Landowners, occupiers and developers will want to halt enforcement proceedings as soon as possible. An explanation may do that, either that what has been done is lawful or is acceptable. For reasons of commercial secrecy or privacy, or to avoid giving the local planning authority ammunition, they might want to say as little as possible. If the local planning authority’s information gathering can be lawfully frustrated this could delay, if not prevent, enforcement proceedings. Developers will also want to obtain evidence to show that the activities are authorised or that action is time-barred. 5.03 It will usually be in the interests of all parties for there to be discussions and correspondence before taking any formal steps. Information can be sought informally but both requests and replies may have consequences: the authority will need to have sufficient evidence to act reasonably in taking any steps; false or incomplete replies might extend the time in which enforcement action can be taken.1 5.04 Informal requests may be insufficient. This chapter considers the powers of planning authorities to obtain information and then how landowners can find evidence. PLANNING CONTRAVENTION NOTICES 5.05 Planning contravention notices were introduced in England and Wales by the Planning and Compensation Act 1991 and subsequently in Northern Ireland. They are the local planning authority’s most potent method of finding out information. They seek information about breaches of planning control. Guidance on their use is provided in the See planning enforcement orders and the Welwyn Hatfield principle discussed in Chapter 3 above.

1

79

5.06  Obtaining Information Planning Practice Guidance,2 Welsh Office Circular 24/97, Annex 1 and the Northern Ireland Enforcement Practice Note 3 Investigative Approachs, section 12. Around 5,000 planning contravention notices are served by English district level authorities each year.3 Issue 5.06 A  planning contravention notice may be served ‘where it appears to the local planning authority that there may have been a breach of planning control’.4 That a breach is anticipated is insufficient. 5.07 The service of a planning contravention notice was successfully challenged in R v Teignbridge District Council, ex p Teignmouth Quay Company Ltd.5 Teignmouth Quay were carrying out works at their docks pursuant to permitted development rights. Judge J  considered that planning contravention notices were an intrusive procedure which could not be deployed unless it appeared to the local planning authority, acting reasonably, that a breach of planning control might have taken place. Refusal by a landowner to co-operate with council inquiries was not sufficient. The appearance that there may be a breach must be to the local planning authority, not to third parties, such as local residents. It was not a matter of a landowner having to prove that there was no breach simply because there had been a complaint. Nothing suggested a breach of planning control and the issue of the planning contravention notice was quashed. 5.08 The planning contravention notice may be served on the owner, occupier or any person with an interest in the land or any person carrying out operations on the land or using it for any purpose.6 There is no requirement to serve notices on all of those persons. An authority should choose carefully who to serve and may also adjust the notices for particular recipients. The service of a planning contravention notice does not affect any other power exercisable in respect of any breach of planning control,7 so action can be taken whilst awaiting a reply.8 Additionally, a planning contravention notice does not have to be served before taking enforcement proceedings. Contents 5.09

The notice can require information as to:

‘(a) any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and (b) any matter relating to the conditions or limitations subject to which any planning permission in respect of the land has been granted.’ 9 ID 17b-015-20140306 to ID 17b-016-20140306. In the period 2003 to 2018 district planning authorities in England served between 4,545 and 5,366 PCNs a year: MHCLG. 4 Town and Country Planning Act 1990, s 171C(1). Planning Act (Northern Ireland) 2011, s 133(1) is in similar terms. 5 [1995] JPL 828. The decision is referenced at Welsh Office Circular 24/97, Annex 1, para 1.4. 6 Town and Country Planning Act 1990, s  171C(1); Planning Act (Northern Ireland) 2011, s  133(1) (with reference to ‘estate’ rather than ‘interest’). 7 Town and Country Planning Act 1990, s 171C(7); Planning Act (Northern Ireland) 2011, s 133(7). 8 It might though be precipitant (and possibly unreasonable) to take enforcement action without being adequately informed. 9 Town and Country Planning Act 1990, s 171C(2); Planning Act (Northern Ireland) 2011, s 133(2). 2 3

80

Planning contravention notices 5.11 Planning contravention notices often ask detailed questions, tailored to each notice. The legislation provides particular instances of matters that can be covered, including the persons interested in the land, details of uses and operations, how long they have been carried out and information going to the applicability of any planning permission.10 5.10 The planning contravention notice may give the recipient notice of a time and place where the recipient can make representations or offer to apply for planning permission, refrain from further operations or activities or undertake remedial works.11 This provision is intended for use where the local planning authority considers that enforcement action could be avoided by discussions or a planning application.12 It need not be used if the planning contravention notice is simply to obtain information for use in an enforcement notice, and it does not prevent informal discussions. The planning contravention notice must also set out the consequences of non-compliance, in particular that enforcement action may follow, and a failure to respond might disentitle the recipient from compensation in the event of a stop notice being served. Model notices are contained in the Planning Practice Guidance and Welsh Office Circular 24/97, Annex 1, Appendix. Failure to comply with a planning contravention notice 5.11 Compliance with the planning contravention notice must be by a response in writing,13 which includes email. If the failure to provide the information required, or co-operation requested, by a planning contravention notice (or notices under the Town and Country Planning Act 1990, s 330, the Local Government (Miscellaneous Provisions) Act 1976, s 16, or the Planning Act (Northern Ireland) 2011, s 240: see below) results in loss or damage because of the issue of a stop notice or temporary stop notice, compensation is not recoverable.14 Failure to comply with a planning contravention notice at the end of the period of 21 days beginning with the date of service is an offence.15 The offence is summary only with a maximum level 3 (£1,000) fine in England and Wales and level 5 (£5,000) in Northern Ireland.16 It is a defence to show a reasonable excuse for non-compliance.17 Knowingly or recklessly making a false or misleading statement in purported compliance with a planning contravention notice is a summary offence,18 with a level 5 fine.19 Additionally a false or misleading response to a planning contravention notice might suspend the operation of the time limits on enforcement action as positive deception

12 13 10 11



14



15 16

19 17 18

Town and Country Planning Act 1990, s 171C(3); Planning Act (Northern Ireland) 2011, s 133(3). Town and Country Planning Act 1990, s 171C(4); Planning Act (Northern Ireland) 2011, s 133(4). Welsh Office Circular 24/97, Annex 1, para 1.10. Town and Country Planning Act 1990, s 171C(6); Town and Country Planning Act 1990, s 171C(2); Planning Act (Northern Ireland) 2011, s 133(6). Town and Country Planning Act 1990, ss 186(5)(b), 171C(2); Planning Act (Northern Ireland) 2011, ss 185(5)(b) and 187(7). See paras 10.47, 10.48 and 11.33. Town and Country Planning Act 1990, s 171D(1); Planning Act (Northern Ireland) 2011, s 134(1). Town and Country Planning Act 1990, s 171D(4) and Planning Act (Northern Ireland) 2011, s 134(4) respectively. Town and Country Planning Act 1990, s 171D(3); Planning Act (Northern Ireland) 2011, s 134(3). Town and Country Planning Act 1990, s 171D(5); Planning Act (Northern Ireland) 2011, s 134(5). Town and Country Planning Act 1990, s 171D(6); Planning Act (Northern Ireland) 2011, s 134(6). Level 5 fines are unlimited in England and Wales for offences committed after 12 March 2015: Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85.

81

5.12  Obtaining Information of the planning process under Welwyn Hatfield or deliberate concealment giving rise to a planning enforcement order.20 INFORMATION OF INTERESTS AND USE OF LAND 5.12 In England and Wales the Town and Country Planning Act 1990, s  330 gives the local planning authority and the Minister power to require information as to interests in land and the use of the premises. These are often referred to as section 330 notices.21 Similar powers are given to councils and the Department in Northern Ireland.22 5.13

The notice must be:

‘for the purpose of enabling the Secretary of State or a local authority to make an order or issue or serve any notice or other document which, by any of the provisions of this Act, he or they are authorised or required to make, issue or serve’.23

5.14 The power therefore extends beyond enforcement but is confined to making orders and issuing or serving a notice or other document. It is not a general power to require information for planning purposes. Circumstances where the power may be used include: obtaining information to decide whether to take enforcement action; determining who to serve with an enforcement notice; or identifying persons for the purpose of prosecutions or injunctions under the Act. The power is applied to the Listed Buildings Act and the Hazardous Substances Act.24

Issue of an information notice 5.15 The notice must be in writing and must require a response in writing. The notice is normally a standard form, with blank spaces for the addressee to answer the requests. The notice may be served on the occupier of the premises and any person who directly or indirectly receives rent in respect of the premises.25 As a matter of practice, notices are usually served on those persons believed to be involved in the land and also addressed to ‘The Occupier’ and ‘The Owner’.

See Chapter 3 above. The Law Commission has suggested that the s 330 and planning contravention notice provisions be merged: Planning Law in Wales Consultation Paper Law Com No 233 (November 2017), para 12.20. 22 Planning Act (Northern Ireland) 2011, s 240. 23 Town and Country Planning Act 1990, s  330(1). Under Planning Act (Northern Ireland) 2011, s 240(1) is for the purposes of ‘a council, the Department for Infrastructure or the Department for Communities’. 24 Planning (Listed Buildings and Conservation Areas) Act 1990, s 89; Planning (Hazardous Substances) Act 1990, s 37. Since those matters are included in the Planning Act (Northern Ireland) Act 2011, s 240 covers notices for those puposes. 25 Town and Country Planning Act 1990, s 330(1); Planning Act (Northern Ireland) 2011, s 240(1). 20 21

82

The general power to obtain information of persons interested in land 5.19 Contents 5.16 (a)

The notice can request information relating to these matters: the interest of the person served;

(b) the name and address of any other person known as having an interest; (c)

the purpose for which the premises are used;

(d) when that use began; (e)

the name and address of any other person known as having used those premises for that purpose;

(f)

when activities being carried out on the premises began.

By including ‘activities’ (which can be the subject of a stop notice), the information notice can seek information about operational development in progress, in addition to the use of the land. 5.17 The notice will require the information to be given within 21 days after service or any later period specified in the notice.26 The body who issued the notice may extend time for compliance beyond that on the face of the notice.27 Failure to comply with an information notice 5.18 Failure to comply with a notice (which includes answering only some requests) is a summary offence with a level 3 (£1,000) fine.28 It is a defence to show a reasonable excuse for not complying.29 This would include being away until after the period expired. False information is more damaging to local planning authority enforcement than a failure to provide information. Consequently, knowingly making a misstatement in respect of information requested is an either-way offence, subject to the statutory maximum fine in the magistrates’ court (£5,000) and two years’ jail and/or an unlimited fine in the Crown Court.30 THE GENERAL POWER TO OBTAIN INFORMATION OF PERSONS INTERESTED IN LAND 5.19 A more general power to obtain information as to persons’ interests in land is provided in England and Wales by s 16 of the Local Government (Miscellaneous Provisions) Act 1976. This can be used for any of the local authority’s statutory powers. It is, however, rarely used in planning matters since more specific powers are available. The notice may be served on the occupier, any person with an interest in the land and any person authorised to manage the land. It must specify the statutory function the local authority is concerned with. The person served has 14 days (or any longer specified period) to give his or her interest and those of other people

28 29 30 26 27

Town and Country Planning Act 1990, s 330(3); Planning Act (Northern Ireland) 2011, s 240(1). Town and Country Planning Act 1990, s 330(3); Planning Act (Northern Ireland) 2011, s 240(1). Town and Country Planning Act 1990, s 330(4); Planning Act (Northern Ireland) 2011, s 240(3). Town and Country Planning Act 1990, s 330(4); Planning Act (Northern Ireland) 2011, s 240(3). Town and Country Planning Act 1990, s 330(5); Planning Act (Northern Ireland) 2011, s 240(4).

83

5.20  Obtaining Information who could be served.31 Failing to comply (there is no reasonable excuse defence) or knowingly or recklessly making a false statement is a summary offence with a level 5 (£5,000) fine.32 False representations or non-disclosure 5.20 Failing to provide information as required by notices, or providing false information is subject to specific offences, described above. Such responses to statutory notices or informal requests may also constitute the offence of fraud.33 5.21

Fraud by representation occurs if a person:34

‘(a) dishonestly makes a false representation, and (b) intends, by making the representation– (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.’

5.22 A representation is false if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.35 ‘Representation’ means any representation as to fact or law, including a representation as to the state of mind of the person making the representation, or any other person.36 Such a representation may be express or implied.37 5.23 Where a person is under a legal duty to disclose information then they commit fraud by dishonestly failing to disclose that information, intending by doing so to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.38 RIGHTS OF ENTRY 5.24 Site visits are essential in planning control. Sometimes a sufficient view can be obtained from the public highway, but private land will often need to be entered. Entry may be obtained by agreement, either in advance or by an officer turning up at the site. 5.25 However, statutory powers of entry may be required. In England and Wales the local planning authority may authorise any person, normally a planning officer, in writing but without a warrant, to enter any land under Town and Country Planning Act 1990, s 196A for the following enforcement purposes: ‘(a) to ascertain whether there is or has been any breach of planning control on the land or any other land; 33 34 35 36 37 38 31 32

Local Government (Miscellaneous Provisions) Act 1976, s 16(1). Local Government (Miscellaneous Provisions) Act 1976, s 16(2). Fraud Act 2006, s 1(1). The Act applies to England, Wales and Northern Ireland: s 15(2). Fraud Act 2006, s 2(1). Fraud Act 2006, s 2(2). Fraud Act 2006, s 2(3). Fraud Act 2006, s 2(4). Fraud Act 2006, s 3.

84

Rights of entry 5.29 (b) to determine whether any of the powers conferred on a local planning authority by this Part should be exercised in relation to the land or any other land; (c) to determine how any such power should be exercised in relation to the land or any other land; (d) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to the land or any other land’.

5.26 The power is to ascertain whether there is or has been a breach of planning control, whether any enforcement powers in Part VII39 should be exercised and if so how, and to ascertain whether any requirements under that Part have been complied with. 5.27 Parallel powers are provided in respect of tree controls in ss 214B, 214C and 214D. The other Planning Acts have equivalent provisions to ss 196A–196C in the Listed Buildings Act at ss 88, 88A and 88B and the Hazardous Substances Act at ss 36, 36A and 36B. 5.28 The Planning Act (Northern Ireland) 2011, s 176 similarly allows councils to authorise persons to enter land:40 ‘(a) to ascertain whether there is or has been any breach of planning control on the land or any other land; (b) to ascertain whether an offence has been, or is being, committed with respect to any building on the land or any other land, under section 85, section 85 as applied by section 105(6), section 103 or 147 or section 147, as applied by section 157(6); (c) to ascertain whether an offence has been committed under section 117, 126 or 127; (d) for the purpose of exercising any of the functions conferred by section 161; (e) to determine whether any of the powers conferred on the council by this Part should be exercised in relation to the land or any other land; (f) to determine how any such power should be exercised in relation to the land or any other land; (g) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to the land or any other land’.

Since the enforcement provisions are in the same part of the same Act in Northern Ireland, there is no need for a series of powers of entry. Ministerial powers of entry 5.29 The Secretary of State and the Welsh Ministers have equivalent entry powers to the local planning authority for the purpose of deciding whether an enforcement notice should be issued.41 The Department for Infrastructure may also authorise a person to enter land to determine whether an enforcement notice or a stop notice

So in the Town and Country Planning Act 1990, ss 171A–196D. Planning Act (Northern Ireland) 2011, s 176(1). 41 Town and Country Planning Act 1990, s 196A(2). 39 40

85

5.30  Obtaining Information should be issued and the Department for Communities is similarly empowered for a listed building enforcement notice.42 In all cases these powers can only be exercised after consultation with the local planning authority or the council.43 Exercise of the powers of entry 5.30 The authorised person may enter the subject land or any other land, for example to view the site or if the potential breach is on only part of a site. Except for a power to take samples from trees and soil samples under the tree provisions,44 these rights of entry do not allow works to be carried out by the authority to determine whether action should be taken. The powers may only be exercised at a reasonable time, and if there are reasonable grounds for their use.45 What is a reasonable time will depend upon the circumstances, but policing noise or hours conditions might justify unsocial hours. Guidance is on the use of rights of entry is provided in Welsh Office Circular 24/97, Annex 6. 5.31 Entry may only be demanded to any building used as a dwellinghouse as of right if 24 hours’ notice has been given to the occupier.46 Entry under warrant 5.32 Force may only be used by the authority or Minister to enter the land if a warrant is issued by a justice of the peace or district judge or by a lay magistrate in Northern Ireland. Provision is made for warrants in all of the enforcement rights of entry.47 A sworn information must satisfy the court that there are reasonable grounds for entering for the associated statutory purposes and: ‘(a) admission to the land has been refused, or a refusal is reasonably apprehended; or (b) the case is one of urgency.’48

5.33 A  refusal is deemed ‘if no reply is received to a request for entry in a reasonable period’.49 The warrant permits one entry, within a month of the issue of the warrant. It must be at a reasonable hour, unless the case is urgent.50 Failure to comply 5.34 It is a summary offence to wilfully obstruct any person exercising a right of entry under these provisions (whether or not entry is sought under warrant), punishable by a level 3 (£1,000) fine.51 Conversely, it is an offence for a person 44 45 46 47 48 49 50 51 42 43

Planning Act (Northern Ireland) 2011, s 176(2), (5). Town and Country Planning Act 1990, s 196A(3); Planning Act (Northern Ireland) 2011, s 176(3). Town and Country Planning Act 1990, s 214D(1). Town and Country Planning Act 1990, s 196A(1); Planning Act (Northern Ireland) 2011, s 176(1). Town and Country Planning Act 1990, s 196A(4); Planning Act (Northern Ireland) 2011, s 176(4). Town and Country Planning Act 1990, s 196B; Planning Act (Northern Ireland) 2011, s 177. Town and Country Planning Act 1990, s 196B(1); Planning Act (Northern Ireland) 2011, s 177(1). Town and Country Planning Act 1990, s 196B(2); Planning Act (Northern Ireland) 2011, s 177(2). Town and Country Planning Act 1990, s 196B(3); Planning Act (Northern Ireland) 2011, s 177(3). Town and Country Planning Act 1990, s 196C(2); Planning Act (Northern Ireland) 2011, s 178(2).

86

Surveillance 5.38 exercising such a right of entry to disclose any manufacturing process or trade secret he discovers, except in the course of his duties in connection with the entry.52 This is punishable by a maximum fine in the magistrates’ court or two years’ jail and a fine in the Crown Court.53 OTHER POWERS OF ENTRY 5.35 A right of entry for specific powers other than the enforcement powers in Pt VII is provided in s 324 of the Town and Country Planning Act 1990. This includes powers in respect of land adversely affecting the amenity of the neighbourhood and advertising.54 5.36 A right of entry in Northern Ireland is given to councils and the Department by Planning Act (Northern Ireland) 2011, s 236. This includes entry for surveying for local development plan making and dealing with planning applications. In respect of the powers considered in this book, it allows surveying for revocation or modification order for planning permission, listed building or conservation area control, discontinuance orders or completion notices and compliance with them, and for whether any listed building is being maintained in a proper state of repair.55 Additionally s 236 authorises the entry onto land for the purpose of urgent notification of a building preservation notice56 or the display of site notices for stop notices or their withdrawal.57 The Department is given similar powers in respect of its functions, the principal change being to include surveys to list buildings, but omitting the temporary building preservation notices.58 COURT ORDERS TO OBTAIN INFORMATION 5.37 A defendant in civil proceedings may be ordered to disclose, on affidavit, the identity of other wrongdoers and other matters. Such an order could be obtained alongside interim relief, such as an interlocutory injunction.59 For example, an interim injunction may be sought against a housing developer for breach of a negative condition requiring landscaping to be carried out before houses are occupied. The local planning authority could seek an order that the housing developer disclose the identities of the purchasers of the houses, as they will be in breach of planning control if they go into occupation. SURVEILLANCE 5.38 The ability of local planning authorities to carry out covert surveillance or investigations is limited by the Regulation of Investigatory Powers Act 2000.60 Local 54 55 56 57 58 59 60 52 53

Town and Country Planning Act 1990, s 196C(5), (6); Planning Act (Northern Ireland) 2011, s 178(5), (6). Town and Country Planning Act 1990, s 196C(7); Planning Act (Northern Ireland) 2011, s 178(7). Town and Country Planning Act 1990, s 324(1)(c). Planning Act (Northern Ireland) 2011, s 236(1)(a), (b). So temporarily treating a building as if it was a listed building. Planning Act (Northern Ireland) 2011, s 236(1)(c). Planning Act (Northern Ireland) 2011, s 236(2). Loose v Williamson [1978] 1 WLR 639. This Act applies to England, Wales and Northern Ireland: Regulation of Investigatory Powers Act 2000, s 83(2).

87

5.39  Obtaining Information authorities are not able to conduct intrusive surveillance, that is, covert surveillance in residential premises or private vehicles.61 They are only able to carry out directed surveillance (which is covert surveillance62 likely to result in the obtaining of private information about a person other than in residential premises or private vehicles) to prevent or detect criminal offences punishable by a maximum term of at least six months’ imprisonment.63 In practical terms these powers would not be used for planning matters as the only offences which carry such sentences are unlawful demolition of listed buildings or in conservation areas. If it was believed that such demolition was taking place or about to take place, a local planning authority would use powers of entry rather than attempt covert surveillance. Covert human intelligence sources may be used to prevent or detect crime64 but only with the approval of the magistrates’ court.65 OTHER SOURCES OF INFORMATION Council records 5.39 The planning files and register entries for the subject site and neighbouring site should be checked. Other licence records, for example for caravan sites or goods vehicle operations, may be relevant. They will show previous decisions on the site and may indicate the history of uses on the site. The full electoral register can be used by a council for planning enforcement purposes.66 Some councils keep photographs of potential advertising hoarding sites in the event that hoardings are subsequently erected and the period of use needs to be determined. Photographs 5.40 Aerial photographs may reveal the physical extent of buildings and works. Care needs to be taken with the quality and date of freely available internet images (sometimes, but usually inaccurately, described as satellite photographs). Much higher quality images are available and there are also experts in analysing such images. Views of the streetscene and of private land visible from roads may assist, with Google streetview having a timeline of images. This can be particularly useful if issues arise as to when works were carried out or whether a use was concealed.67

Defined in Regulation of Investigatory Powers Act 2000, s 26. Surveillance is covert if ‘it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’: Regulation of Investigatory Powers Act 2000, s 26(9). 63 Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, Art 7A. 64 Regulation of Investigatory Powers Act 2000, s 29. 65 Regulation of Investigatory Powers Act 2000, s 32A. 66 Representation of the People (England and Wales) Regulations 2001, reg 107(4), use where ‘necessary for the discharge of a statutory function of the local authority or any other local authority relating to security, law enforcement and crime prevention’. 67 For example, name plates and letter boxes may indicate whether the existence of a new dwelling was being publicised or concealed: see Leon v Hertsmere Borough Council [2016] PAD 21. 61 62

88

Other sources of information 5.44 Land ownership 5.41 Title to registered land can be ascertained by a search of the Land Registry.68 Two points should be borne in mind: the date of a transfer is the date of entry on the register, which may be several months after the conveyance; and the addresses given for owners and other persons are not updated. Office copies of the register are admissible in evidence in legal proceedings.69 Companies 5.42 Details of UK companies, including their accounts and the names and correspondence addresses of directors, are available online from Companies House. Site visit 5.43 Enforcement action will rarely be possible without a site visit. Officers will be particularly concerned to ascertain the exact nature of the breach and who is carrying it out. Photographs should be taken and, if an unauthorised business is alleged, flyers, take-away menus and business cards should be requested as appropriate. Interviews 5.44 Persons, including those involved in the activity investigated, can be questioned. Where the questioning is by a person charged with the duty of investigating offences, and is of someone suspected of having committed an offence, the questioner shall have regard to any relevant provision of a code of practice made under the Police and Criminal Evidence Act 1984 (PACE).70 Whether a person is charged with investigating crime is a matter of fact: one test is whether a prosecution might result from the investigation.71 In the planning context, questioning by council officers is likely to fall under PACE if it is of a person who may have committed an offence and it is about facts which may be elements in the offence. For example, asking a landowner whether an enforcement notice which has taken effect has been complied with would come under PACE. If PACE applies, then the interview should be in accordance with Code C made under PACE. This sets out rules on, inter alia, the conduct of interviews with suspects. The suspect should be cautioned before interview. The caution shall be in the following terms: ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.’72 Under the Land Registration Act 1925, s 129. Land Registration Act 1925, s 113. 70 Police and Criminal Evidence Act 1984, s 67(9). The Police and Criminal Evidence (Northern Ireland) Order 1989, Art 66(8) is in the same terms. 71 R v Bayliss (1994) 98 Cr App R 235. 72 Code C: Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, para 10.5. The caution can also be given in Welsh. The Northern Irish Code C: Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, para 10.5 is to the same effect: ‘You do not have to say anything, but I must caution you that if you do not mention when questioned something which you later rely on in Court, it may harm your defence. If you do say anything it may be given in evidence’. 68 69

89

5.45  Obtaining Information HOW DEVELOPERS CAN OBTAIN INFORMATION 5.45 Developers and landowners may seek information on the history of the subject site to show that there was not a breach of planning control (eg  the acts did not amount to a material change of use) or that a breach is now time-barred. Additionally developers should look for information about procedural errors by the local planning authority, any evidence justifying judicial review of the decision, and evidence that the local planning authority or its officers considered that there was no breach of planning control or that any breach was not serious. The developer’s best source of information is the local authority. Local authorities keep extensive records, much of which the public is entitled to see. There is very little that the public is prevented by law from seeing. Reports and entries concerning nearby properties may shed light on the history of the subject property. The planning register 5.46 The local planning authority must keep, available to the public, a planning register containing copies of all planning applications and decisions upon them.73 The register also includes information on applications for certificates of lawfulness of existing or proposed use or development. The enforcement register or statutory charges register 5.47 Similarly, an enforcement register is kept by local planning authorities. It is available for inspection by the public at reasonable hours.74 This contains information on planning enforcement orders, enforcement notices, stop notices and breach of condition notices served in the local planning authority’s area.75 It includes dates of issue and service and a summary of the breach of planning control alleged.76 In Northern Ireland these details are kept on the statutory charges register.77 Council minutes and officers’ reports 5.48 The minutes and agenda of committee meetings and council meetings, together with officers’ reports and background papers, should be available to the public for six years from the date of the meeting.78 The limitation upon this right is that minutes and reports relating to proceedings during which the meeting was not open Town and Country Planning Act 1990, s 69; Town and Country Planning (Development Management Procedure) (England) Order 2015 (‘the English DMPO’), Art 40; Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (‘the Welsh DMPO’), Art 29; Planning Act (Northern Ireland) 2011, s  242; Planning (General Development Procedure) Order (Northern Ireland) 2015 (‘the Northern Irish GDPO’), Art 24. 74 Town and Country Planning Act 1990, s 188(3). 75 Town and Country Planning Act 1990, s 188(1). 76 English DMPO, Art 42; Welsh DMPO, Art 29. 77 Planning Act (Northern Ireland) 2011, s 245; Northern Irish GDPO, Art 26. 78 Papers relating to the full Council meeting and regulatory committees, including development control are accessible under the Local Government Act 1972, ss  100C, 100D; those relating to executive decisions by the Council’s Cabinet or Executive and members and officers under those arrangements can be accessed, on similar terms under the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and the Local Authorities (Executive Arrangements) (Decisions, Documents and Meetings) (Wales) Regulations 2007. 73

90

How developers can obtain information 5.50 to the public are not available. This limitation applies when ‘exempt information’ is discussed, the public interest in withholding disclosure of the information outweighs that in favour of disclosure and the councillors present resolve to exclude the public.79 Exempt information includes counsel’s opinion, actions relating to criminal offences, and decisions to issue notices or make orders or directions if that might enable a person affected by the decision to defeat its purpose.80 Freedom of Information Act/Environmental Information Regulations 5.49 Wide rights of access to information are provided by the Environmental Information Regulations 2004 and the Freedom of Information Act 2000.81 The Environmental Information Regulations 200482 implement European Council Directive 2003/4/EC and apply to environmental information, which is defined as:83 ‘any information in written, visual, aural, electronic or any other material form on– (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);’.

5.50 Public authorities have a duty to make this information available within 20 working days of a request.84 Limited exceptions are provided including where disclosure would adversely affect the course of justice, information provided voluntarily to the public body, internal communications, the protection of the environment and personal data.85 These exceptions are subject to the public interest in maintaining the exception outweighing the public interest in disclosing the information and data protection principles.

81 82 83 84 85 79 80

Local Government Act 1972, s 100A(4). Local Government Act 1972, Sch 12A. This Act applies to England, Wales and Northern Ireland: Freedom of Information Act 2000, s 88(2). These Regulations apply to all of the UK. Environmental Information Regulations 2004, reg 2. Environmental Information Regulations 2004, reg 5. Environmental Information Regulations 2004, regs 12, 13.

91

5.51  Obtaining Information 5.51 The Freedom of Information Act 2000 applies to public bodies including local authorities, government agencies and central government. Authorities will have publication schemes setting out what information is published. Additionally, any person may request information, without giving a reason for the request, and the request must receive a substantive response within 20 working days.86 The grounds for withholding information are limited. A public authority can decline to provide information if the cost of complying with the request exceeds the ‘appropriate limit’ which is £600.87 Vexatious or repeated requests can also be declined.88 5.52 Part II of the Freedom of Information Act 2000 contains a variety of exemptions from the duty to provide information. The exemptions which are most likely to be relevant to planning enforcement situations are: •

information held for the purposes of criminal investigations;89

•

information for potential civil proceedings by the authority which comes from confidential sources;90

•

other information whose disclosure would, or would be likely to, prejudice criminal justice or the purpose of ascertaining whether any person has complied with the law;91

•

information whose disclosure is likely to prejudice the free and frank provision of advice or exchange of views or otherwise the effective conduct of public affairs;92

•

personal information under the Data Protection Act 1998;93

•

information subject whose disclosure would give rise to an actionable breach of confidence;94 and

•

information subject to legal professional privilege.95

5.53 In most cases, including these examples, the information can only be withheld if ‘the public interest in maintaining the exemption outweighs the public interest in disclosing the information’.96 Finally the Freedom of Information Act regime does not apply to information subject to the Environmental Information Regulations97 but it is prudent to make any request under both provisions. If a request is refused, in whole or part, the public body’s internal review procedures should be followed before a complaint is made to the Information Commissioner’s Office. 5.54 Requests for information are more effective, and more likely to be answered, if they are precise about what information is required. A request should identify the Freedom of Information Act 2000, s 10. Freedom of Information Act 2000, s 12; Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, reg 3. 88 Freedom of Information Act 2000, s 14. 89 Freedom of Information Act 2000, s 30(1). 90 Freedom of Information Act 2000, s 30(2). 91 Freedom of Information Act 2000, s 31. 92 Freedom of Information Act 2000, s 36. 93 Freedom of Information Act 2000, s 40. 94 Freedom of Information Act 2000, s 41. 95 Freedom of Information Act 2000, s 42. 96 Freedom of Information Act 2000, s 2(2). 97 Freedom of Information Act 2000, s 39. 86 87

92

Obtaining information on appeal 5.59 particular land and may want to address the type of information, whom it concerns and a range of dates. 5.55 The General Data Protection Regulation 2016 gives individuals a right of access to personal data about them. The exceptions to this right are very limited and so it may result in the production of more material. Inspector’s decision letters and reports 5.56 Decision letters and reports by government inspectors appointed on planning matters can help in putting together the history of a site. This is even if the decision was about neighbouring land, as inspectors often describe the local area. Inspector decisions from 2006 are on the Planning Casework Service part of the Planning Portal website. The decision letters and reports in call-ins and appeals recovered by the Minister are available from the departmental websites. The developer’s records 5.57 Correspondence with the local authority should be checked. Where time limits may apply financial or business records may show when works were carried out or operations began. Solicitor’s or surveyor’s papers on obtaining the property may be helpful. Where a dwellinghouse is concerned, family photographs may show, for example, when a wall was built. Neighbours and former occupants 5.58 Neighbours, former occupants and users of the site may be able to say when the use began. Usually they will not have records, but if the witness can remember, for example, getting her car resprayed at the site just after getting engaged, that can date the use. They might also have photographs. OBTAINING INFORMATION ON APPEAL 5.59 Inspectors holding public inquiries have a power to require any person to attend to give evidence or produce documents under s 250(2) of the Local Government Act 1972: ‘For the purpose of any such local inquiry, the person appointed to hold the inquiry may by summons require any person to attend, at a time and place stated in the summons, to give evidence or to produce any documents in his custody or under his control which relate to any matter in question at the inquiry, and may take evidence on oath, and for that purpose administer oaths: Provided that— (a) no person shall be required, in obedience to such summons, to attend to give evidence or to produce any such documents, unless the necessary expenses of this attendance are paid or tendered to him; and (b) nothing in this section shall empower the person holding the inquiry to require the production of the title, or of any instrument relating to the title, of any land not being the property of a local authority.’

93

5.60  Obtaining Information 5.60 This power is applied to inquiries under the Town and Country Planning Act by s 320 of that Act, and inquiries held under the hazardous substances98 and listed buildings regimes.99 Any such application should be made at the inquiry or a preinquiry meeting, although it is prudent to give advanced written notice if possible. Whilst such applications are rarely, if ever, granted, they tend to focus the other side’s mind on the material and the Inspector may suggest that material is produced.

Planning (Hazardous Substances) Act 1990, Sch 1, para 6. Planning (Listed Buildings and Conservation Areas) Act 1990, s 89(1).

98 99

94

Chapter 6

Enforcement Notices

6.01 The principal method used by local planning authorities against breaches of planning control is the enforcement notice.1 It can apply to breaches of conditions or limitations as well as unauthorised development. An enforcement notice will specify the breach of planning control alleged and the steps required or activities required to cease to remedy the breach or its consequences. It will give a certain time to do those steps. Failure to comply within that time gives rise to criminal offences. An appeal against a notice can be made to the Minister or the Planning Appeals Commission, and then to the High Court. 6.02 The enforcement notice provisions for England and Wales are contained in the Town and Country Planning Act 1990, ss 172–182. Further detail is contained in Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 and the Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017. In England limited advice is given in the Planning Practice Guidance at para 17b-018 to 17b-022, with the more detailed, but older, Welsh advice in Welsh Office Circular 24/97, Annex 2. Provision is made in Northern Ireland by the Planning Act (Northern Ireland) 2011, ss  138–149, 153. Advice is given in Enforcement Practice Notice 4: Enforcement Procedures, section 6. THE ISSUE OF AN ENFORCEMENT NOTICE 6.03 A local planning authority has a power to issue an enforcement notice when it appears to them that the two criteria are met:2 (a)

there has been a breach of planning control; and

(b) it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations Actual rather than apprehended breach of planning control 6.04 First, there must appear to the local planning authority ‘that there has been a breach of planning control’.3 Therefore an enforcement notice cannot be issued against an anticipated breach of planning control, even if that breach occurs before

In 2017/18 4,273 were issued by English district planning authorities: Ministry of Housing, Communities and Local Government, Live tables on planning application statistics, table P127. 2 Town and Country Planning Act 1990, s 172(1); Planning Act (Northern Ireland) 2011, s 139(1). 3 Town and Country Planning Act 1990, s 172(1)(a); Planning Act (Northern Ireland) 2011, s 139(1)(a). 1

95

6.05  Enforcement Notices a copy of the notice is served. The need for an actual breach is illustrated by R v Rochester upon Medway City Council, ex p Hobday.4 Land was being used as a market. Permitted development rights allowed temporary market use for up to 14 days per calendar year. The local planning authority authorised the issue of an enforcement notice on the 15th market day, at a time when the use had commenced but before 14 days’ use had occurred. This decision was void. Enforcement action could not be authorised unless it appeared to the local planning authority that a breach of planning control had occurred. This was even though the council were in error in considering that there was no breach until the 15th day. If the market use was permanent, then the 14 days’ permitted development rights did not apply at all.5 6.05 As would be expected, the local planning authority must be acting reasonably in concluding that a breach of planning control has occurred: see R v Teignbridge District Council, ex p Teignmouth Quay,6 where enforcement action was quashed because the local planning authority proceeded on a materially false basis: they relied on an earlier ultra vires determination that the subject land was agricultural land. 6.06 Since enforcement action can be taken where there ‘has been a breach of planning control’ it is possible to serve an enforcement notice to remedy injury to amenity where the breach of control has ended (for example, if an unlawful building has been removed but the site needs restoration). Expedience and discretion to issue 6.07 If there appears to be a breach of planning control and if the issuance of an enforcement notice is expedient, the local planning authority then has a discretion to issue the notice.7 This discretion must be exercised having regard to all material considerations, although these factors are essentially accounted for within expediency. Whether the local planning authority lawfully concluded that it was expedient to issue an enforcement notice can be reviewed by the Court, for example because relevant information on negotiations was not taken into account8 or as no planning purpose would be served by issuing an enforcement notice after revocation and discontinuance notices had already provided for the removal of the development at issue.9 DRAFTING THE NOTICE 6.08 The requirements of a valid enforcement notice are set out in the Town and Country Planning Act 1990, the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 200210 (‘the Enforcement Notices and Appeals Regulations’) or the Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017 (‘the Welsh Enforcement Notice and Appeals [1989] 2 PLR 38. Tidswell v Secretary of State for the Environment (1976) 34 P & CR 152. 6 [1995] JPL 828. 7 Town and Country Planning Act 1990, s 172(1); Planning Act (Northern Ireland) 2011, s 138(1). 8 R (Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin), [2011] JPL 702. 9 R v Caradon District Council, ex p Knott (2000) 80 P & CR 154. 10 SI 2002/2682. 4 5

96

Drafting the notice 6.09 Regulations’).11 Northern Irish requirements are in the Planning Act (Northern Ireland) 2011.12 The enforcement notice must state: (i)

the matters which appear to constitute the breach of planning control;13

(ii) the paragraph in the Act which identifies whether the breach is development without planning permission or a breach of conditions;14 (iii) the steps required to be taken, or the activities required to cease;15 (iv) the date upon which the notice shall take effect;16 (v) the period or periods for compliance within which steps are to be taken or activities ceased;17 (vi) the reasons why the local planning authority consider it expedient to issue the notice;18 (vii) all policies and proposals in the development plan which are relevant to the decision to issue the enforcement notice; and19 (viii) the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise.20 6.09 Additionally each copy of an enforcement notice in England and Wales shall be accompanied by an explanatory note, which shall include the following:21 ‘(a) a copy of sections 171A, 171B and 172 to 177 of the Planning Act, or a summary of those sections including the following information— (i) that there is a right of appeal to the Secretary of State against the enforcement notice; SI 2017/530. In this paragraph and para 6.09 below, only those items with a Northern Irish references apply in that jurisdiction. 13 Town and Country Planning Act 1990, s 173(1)(a); Planning Act (Northern Ireland) 2011, s 140(1) (a). This must be sufficient for any person served to know what is alleged: s  173(2) and s  140(2) respectively. 14 Town and Country Planning Act 1990, s 173(1)(b) requiring reference to the paragraph in s 171A(1); Planning Act (Northern Ireland) 2011, s 140(1)(b) referring to the paragraph in s 131(1). 15 Town and Country Planning Act 1990, s 173(3); Planning Act (Northern Ireland) 2011, s 140(3). 16 Town and Country Planning Act 1990, s 173(8); Planning Act (Northern Ireland) 2011, s 140(8). 17 Town and Country Planning Act 1990, s  173(9); Planning Act (Northern Ireland) 2011, s  140(9). A notice which fails to specify both the date when it is to become effective and the date by which it has to be complied with is invalid: Mead v Chelmsford Rural District Council [1953] 1 QB 32. 18 Enforcement Notices and Appeals Regulations, reg  4(a); Enforcement Notice and Appeals (Wales) Regulations, reg 6(a). 19 Enforcement Notices and Appeals Regulations, reg 4(b); Enforcement Notice and Appeals (Wales) Regulations, reg 6(b). 20 Enforcement Notices and Appeals Regulations, reg  4(c); Enforcement Notice and Appeals (Wales) Regulations, reg 6(c). 21 Enforcement Notices and Appeals Regulations, reg  5. In Wales, by the Enforcement Notice and Appeals (Wales) Regulations, reg  7, the words ‘Welsh Ministers’ are substituted for ‘Secretary of State’; the reference to the Fees Regulations are to the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 and sub-paragraph (b) reads: ‘notification that an appellant must send to the Welsh Ministers, either when giving notice of appeal or before the end of the period specified in regulation 8(3), a full statement of case comprised of— (i) a statement in writing specifying the grounds of the appeal, stating the facts on which the appeal is based and containing full particulars of the case the appellant proposes to put forward in relation to the appeal; and (ii) copies of any supporting documents the appellant proposes to refer to or put forward in evidence’. 11 12

97

6.10  Enforcement Notices (ii) that an appeal must be made by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect or by sending such notice to him in a properly addressed, pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date, or (where electronic communications are used to send such notice to the Secretary of State) by sending the notice to him at such time that, in the ordinary course of transmission, it would be delivered to him before that date; (iii) the grounds on which an appeal may be brought under section 174 of the Planning Act; (iv) the fee payable under regulation 10 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 for the deemed application for planning permission for the development alleged to be in breach of planning control in the enforcement notice; (b) notification that an appellant must submit to the Secretary of State, either when giving notice of appeal or within 14 days from the date on which the Secretary of State sends him a notice so requiring him, a statement in writing specifying the grounds on which he is appealing against the enforcement notice and stating briefly the facts on which he proposes to rely in support of each of those grounds. (c) a list of the names and addresses of the persons on whom a copy of the enforcement notice has been served.’

Model enforcement notices are provided in the Planning Practice Guidance and the Appendices to WO Circular 24/97 Annex 2. The explanatory note can be an annex to the notice (models for this note are also in 24/97). 6.10 If the notice is against operational development on a small area of the site the authority should make clear in the notice that the alleged breach of planning control is confined to that area.22 STEPS REQUIRED 6.11 The enforcement notice specifies steps required to be taken, or activities required to cease, or, wholly or partly, to remedy the breach or any injury to amenity arising from it.23 An enforcement notice can require steps which are both concerned with remedying the breach of planning control and remedying harm to amenity, whether they are the same or different steps in a notice.24 This may be partial restoration of the status quo coupled with other work designed to remedy the injury to amenity caused by the breach, or the removal of the contravention and restoration of site. Remedying the breach may include making any development comply with a planning permission (including terms and limitations), discontinuing use of the land or restoring the land to its pre-breach condition.25

A point made in the previous Circular 31/92 Appendix 1, para 10. Town and Country Planning Act 1990, s 173(3), (4); Planning Act (Northern Ireland) 2011, s 140(3), (4). 24 Wyatt Brothers (Oxford) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1560, [2002] PLCR 18 per Kennedy LJ at para 22. The Court disapproved advice in Circular 10/97, Annex 2, paras 2.30, 2.31 that the notice or steps had to be for one purpose or the other. 25 Town and Country Planning Act 1990, s 173(4); Planning Act (Northern Ireland) 2011, s 140(4). 22 23

98

Steps required 6.14 6.12 A requirement to restore land to its condition prior to the breach of planning control can include the removal of operational development which is associated with an unlawful material change of use, even if the operational development on its own would be lawful by the passage of time. In Murfitt v Secretary of State for the Environment26 there was an unlawful change of use of a farmyard to a plant hire business. The enforcement notice required the use of the site for the parking of heavy goods vehicles be ceased and the land restored to its condition before the change of use took place. The steps specified in the notice included the removal of hardcore placed on the land in association with the enforced against use. The hardcore had been laid more than four years before enforcement action had been taken. Rejecting an argument that the hardcore was now lawful, Stephen Brown J said that the notice could require the restoration of the land. 6.13 In Somak Travel Ltd v Secretary of State for the Environment27 a maisonette on the upper floors of a building had been converted from residential to office use and a spiral staircase installed into the shop below. The enforcement notice against the change of use to office was able to require the removal of the staircase, as an integral part of the change, even though as an internal alteration to an existing building it was not development in its own right.28 6.14 The issue came up in Kestrel Hydro v Secretary of State for Communities and Local Government29 where a house in the Green Belt at Stanwell Moor, Staines had changed to a mixed use of residential and ‘Adults Private Members Club’ for adults engaging in naturist pursuits and sexual activities.30 The enforcement notice described the breach as the change of use together with the installation of various outbuildings. The appellant claimed that the notice could not enforce against the unauthorised erections which were more than four years old. Following Murfitt and Somak Travel the Court of Appeal held that the removal of those structures was legitimately part of remedying the breach of planning control caused by the material change of use. Lindblom LJ said the principle was:31 ‘an enforcement notice directed at a breach of planning control by the making of an unauthorized material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself – provided that the works concerned are integral to or part and parcel of the unauthorized use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased. But it can extend to unauthorized changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt) or would be outside the scope of planning control (as in Somak Travel Ltd). In every case in which it may potentially apply, therefore, it will generate questions of fact and degree for the decision-maker. Whether it does apply in a particular case will depend on the particular circumstances of that case.

(1980) 40 P & CR 254. Followed in Perkins v Secretary of State for the Environment [1981] JPL 755. (1988) 55 P&CR 250. 28 See what is now Town and Country Planning Act 1990, s 55(2)(a). 29 [2016] EWCA Civ 784. 30 See [2015] EWHC 1654 (Admin) at para 3 per Holgate J. 31 At paras 28 and 30. 26 27

99

6.15  Enforcement Notices … the principle acknowledged and applied in Murfitt does not embrace operational development of a nature and scale exceeding that which is truly integral to a material change of use as the alleged breach of planning control.’

6.15 Other examples of legitimate requirements to remove integral operation development involved huts on a leisure plot and fencing around a caravan site.32 There may be physical works which are so substantial as not to be incidental. For example, in Newbury District Council v Secretary of State for the Environment and Mallaburn, the four-year period was applied to a tennis court constructed on land which was also the subject of an unlawful change of use to residential garden.33 In Welwyn Hatfield Richards LJ doubted that the removal of an unlawfully constructed dwelling could be required under the ten-year rule.34 6.16 Self-evidently works which are not part of the material change of use cannot be enforced against as part of it and care needs to be taken to determine when and why changes were made. In Bowring v Secretary of State for Communities and Local Government35 two additional kitchens had been installed in a house and the property converted to three self-contained flats. The Inspector required the removal of one of the kitchens but the decision was remitted as he had failed to consider whether the installation of the kitchens was part of the unlawful change of use.36 6.17 (a)

Possible requirements in an enforcement notice include: the alteration or removal of buildings or works;37

(b) carrying out building or other operations;38 (c)

limiting activity on the land;39

(d) contouring refuse or waste deposits; and40 (e)

constructing a replacement building where demolition has occurred in breach of planning control.41

6.18 Retrospective planning permission is deemed to be given for a replacement building constructed in accordance with an enforcement notice.42 An enforcement

Shephard and Love v Secretary of State for the Environment [1992] JPL 827 and Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) respectively. This point was overlooked when enforcement notices required the cessation of traveller caravan use at Dale Farm and the removal of tipped material but did not require the removal of the fences and walls which had been erected around the 54 caravan plots. Consequently the authority was not able to permanently remove the enclosures when taking direct action to enforce the notices: Egan v Basildon District Council [2011] EWHC 2416 (QB), [2012] PTSR 1117. On the completion of the works most plots contained large craters where material had been removed, enclosed by fences and walls. 33 [1995] JPL 329. Subsequently discussed in Ball v Secretary of State for the Environment, Transport and the Regions [2000] PLCR 299. Approved in Kestrel Hydro at para 29 per Lindblom LJ. 34 [2010] 2 P & CR 10 at para 32. 35 [2013] EWHC 1115 (Admin), [2013] JPL 1417. 36 At para 20 per Clive Lewis QC. 37 Town and Country Planning Act 1990, s 173(5)(a); Planning Act (Northern Ireland) 2011, s 140(5)(a). 38 Town and Country Planning Act 1990, s 173(5)(b); Planning Act (Northern Ireland) 2011, s 140(5)(b). 39 Town and Country Planning Act 1990, s 173(5)(c); Planning Act (Northern Ireland) 2011, s 140(5)(c). 40 Town and Country Planning Act 1990, s 173(5)(d); Planning Act (Northern Ireland) 2011, s 140(5)(d). 41 Town and Country Planning Act 1990, s 173(6), (7); Planning Act (Northern Ireland) 2011, s 140(6), (7). 42 Town and Country Planning Act 1990, s 173(12); Planning Act (Northern Ireland) 2011, s 140(12). 32

100

Steps required 6.22 notice may cover more than one breach of planning control.43 The enforcement notice must identify the particular breach and enforce solely against that. For example, where a condition can be breached in several different ways or on different areas on the site, the particular breach must be identified. In St Anselm Development Co Ltd v First Secretary of State,44 enforcement notices against a non-resident user of a car park in breach of a condition identified the particular parking spaces which were being enforced against. 6.19 The notice should require steps to be taken or activities to cease which are within the breach of planning control identified. If the notice does not specify these with sufficient particularity then the notice will be a nullity and incapable of correction.45 A  mismatch between the breach and the steps may be fatal to the notice. An enforcement notice which included amongst the unlawful works a ‘single storey side extension’ was a nullity when it required the removal of a ‘two storey side extension’.46 Similarly an enforcement notice which does not require action against the breach is not a lawful notice.47 6.20 The steps should be precise and should not provide for later approval of details – for example of a restoration scheme. Later approval of details can be required if planning permission is granted, but there is no appeal mechanism for dealing with such approvals in steps as part of an enforcement notice.48 The notice should not restrict existing rights, such as existing use rights, those lawful by the passage of time, permitted development rights and ancillary uses (Mansi v Elstree Rural District Council).49 The Mansi doctrine operates: (a)

as a matter of drafting, in that notices should not be worded to prohibit lawful development; and

(b) as a matter of interpretation, so that a notice should be interpreted as far as possible to avoid such a conflict. 6.21 Mansi itself is an example of the first category. A  plant nursery had an ancillary use of the sale of plants grown on the site and some imported plants. That changed to a fully retail use on part of the site. The local authority’s enforcement notice required the discontinuance of the sales. The Divisional Court considered that the enforcement notice should be varied to allow the limited retail sales and any nonmaterial intensification of that user. 6.22 In Duguid v Secretary of State for the Environment, Transport and the Regions,50 the Court of Appeal held that an enforcement notice which prohibited markets and car parking on land did not need to specifically safeguard the permitted development rights to use the land for markets on up to 14 days a year. There was no need to specifically preserve the rights in the notice. Whilst in Mansi there was an 45 46 47 48

Valentina of London Ltd v Secretary of State for the Environment [1992] JPL 1151. [2003] EWHC 1592 (Admin), [2004] JPL 33. Miller-Mead v Minister of Housing and Local Government [1962] 2 QB 196 at 226 per Upjohn LJ. Sarodia v Redbridge London Borough Council [2017] EWHC 2347 (Admin) at paras 25, 26 per Jay J. Tandridge District Council v Verrechia [2000] QB 318. Kaur v Secretary of State for the Environment (1991) 61 P & CR 249 at 251 at 257 per Sir Frank Layfield QC. Such a notice is a nullity and cannot be corrected by an Inspector or Minister on appeal: see Payne v National Assembly for Wales [2006] EWHC 597 (Admin), [2007] 1 P & CR 4 at paras 9, 21, 25, 26, 30–35 per Wyn Williams J. 49 (1964) 16 P & CR 153. 50 (2001) 82 P & CR 6. 43 44

101

6.23  Enforcement Notices established use and there was a benefit in defining what it was, permitted development rights are set out in the development order and are readily identified.51 However the Mansi doctrine does not allow any existing lawful use of the land to be raised in a later defence to proceedings under an enforcement notice, even if it is backed by a lawful development certificate. If not raised as a ground of appeal, the right might be lost. Keene LJ said in Challinor v Staffordshire County Council:52 ‘what this line of cases indicates is that an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights to use land for a purpose ancillary to a principal use which is itself not being enforced against. The authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal. Such rights must be asserted at the time of appeal against the enforcement notice. If the landowner sleeps on those rights, he will lose them.’

The cases on Mansi, therefore, point to care in drafting enforcement notices and caution in appealing to be certain that lawful activities are not prohibited. UNDER ENFORCEMENT 6.23 An enforcement notice may identify a breach of planning control but not take all the steps necessary to end the contravention. If that notice is then complied with, any remaining development responsible for that breach of planning control is deemed to have planning permission. This is the effect of s 173(11) which provides:53 ‘Where— (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.’

6.24 The under-enforcement permission is tied to the breach of planning control alleged in the notice.54 Permission is not given in respect of other breaches of planning control on the site. The provision does not oblige: ‘a local planning authority to scour a planning unit for potential breaches of planning control (whether or not it has sufficient evidence to prove those breaches) for fear that planning permission for any such breaches might otherwise be deemed to be granted’.55 Duguid at para 28 per Ward LJ, following R v Harfield [1993] 2 PLR 23. [2007] EWCA Civ 864, [2008] JPL 392 at para 52. 53 Similarly this is the effect of the Planning Act (Northern Ireland) 2011, s 140(11), granting retrospective planning permission under s 55. 54 Fidler v First Secretary of State [2004] EWCAS Civ 1295, [2005] JPL 510 at para 43 per Carnwath LJ. For there to be under enforcement, the notice must have been capable of specifying remedial measures but have not done so in that respect. It would appear that under enforcement would in practice apply where partial remedial measures are proposed as an enforcement notice which requires no steps in respect of an identified breach is unlawful: see Tandridge District Council v Verrechia [2000] QB 318. 55 Maldon District Council v Hammond [2004] EWCA Civ 1073 at para 42 per Brooke LJ. 51 52

102

Taking effect 6.27 6.25 Care needs to be taken where an enforcement notice concerns a material change of use and requires its cessation but does not require the removal of related works. If that operational development was integral to or part and parcel of the unauthorised use then the notice could take steps against it.56 If such operational development is not to be removed then it would receive planning permission once the use ceases. Two enforcement notices against the same breach of planning control are likely to run into similar problems.57 Similarly, if the notice is solely directed at remedying injury to amenity from the breach, then the breach of planning control will have planning permission insofar as it continues. For example, if a building is unlawfully demolished and a resulting enforcement notice imposes restoration requirements then planning permission would be granted for the demolition once the restoration is complete. Of more practical use, a notice imposing controls on an unlawful restaurant (such as requiring an extractor fan and limiting hours) would grant permission for the restaurant. TAKING EFFECT 6.26 An enforcement notice ‘takes effect’ on a date specified in the notice. As copies of the notice must be served not more than 28 days after it is issued and not less than 28 days before it takes effect,58 the notice must take effect at the earliest 28 days after issue. Periods of 42 or 56 days are common to allow for delays in service. Appeals to the Minister or the Planning Appeals Commission must be made so as to arrive before the notice takes effect.59 Once the notice takes effect, there is then a specified period for compliance.60 The period for compliance must run from the point that the enforcement notice takes effect and cannot start before that date.61 For example, in Koumis v Secretary of State for Communities and Local Government it was not open to the local planning authority to vary an enforcement notice to provide for a six-month compliance period from a date which was before the High Court appeal against the notice had been finally determined.62 6.27 The local planning authority should consider this period carefully: it is a ground of appeal to the Secretary of State that the compliance period is unreasonable. The former English guidance in PPG18 advised that if the enforcement notice will compel a small business or self-employed person to relocate their trading activities, the period should minimise disruption to the business and, if possible, avoid any permanent loss of employment.63

See Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784 at para 30 per Lindblom LJ. 57 Millen v Secretary of State for the Environment (1997) 73 P & CR 48. 58 Town and Country Planning Act 1990, s 172(3); Planning Act (Northern Ireland) 2011, ss 138(3) (for notices issued by councils), 139(4) (where the Department issues the notice). 59 Town and Country Planning Act 1990, s 174(3); Planning Act (Northern Ireland) 2011, s 1. 60 Town and Country Planning Act 1990, s 173(9); Planning Act (Northern Ireland) 2011, s 1. A failure to include a compliance period renders the notice a nullity: Miller-Mead v Minister of Housing and Local Government [1962] 2 QB 196 at 226 per Upjohn LJ. 61 R (Lynes) v West Berkshire District Council [2002] EWHC 1828 (Admin), [2003] JPL 1137 at paras 30, 31 per Harrison J. 62 Koumis [2012] EWHC 2686 (Admin), [2013] JPL 215 at paras 26, 29 per Walker J. 63 Planning Practice Guidance 18, para 16. See also the Welsh Development Management Manual, paras 14.5, 14.6. 56

103

6.28  Enforcement Notices 6.28 Different periods for compliance can be provided for different steps or activities.64 For example, use of land for heavy goods vehicle parking could be required to cease in eight weeks and the operational development associated with it, such as hardcore which has been laid, to be removed in 12 weeks. SUSPENSION OF TAKING EFFECT 6.29 When an enforcement notice appeal is brought, the enforcement notice shall be ‘of no effect pending the final determination or the withdrawal of the appeal’.65 Final determination is the date of the Secretary of State’s decision letter if there is no further appeal to the High Court.66 If the decision is appealed to the High Court under s 289, then there is no final determination until that process has ended.67 This includes the determination of any appeals in the Court of Appeal68 or Supreme Court or the dismissal of applications for permission to appeal to those bodies. If the Secretary of State’s decision is quashed on a s  289 appeal, then the enforcement notice cannot take effect until his re-determination of the appeal and the resolution of any consequent High Court proceedings. An enforcement notice can, therefore, be delayed from taking effect for a considerable period. The Act was therefore amended by the 1991 reforms to allow the court to order that the enforcement notice have effect during a s 289 appeal to it.69 The extent to which it has effect will be specified by the court, and the court may set down terms, including requiring the local planning authority to give an undertaking as to damages. 6.30 The Northern Ireland provision would also appear to suspend an enforcement notice during any High Court challenge. Again it refers to the final determination of the appeal but Commissioners’ decisions are contested by judicial review rather than an appeal to the High Court. A preclusive provision applies: ‘the validity of an enforcement notice shall not, except by way of an appeal under this section, be questioned in any proceedings whatsoever’.70 Consistently with the right of access to the court, judicial review proceedings can be brought against a commissioner’s enforcement appeal decision, so those proceedings must be seen as part of the appeal. It follows that the suspension of the notice for the period of the appeal includes any judicial review proceedings of the appeal decision. Unlike the English and Welsh legislation, there is no provision for the Court to make an interim order lifting the suspension during the course of such proceedings.71

Town and Country Planning Act 1990, s 173(9); Planning Act (Northern Ireland) 2011, s 140(9). Town and Country Planning Act 1990, s 175(4); Planning Act (Northern Ireland) 2011, s 143(7). 66 The period will run concurrently with the time for appealing to the High Court if no section 289 application for permission to appeal is made: Dover District Council v McKeen (1985) 50 P&CR 250. 67 R v Kuxhaus [1988] QB 631. 68 Kuxhaus at 643. 69 Town and Country Planning Act 1990, s 289(4A). 70 Planning Act (Northern Ireland) 2011, s 143(8), in similar terms to the Town and Country Planning Act 1990, s 285(1). 71 There is no equivalent of Town and Country Planning Act 1990, s 289(4A), although that power has been rarely if ever used. 64 65

104

Who to serve 6.35 WHO TO SERVE 6.31 Copies of the enforcement notice must be served on the owner and occupier of the subject land and any other person whom the local planning authority considers has an interest in the land which is materially affected by the notice.72 ‘Owner’ is defined as:73 ‘a person, other than a mortgagee not in possession, who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let.’

6.32 The ‘rack rent’ is the full market rent of the property.74 So a freeholder would be entitled to the rack rent if the property is let out at a market rent or is not let out at all. If the property is let out at a sub-market rent then the person who leases at a sub-market rent is the owner. This covers leaseholders with notional or modest ground rents75 and those paying substantial rents which were less than the market value when they were entered into.76 The effect of the definition in the enforcement context is to put greater responsibilities on persons who ‘own’ the property, even if only for a limited period, than on those who would conventionally be seen as renting. Different parts of a building may have different owners. For example, in a block of flats the freeholder will be the owner of the structure of the building and the common parts, but flats let on long leaseholds will be owned by their lessees. 6.33 There are inconsistent authorities on the relationship between ownership under s 336 and proprietorship of registered land. In East Lindsey District Council v Thompson,77 the Divisional Court held that the owner was the proprietor and where land had been conveyed the purchaser only became the owner when he was entered as the proprietor by the Land Registry. Unfortunately the judgment makes no reference to the decision of Potts J in R v Surrey County Council, ex p Bridge Court Holdings78 that a person who had acquired the site but was not the registered proprietor was the owner. The decision in East Lindsey is to be preferred. 6.34 ‘Occupier’ may include licensees, trespassers and squatters.79 The status of occupier depends upon the facts and circumstances of each case. The factors include the degree of control exercised by the person and the duration of enjoyment of the premises.80 6.35 The final category of person who has to be served is ‘any other person whom the local planning authority considers has an interest in the land which is materially affected by the notice’. This requires both an interest in the land and that interest being affected by the notice. Usually a notice will materially affect any interest, for Town and Country Planning Act 1990, s 172(2); Planning Act (Northern Ireland) 2011, s 138(2). In Northern Ireland it is a person with an ‘estate’ rather than an ‘interest’ in land who can be served. 73 Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1). 74 Compton Group Ltd v Estates Gazette Ltd (1978) 36 P & CR 148. 75 Pollway Nominees Ltd v Croydon London Borough Council [1987]  AC  79; R  (Newham London Borough Council) v Stratford Magistrates’ Court [2016] EWHC 302 (Admin). 76 London Corporation v Cusack-Smith [1955] AC 337. 77 [2001] EWHC Admin 81, (2001) 82 P & CR 33. 78 R v Surrey County Council, ex p Bridge Court Holdings Ltd [2000] PLCR 344. 79 Scarborough Borough Council v Adams [1983] JPL 673. 80 Stevens v Bromley London Borough Council [1972] Ch 400. 72

105

6.36  Enforcement Notices example by requiring works or terminating an activity, but there may be exceptions. Ordinarily if a mortgagee or chargee is disclosed by a Land Register entry for the property, they should be served as the value of their security might be affected. The local planning authority may serve other persons outside these categories.81 They should serve any person whom they may wish to prosecute for failing to comply with the notice. Those persons will not then have the defence of not being aware of the existence of the notice.82 MANNER OF SERVICE 6.36 The service or giving of notices under the Act should be done in certain specified ways. The effect of following the statutory procedures is that it will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.83 It may be that service by another route is sufficient provided that the notice is received and that receipt is caused by the authority,84 however the point appears not to have been tested under planning legislation. Modes of service in England and Wales are contained in s 329 of the Town and Country Planning Act 1990 and s 233 of the Local Government Act 1972.85 6.37 Four methods are provided which may be used by anyone to give or serve a notice or other document under the 1990 Act (s 329(1)): ‘(a) by delivering it to the person on whom it is to be served or to whom it is to be given; or (b) by leaving it at the usual or last known place of abode of that person, or, in a case where an address for service has been given by that person, at that address; or (c) by sending it in a prepaid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode, or, in a case where an address for service has been given by that person, at that address; or (d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office, or sending it in a prepaid registered letter, or by the recorded delivery service, addressed to the secretary or clerk of the company or body at that office.’

6.38 If the name of a person interested in the land cannot be ascertained after reasonable inquiry, then the document can be sent to ‘the owner’ or ‘the occupier’ by methods (a), (b) or (c) above.86 Alternatively it can be marked ‘Important – This Communication affects your Property’ and service is effective if it is: (a) sent to the premises by prepaid registered letter or recorded delivery and not returned; or

83 84

Scarborough Borough Council v Adams [1983] JPL 673. Town and Country Planning Act 1990, s 179(7); Planning Act (Northern Ireland) 2011, s 147(7). Galinski v McHugh (1988) 57 P&CR 359 at 365 per Slade LJ. UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67, [2019] 1 WLR 104 at para 36 per Lord Carnwath JSC on service of a non-domestic rating completion notice. 85 Either means can be used: Town and Country Planning Act 1990, s  329(4); London Borough of Newham v Ahmed [2016] EWHC 679 (Admin) at paras 23, 24 per Hamblen J. 86 Town and Country Planning Act 1990, s 329(2)(a). 81 82

106

Manner of service 6.41 (b)

delivered to a person on those premises or affixed conspicuously to some object on those premises.87

The same methods can be used for occupiers, whether their names are known or not. If unknown, the document should be addressed to ‘the occupier’. 6.39 If land appears unoccupied then service can be effected by fixing the document, addressed to ‘the owners and any occupiers’, to an object on the land. If a person interested in that land has given an address for service, then they must be served in the usual manner.88 As mentioned above, the local planning authority is empowered to serve documents by the methods in s 233 of the Local Government Act 1972.89 In addition to the Planning Act methods, this allows service by post to the proper address; the last known address or the registered or principal office.90 Where time of service of an enforcement notice was not vital to a prosecution for non-compliance, it did not matter whether the notice served in accordance with the Town and Country Planning Act provisions had actually been received.91 If time of service is vital, then the presumption of delivery by post can be rebutted.92 6.40

In Northern Ireland service may be effected:93

‘(a) by personal service; or (b) by post in accordance with sub-section (1); or (c) by leaving it for him with some person apparently over the age of sixteen at his usual or last known place of abode or business; or (d) in the case of a corporate body or of any association of persons (whether incorporated or not), by delivering it to the secretary or clerk of the body or association at the registered or principal office of the body or association or serving it by post on such secretary or clerk at such office; or (e) if it is not practicable after reasonable enquiry to ascertain the name or address of an owner, lessee, or occupier of premises on whom the document should be served, by addressing the document to him by the description of “owner” or “lessee” or “occupier” of the premises (naming them) to which the document relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.’

6.41 Service of an enforcement notice by email or other electronic means is not permissible. The service of enforcement notices and similar documents is excluded Town and Country Planning Act 1990, s 329(2)(b); Town and Country Planning General Regulations 1992, reg  13. The requirement to deliver to a person on those premises in s  329(2)(b)(ii) was not complied with in respect of the occupiers of mobile homes when copies of an enforcement notice had been given to the owner of the land with a list of persons to be served attached to the back: Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) at paras 16–25 per Belinda Bucknall QC. 88 Town and Country Planning Act 1990, s 329(3). 89 Town and Country Planning Act 1990, s 329(4). 90 Local Government Act 1972, s 233(2), (4). 91 Interpretation Act 1978, s 7; Moody v Godstone Rural District Council [1966] 1 WLR 1085 (which applied this rule to enforcement notices). 92 Interpretation Act 1978, s 7; R v London County Quarter Sessions Appeal Committee, ex p Rossi [1956] 1 QB 682; Gidden v Chief Constable of Humberside [2009] EWHC 2924 (Admin), [2010] RTR 9. Service is deemed to take place when the letter would arrive in the ordinary course of the post. 93 Interpretation Act (Northern Ireland) 1954, s 24(2). 87

107

6.42  Enforcement Notices from the general approval of electronic service.94 This would seem to exclude a common law reliance on electronic service.95 REGISTERS OF ENFORCEMENT NOTICES 6.42 Various details of enforcement notices must be entered by the local planning authority on public registers.96 In England this is the register of enforcement and stop notices and other enforcement action, in Wales the register of enforcement and stop notices and the register of enforcement notices in Northern Ireland. In England and Wales the register will contain the address of the site, the name of the issuing authority, the dates of issue and service of copies of the notice, the date specified in the notice for it to take effect, details of any postponement of taking effect by reason of an appeal, the date of the final determination or withdrawal of any appeal along with a summary of the breach of planning control alleged, the requirements of the notice and the time for taking any steps.97 It must also include with the enforcement notice entry the date of service and (if appropriate) withdrawal of a stop notice referring to that notice and a summary or statement of the activity prohibited by the notice. Importantly the register must also record the date on which the authority are satisfied that the steps required by the enforcement notice have been taken. Some further information is required on the register in Northern Ireland, adding the name and address of every person served, the date of receipt of any appeal, the appeal decision and any conditions imposed.98 In England and Wales if the enforcement notice is quashed on appeal or withdrawn then the register entry must be removed.99 6.43 In England and Wales the local planning authority must make entries as soon as practicable, at the latest within 14 days.100 No time period is prescribed in Northern Ireland but as with any public register, it should be kept up to date. In all nations the registers must be available for inspection by the public at all reasonable hours.101 An enforcement notice which has taken effect must also be included in the statutory charges register in Northern Ireland.102

Town and Country Planning Act 1990, s 329(1)(cc), (3B)(b); Planning Act (Northern Ireland) 2011, s 239(1), (3). 95 Compare UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67, [2019] 1 WLR 104. 96 Town and Country Planning Act 1990, s 188(1); Planning Act (Northern Ireland) 2011, s 242(1)(f). In England the register is kept by the district planning authority: s 188(1). The register was introduced in England and Wales for notices issued on or after 27 November 1981: Town and Country Planning Act 1971, s  92A(2) and Town and Country Planning General Development (Amendment) (No  2) Order 1981. 97 Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43(2); Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 30(1). 98 Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 26. 99 Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43(4); Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 30(3). 100 2015 DMPO, Art 43(8); DMPO Wales, Art 30(5). A failure to include an enforcement notice on the register may give rise to a defence (Town and Country Planning Act 1990, s 179(7); Planning Act (Northern Ireland) 2011, s 147(7)) if the defendant had not been served with a copy of the notice and was unaware of it. Authorities should ensure that the register is updated in a timely manner, rather than filling in omissions after proceedings start and, as one planning officer was caught doing in an enforcement notice prosecution, claiming that the entries had been made at the earlier dates. 101 Town and Country Planning Act 1990, s 188(1); Planning Act (Northern Ireland) 2011, s 242(3). 102 Land Registration Act (Northern Ireland) 1970, Sch 11, entry 27(d) substituted by the Planning Act (Northern Ireland) 2011, s 245. 94

108

Variation and withdrawal 6.46 VARIATION AND WITHDRAWAL 6.44 An enforcement notice might turn out to be defective or not to properly cover or remedy the breach. The breach might have been remedied and the notice become redundant because of the lapse of time. The steps required may be excessive, or an agreement be reached with the developer to meet the concerns in a different way. In those circumstances, the local planning authority may wish to withdraw or vary the notice. 6.45 A local planning authority can withdraw an enforcement notice, or waive or relax any of its requirements.103 The variation power includes extending the period for compliance, but does not allow additional requirements to be made or requirements strengthened. An unlawful variation will not have effect and so will not affect the lawfulness of a valid enforcement notice.104 Immediately after making the variation or withdrawal, notice must be given to those who were served with the notice or would have to have been served if the notice was re-issued.105 So if ownership changed after service, the old and new owners would be notified. The withdrawal or variation can be made before or after the notice has taken effect. This allows a settlement to be reached before or during an appeal, without the approval of the Secretary of State. The appeal can then be withdrawn. An award of costs against either party is still possible if they acted unreasonably.106 The power also allows changes to be made once the period for compliance has expired. The withdrawal of an enforcement notice does not prevent the issue of a further notice107 insofar as the authority has power to take further enforcement action. The extended time limit in the second-bite provisions would allow another notice to be issued within four years (five years in Northern Ireland) of the issue of the original notice even if the time limits would have otherwise expired.108 6.46 The variation of an enforcement notice should not, in principle, prevent a further notice being issued. If the effect of the variation is to under-enforce, by not requiring all the steps necessary to remedy the breach, then planning permission would be granted for the under-enforced element once the notice is complied with. A fresh enforcement notice could not then be issued against that development. More generally, it will be harder to show that the subsequent issuance is expedient and that the steps required are necessary.

Town and Country Planning Act 1990, s 173A(1); Planning Act (Northern Ireland) 2011, s 141(1). The same powers are given to the Department in respect of its own enforcement notices: Planning Act (Northern Ireland) 2011, s 142. 104 Koumis v Secretary of State for Communities and Local Government [2014]  EWCA  Civ 1723, [2015]  JPL  682, affirming [2012]  EWHC  2686 (Admin), [2013]  JPL  215 (where in the course of a High Court appeal the local planning authority varied the notice to set the time for compliance as ‘six calendar months after 4 May 2012’, meaning the period started before the notice took effect). The defective variation notice could itself be withdrawn by the local planning authority: Koumis [2014] EWCA Civ 1723 at para 87 per Sullivan LJ. 105 Town and Country Planning Act 1990, s 173A(3); Planning Act (Northern Ireland) 2011, s 141(3). 106 Planning Practice Guidance ID  16-042-20161210, 16-047-20140306 (England); Development Management Manual, Section 12 Annex Award of Costs, para  3.10(m) (Wales); Costs Awards Guidance, para 14 (Northern Ireland). 107 Town and Country Planning Act 1990, s 173A(4); Planning Act (Northern Ireland) 2011, s 141(4). 108 Town and Country Planning Act 1990, s 171B(4)(b); Planning Act (Northern Ireland) 2011, s 132(4)(b). 103

109

6.47  Enforcement Notices THE EFFECT OF A SUBSEQUENT PLANNING PERMISSION 6.47 An enforcement notice ceases to have effect to the extent that it is inconsistent with a planning permission for existing development which is granted after the enforcement notice has been served. Enforcement notices are concerned with breaches of planning control. Where that breach has been validated by a subsequent planning permission there is no reason for that enforcement notice to stand. The Acts provide:109 ‘Where, after the service of— (a) a copy of an enforcement notice […] planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.’

6.48 The notice, or the relevant part of it, ceases to have effect on the grant110 of the permission without any further act. It is simply a matter of comparing the notice with what is granted planning permission. It does not matter whether the permission is implemented (although it will normally be retrospective, at least in part anyway), the terms of any conditions attaching to it (unless the notice is against a breach of condition), or whether the permission is temporary.111 No express recognition by the local planning authority of this effect of the permission, or variation of the enforcement notice, is required. It is important when action is taken under an enforcement notice to consider whether any subsequent permissions have affected it.112 The subsequent permission need not cover precisely the matters covered by the enforcement notice to remove its effect entirely. But to do so it should cover the same operational development or use and the same area of land. The conditions attached to the subsequent planning permission need not be complied with for the enforcement notice to cease to have effect.113 A failure to so comply may give rise to a separate breach of planning control. An enforcement notice might cease to have effect in part.114 6.49 There is a small lacuna in the legislation. Where a planning permission is granted between the issuance and the service of an enforcement notice, the notice does not lose its effect.115 The proper course, in these unlikely circumstances, is to appeal the notice if the local planning authority does not withdraw it. The appeal would Town and Country Planning Act 1990, s 180(1); Planning Act (Northern Ireland) 2011, s 148(1). Havering London Borough Council v Secretary of State for the Environment (1983) 45 P & CR 258, [1983] JPL 240. 111 A  temporary permission means that the enforcement notice ceases to have effect permanently. A  breach following the expiry of the temporary permission would have to be addressed by a fresh notice: Cresswell v Pearson (1998) 75  P  & CR  404; followed in Fowles v Heathrow Airport [2008] EWHC 219 (Ch) at para 90 per Lewison J. 112 For an example of insufficient care being taken, see R  (Rapose) v Wandsworth London Borough Council [2010] EWHC 3126 (Admin), [2011] JPL 600. 113 Havering London Borough Council v Secretary of State for the Environment (1983) 45 P & CR 258, [1983] JPL 240. 114 R  v Chichester Justices, ex p Chichester District Council (1990) 60  P  & CR  342; Goremsandu v Secretary of State for Communities and Local Government [2015]  EWHC  2194 (Admin) at paras 27–30 per Gilbart J. 115 The Law Commission recommends that s 180 has effect for planning permissions granted from the issue of an enforcement notice, rather than the service of a copy of the notice: Planning Law in Wales, Final report, recommendations 12–23 (November 2018). 109 110

110

Enforcement on Crown land 6.53 almost certainly succeed to the extent that the enforcement notice is inconsistent with the permission. 6.50 Even if a notice ceases to have effect in its entirety because of a subsequent planning permission, the notice remains in being and can still be appealed against. If the local planning authority fails to withdraw the enforcement notice it may have costs awarded against it in the appeal for acting unreasonably.116 Whilst the effects of an enforcement notice will be removed by a subsequent permission, a person served with a notice should not fail to appeal because a planning application is pending and it is believed likely to succeed. 6.51 The enforcement notice only ceases to have effect from the date of the planning permission. Criminal liability for an earlier failure to comply with the notice is not affected.117 However, the local planning authority would have to consider whether it was in the public interest to prosecute for development which was now acceptable in planning terms. Any sentence is likely to be significantly lower.118 EFFECT ON SUBSEQUENT DEVELOPMENT 6.52 The enforcement notice is not discharged by compliance with its requirements.119 It runs with the land. So if a notice requires a use of land to be discontinued then this has effect permanently. A resumption of the use would be a contravention of the enforcement notice provided this was still a breach of planning control.120 Additionally the enforcement notice will apply to the reinstatement or restoration of buildings or works which have been required to be removed or altered.121 These provisions are designed to ensure that a developer cannot comply with the enforcement notice and then restore his development, leaving the local planning authority to start the enforcement process again. Whether the new use or operational development is covered by the enforcement notice must be carefully considered. ENFORCEMENT ON CROWN LAND 6.53 The Crown is not bound by a statute unless it is mentioned either expressly or by necessary implication. In Lord Advocate v Dumbarton District Council122 the Ministry of Defence coned off one mile of the carriageway of a public road for the storage of portable workmen’s cabins and building materials whilst improving the perimeter fence of the Faslane submarine base. The House of Lords held that the Crown was not bound by the Town and Country Planning (Scotland) Act 1972 and so the enforcement and stop notices served by the local authority had no application. The same position remained in England and Wales until changes made by the Planning and Compulsory Purchase Act 2004 were brought into force in 2006. The immunity R v Secretary of State for the Environment, ex p Three Rivers District Council [1983] JPL 730. Town and Country Planning Act 1990, s 180(3); Planning Act (Northern Ireland) 2011, s 148(3). 118 See R v Newland (1987) 54 P & CR 222 where sentencing for breach of an enforcement notice should have been adjourned to await the outcome of an impending appeal which ‘obviously had an important bearing on the penalty to be imposed’ at 225 per Mars-Jones J. 119 Town and Country Planning Act 1990, s 181(1); Planning Act (Northern Ireland) 2011, s 149(1). 120 Town and Country Planning Act 1990, s 181(2); Planning Act (Northern Ireland) 2011, s 149(2). 121 Town and Country Planning Act 1990, s 181(3); Planning Act (Northern Ireland) 2011, s 149(3). 122 [1990] 2 AC 580. 116 117

111

6.54  Enforcement Notices of the Crown from planning control did not extend to other persons on Crown land who were not acting on its behalf. Prior to 2006, ‘special enforcement notices’ could be issued in respect of such breaches if consent was given by the Crown. 6.54 The Planning and Compulsory Purchase Act 2004 amended the Crown land provisions of the 1990 Act. Subject to exceptions, the Town and Country Planning Act 1990 binds the Crown.123 Similarly planning legislation was applied to the Crown in Northern Ireland in June 2006.124 6.55 In England and Wales Crown land means land in which there is a Crown interest or a Duchy interest. A Crown interest is:125 (a) an interest belonging to Her Majesty in right of the Crown or in right of Her private estates; (b) an interest belonging to a government department or held in trust for Her Majesty for the purposes of a government department; or (c)

such other interest as the Secretary of State specifies by order.126

6.56 A Duchy interest means an interest belonging to Her Majesty in right of the Duchy of Lancaster or belonging to the Duchy of Cornwall. Crown land includes military bases, many government offices, roads owned by the Department for Transport (eg motorways), but not land owned by local government. 6.57 In Northern Ireland, Crown land is land containing a Crown estate which means: ‘(a) an estate belonging to Her Majesty in right of the Crown; (b) an estate belonging to a government department or held in trust for Her Majesty for the purposes of a government department; (c) such other estate as the Department may specify by order subject to affirmative resolution’.

6.58 Local planning authorities (and in Northern Ireland, the Department) need the consent of the appropriate authority to take ‘any step for the purposes of enforcement in relation to Crown land’ including to enter land, bring proceedings or make applications.127 ‘Step’ has a narrow definition in this context. Whilst it includes entering land, bringing proceedings and making applications, the service of notices and the making of orders128 is not a step for the purpose of enforcement.129 The appropriate authority is the part of the Crown or government responsible for managing that particular Crown land.130 The Crown cannot be guilty of an offence

Town and Country Planning Act 1990, s 292A. Planning (Northern Ireland) Order 1991, Art 112A as added by the Planning Reform (Northern Ireland) Order 2006, Art 21 and now contained in the Planning Act (Northern Ireland) 2011, s 211. 125 Town and Country Planning Act 1990, s 293(1). 126 This has been used to extend Crown interest to the Houses of Parliament: Planning (Application to the Houses of Parliament) Order 2006. 127 Town and Country Planning Act 1990, s 296A(2), (6); Planning Act (Northern Ireland) 2011, s 215(3). 128 Unless by a Court. 129 Town and Country Planning Act 1990, s 296A (6); Planning Act (Northern Ireland) 2011, 215(6), (7). 130 The relevant authorities are listed in Town and Country Planning Act 1990, s 293. 123 124

112

‘Old’ enforcement notices 6.63 under these provisions.131 Special provisions apply to breaches of planning control by the Crown in the Second World War but the likelihood of these arising is little more than theoretical.132 THE ISSUE OF ENFORCEMENT NOTICES BY NATIONAL AUTHORITIES 6.59 The Secretary of State or Welsh Ministers may issue enforcement notices with the same effect as an enforcement notice issued by a local planning authority (s 182(1)):133 ‘If it appears to the Secretary of State to be expedient that an enforcement notice should be issued in respect of any land, he may issue such a notice.’

6.60 Unlike local planning authority notices, the expediency test is not expressly based on the development plan and other material considerations. Additionally, the appearance of a breach of planning control is not expressly required.134 In practice however the test for issuing is the same. An enforcement notice could not rationally be issued without considering whether there was a breach of planning control and whether planning permission would be granted for the development. 6.61 In Northern Ireland the Department may issue an enforcement notice where it appears:135 ‘(a) that there has been a breach of planning control; and (b) that it is expedient to issue the notice, having regard to the provisions of the local development plan and to any other material considerations’.

6.62 The national authority must consult with the relevant local planning authority before issuing the notice.136 An enforcement notice issued by the Secretary of State shall have the same effect as a notice issued by the local planning authority.137 The enforcement provisions are, with limited exceptions, the same. Additionally the right of appeal to the Secretary of State remains. ‘OLD’ ENFORCEMENT NOTICES 6.63 Enforcement notices issued under repealed provisions, such as the Town and Country Planning Act 1971, continue to have effect and breaches can be prosecuted under the current legislation.138

Town and Country Planning Act 1990, s 296A(1); Planning Act (Northern Ireland) 2011, s 215(1). Town and Country Planning Act 1990, s 302. 133 Town and Country Planning Act 1990, s 182(1). 134 Cf Town and Country Planning Act 1990, s 172(1). 135 Planning Act (Northern Ireland) 2011, s 139(1). 136 Town and Country Planning Act 1990, s 182(2); Planning Act (Northern Ireland) 2011, s 139(2). 137 Town and Country Planning Act 1990, s 182(3). 138 Planning (Consequential Provisions) Act 1990, s 2; Reigate and Banstead Borough Council v Drift Bridge Garage Ltd [1994] JPL B133. 131 132

113

Chapter 7

Appeal against an Enforcement Notice

THE RIGHT TO APPEAL 7.01 There is a right of appeal to the Secretary of State, Welsh Ministers or the Planning Appeals Commission against an enforcement notice. An appeal is on specified grounds, which allow the Minister or commissioner to determine the merits of the notice and grant planning permission for the breach of planning control if that is considered appropriate. The appeal is decided by the Minister, or an Inspector appointed by him, following an inquiry, an ‘informal’ hearing or the consideration of written representations. There is an ability to appeal this decision in the High Court on the basis of an error of law, or in Northern Ireland to bring judicial review proceedings. 7.02 The number of methods of dealing with an appeal creates a multiplicity of rules or regulations in addition to primary legislation.

Primary legislation

England

Wales

Northern Ireland

Town and Country Planning Act 1990, ss 174–177

Town and Country Planning Act 1990, ss 174–177

Planning Act (Northern Ireland) 2011, ss 143–145

Initiating appeals

Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017

Written representations

Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002

Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, Part 4

Hearings

Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002

Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, Part 5

114

The right to appeal 7.05 England

Wales

Northern Ireland

Inquiries (Inspector cases)

Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002

Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, Part 6

Not used in enforcement

Inquiries (Ministerial cases)

Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002

Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, Part 6

Not used in enforcement

7.03 The Department has not made procedural rules for appeals in Northern Ireland1 so subject to the Planning Act (Northern Ireland) 2011, the ‘procedure shall be such as the appeals commission may determine’.2 The Commission have adopted Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals (2016), which they are obliged to follow unless there is good reason not to.3 Guidance on the appeals process is contained in Procedural Guide: Enforcement notice appeals – England (23 March 2016), Procedural Guide – Wales (2017) and Welsh Office Circular 24/97. 7.04 Some 2,500 to 3,000 enforcement notice appeals are made each year in England.4 The Planning Appeals Commission receives 50–60 enforcement related appeals each year, not all of which will be against enforcement notices.5 Who may appeal? 7.05 A  person with an interest in the subject land or certain occupiers are entitled to appeal, even if they have not been served with a copy of an enforcement notice.6 A relevant occupier is a person occupying the land under a licence when the enforcement notice is issued and continuing to do so when the appeal is brought.7 The licence may be oral or in writing. This provision therefore extends tenants’ rights of appeal to licensees. Even though occupiers must be served8 they only have a right

It has a power to do so in Planning Act (Northern Ireland) 2011, s  204(5), but this has not been exercised: see Belfast City Council’s Application [2018] NIQB 17 at para 100 per McCloskey J. 2 Planning Act (Northern Ireland) 2011, s 204(5). 3 Belfast City Council’s Application at para  50(v), 100 per McCloskey J. There is some debate whether s 204(5) empowers the Commission to draw up procedures (McCloskey J disagreed with the Commission’s statement that it did), but at minimum the published procedures have to be followed unless departure is justified as policy or by legitimate expectations. 4 The mean annual figure between 2011 and 2019 was 2,715, with 2,702 appeals received in 2018/2019: https://www.gov.uk/government/statistics/planning-inspectorate-statistics. 5 The Planning and Water Appeals Commissions, Annual Report of the Chief Commissioner 2017– 2018. 6 Town and Country Planning Act 1990, s 174(1); Planning Act (Northern Ireland) 2011, s 143(1). In Northern Ireland it is an estate in land. 7 Town and Country Planning Act 1990, s 174(6); Planning Act (Northern Ireland) 2011, s 143(2). 8 Town and Country Planning Act 1990, s 172 (2)(a); Planning Act (Northern Ireland) 2011, ss 138(2), 139(3). 1

115

7.06  Appeal against an Enforcement Notice of appeal if they have an interest in land or are a relevant occupier. Trespassers do not have a right to appeal.9 7.06 A person who was mistakenly served does not have a right of appeal, as the mere fact of service does not attach legal liabilities to them. However, if the notice is not complied with, local planning authorities usually consider bringing criminal proceedings against those served, in the event of non-compliance with the notice. So a person wrongly served should aim to resolve the issue with the local planning authority. In the absence of agreement, the option would be to appeal to seek a ruling that no appeal can be brought because the person should not have been served or to bring judicial review proceedings of the decision to serve a copy of the notice on that person (rather than strictly a challenge to the validity of the notice itself). Submitting the appeal 7.07 The appeal must be made in writing to be received by the Planning Inspectorate or the Planning Appeals Commission before the date on which the notice is to take effect.10 If the notice of appeal is sent in a properly addressed and pre-paid letter such that in the ordinary course of post it should be delivered in time or by electronic communications which in the ordinary course of transmission should arrive within that period then if it then arrives late, it is allowed.11 The address for appeals in England is: The Planning Inspectorate (PINS AA 4), PO Box 326, Bristol BS99 7XF. The address for appeals in Wales is: The Planning Inspectorate, Crown Buildings, Cathays Park, Cardiff CF10 3NQ and appeals in Wales can be faxed on 029 2082 5150. Appeals may also be submitted via the Planning Portal website.12 The appeal form is filled in online and copies of documents can be attached electronically. 7.08 Northern Ireland appeals can be submitted electronically to the Planning Appeals Commission website, www.pacni.gov.uk. Alternatively, a paper appeal form can be obtained from the Commission and submitted to The Chief Administrative Officer, Park House, 87–91 Great Victoria Street, Belfast BT2 7AG.13 The Minister has no discretion to accept a late appeal.14 Grounds of appeal 7.09 Appeals can be brought on any number of seven grounds in Town and Country Planning Act 1990, s  174(2) or Planning Act (Northern Ireland) 2011, R v Secretary of State for the Environment, ex p Davis [1989] 3 PLR 73. Town and Country Planning Act 1990, s 174(3)(a); Planning Act (Northern Ireland) 2011, s 143(1), (4). The Commission accept that if the last day for appealing is a Sunday or a Public Holiday, the appeal can arrive with the Commission by the following day which is not a Sunday or a Public Holiday: Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 18. 11 Town and Country Planning Act 1990, s  174(3)(b), (c). For a failure to consider whether browser compatibility problems justified appeals arriving online 3–4 hours late, see R (Rahimian) v Secretary of State for Communities and Local Government [2016] EWHC 1634 (Admin). 12 See www.planningportal.gov.uk. 13 The PAC’s telephone number is (028) 9024 4710 and the email address is [email protected]. 14 Howard v Secretary of State for the Environment [1975]  QB  235; R  v Secretary of State for the Environment, ex p JBI Financial Consultants (1989) 58 P & CR 84; R (Stern) v Horsham District Council [2013] EWHC 1460 (Admin), [2013] PTSR 1502 at para 45 per Leggatt J. 9

10

116

The right to appeal 7.13 s 143(3). They are commonly referred to by the letters of their sub-paragraphs in the appeal provisions. In summary these grounds of appeal are: (a) planning permission should be granted, or any condition or limitation discharged, in respect of any breach of planning control in the notice; (b) the matters alleged in the notice have not occurred; (c)

if they occurred, they are not a breach of planning control;

(d) the time limit for enforcement had passed by the time the notice was issued; (e)

a copy or copies of the notice were not served as required;

(f)

the steps required, or activity required to cease, exceed what is necessary to remedy the breach or any injury to amenity caused by the breach;

(g) more time should be given for compliance with the notice. Additionally, it is a ground of appeal in England that relevant demolition in a conservation area was urgently necessary for health and safety reasons.15 7.10 It can also be contended in an appeal that the enforcement notice is a nullity, ie it contains an error on its face which means that it is not lawfully an enforcement notice. Strictly this is not a ground of appeal, but asking for a ruling that there is no notice to appeal against. The grounds of appeal in detail GROUND (A)

7.11

Ground (a) states:

‘(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged’.

7.12 Ground (a) is effectively an application for planning permission and is judged on the same grounds as a conventional application. In determining it, regard is to be had to the development plan16 and consequently this ground of appeal must be decided in accordance with the development plan unless other material considerations indicate otherwise.17 On appeal the Minister has the power to:18 ‘grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates’.

7.13 Even if no ground (a) appeal is brought, the Planning and Compensation Act 1991 provisions deemed that an application for planning permission was made by the submission of any appeal against an enforcement notice for the matters stated in the enforcement notice as constituting a breach of planning control. This would 17 18 15 16

Town and Country Planning Act 1990, s 174(2C). Town and Country Planning Act 1990, s 177(2). Planning and Compulsory Purchase Act 2004, s 38(6). Town and Country Planning Act 1990, s 177(1); Planning Act (Northern Ireland) 2011, s 145(1).

117

7.14  Appeal against an Enforcement Notice include the discharge of a condition or limitation. The result was that there could simultaneously be a ground (a) appeal and a deemed planning application, or a deemed planning application when the appellant had chosen not to make a ground (a) appeal. This doubling up has been restricted, first in England and then in Wales. In those nations a deemed application only arises if a ground (a) appeal is raised in the notice of appeal or the subsequent statement of the grounds.19 In Northern Ireland the deemed application arises on any appeal, even if ground (a) is not raised20, subject though to the possible payment of a fee. 7.14 There is no discernible, let alone good, reason why there should be a deemed application at all.21 The grant of planning permission can be raised expressly on a ground (a) appeal and does not need to arise twice. 7.15 For both the ground (a) appeal and the deemed application any planning permission is solely ‘in respect of the matters stated in the enforcement notice as constituting a breach of planning control’ in whole or in part. The greatest extent of the permission is therefore defined by the enforcement notice.22 The planning permission cannot be for more than could be authorised by a planning permission granted on an application for the matters in the enforcement notice. This has a number of consequences: •

any planning permission will not cover any other matters on the land, including any other breach of planning control, which is not the breach of control alleged in the enforcement notice;

•

such a permission would have to relate to the unlawful development as it was at the time the enforcement notice was issued.23 For example, if a building is being constructed without planning permission and has only part of the walls erected when the enforcement notice is issued, it would not be possible to grant planning permission for the complete building on the ground (a) appeal. Even if completed before the hearing of the appeal (and so known), it would not be the breach alleged in the notice;

•

the permission may be for part of those matters,24 giving some room for a compromise scheme. The question is whether the matters approved are part of what has been enforced against rather than whether, as a cutdown scheme, it is materially different.25 However it may not authorise development which goes outside the scope of the notice;26

Town and Country Planning Act 1990, s 177(1C), (5), as amended by the Localism Act 2011, s 123 in England from 6 April 2012 and by the Planning (Wales) Act 2015 from 16 March 2016. 20 Planning Act (Northern Ireland) 2011, s 145(5). 21 Law Commission Planning Law in Wales (November 2018), para 12.91. 22 Richmond upon Thames Borough Council v Secretary of State for the Environment 224 EG 1555. 23 Arnold v Secretary of State for Communities and Local Government [2017]  EWCA  Civ 231, [2017] JPL 923 at para 22 per Lindblom LJ. 24 For example, Exmouth Marina Ltd v First Secretary of State [2004]  EWHC  3166 (Admin), [2006] JPL 204 at para 36 per Judge Rich QC. 25 See Arnold at para 27 per Lindblom LJ. 26 Richmond-upon-Thames LBC v Secretary of State for the Environment (1972) 22 EG 1555; Arnold at para 24 per Lindblom LJ. For example, following the unlawful conversion of a house to five flats, it was not possible to grant permission on a ground (a) appeal for three flats: Ioannou v Secretary of State for Communities and Local Government [2013] EWHC 3945 (Admin); [2014] JPL 608 at paras 32–37 per Ouseley J; [2014] EWCA Civ 1432, [2015] 1 P & CR 10 at para 11 per Sullivan LJ. 19

118

The right to appeal 7.16 •

the planning permission may be granted subject to conditions, so it can authorise other works or activity provided that it can and is included in the conditions. The essential test is that a condition may not fundamentally alter what is applied for;27

•

there is therefore some scope for remedial or finishing off works. For example if an enforcement notice requires the removal of an unlawful extension, planning permission could be granted for a reduction in the size of the extension and the resultant new works (such as altered wall, roof) either those works are part of the matters enforced against or a condition can require the altered scheme to be completed. Mitigation measures can be required by condition, even though they are new development, such as the erection of screening fences or the installation of obscure glazed windows. Conditions could require the submission and approval of details of such further works;

•

if the ground (a) appeal is in respect of part of the alleged breach, the deemed application does still arise for the entirety of the matters in the enforcement notice. It is therefore possible, although unlikely, that planning permission would be granted for more development than the appellant has sought.

7.16 A concern has been that enforcement notice appeals have sought planning permission when a planning application has failed, or conversely that a planning application has been made whilst an enforcement notice has been issued. This can lead to additional effort or delay to a justified enforcement notice. Amendments introduced by the Localism Act 2011 limit the circumstances (in England) in which planning applications and enforcement appeals on ground (a) can run simultaneously: •

a ground (a) appeal cannot be made if the enforcement notice was issued after the making of a related application for planning permission but ‘before the end of the period applicable under A  section 78(2) in the case of that application’. A  planning permission is ‘related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control’.28 The s 78(2) period is the time to decide the application before a right of appeal for non-determination arises (s 174(2A));

•

a local planning authority may decline to determine a planning application if approving the application would involve granting planning permission for the whole or part of any matters specified in a pre-existing enforcement notice as a breach of planning control (s 70C(1)). No right of appeal to the Secretary of State arises where the authority has declined to determine an application under these powers.29 A ‘pre-existing enforcement notice’ is an enforcement notice issued before the application was received by the local planning authority.30

R v Coventry City Council, ex p Arrowcroft Group plc [2001] PLCR 113. See R Harwood, Planning Permission (Bloomsbury Professional, 2016) paras 11.27–11.29. 28 Town and Country Planning Act 1990, s 174(2B). 29 See Town and Country Planning Act 1990, s 78(1), (2). 30 Town and Country Planning Act 1990, s 70C(2). 27

119

7.17  Appeal against an Enforcement Notice 7.17 Periods for the determination of planning applications are set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015: •

16 weeks from the receipt of the application for development accompanied by an Environmental Statement;31

•

13 weeks for defined major development; and

•

eight weeks for any other development.32

The applicant and the local planning authority may agree in writing to extend the time limits.33 The restriction on a ground (a) appeal would appear to be applied even if the application is determined before the end of the period and an enforcement notice issued within the period. It may be debatable whether the prohibition on making a ground (a) appeal applies if the enforcement notice is issued in any agreed extension period. The consequence is that a ground (a) appeal can be pursued if the enforcement notice is issued after the end of the non-determination period, including if the planning application has been unsuccessfully appealed. 7.18 For the purposes of declining to consider a planning application, the preexisting enforcement notice would appear to have to still be in existence, without having been withdrawn or quashed. Section 70C(1) refers to ‘the land to which a pre-existing enforcement notice relates’, suggesting that the notice must still be in existence. The authority is given a discretion not to determine the application, so it must act reasonably and with regard to relevant considerations. Good reasons not to decline to consider the application would include a change in circumstances, the unlawful development could be acceptable if planning permission were granted subject to conditions, or the planning application related only to a part of the enforcement notice subject matter which might be acceptable. If the authority does decline to consider the application then the applicant has no right of appeal to the Secretary of State but instead can only challenge the decision by judicial review. 7.19 A  fee is usually charged for a ground (a) appeal or deemed planning application. This fee does not have to be submitted with the appeal but will be asked for by the Inspectorate or Planning Appeals Commission during the appeal process. If the fee is not paid within the time period requested then the ground (a) appeal and the deemed application shall lapse.34 The fee is charged for each appellant raising ground (a), so in circumstances where there could be multiple appellants it is common for only one appellant to pursue a ground (a) appeal. This election may be made when the fee is demanded: so several appellants could all identify ground (a) in their notices of appeal but then one would choose to submit the fee. GROUND (B)

7.20

Ground (b) states:

‘(b) that those matters have not occurred’.

Town and Country Planning (Environmental Impact Assessment) Regulations 2017, reg 68. Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 34(2). 33 Town and Country Planning Act 1990, s 78(2); Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 34(2). 34 Town and Country Planning Act 1990, s 177(5A); Planning Act (Northern Ireland) 2011, s 145(6). 31 32

120

The right to appeal 7.25 7.21 Ground (b) relates to the factual allegation made in the notice. This will encompass what is physically said to have happened and how it is described. For example, if the allegation is that mineral extraction has taken place, an appellant might want to contend that the digging was not mineral extraction but was the construction of a lake. How the matters are described can be critical to whether there is a breach of planning control or the operation of the time limits. An appellant who considers that the description of the matters is not completely accurate should raise that point in a ground (b) appeal. GROUND (C)

7.22

Ground (c) states:

‘(c) that those matters (if they occurred) do not constitute a breach of planning control’.

7.23 This ground includes claims that the matters do not constitute operational development35 or a material change of use (including having the benefit of the Use Classes Order), did not need planning permission under s 57,36 that they are authorised by a planning permission granted on application, under permitted development rights or some other order, or a deemed planning permission. In respect of alleged breaches of condition, the ground is usually that the matters did not contravene the condition. It could also be said that the planning permission containing the condition had expired or had not come into force or that the condition was unlawful GROUND (D)

7.24

Ground (d) states:

‘(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters’.

7.25 This ground is that if there was a breach of planning control then the time limits37 apply to prevent the enforcement notice from being issued and, in England, the local planning authority did not have the benefit of a planning enforcement order under which they can issue a late enforcement notice.38 If the authority have only subsequently obtained a planning enforcement order or would be able to do so, then the appeal should succeed, although a second notice could be issued. The ground of appeal must be read as ‘no enforcement notice can be issued’ rather than ‘no enforcement action could be taken’ because a breach of condition notice can be served anytime if an enforcement notice is in effect for that breach even if a second enforcement notice would be out of time.39 A further enforcement notice may only be issued if the breach is within the original time limit or less than four years (five years in Northern Ireland) after an earlier enforcement notice was issued.40

For example, Hall Hunter Partnership v First Secretary of State [2006]  EWHC  3482 (Admin), [2007] JPL 1023 at para 11 per Sullivan J. 36 Town and Country Planning Act 1990, s  57; or Planning Act (Northern Ireland) 2011, s  24 (see para 2.54 above). 37 In Town and Country Planning Act 1990, s 171B; Planning Act (Northern Ireland) 2011, s 132. 38 Time limits and planning enforcement orders are discussed in Chapter 3 above. 39 Town and Country Planning Act 1990, s 171B(4)(a); Planning Act (Northern Ireland) 2011, s 132(4) (a). 40 Town and Country Planning Act 1990, s 171B(4); Planning Act (Northern Ireland) 2011, s 132(4). 35

121

7.26  Appeal against an Enforcement Notice 7.26 Ground (d) appeals tend to be evidence-heavy, relying on statements and oral evidence from occupiers, owners, visitors, customers and neighbours; contemporaneous documents such as building invoices; public records; aerial and other photographs. Preparing an appeal involves answering three questions: what evidence would be expected to exist on the timing of the operational development or material change of use; what evidence is there; and what explanation is there for anything that is missing? GROUND (E)

7.27

Ground (e) states:

‘(e) that copies of the enforcement notice were not served as required by section 172’.41

7.28 Copies of the notice have to be served on owners and occupiers and on any other person having an interest in the land which the authority believes will be materially affected by the notice.42 In R  (Stern) v Horsham District Council43 the High Court held that ground (e) applied only if a copy of the notice was not served at all but was inapplicable when it was served late. In that case the claimant had been served late (giving 26 rather than the minimum of 28 days before the notices were to take effect). Partly as a result of this, his appeals were filed late. The Court took a narrower interpretation of the scope of ground (e), allowing the proceedings and so avoiding the prohibition on judicial review of matters covered by grounds of appeal.44 7.29 If a person required to be served was not served, the Minister or Commissioner must quash the notice unless neither the appellant nor the person required to be served has been substantially prejudiced by the failure to serve.45 Where there is no substantial prejudice the Secretary of State has a discretion whether to quash. A good test of substantial prejudice is whether the case against the enforcement notice at appeal or in other possible proceedings could have been materially strengthened if that person had been served and so known of the notice. 7.30 Ground (e) tends to be of limited utility, as an appellant must know of the notice, whether or not it has been correctly served. A failure to serve another person can be corrected by the planning authority, if necessary, by the issue of a fresh notice. GROUND (F)

7.31

Ground (f) states:

‘(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach’.

In Northern Ireland the ground of appeal is ‘… as required by section 138 or, as the case may be, section 139’: Planning Act (Northern Ireland) 2011, s 143(3)(e). 42 Town and Country Planning Act 1990, s 172(2). Or an estate: Planning Act (Northern Ireland) 2011, ss 138(2), 139(3). 43 [2013] EWHC 1460 (Admin), [2013] PTSR 1502 at paras 40–47 per Leggatt J 44 Town and Country Planning Act 1990, s 285(1), see para 24.46. 45 Town and Country Planning Act 1990, s 176(5); Planning Act (Northern Ireland) 2011, s 144(3). 41

122

The right to appeal 7.36 7.32 The ground of appeal may be that the requirements restrict activities which are lawful or otherwise not covered by the notice, or alternatively that the breach or injury to amenity can be remedied by other means. It is necessary to identify whether the particular requirement in the notice is there to remedy a breach of control or injury to amenity.46 The present wording draws on, but does not replicate, recommendations in the Carnwath Report which were intended to provide ‘a broad discretionary power to deal with the effects of a breach’.47 7.33 Ground (f) has generated a considerable amount of case law, in part because of efforts to use it to sanction unlawful development when a ground (a) appeal and deemed application for planning permission have not been pursued because the fee has not been paid. 7.34 In Wyatt Bros (Oxford) Ltd v Secretary of State for the Environment, Transport and the Regions48 the Court of Appeal held that where the steps required by the enforcement notice were all for the purpose of remedying the breach of planning control, it was not possible to appeal on the ground that the steps or activities exceeded what was necessary to remedy an injury to amenity. The merits of not requiring the reversal of the breach of planning control should be tested on a ground (a) appeal. This approach also applies to individual steps in the notice: an appeal based on not being required to remedy harm to amenity can only be entertained where injury to amenity was the sole reason for the step.49 It is a misconception, therefore, to treat the merits of issuing an enforcement notice as solely about whether it is necessary to end injury to amenity and to turn the second limb of ground (f) into a freestanding appeal on the merits of the notice. 7.35 A grant of planning permission for part of the development enforced against under ground (a) may lead to consequential modifications under ground (f), confining the notice to what remains unlawful.50 Ground (a) is constrained to approve part or all of the matters contained in the enforcement notice. Under-enforcement planning permission under s 173(11) is similarly limited to matters in existence at the time the notice was issued and the subject of the notice, but not covered by steps or prohibitions. It was not possible, therefore, to deal with an unlawful conversion of a single family dwellinghouse into five self-contained flats, by varying the steps to require conversion to an acceptable three-flat scheme under ground (f) and for planning permission to then be granted as under-enforcement for the resulting dwellings.51 7.36 The ability to enforce against only part of the breach, or to require steps to be taken to render the development acceptable in planning terms, was discussed in Tapecrown Ltd v First Secretary of State52 but left the boundary between grounds (a) and (f) unresolved, relying more on the ability to use the two grounds in combination. The distinction is in Town and Country Planning Act 1990, s 173(3), (4). Enforcing Planning Control (1989) p 73, para 4.2. 48 [2001] EWCA Civ 1560, [2002] PLCR 18 at paras 26–28 per Kennedy LJ. The reasoning was followed in Mata v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin), [2013] JPL 546. 49 Miaris v Secretary of State for Communities and Local Government at paras 34, 35 per Lindblom LJ approving [2015] EWHC 2094 (Admin), [2015] 1 WLR 4333 at paras 7, 55, 56 per John Howell QC. 50 Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566, [2014] 2 EGLR 197 at paras 29, 31 per Richards LJ. 51 Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432, [2015] 1 P&CR 10. 52 [2006] EWCA Civ 1744, [2007] 2 P&CR 7 at paras 29–35 per Carnwath LJ. 46 47

123

7.37  Appeal against an Enforcement Notice GROUND (G)

7.37

Ground (g) states:

‘(g) that any period specified in the notice in accordance with section 173(9)53 falls short of what should reasonably be allowed’.

7.38 The period specified will not necessarily be the minimum in which it is possible to cease the activity or take the steps required. Often time will be given to make alternative arrangements, for example to find another site or for an orderly wind-down of the offending business. Conversely there may be cases where the harm caused is so great that an immediate cessation is required. 7.39 If an Inspector considers that an alternative scheme might be acceptable, but cannot be approved in the enforcement notice appeal then the time for compliance could be extended to allow a planning application to be made and the scheme properly explored.54 Appeals in respect of demolition in conservation areas 7.40 If the enforcement notice relates to the carrying out of relevant demolition in a conservation area without planning permission or in breach of a condition then a further ground of appeal for urgent works is available in England. By s 174(2C): ‘Where any breach of planning control constituted by the matters stated in the notice relates to relevant demolition (within the meaning of section 196D), an appeal may also be brought on the grounds that— (a) the relevant demolition was urgently necessary in the interests of safety or health; (b) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; and (c) the relevant demolition was the minimum measure necessary’.

This replicates the ground of appeal which had been available in respect of conservation area consent enforcement notices.55 Nullity 7.41 In the appeal process the Minister, Inspector or Commissioner can rule that an enforcement notice is so defective as to be a nullity and thus of no legal effect (such as failing to include a date for compliance: see Chapter 1). Strictly this is not a ground of appeal, and lacking legal effect the notice cannot be appealed against.56 If a Section 140(9) in Northern Ireland. Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432, [2015] 1 P&CR 10. 55 And which still applies for listed building enforcement notices. 56 Rhymney Valley District Council v Secretary of State for Wales [1985] JPL 27. The possibility that an enforcement notice may be a nullity is recognised in the fees regulations which provide for the return of any fee paid in that eventuality: Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, reg 10(12); Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015, reg  10(10)(c); Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(4). 53 54

124

How to appeal 7.44 potential appellant considers that the enforcement notice is a nullity then the prudent course is to appeal and raise nullity in the appeal. The nullity challenge should be raised as soon as identified in the appeal, set out as a discrete point in the grounds of appeal document and statement of case. 7.42 A very obvious defect on a notice, such as a failure to state when the notice would take effect, might lead to a ruling from the Inspectorate or Commission that the notice is a nullity in advance of any appeal hearing and no further steps be taken on the appeal.57 Other nullity issues will involve more careful consideration at the appeal itself by the Inspector or Commissioner. If that argument fails, the appellant can then rely on the grounds of appeal. 7.43 However, there is authority that a challenge to the lawfulness of a notice (or the decision to issue a notice) which falls short of a nullity cannot be raised on appeal to the Minister and has to be taken by judicial review.58 This may be because of an unlawful consideration of the expediency of taking action or acting for an improper purpose. HOW TO APPEAL Who determines appeals? 7.44 In England and Wales appeals are determined by the Minister or by an Inspector. An appeal determined by an Inspector is called a transferred appeal, transferred under the Town and Country Planning Act 1990, Sch 6. All enforcement notice appeals are transferred except appeals by statutory undertakers in respect of their operational land or land they hold or propose to hold for their undertaking (section 266 land).59 However, the Minister may direct that a particular appeal is determined by him or her.60 This is known as a recovered appeal and tends to occur only in the most important cases. In England the recovery criteria are set out in the Planning Practice Guidance. The most relevant to enforcement appeals are:61 •

proposals giving rise to substantial regional or national controversy;

•

proposals which raise important or novel issues of development control, and/or legal difficulties;

•

proposals for significant development in the Green Belt;

•

major proposals involving the winning and working of minerals;

•

proposals which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site;

•

proposals involving traveller sites in the Green Belt, as set out in a statement to Parliament on 17 January 2014.

See the Commission’s Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 40. 58 R v Wicks [1998] AC 92 (strictly obiter as this concerned a challenge in criminal proceedings), Britannia Assets (UK) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 1908 (Admin). 59 Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, reg 4. 60 Town and Country Planning Act 1990, Sch 6, para 1(2). 61 Reference ID: 16-005-20160713. See also R  Harwood, Planning Permission (Bloomsbury Professional, 2016) paras 17.58–17.63. 57

125

7.45  Appeal against an Enforcement Notice The written ministerial statement referred to concern as to whether ‘sufficient weight is being given to the importance of green-belt protection’.62 7.45

The Welsh criteria for recovered appeals include:63

•

proposals giving rise to substantial controversy beyond the immediate locality;

•

proposals which raise novel planning issues;

•

proposals which raise significant legal difficulties;

•

proposals to which a Central Government Department has objected.

7.46 Where an appeal is to be determined by the Minister, an Inspector will be appointed. The Inspector will conduct any hearing or inquiry and report in writing to the Minister. The appeal will then be determined by the Minister. 7.47 Northern Irish appeals are determined by the Planning Appeals Commission, usually by a single commissioner, although in some cases the commissioner may report to a panel of not fewer than four commissioners.64 How appeals are determined 7.48 In England and Wales an enforcement notice appeal is dealt with in one of three ways: (a)

by public local inquiry;

(b) by informal hearing; (c)

by written representations.

Northern Irish enforcement appeals are dealt with by formal hearing, informal hearing or written representations. 7.49 A public local inquiry (‘inquiry’) is held by an Inspector appointed by the Secretary of State or Welsh Ministers at a location near the subject land. This will usually be the local planning authority’s offices, but may be at a village hall or, for long-running inquiries, hotels or dedicated conference facilities. The appellant and the local planning authority will give evidence orally (though some written evidence may be taken as read), cross-examine opposing witnesses and make submissions to any Inspector. Other persons, such as local residents or other public authorities (‘third parties’), may also present their cases with witnesses and submissions, and may be allowed to cross-examine. The public and press may attend. An informal hearing takes place between the appellant, the local planning authority and any other persons in front of an Inspector. The hearing may be adjourned to continue discussion at the site. Determination by written representations is done on the basis of written submissions by the appellant, local planning authority and third parties. These will be considered by an Inspector. In all cases, the site will be visited by the Inspector. This may be unaccompanied, in a written representations case if the site can be seen Written Ministerial Statement (Brandon Lewis), 17 January 201, Col 35WS. Procedural Guide – Wales, Annex 10 (2017). 64 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 4. 62 63

126

How to appeal 7.52 adequately from the highway or other public vantage points. If the Inspector needs to enter private property, or a party wants to point out something particular and this is agreed, the site visit will be accompanied. Site visits on hearings and inquiries are accompanied. A representative of the appellant (or the appellant themselves) and a representative of the local planning authority will attend. An accompanied site visit is not a further opportunity to argue the case (this is distinct from adjournment of a hearing to the site, where further discussion is expected). Legal representatives do not usually attend site visits but those following hearings or inquiries should always get a report from their party’s representative on what had happened. Burden and standard of proof 7.50 The onus of establishing the legal grounds of appeal (grounds (b)–(e)) rests on the appellant,65 although in grounds (b) and (c) they are responding to the planning authority’s allegations of a breach of control. These matters have to be proved on the balance of probabilities, which is the civil standard. Strictly no burden of proof applies on a ground (a) appeal as to whether planning permission should be granted: that is a matter of judgment for the decision maker having regard to the material considerations. However, policy may put an onus on a party, usually the appellant, to demonstrate a state of affairs, such as a lack of market demand for the present use of the land.66 The planning judgments which inform the ground (a) decision are not necessarily taken on the balance of probabilities. As examples, a low possibility of an accident occurring or of an existing permission being built out may still be a weighty factor in the decision. 7.51 In practice though it is worth remembering the maxim that ‘he who asserts must prove’; parties are expected to try to make good their claims rather than rely on others having to disprove them. Parties should also assist the decision maker, and a failure to produce material which they ought to have in their possession will cast doubt on their contentions. As a basic approach, parties should put in front of the appeal decision maker the material on which they rely rather than expecting the Inspector to ask for it or investigate.67 Decisions rarely turn on the burden of proof in any event: all the evidence is to be evaluated and it is usually possible to decide which conclusion is more probable. Choosing an inquiry, informal hearing or written representations 7.52 The right to an oral hearing was withdrawn in England in amendments made by the Planning Act 2008.68 In 2014 the right to an oral hearing was also removed in Wales.69 By s  319A of the Town and Country Planning Act 1990, the Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404; Miles v National Assembly for Wales [2007]  EWHC  10 (Admin), [2007]  JPL  1236 at para  9 per Lloyd Jones J  and Akhtar v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin) at para 22 per Nathalie Lieven QC on ground (d) appeals. In practice the burden falls on the appellant on ground (f) or (g) appeals as well. 66 Parkhurst Road Ltd v Secretary of State for Communities and Local Government [2018] EWHC 991 (Admin) at para  48 per Holgate J, agreeing with Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin) at paras 48, 54 per Judge Gilbart QC. 67 West v First Secretary of State [2005 EWHC 729 (Admin) at paras 42–45 per Richards J. 68 Inserting Town and Country Planning Act 1990, s 175(3A). 69 Town and Country Planning Act 1990, s  175(3B), inserted by Town and Country Planning (Determination of Procedure) (Wales) Order 2014, SI 2014/2773, Sch 1, para 5. 65

127

7.53  Appeal against an Enforcement Notice Secretary of State in England shall decide whether a local inquiry, hearing or written representations are the most appropriate. This decision is made within seven working days from the receipt of a valid appeal70 and is in practice made by the Planning Inspectorate. In Wales the decision is made by the Inspectorate under s 319B71 in a much longer timescale, within six weeks from the starting date.72 The Welsh Ministers are required to ‘identify which, if any, matters are to be considered at a hearing or an inquiry’,73 leaving the potential for an appeal to be partly dealt with by a hearing/ inquiry and partly by written representations.74 They must give a notice which will:75 ‘(a) identify which, if any, matters are to be considered at a hearing or an inquiry; (b) identify matters on which the Welsh Ministers require further representations; (c) state whether such further representations are to be given in writing or at a hearing or inquiry; or (d) contain a statement that the Welsh Ministers intend to determine the application on the basis of written representations.’

7.53 Criteria for deciding the mode of determination of the appeal have to be published76 and for enforcement appeals are contained in Procedural Guide: enforcement notice appeals – England77 and Procedural Guide Wales:78 ‘Written representations – written representations would be appropriate if: •

the planning issues raised or, in an enforcement appeal, the grounds of appeal, can be clearly understood from the appeal documents and a site inspection (if required); or

•

the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters; or

•

in an enforcement appeal the alleged breach, and the requirements of the notice, are clear.

Hearing – a hearing would be appropriate if: •

the Inspector is likely to need to test the evidence by questioning or to clarify matters; or

•

the status or personal circumstances of the appellant are at issue; or

•

there is no need for evidence to be tested through formal questioning by an advocate or given on oath; or

•

the case has generated a level of local interest such as to warrant a hearing; or

•

it can reasonably be expected that the parties will be able to present their own cases (supported by professional witnesses if required) without the need for an advocate to represent them; or

Town and Country Planning (Determination of Appeal Procedure) (Prescribed Period) (England) Regulations 2009, reg 2. 71 Town and Country Planning Act 1990. 72 Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, reg 13. 73 Welsh Appeals Regulations, reg 14(1). 74 See also Welsh Appeals Regulations, reg 21 which refers to ‘combined proceedings’. 75 Welsh Appeals Regulations, reg 14(2). 76 Town and Country Planning Act 1990, ss 319A(6), 319B(6) in the respective nations. 77 Procedural Guide: enforcement notice appeals – England Annex G. Footnotes in the text are omitted. 78 Procedural Guide – Wales, Appendix 1. The footnotes are also omitted. 70

128

How to appeal 7.55 •

in an enforcement appeal, the grounds of appeal, the alleged breach, and the requirements of the notice, are relatively straightforward.

Inquiry – an inquiry would be appropriate if: •

there is a clearly explained need for the evidence to be tested through formal questioning by an advocate; or

•

the issues are complex; or

•

the appeal has generated substantial local interest to warrant an inquiry as opposed to dealing with the case by a hearing; or

•

in an enforcement appeal, evidence needs to be given on oath; or

•

in an enforcement appeal, the alleged breach, or the requirements of the notice, are unusual and particularly contentious.

Note – It is considered that the prospect of legal submissions being made is not, on its own, a reason why a case would need to be conducted by inquiry. Where a party considers that legal submissions will be required (and are considered to be complex such as to warrant being made orally), the Inspectorate requires that the matters on which submissions will be made are fully explained – including why they may require an inquiry – at the outset of the appeal or otherwise at the earliest opportunity.’

Examples of personal circumstances are given as ‘whether in traveller appeals the definition in Annex 1 of DCLG’s planning policy for traveller sites is met, or in agricultural dwelling appeals’.79 An example of a need for evidence on oath is ‘where witnesses are giving factual evidence about how long the alleged unauthorised use has been taking place’.80 7.54 The informal hearing procedure is able to accommodate legal representation and legal submissions. It is possible, although relatively unusual for written closing submissions to be delivered in informal hearings, although such a possibility may point towards holding an inquiry. An inquiry will be essential where cross-examination of witnesses or the giving of evidence on oath is necessary. The mode of determination can be changed, for example, following further representations by the parties to the Planning Inspectorate or if the Inspectorate or the appointed Inspector decides that the appeal cannot properly be dealt with by that method.81 An example of the latter situation would be if it becomes apparent at a hearing that cross-examination of witnesses is required. 7.55 The right to a hearing before a Commissioner is retained in Northern Ireland. A hearing (whether formal or informal) must be held if either the appellant or

Procedural Guide: enforcement notice appeals – England Annex G, footnote 9. The Welsh footnote 5 is to similar effect ‘whether in Gypsy and travellers’ site appeal(s) the definition in Welsh Government document “Travelling to a Better Future” and the Gypsy and Traveller Framework for Action and Delivery Plan is met, or in agricultural/rural enterprise dwelling appeals, whether the tests set out in TAN6 are satisfied’. 80 Procedural Guide: enforcement notice appeals – England Annex G, footnote 14; Procedural Guide – Wales, footnote 10. 81 See in Wales, Welsh Appeals Regulations, regs 25, 34, 46. The regulations permit steps from written representations to hearing, hearing to inquiry, inquiry to hearing or, in any case, to combined proceedings. 79

129

7.56  Appeal against an Enforcement Notice the authority who issued the notice (the council or the Department) request it.82 The Commission says that if a hearing is not requested, one ‘will normally be arranged where there are complex legal issues and significant factual disputes’.83 In choosing between formal and informal hearings, the Commission advise:84 ‘If a hearing is requested, the Commission will decide whether it is to be formal or informal, taking into account the preferences of the appellant and the planning authority, the nature and scale of the subject matter of the appeal, the likely complexity of the legal and technical issues and the number of third parties. The Commissions’ experience has been that in the vast majority of appeals, an informal hearing represents an effective and efficient method of gathering information in a non-confrontational atmosphere. Formal hearings are necessary only for particularly complex cases where issues need to be tested by formal questioning between opposing parties.’

PREPARING FOR AN INQUIRY, HEARING OR WRITTEN REPRESENTATIONS 7.56 Procedural requirements for inquiries are contained in the national Enforcement Notices and Appeals Regulations and the relevant procedural rules and regulations. In England these provisions are: •

for appeals determined by written representations, the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 (the English Written Representations Regulations);

•

for hearings, the Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002 (the English Hearings Rules);

•

for appeals determined by an Inspector following an inquiry, the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 (the English Inspectors Inquiries Rules); and

•

for appeals retained by or recovered by the Minister and determined following an inquiry, the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 (the English Inquiries Rules).

7.57 The Welsh provisions are all in the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (the Welsh Appeals Regulations). The first stages in all appeals are the same, so written representations are covered by Parts 2 and 4, hearings by Parts 2, 4 and 5, and inquiries by Parts 2, 4 and 6. The Northern Irish procedures are in the Commission’s Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals.

Planning Act (Northern Ireland) 2011, s 143(5). For the choice between informal and formal hearing, note the possibility that an informal hearing will not satisfy Art 6 of the European Convention on Human Rights: Re Stewart’s Application [2003] NICA 4 at para 20 per Carswell LCJ. 83 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 48. 84 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 53. 82

130

Stages in the appeal process 7.58 STAGES IN THE APPEAL PROCESS 7.58 The appeal processes run through a series of stages, designed to ensure that information and representations are submitted in a fair and orderly manner. Differences in the sequence are now more pronounced between the various nations than they are the modes of determination which are adopted. The various steps are summarised below. England

Wales

Northern Ireland

Submission of the appeal With the appeal

Grounds of appeal With appeal or within 14 days of requirement Appellant’s statement of case with the appeal

–

With the appeal or within seven days of receipt of the appeal

Local planning authority’s questionnaire

Within two weeks of starting date

Within five working days of starting date

Appellant’s statement of case

Six weeks from starting date (optional for written representations)

Previously submitted

Within four weeks from Commission request

Local planning authority’s statement of case

Six weeks from starting date

Four weeks beginning with the starting date

Within four weeks from Commission request

Third party representations

Six weeks from starting date

Four weeks beginning with the starting date

Within four weeks from Commission request

Replies to statements of case and comments

Nine weeks from starting date (or minimum two weeks from representation in written representations appeal

Proofs or statements of evidence

Four weeks before the inquiry

Four weeks before the inquiry

Not applicable

Statement of common ground

Four weeks before the inquiry

Not required, but encouraged

Not applicable.

Notice of the hearing/inquiry

At least four weeks before the hearing/ inquiry

At least four weeks before the hearing/ inquiry

No time limit in procedures

Starting date

Within a further two weeks (written representations and formal hearings only)

131

7.59  Appeal against an Enforcement Notice PRELIMINARY STAGES OF AN APPEAL 7.59 The initial stages of an enforcement notice appeal have similar elements whichever mode of determination is adopted, so these can be considered together. Documents may be sent electronically or in hard copy, and multiple copies are therefore only required for paper copies. The notice of appeal 7.60 There is no prescribed form for the notice,85 but standard forms are provided by the Planning Inspectorate and the Planning Appeals Commission. Different forms are used in the three nations. In Wales, appeals can be made in English or Welsh. An explanatory booklet, ‘Making your appeal: How to complete your enforcement appeal form’, provides assistance on completing the form. A copy can be obtained from the local planning authority or via the Planning Portal website.86 It is not obligatory to use the appeal form – the statutory requirement is simply that the appeal be in writing – but it is normal practice to do so. A separate form is used for each enforcement notice and each appellant. A copy of the relevant enforcement notice should be sent with each appeal form. Statement of appeal in England 7.61

In England an appellant is required to produce:87

‘a statement in writing— (i) specifying the grounds on which he is appealing against the notice; and (ii) setting out briefly the facts on which he proposes to rely in support of each of those grounds’.

7.62 If the statement is not included with the appeal, then it shall be delivered to the Secretary of State ‘not later than 14 days from the date on which the Secretary of State sends him a notice requiring him to do so’. The appeal may be dismissed if the information is not provided in this time.88 The details required by the standard appeal form will provide the information required by this provision. The existence of the further time also shows that a failure to provide this information with the notice of appeal does not render the appeal invalid. In Howard v Secretary of State for the Environment,89 an enforcement notice appeal was validly made by a letter that said that it was a formal notice of appeal and did not identify any grounds or facts relied upon. A similarly pragmatic approach was taken by the Court of Appeal in R  (McKay) v First Secretary of State;90 a notice of appeal was valid where the appellant had erroneously referred to an enforcement notice that had been withdrawn and the Planning Inspectorate was aware that he had intended to refer to a new enforcement notice. So an appeal could be submitted by letter: see the Commission’s Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 20. 86 See www.planningportal.gov.uk. 87 Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002, reg 6. Sub-paragraph (i) of the requirement is also in the Town and Country Planning Act 1990, s 174(4). 88 Town and Country Planning Act 1990, s 176(3)(a). 89 [1975] QB 235, CA. 90 [2005] EWCA Civ 774, [2005] 1 P & CR 19. 85

132

Preliminary stages of an appeal 7.67 7.63 In principle an applicant can later raise a ground which was not in the notice of appeal and the Minister or Inspector can determine an appeal on a ground which was not initially advanced.91 However this must all be dealt with fairly and the raising of a late issue may give rise to a costs award for wasted costs, even if it is a sound point. Full statement of case in Wales 7.64 In Wales the appellant is required to produce a ‘full statement of case’ comprising:92 ‘(a) a statement in writing specifying the grounds of the appeal, stating the facts on which the appeal is based and containing full particulars of the case the appellant proposes to put forward in relation to the appeal; and (b) copies of any supporting documents the appellant proposes to refer to or put forward in evidence.’

7.65 This must either be provided with the notice of appeal or sent so that it is received before the end of the period of seven days ‘beginning with the day on which the notice of appeal is received by the Welsh Ministers’.93 Since the first day of the period is the date of receipt, if the notice is received on a Tuesday, the last day for the full statement of case to be received would be the following Monday.94 A copy of the full statement of case and the notice of appeal must be sent by the appellant to the local planning authority as soon as reasonably practicable.95 Grounds of appeal in Northern Ireland 7.66

In Northern Ireland:96

‘An appeal under this section must be made by serving written notice of the appeal on the planning appeals commission before the date specified in the enforcement notice as the date on which it is to take effect and such notice must indicate the grounds of the appeal and state the facts on which it is based.’

It is necessary for grounds to be identified. The Commission are content for only a brief summary of the facts to be given on the appeal form as the full evidence will be provided with the statement of case.97 Filling in the form 7.67 The Planning Inspectorate has produced guides98 to completing the enforcement notice appeal forms, which are available on the Planning Portal website for England and Wales. 93 94 91 92

97 95 96



98

Chelmsford Rural District Council v Powell [1963] 1 WLR 123 at 132–133 per Lord Parker CJ. Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, reg 8(1). Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, reg 8(2), (3)(a). The prudent assumption is that the absence of postal delivery on Sundays does not extend the period for receipt by an extra day to Monday. Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, reg 8(4). Planning Act (Northern Ireland) 2011, s 143(4). Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 25. Making your appeal: How to complete your enforcement notice appeal form England (March 2019) and How to Complete & Submit Your Appeal in Wales.

133

7.67  Appeal against an Enforcement Notice •

Section A: appellant’s details: Fill in the appellant’s name, address and other details as required.

•

Section B: agent details: Fill in the details of any agent or professional representative who is running the appeal. The agent will be responsible for communicating with the Inspectorate and other parties.

•

Section C: local planning authority details: The enforcement notice should be identified with the date of issue, issuing local planning authority and the date it takes effect. If several enforcement notices were issued on the same day on the same land, the appellant should try to describe the particular notice, either by any reference given to by the authority (eg notice A) or by the description of the land or breach.

•

Section D: appeal site address: The full address and National Grid Reference (from an Ordnance Survey map) of the subject land should be provided. Questions are asked about any health and safety issues which might arise on a site visit (such as need for boots, hard hats, any particular dangers, use of ladders, any need to view from a height99 and wheelchair accessibility).100 The appellant’s interest in the land or status as a relevant occupier should be stated. In Wales the form asks whether works affect the setting of a listed building, whether the site is within an Area of Outstanding Natural Beauty, a conservation area or a green belt/green wedge.

•

Section E: grounds and facts: The grounds of appeal being pursued should be marked and brief submissions set out. The Planning Inspectorate say that the development should be discussed with the local planning authority before the appeal is submitted to identify the key areas of contention for the appeal.101 However the reasons for issuing the notice should make clear what is contentious. The form asks whether a draft planning obligation will be submitted, but does not require it with the form. The Inspectorate encourage the submission of evidence with the appeal form. It may be sensible to do this in appeals likely to be dealt with by written representations or a hearing, as the ability of third parties in particular to comment on later representations is limited.

•

Section F: choice of procedure: The appellant should indicate whether the written representations, hearing or inquiry procedure is preferred. Since there is no right to be heard in England or Wales, the appellant should explain, by reference to the published criteria, why the preferred procedure should be adopted. An estimate for the length of any inquiry should be given. Hearings ought not to last more than one day in any event. The appellant should also say whether the whole site can be seen clearly from the road or other public land. The question is whether the Inspector can see everything he or she ought to see without going onto private land (and in particular whether the Inspector will need to go inside buildings). If not, the Inspector will need to be accompanied by representatives of the appellant and the local planning authority whilst entering the appellant’s land (and possibly that of third parties).

•

Section G: Costs [Wales only]: The Welsh form asks the appellant to say whether it intends to submit a costs application and, if so, to set out its case.

One appeal was compromised where the Inspector had a fear of heights so did not view the site from all the points which were required. 100 Potential health and safety issues are identified, in question form, in Making your appeal p 15. 101 Making your appeal – How to complete your enforcement appeal form – England, p 6. 99

134

Preliminary stages of an appeal 7.69 •

Section G: the fee for the deemed planning application [section H  in Wales]: The questions are designed to check whether there is any reason for the fee not to be payable.

•

Section H: other appeals [section I in Wales]: The reference numbers of any related appeals which have not yet been decided should be included. This is to see if the cases can be determined together, although this will often not be possible if appeals are submitted at different times.

•

Environmental impact assessment: The local planning authority may have to consider whether environmental impact assessment would be required for any planning permission granted on an enforcement notice appeal prior to the issue of the notice. See Chapter 10.

Fees 7.68 A fee is payable before a ground (a) appeal or deemed planning permission application can be considered. The appellant will be notified of the amount due by the Planning Inspectorate or the Planning Appeals Commission. In England the fees are set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (the English Fees Regulations)102 and in Wales they are contained in the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 (the Welsh Fees Regulations). Northern Irish fees are contained in the Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015. All sets of regulations set out fees for planning applications which are based on the size of the development and the type of use. In England and Wales regulation 10 deals with the fees for deemed applications in enforcement appeals which double the fees due on a planning application for the development as stated in the enforcement notice.103 The whole sum is payable to the local planning authority for appeals against enforcement notices.104 7.69

Two fees are payable in Northern Ireland:

•

an appeal fee for all appeals, set at £126;105 and

•

where the deemed application for planning permission or ground (a) appeal arises for development carried out without planning permission, a fee calculated as if an application was made for planning permission to carry out the development stated in the enforcement notice.106 Whilst based on the fees for planning applications, a separate schedule is used which does not include the 2019 increases applied to planning applications and so is set slightly lower.107 No fee is charged for a deemed appeal in respect of a breach of condition.

SI 2012/2920. English Fees Regulations, Sch 1, para 1(4); in different terms, see Welsh Fees Regulations, reg 10(4). 104 English Fees Regulations, reg 10(3), (5); Welsh Fees Regulations, reg 10(5). 105 Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 9(1). 106 Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 3(2), Sch, para 2. 107 Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, Sch, Part 2, to be compared with the Planning (Fees) Regulations (Northern Ireland) 2015, as amended by the Planning (Fees) (Amendment) Regulations (Northern Ireland) 2019 from 17 June 2019. 102 103

135

7.70  Appeal against an Enforcement Notice Where the deemed application is for EIA development, the fee is £10,632 plus the amount that would otherwise be payable but limited to the maximum amount for the category of development specified in the regulations.108 7.70 Where the fee varies according to the site area, the Secretary of State or Welsh Ministers will calculate on the area alleged to be occupied by the allegedly unlawful development.109 However, in England and Wales no fee is payable for a deemed application if a planning application for the development subject to the enforcement notice: •

was made and not determined by the local planning authority before the notice was issued; or

•

was refused by the planning authority and an appeal made to the Secretary of State before the notice took effect but the appeal had not been determined before the notice was issued.110

7.71 The deemed application fee is payable by each person who has appealed.111 So, seven appellants would each have to pay a fee for their deemed application and any ground (a) appeal they make to be considered. Persons served with an enforcement notice should, if possible, agree for only one person to appeal on ground (a) and pursue the deemed application, with the financial and other backing of the remaining persons served. The other appellants could continue their appeals on the other grounds. 7.72 A separate fee is payable for each enforcement notice which is appealed. Where one notice alleges a number of different activities, the fee payable is the highest amount calculated. If the fee is not paid during the period specified, the planning permission ground of appeal lapses.112 The Secretary of State cannot accept fees paid after the specified period, although he may extend the period before it expires. In England and Wales the fee is repaid if the Secretary of State: 113 •

declines jurisdiction on the appeal on the ground that the enforcement notice does not comply with s 172;

•

dismisses the appeal on the basis that the appellant has failed to give the information required by s 174(4);114

•

allows the appeal because the local planning authority failed to provide the information or submissions required by s 175(1)(a), (b), (d) and the relevant Enforcement Notices and Appeals Regulations; or

Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 7. 109 The Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015 calculate the fee on the area subject to the enforcement notice: Sch, para 4. 110 English Fees Regulations, reg 10(7); Welsh Fees Regulations, reg 10(9). 111 English Fees Regulations, reg  10(4); Welsh Fees Regulations, reg  10(5); Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 9(3). 112 Town and Country Planning Act 1990, s 177(5A); Planning Act (Northern Ireland) 2011, s 145(6). 113 English Fees Regulations, reg 10(8); Welsh Fees Regulations, reg 10(10). 114 Provision of grounds of appeal and brief facts. The deemed application fee is repayable in these circumstances in Northern Ireland: Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(1). 108

136

The Inspectorate’s actions on receiving the appeal 7.76 •

decides that the enforcement notice is a nullity.115

7.73 If the local planning authority withdraws the enforcement notice before it takes effect, the fee is repayable.116 In all these circumstances the Secretary of State has not been able to determine the merits of the appeal. 7.74 The fee is also refunded if the appeal is withdrawn at least 21 days before the inquiry date or, for written representations, the site visit date.117 Additionally if the Secretary of State allows the appeal: •

on any of grounds (b)–(e) (that there was no actionable breach of planning control or the enforcement notice was not properly served);118 or

•

because the notice is invalid, or it contains an informality, defect or error which cannot be corrected by the Secretary of State under s 176(1),

the fee is repaid.119 7.75 A partial refund is obtained if the notice is varied (otherwise than by planning permission in the appeal) and the fee due for the matters in the varied notice is less than that paid.120 If a ground (a) appeal succeeds in Wales, with planning permission being granted, then half of the fee is refunded.121 THE INSPECTORATE’S ACTIONS ON RECEIVING THE APPEAL 7.76 On receiving the appeal, the Planning Inspectorate will check that it is validly made, exercising the Minister’s powers. If the Minister refuses to accept an appeal, this decision can be challenged by judicial review. The Secretary of State or Welsh Ministers will send the appeal form to the local planning authority. Formally, the Minister’s duty in England to notify the authority arises when the regulation 6 statement of appeal is received.122 The authority is told that an appeal has been made and is sent the appeal along with the regulation 6 statement of the grounds. In practice that is the appeal form. Foreshadowing the approach to security matters, the Minister is not obliged to:123 English Fees Regulations, reg  10(12); Welsh Fees Regulations, reg  10(10)(c). Repayment of the fees are due in Northern Ireland if the Commission decide that the notice is a nullity: Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(4). 116 English Fees Regulations, reg  10(12); Welsh Fees Regulations, reg  10(10)(c). Both the appeal and deemed application fees are repaid if the council or the Department withdraw the enforcement notice before it takes effect: Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(4). 117 English Fees Regulations, reg 10(9); Welsh Fees Regulations, reg 10(10)(b). The deemed application fee is repayable if the appeal is withdrawn at any time before the hearing or written representations site inspection in Northern Ireland: Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(2). 118 A refund of the deemed application fee is also due in Northern Ireland in such cases: Planning Fees (Deemed Planning Applications and Appeals) Regulations (Northern Ireland) 2015, reg 8(5). 119 English Fees Regulations, reg 10(13); Welsh Fees Regulations, reg 10(12). Unless the Minister issues a lawful development certificate or, in Wales, the appeal concerns the use of land as a caravan site. 120 English Fees Regulations, reg 10(14); Welsh Fees Regulations, reg 10(14). 121 Welsh Fees Regulations, reg 10(13). 122 Enforcement Notice and Appeals Regulations, reg 7(1). 123 Enforcement Notice and Appeals Regulations, reg  7(2); Welsh Enforcement Notice and Appeals Regulations, reg 6(2). 115

137

7.77  Appeal against an Enforcement Notice ‘disclose information as to national security or the measures taken or to be taken to ensure the security of any premises or property where, in the Secretary of State’s opinion, public disclosure of that information would be contrary to the national interest.’

7.77 The local planning authority is then required to provide a certified copy of the enforcement notice and the names and addresses of those served to the Secretary of State. It must comply within 14 days of notification of the appeal.124 If the local planning authority fails to comply, the Secretary of State or Welsh Ministers may quash the enforcement notice.125 This is very rarely done and the Minister will give the authority seven days’ notice of the intention to quash, giving it time to provide the information or explain itself.126 The starting date 7.78 Shortly after an appeal is received, the Secretary of State or Welsh Ministers will set a ‘starting date’, which is the date from which various obligations to produce submissions run. Whilst the regulations refer to the ‘starting date’, the point is in practice known as the ‘start date’. In England the starting date is the later of:127 •

the date that the Secretary of State gives notice under reg 10 of the Enforcement Notices and Appeals Regulations that he has all the documents necessary to entertain the appeal; or

•

the date that notice is given that the appeal would be dealt with by a hearing or inquiry.128

7.79 In Wales the starting date is that identified by the Welsh Ministers when giving notice to the appellant and the local planning authority, once they have received all the documents they require to enable them to consider an appeal and any fee.129 It need not be the date of notification. 7.80 Notice of the starting date, the reference number of the appeal, the Minister’s address for communications about the appeal and the grounds of appeal is to be given by the Minister as soon as practicable after receipt of the written notice of appeal.130 7.81 There is no statutory starting date in Northern Ireland, but the Commission will write to the parties setting out a timetable.

Town and Country Planning Act 1990, s 175(1)(d); Enforcement Notices and Appeals Regulations, reg 8; Welsh Enforcement Notice and Appeals Regulations, reg 7. 125 Town and Country Planning Act 1990, s 176(3)(b). 126 Welsh Office Circular 24/97 Annex 4, para 2.25. 127 Enforcement Notices and Appeals Regulations, reg  9(3). The Welsh provisions are similar: Welsh Enforcement Notices and Appeals Regulations, reg 8(3). 128 This is formal notice under r 4 of the Hearings Rules, r 4 of the Inspectors Inquiries Rules or r 4 of the Inquiries Rules. 129 Welsh Appeals Regulations, reg 15. 130 English Written Representations Regulations, reg 4; English Hearings Rules, r 4(1), English Inquiries Rules, r 4(1); English Inspectors Inquiries Rules, r 4(1); Welsh Appeals Regulations, reg 15(2). 124

138

The Inspectorate’s actions on receiving the appeal 7.84 Notice to interested parties 7.82 In England within two weeks of the starting date, the local planning authority shall give written notice of the appeal to:131 •

any person who has been served with a copy of the enforcement notice;

•

any ‘occupier of property in the locality in which the land to which the enforcement notice relates is situated’. The reference to the locality includes land outside the enforcement notice site and so provides for neighbour notification; and

•

any other person who in the authority’s opinion is affected by the breach of planning control.

7.83

The notice shall contain:

•

the name of the appellant and the address of the land to which the appeal relates;

•

the starting date;

•

the reference number allocated to the appeal;

•

a description of the alleged breach of control;

•

a statement specifying the reasons why it was expedient to issue the notice, the relevant development plan policies and proposals and the precise boundaries of the land;

•

the ground, or grounds on which the appeal is made;

•

a statement that representations may be submitted to the Secretary of State within six weeks of the starting date and the address to which such representations should be sent;

•

a statement that those representations will be sent to the appellant and the local planning authority; and

•

a statement that any such representations will be considered by the Secretary of State when determining the appeal unless that person withdraws them within six weeks of the starting date.

7.84 There is a duty in Wales to notify interested persons who are defined for enforcement purposes as ‘occupiers of properties in the locality of the site to which the enforcement notice … relates’ and ‘any person (other than the recipient of the enforcement notice) who, in the opinion of the local planning authority or hazardous substances authority, is affected by the matters alleged in the enforcement notice’.132 The notice should be received within five working days of the starting date133 and:134 ‘(a) state the name of the appellant and the address of the site to which the appeal relates; (b) describe the subject matter of the appeal;

English Written Representations Regulations, reg 5; English Hearings Rules, r 4(2); English Inquiries Rules, r 4(2); English Inspectors Inquiries Rules, r 4(2). 132 Welsh Appeals Regulations, reg 3(1). 133 Welsh Appeals Regulations, reg 17(1). 134 Welsh Appeals Regulations, reg 17(2). 131

139

7.85  Appeal against an Enforcement Notice (c) set out the matters notified to the appellant and the local planning authority under regulation 15(2) [the starting date, appeal reference number, Ministerial address for communications and the grounds of appeal]; (d) state that copies of any representations made by interested persons to the local planning authority will be sent to the Welsh Ministers and the appellant; (e) state that any such representations will be considered by the Welsh Ministers when determining the appeal unless they are withdrawn within 4 weeks of the starting date; (f) state that … further representations may be sent to the Welsh Ministers so as to be received within 4 weeks of the starting date and that any representations must be accompanied by two copies.’

7.85 In Northern Ireland the Commission will publish notice of the appeal in the local press and notify ‘the occupiers of premises within 90 metres of the appeal site which are located on neighbouring land’.135 The local planning authority’s questionnaire 7.86 The Secretary of State and Welsh Ministers have prepared standard questionnaires for local planning authorities to provide information in enforcement appeals. These are usually accessed and submitted online via the Planning Portal. The questionnaire will ask about the mode of determination of the appeal, whether the appeal fee has been paid, the nature of the notice, any previous applications or appeals, any circumstances which might require consultation with particular persons, environmental impact assessment screening, any relevant local planning policies and any other relevant information, which can include the reports and decisions authorising the enforcement notice. In England the questionnaire should be sent to the Secretary of State within two weeks of the starting date along with a copy of all the documents referred to in it.136 This is to be copied to the appellant. In Wales the questionnaire must be provided with a copy of the documents referred to in it and the enforcement notice within five working days of the start date.137 STATEMENTS OF CASE 7.87 Except where the full statement of case has been submitted with or shortly after the appeal in Wales,138 the next stage is for the parties to submit their statements of case. Six weeks after the starting date is a critical point in all forms of appeal as it is the main deadline for written submissions. Whilst the timescale is common to all procedures, the purpose, and so the content, of the submissions will vary depending upon the mode of determination. The English Enforcement Notice and Appeals Regulations require local planning authorities in all enforcement appeals to provide a written statement within six weeks from the starting point.139 This statement will indicate the submissions they propose to put forward on the appeal and contain a Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 46. 136 English Written Representations Regulations, reg 6; English Hearings Rules, r 4(2); English Inquiries Rules, r 4(2); English Inspectors Inquiries Rules, r 4(2). 137 Welsh Appeals Regulations, reg 16. 138 Welsh Enforcement Notice and Appeals Regulations, reg 8. 139 Enforcement Notice and Appeals Regulations, reg 9. 135

140

Statements of case 7.92 summary of the authority’s response to each of the grounds of appeal raised and say whether they would be prepared to grant planning permission and any conditions that ought to be imposed. If the local planning authority fails to serve a statement or statement of case as required by the Rules and Regulations, the Secretary of State may quash the enforcement notice.140 If the enforcement notice was issued by the Secretary of State or Welsh Ministers then they must produce a similar statement.141 7.88 For written representations, the appellant is able to make further representations (supplementing those in the appeal documentation) by the six-week point, but is not required to do so.142 As appeals have to be dealt with fairly, appellants should try to ensure that new material is with the notice of appeal rather than the sixweek statement. 7.89 In England the local planning authority has to produce its six-week statement under the Enforcement Notice and Appeals Regulations but may also make further written representations under reg 7(4) of the English Written Representations Regulations. Those further representations have to include the same matters as the Enforcement Notice and Appeals Regulations statement. The duplication is entirely pointless. An even stranger part of the regulations is that if the authority just wants to rely on its Enforcement Notice and Appeals Regulations statement and its questionnaire response, it has to say so with the questionnaire, even though none of the other statements would be due for a further four weeks at least.143 In reality an authority should simply put in a six-week statement which can refer to both regulations. 7.90 The six-week statements from the main parties have to be dated and ‘submitted to the Secretary of State on the date they bear’,144 presumably to stop parties submitting late and blaming the post for the delayed arrival of the representations. 7.91 For hearings, the appellant and the local planning authority are required to send two copies of their hearing statement to the Planning Inspectorate in this period.145 A hearing statement:146 ‘means, and is comprised of, a written statement which contains full particulars of the case which a person proposes to put forward at a hearing, and copies of any documents which that person intends to refer to or put in evidence’.

7.92 There is no further procedure for proofs or statements of evidence to be submitted so the hearing statement and the documents with it have to include all the evidence which the party intends to submit, whether this would be statements from individuals or reference to documents. There is no formal calling of witnesses at a hearing so there is no organised mechanism for bringing further evidence forward at that point. New facts will no doubt emerge at a hearing, but this is likely to be in Town and Country Planning Act 1990, s 176(3)(b). The requirements are modified by the Enforcement Notice and Appeals Regulations, reg 11 and the Welsh Enforcement Notice and Appeals Regulations, reg 11. 142 Written Representations Regulations, reg  7(1), (3); Welsh Written Representations Regulations, reg 7(1), (3). 143 This drafting should be simplified when the enforcement regulations are next revised. 144 Written Representations Regulations, reg 7(5) and repeated in the other English provisions. 145 English Hearings Rules, r 5(1). 146 English Hearings Rules, r 2(1). 140 141

141

7.93  Appeal against an Enforcement Notice response to questions or points raised. The hearing statement therefore needs to be comprehensive in the light of the other material already submitted in the appeal. Any other person notified by the local planning authority of the appeal under r 4(2)(b) of the Hearings Rules is required to send three copies of their written comments in the same period.147 7.93 If an inquiry is held, the local planning authority and appellant must serve two copies of a statement of case on the Secretary of State and copies on any other person served with the enforcement notice.148 The statement is to be served within six weeks of the starting date unless the Minister has instructed a pre-inquiry meeting to be held, in which case the statement is required within four weeks of the conclusion of that meeting. In the inquiry context the statement of case:149 ‘means, and is comprised of, a written statement which contains full particulars of the case which a person proposes to put forward at an inquiry, and a list of documents which that person intends to refer to or put in evidence’.

7.94 An inquiry statement of case sets out, in relatively summary form, the arguments that will be advanced. It would not itself contain evidence – that is left to the documents referred to or later proofs of evidence. It is therefore similar to a pleading in legal proceedings (although there is no requirement for the document to be verified by a statement of truth). The Planning Inspectorate advise that a statement of case:150 ‘••

must include a list of documents, maps and plans the appellant intends to rely on;

•

should describe, but not contain, the evidence;

•

should refer to any policies or other documents not referred to by the local planning authority but considered to support an appellant’s case;

•

should not, normally, in the local planning authority’s statement introduce additional policies, except where the local policies have changed since the notice was issued;

•

should set out both the planning and legal arguments which a party intends to put forward at the inquiry;

•

should cite any statutory provisions and case law they intend to use in support of their arguments;

•

should briefly describe any suggested mitigating factors;

•

should focus on the areas of differences – as the areas of agreement will be in the statement of common ground.’

The statement should briefly say what the case will be rather than simply the topics which will be covered. For example, ‘the site is at the end of a single track road, which is well-used by walkers and horse riders’ but not ‘the location of the site will be described in evidence’.

149 150 147 148

English Hearings Rules, r 5(3). Inquiries Procedure Rules, r 8(1), (3); Inspectors Inquiries Rules, r 6(1), (3). Rule 2(1) of the English Inquiries Rules and Inspectors Inquiries Rules. Procedural Guide: Enforcement notice appeals – England (23 March 2016), para D11.

142

Statements of case 7.97 Local planning authority statements of case in Wales 7.95 In all Welsh enforcement notice appeals, local planning authorities are required to submit a ‘full statement of case to the Welsh Ministers which, together with the questionnaire and its accompanying documents, will be deemed to comprise the local planning authority’s representations in relation to the appeal’.151 This must be submitted within four weeks of the starting date.152 The authority’s full statement of case must contain:153 ‘(aa) a response to each ground of appeal pleaded by the appellant; (bb) an indication of whether the local planning authority would be prepared to grant— (bba) planning permission for the matters alleged in the enforcement notice to constitute a breach of planning control; (bbb) listed building consent or conservation area consent for the works to which the listed building enforcement notice or conservation area enforcement notice relates, as the case may be; (bbc) hazardous substances consent for the presence on, over or under the land of any quantity of hazardous substances to which the hazardous substances contravention notice relates; (cc) particulars of the conditions, if any, they would wish to impose on any permission or consent they would be prepared to grant; (dd) full particulars of the case the local planning authority proposes to put forward in relation to the appeal; and (ii)

copies of any documents the local planning authority proposes to refer to or put in evidence’.

The full statement of case will be copied by the Welsh Ministers to the appellant and any other person served with a copy of the enforcement notice.154 Statements of case in Northern Ireland 7.96 Statements of case are to be submitted by the appellant and the council and can be submitted by third parties. Time for submitting runs from notice by the Commission giving four weeks in written representations cases, eight weeks in informal hearings and 12 weeks for formal hearings.155 7.97 There is no requirement for statements of common ground, but parties are encouraged to seek to agree facts and methodologies and identify areas of agreement in their statements of case.156 If the appeal seeks planning permission for the works or use, then the Council’s statement of case should append draft conditions in the event that permission is granted.157 153 154 155

Welsh Appeals Regulations, reg 22(3)(b) and see 22(5). Welsh Appeals Regulations, reg 22(6). If sent in hard form, two copies are required. Welsh Appeals Regulations, reg 3(1). Welsh Appeals Regulations, reg 22(7). Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 51. 156 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 59. 157 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 60. 151 152

143

7.98  Appeal against an Enforcement Notice THIRD PARTY REPRESENTATIONS 7.98 For present purposes third parties are anyone who wishes to participate in the appeal process other than the appellant and the local planning authority. They may include neighbouring local authorities, statutory bodies, commercial rivals, neighbours and local groups. They can make their own representations in an appeal in these ways: •

written representations – making written submissions;

•

hearings – written submissions, oral submissions at the hearing or handing written representations to the Inspector at the hearing;

•

inquiries – written submissions, becoming a rule 6 party and being entitled to take a full role at the hearing including proofs of evidence, making oral submissions as allowed by the Inspector or handing written representations to the Inspector at the hearing.

7.99 In all appeals the time limit for making written submissions is six weeks from the starting date in England, and (for notified interested persons) four weeks from that date in Wales.158 The Welsh Appeals Regulations contain no time limit for other third parties who have not been notified, but they should aim to make representations within that period or as soon as they can if they find out about the appeal later. If submitting paper representations, three copies are required, two of which are for the Welsh Ministers to send to the appellant and the local planning authority.159 7.100 In Northern Ireland persons must respond to the Commission’s notification letter or press notice within 14 days.160 If they do, they will be given a further opportunity to make written representations or to attend any hearing or accompanied site visit.161 7.101 Additionally, third parties may be called by other parties to give evidence, for example evidence of what happened on a site or the calling of a statutory consultee by a local planning authority in support of its case. The major parties may also submit written evidence from third parties as part of their cases. Local planning authorities would be expected to hand in late representations, which they had received in hearings or inquiries. 7.102 A third party may only participate in a hearing if allowed by the Inspector at the hearing to do so or in Wales invited by the Welsh Ministers to do so.162 7.103 In England a third party who intends to play a very active role in the inquiry, including cross-examining witnesses, ought to seek what is informally referred to as rule 6 status.163 This requires them to serve a statement of case (for planning appeals Welsh Appeals Regulations, reg 23(1). Welsh Appeals Regulations, reg 23(2), (3). 160 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 46. 161 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 47. 162 English Hearings Rules, r 9(2); Welsh Appeals Regulations, reg 31(1), (2). 163 See the Planning Inspectorate’s guide Apply for rule 6 status on an enforcement or lawful development certificate appeal (September 2019). 158 159

144

Third party representations 7.106 this is under rule 6 of the Inquiries Rules, hence the name) and produce proofs of evidence to the same timescale as the main parties. They are then entitled to appear and more importantly are seen as having a more formal role in the proceedings. A person can only become a rule 6 party with the Secretary of State’s agreement, so merely volunteering a statement of case will not be enough. In some cases the Minister will impose rule 6 status on a party, usually if they appear to be preparing a substantial case which the parties and Inspectorate need to know about in advance. Consequently the Minister may require any other person who has informed him of an intention to appear at the inquiry to serve a statement of case within four weeks on him and any person specified by the Minister.164 The Minister or an Inspector may require that third party to provide further information and copy it to the persons served with the statement of case.165 Third parties who serve statements of case on the local planning authority must provide copies of the relevant parts of documents in their list of documents, unless they are already available for inspection with other statements of case.166 7.104 In Wales a third party may be invited to take part in the inquiry by the Welsh Ministers.167 They are not required to produce a statement of case, although they will usually have made representations in the initial four-week period. Further information to clarify their case could then be required by the Welsh Ministers.168 Persons invited to take part are required to provide written statements in advance.169 Comments on third party representations 7.105 The Planning Inspectorate will copy third party representations which they receive to the appellant and local planning authority. In England in written representations cases the appellant and the authority may comment on those representations in a timescale offered by the Inspectorate, which shall be not less than two weeks.170 In hearings the appellant and local planning authority may respond to any representations made in the six-week period by third parties as part of any response at the nine-week stage.171 7.106 In all enforcement appeals in Wales the appellant, local planning authority and interested persons may send comments on each other’s representations to the Welsh Ministers to be received within six weeks beginning with the starting date. This is the representation period.172

English Inquiries Rules, r 8(6); English Inspectors Inquiries Rules, r 6(6). If provided in hard copy, three copies should be sent to the Planning Inspectorate to allow copies to be sent to the appellant and local planning authority. 165 English Inquiries Rules, r 8(8), (10); English Inspectors Inquiries Rules, r 6(8), (10). 166 English Inquiries Rules, r 8(11); English Inspectors Inquiries Rules, r 6(11). 167 Welsh Appeals Regulations, reg 38(1). 168 Welsh Appeals Regulations, reg 9(1). 169 Welsh Appeals Regulations, reg 44. 170 English Written Representations Regulations, reg  8(2). Regulation 8(3) empowers the minister to disregard comments made by the local planning authority on third party representations where the authority have failed to notify third parties of their right to comment. This is a wholly unjustified sanction which misses the point that a failure of notification should be corrected. 171 English Hearings Rules, r 5(4). 172 Defined in Welsh Appeals Regulations, reg 3(1). The right to make representations is in reg 24(1). 164

145

7.107  Appeal against an Enforcement Notice RESPONSES TO STATEMENTS AND REPRESENTATIONS 7.107 Within nine weeks of the starting date in England the appellant and the local planning authority are able to send comments on each other’s six-week statement. In hearing cases they may also comment on third-party representations and in inquiries, on any other party’s statement of case.173 The rules only allow for the appellant and local planning authority to comment at the nine-week point. Whilst in hearings and inquiry cases other parties do have a later opportunity to comment at the hearing, the Written Representations Regulations do not give third parties any further role in the appeal. This can produce unfairness if new material is produced at the six-week point.174 In those circumstances the Inspectorate should ensure that all persons who have shown an interest are allowed to make further comments. 7.108 In any Welsh appeal the appellant, the local planning authority, and interested persons may send written comments on each other’s representations to the Welsh Ministers so as to be received within the representation period which is six weeks beginning with the starting date.175 In Northern Ireland two weeks are allowed for the submission of rebuttal evidence in written representations and formal hearing cases.176 There is no written opportunity provided for a response in informal hearings, as comments can be made at the hearing itself. LATER RULE 6 PARTY COMMENTS 7.109 In England a third party who has become a rule 6 party may comment on another party’s statement of case up to four weeks before the inquiry date.177 INSPECTION OF DOCUMENTS 7.110 The local planning authority must allow any person to inspect and, where practicable, copy: •

any statement of case, written comments, further information or other document served on them under reg 8; and

English Inquiries Rules, r 8(14); English Inspectors Inquiries Rules, r 6(14). Three written representations cases where planning appeal decisions have been quashed because of such unfairness are Phillips v First Secretary of State [2003] EWHC 2415 (Admin), [2004] JPL 613, when details of the alternative site search area for a mobile phone antenna were provided by a telecommunications operator at the six-week stage, Ashley v Secretary of State for Communities and Local Government [2012] EWCA Civ 559, [2012] JPL 1235, where the developer submitted a noise report at that point and Carroll v Secretary of State for Communities and Local Government [2015] EWHC 316 (Admin) where the appellant changed her description of the existing use from B1 office to B8 storage: see Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) at paras 21.28–21.32. 175 Welsh Appeals Regulations, reg 24(1), 3(1). 176 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 51. 177 English Inspectors Inquiries Rules, r 6(15); English Inquiries Rules, r 7(15). 173 174

146

Further information in inquiry cases 7.113 •

the planning authority’s completed questionnaire, statement of case and the documents in the list of documents with the statement or otherwise served by them under r 8.178

This requirement can be met by giving notice of where on a website the documents may be accessed.179 7.111 The local planning authority and the appellant may require the other to copy any document, or the relevant part of any document, in the list of documents in the statement of case to them.180 FURTHER INFORMATION IN INQUIRY CASES 7.112 The Minister may require any person who has served a statement of case to provide further information about the matters in the statement.181 This is primarily a mechanism for seeking clarification about a party’s case and the request will often be initiated by another party. A party who does not understand what case the opposition are going to advance should first try to clarify it in correspondence and if that fails, might ask the Minister to make a request. Further information in Welsh cases 7.113 In any Welsh appeal the Welsh Ministers may request further representations from the appellant, the local planning authority or any interested person who made representations within four weeks of the starting date.182 These may include answers to specific questions,183 which might have been suggested by another party. ‘Each representation on any particular matter’ submitted following a request must not exceed 3,000 words and must be submitted in the time and manner specified.184 That leaves open whether a request may include more than one matter, to which separate word counts apply. The word limit may be increased in any particular case,185 although a summary of up to 1,500 words would then also have to be submitted.186 Welsh Ministers may otherwise disregard representations over 3,000 words or return them for editing down.187 Representations may also be disregarded if they are late, received otherwise than in the specified manner, vexatious or frivolous, or ‘relates to the merits of policy set out in a development plan or any relevant policy statement made or published by the Welsh Ministers’.188

In Wales inspection is permitted of any document sent by or to the local planning authority in accordance with the regulations: Welsh Appeals Regulations, reg 10(1). 179 English Hearings Rules, r 5(6A); English Inquiries Rules, r 8(13A); English Inspectors Inquiries Rules, r 6(13A); Welsh Appeals Regulations, reg 10(2). 180 English Inquiries Rules, r 8(5); English Inspectors Inquiries Rules, r 6(5). 181 English Inquiries Rules, r 8(8); English Inspectors Inquiries Rules, r 6(8). 182 Welsh Appeals Regulations, reg 9(1). 183 Welsh Appeals Regulations, reg 9(2)(b). 184 Welsh Appeals Regulations, reg 9(3). 185 Welsh Appeals Regulations, reg 9(6). 186 Welsh Appeals Regulations, reg 9(7). 187 Welsh Appeals Regulations, reg 9(4)(b), (5). 188 Welsh Appeals Regulations, reg 9(4)(a), (c), (d). 178

147

7.114  Appeal against an Enforcement Notice 7.114 When the Welsh Ministers give notice of the mode of determination of the appeal (which is by six weeks after the starting date) they may identify matters on which they want further representations, and specify whether these would be in writing or orally.189 Pre-inquiry meetings 7.115 A  pre-inquiry meeting is a procedural meeting intended to enable the Inspector to explain how the inquiry will run, obtain information from the parties to assist with programming and to allow the parties to raise procedural issues. Preinquiry meetings would usually only be held for long inquiries. Where the appeal is to be determined by the Secretary of State in England, he shall hold a pre-inquiry meeting if the inquiry is expected to last for four days or more (unless the meeting is considered unnecessary) and for any shorter inquiry where a meeting is considered necessary.190 In Inspector-determined appeals, the Inspector is subject to the similar duties to consider calling a pre-inquiry meeting.191 In a recovered jurisdiction case, if the Minister has not called a pre-inquiry meeting, the Inspector may do so.192 7.116 If the Minister calls a pre-inquiry meeting, the appellant and local planning authority must produce an outline statement within eight weeks of the starting date.193 The Minister may also require any other person who intends to take part in the appeal to produce an outline statement within four weeks of any request.194 7.117 In Wales the Inspector may call a pre-inquiry meeting ‘to consider what may be done with a view to securing that the inquiry is conducted efficiently and expeditiously’.195 7.118 In English ministerial cases, the Minister will notify the appellant and local planning authority of the pre-inquiry meeting and the authority will then advertise it.196 Where an Inspector calls a pre-inquiry meeting, the Planning Inspectorate will give notice to the appellant, the local planning authority, any person entitled to appear and any other person whose attendance appears desirable.197 At least two weeks’ notice of Welsh pre-inquiry meetings is given to the appellant, the local planning authority and any person invited to the meeting.198 7.119 Pre-inquiry meetings should resolve the order in which evidence is to be heard, which parties make opening statements and the detail of document numbering and arrangements for their circulation. Venue arrangements should be clarified where possible (finding the venue being the responsibility of the local planning authority

Welsh Appeals Regulations, reg 14(2). English Inquiries Rules, r 6(1). As formulated, the rules mean that a pre-inquiry meeting is held if the Minister thinks it is necessary, but subject to a presumption to do so in respect of longer inquiries. 191 English Inspectors Inquiries Rules, r 7(2). 192 English Inquiries Rules, r 9(1). 193 English Inquiries Rules, r 6(2)(c). 194 English Inquiries Rules, r 6(4), (5). 195 Welsh Appeals Regulations, reg  40(1). The Inspector may subsequently call further pre-inquiry meetings, giving whatever notice is appropriate: reg 40(3). 196 English Inquiries Rules, r 6(2)(a), (b). 197 English Inquiries Rules, r 9(2); English Inspectors Inquiries Rules, r 7(3). 198 Welsh Appeals Regulations, reg 40(2). 189 190

148

Further information in inquiry cases 7.122 in England and Wales199). The main parties should be able to indicate the number of witnesses they will have and the topics they will cover. For programming purposes, the Inspector may ask how long the parties will take to call their witnesses-in-chief. However the critical programming matter is how long cross-examination will take, and that is difficult to judge until the evidence has been seen. It is also an opportunity for the parties to raise any procedural points. These tend to be requests for clarification of statements of case or attempts to obtain documents. Statement of matters in England 7.120 If the appeal is being determined by the Minister, then he must send a statement of the matters about which he particularly wishes to be informed in considering the appeal either with notice of any pre-inquiry meeting he calls or within 12 weeks of the starting date.200 An Inspector may produce a statement of matters in a delegated inquiry case.201 Timetable 7.121 If an English inquiry is expected to last for four days or more, the Inspector is required to prepare a timetable for the proceedings.202 A timetable can be prepared for shorter inquiries (and any inquiries in Wales) and the timetable may be changed at any time. This timetable may alter the dates for sending proofs and statements of evidence.203 The timetable for the hearing does not set absolute deadlines for particular stages, but the Inspector would wish to try to keep to the schedule. It may be particularly useful for parties who do not intend to attend throughout the hearing, so they know when they will be involved. Persons entitled to appear at the inquiry or hearing 7.122 In England, the following persons are entitled to appear as of right at the inquiry:204 (a)

the appellant;

(b) the local planning authority;205 (c)

the following, if the site is in their area: (i)

a county or a district council;

(ii) an enterprise zone authority; (iii) the Broads Authority; (iv) a housing action trust; The Commission arranges the venue for hearings in Northern Ireland, with those relating to sites in Belfast and the surrounding area usually being held at the Commission’s offices: Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 54. 200 English Inquiries Rules, rr 6(2)(a) and 8(12). 201 English Inspectors Inquiries Rules, r 7(1). 202 English Inquiries Rules, r 10; English Inspectors Inquiries Rules, r 8. 203 English Inquiries Rules, r 10; English Inspectors Inquiries Rules, r 8; Welsh Appeals Regulations, reg 41(3). 204 English Inquiries Rules, r 13(1); English Inspectors Inquiries Rules, r 11(1). 205 The local planning authority might be a national park authority or an urban development corporation. 199

149

7.123  Appeal against an Enforcement Notice (d)

if in an area previously designated as a new town, the Homes and Communities Agency;

(e)

any person on whom a copy of the enforcement notice has been served; and

(f) any other person who has served a statement of case or outline statement having been required to do so by the Secretary of State in accordance with the rules. 7.123 In hearing cases, those entitled to appear are a simplified list of public authorities (albeit for no obvious reason) and of course there are no other parties required to produce statements of case in hearings. Those entitled to appear at hearings are therefore the appellant, the local planning authority, anyone served with a copy of the enforcement notice and anyone having an interest in the land subject to the notice.206 7.124 The Welsh inquiry provisions only grant a right to appear to the appellant and the local planning authority.207 The Welsh Ministers may invite any other person to appear208 and both the Ministers and the Inspector may permit any other person to appear and give evidence.209 7.125 Government departments and agencies, such as the Department for the Environment, Food and Rural Affairs or the Environment Agency, are not entitled to appear as of right. It would, however, be remarkable for such bodies not to be allowed to play a full role, subject to preparing outline statements, statement of case and proofs as required under the rules. Parish and town councils and neighbourhood fora are not entitled to appear but ought normally to be allowed to do so. If they wish to do more than read out a statement, they might wish to seek rule 6 status. 7.126 The Inspector may permit any other person, including government departments, to appear at the inquiry or hearing210 and in England ‘such permission shall not be unreasonably withheld’.211 In practice, Inspectors will permit anyone with something to say that appears relevant to speak. Where a person has evidence relevant to the legal grounds it may be particularly important that it is heard and tested orally. The Inspector will normally ask at the start of the inquiry who wishes to speak. If other persons indicate during the inquiry that they wish to speak they will normally be heard, but all third parties must speak before the appellant’s closing submissions. 7.127 There might be a distinction between the planning permission application in ground (a) and the factual/legal inquiries of grounds (b)–(d). On the latter grounds, it has been suggested that third parties would not have standing as objectors, but they can appear as witnesses of fact as to the issues on them.212 That view is outdated. Third parties will often be concerned to ensure that the planning status of land is

208 209 210 211

English Hearings Rules, r 9(1). Welsh Appeals Regulations, reg 38(1)(a), (b). Welsh Appeals Regulations, reg 38(1)(c). Welsh Appeals Regulations, regs 38(2), 44(4). For Wales see Welsh Appeals Regulations, regs 38(2), 44(4). English Inspectors Inquiries Rules, r 13(2); English Inquiries Rules, r 11(2); English Hearings Rules, r 9(2). 212 Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273. 206 207

150

Further information in inquiry cases 7.132 correctly identified. That is recognised in standing to bring High Court proceedings and in the Aarhus Convention on Access to Environmental Justice. There is no reason why they should not be able to play a full role in appeals on the legal grounds, crossexamining and making submissions. 7.128 A person appearing at the inquiry may call witnesses or put in documents and letters, so allowing other people’s views or information to be put forward. Representatives of government departments at the inquiry 7.129 In England there is specific provision for the appellant to require a representative of a Minister of the Crown or government department to attend the inquiry and give evidence if:213 •

the Minister or department has expressed a view on the appeal in writing to the local planning authority; and

•

the local planning authority refer to that view in their statement of case.

7.130 The attendance must be requested in writing to the Secretary of State determining the appeal at least four weeks before the date of the inquiry.214 The Secretary of State will then provide a representative or pass the request to the Minister or department concerned, who will provide the representative.215 The representative shall give the reasons for the expressed view and is subject to cross-examination in the usual way.216 7.131 This provision has been rarely if ever invoked. Government bodies likely to express a view would usually be non-departmental public bodies, such as Natural England, rather than departments. If a government department or other public body has supported the authority’s decision on an important issue then it is likely to appear with its own advocate and witnesses or provide one or more witnesses for the local planning authority. This power has now been omitted in Wales and Inspectors have powers to compel witnesses to appear in any event. Date of the inquiry 7.132 In a ministerial case in England, the inquiry will be held not later than 22 weeks after the starting date or eight weeks after the conclusion of the pre-inquiry meeting, unless the Minister considers that that would be impractical, in which case it will be held at the earliest practical date.217 If the appeal is being determined by an Inspector, the inquiry should be held within 20 weeks of the starting date, or the earliest practical date if later.218 Hearings should be held within 12 weeks of the starting date unless that is impracticable.219

215 216 217 218 219 213 214

Inquiries Rules, r 15(1); Inspectors Inquiries Rules, r 13(1). Inquiries Rules, r 15(1); Inspectors Inquiries Rules, r 13(1). Inquiries Rules, r 15(2); Inspectors Inquiries Rules, r 13(2). English Inquiries Rules, r 15(3); English Inspectors Inquiries Rules, r 13(3). English Inquiries Rules, r 11(1), (2). English Inspectors Inquiries Rules, r 9(1). English Hearings Rules, r 6(1).

151

7.133  Appeal against an Enforcement Notice 7.133 The Welsh deadlines are 12 weeks after the end of the representation period, so 18 weeks after the starting date for inquiries220 and four weeks after the representation period (10 weeks after the start date) for hearings.221 Again, the period may be extended if the Welsh Ministers consider it is not practicable. 7.134 In practice the appellant and local planning authority are offered a date, with each party being entitled to one refusal. The Minister can vary the date, time or place of the hearing or inquiry.222 A decision on the date of an inquiry is amenable to judicial review, but such an application would be exceptional.223 There would need to be some very strong basis for considering it would be unfair to proceed on the proposed date. Notification of the inquiry or hearing date 7.135 Notice of the making of the appeal and the arrangements for any preinquiry meetings have been discussed earlier in this chapter. Parties and the public at large also need to know when and where the hearing or inquiry will take place. The Planning Inspectorate shall give not less than four weeks’ written notice of the date, time and place of the inquiry or hearing to every person entitled (or in Wales, invited) to appear.224 Similar notice must be given if the date of the inquiry is varied.225 The Inspectorate and the parties entitled to take part in the appeal may agree to notice being given via a website.226 If the time or place of the inquiry is varied, the Minister must give reasonable notice.227 7.136 In England the Secretary of State may require the local planning authority to do any of the following in inquiry cases:228 ‘(a) not less than 2 weeks before the date fixed for the inquiry, to publish a notice of the inquiry in one or more newspapers circulating in the locality in which the land is situated; (b) to send a notice of the inquiry on such persons or classes of persons as he may specify, within such period as he may specify; (c) to post a notice of the inquiry in a conspicuous place near to the land, within such period as he may specify.’

7.137 Where the subject land is under the appellant’s control, the Minister may require him to fix a notice of the inquiry ‘firmly’ to the land or an object on or

Welsh Appeals Regulations, reg 42(1). For the definition of representation period see reg 3(1). Welsh Appeals Regulations, reg 29(1). 222 English Inquiries Rules, r 11(4), (5); English Inspectors Inquiries Rules, r 9(4); English Hearings Rules, r 6(3). 223 R v Secretary of State for the Environment, ex p Leeds City Council [1995] JPL B61. 224 English Inquiries Rules, r 11(3); English Inspectors Inquiries Rules, r 9(2); English Hearings Rules, r 6(2); Welsh Appeals Regulations, regs 29(4), 42(4) for hearings and inquiries respectively. 225 English Inquiries Rules, r 11(4); English Hearings Rules, r 6(3); Welsh Appeals Regulations, regs 29(4), 42(6). 226 English Inquiries Rules, r 11(3A); English Inspectors Inquiries Rules, r 9(3A); English Hearings Rules, r 6(2A). In Wales notice can be given on a website if a link is sent to it: Welsh Appeals Regulations, reg 5. 227 English Inquiries Rules, r 11(5); English Inspectors Inquiries Rules, r 9(3); English Hearings Rules, r 6(4); Welsh Appeals Regulations, regs 29(7), 42(7). 228 English Inquiries Rules, r 11(6); English Inspectors Inquiries Rules, r 9(5). 220 221

152

Further information in inquiry cases 7.140 near the land. The notice must be readily visible to, and legible by, the public. The appellant must not remove it, or cause or permit it to be removed, for such period before the inquiry as the Secretary of State may specify.229 Similar rules apply to giving notice of hearings, but the Minister has no power to require the display of site notices.230 7.138

The Welsh Ministers may direct the local planning authority to:231

‘(a) not less than 2 weeks before the date fixed for the inquiry, post and maintain a notice of the inquiry— (i) in a conspicuous place, or as close as is reasonably practicable to the land to which the appeal relates; (ii) in one or more places where public notices are usually posted in the area in which the land to which the appeal relates is situated; (b) not less than 2 weeks before the date fixed for the inquiry, publish a notice of the inquiry by local advertisement in the area in which the land to which the appeal relates is situated; (c) send a notice of the hearing to such persons or classes of persons as they may specify, within such period as they may specify.’

7.139

In England and Wales any notices of the inquiry or hearing shall contain:232

‘(a) a clear statement of the date, time and place of the inquiry [or hearing] and of the powers enabling the [Minister or Inspector] to determine the appeal in question; (b) a written description of the land sufficient to identify approximately its location; (c) a brief description of the subject matter of the appeal; (d) details of where and when copies of the local planning authority’s completed questionnaire and any document sent by and copied to the authority pursuant to [the rules] may be inspected.’

7.140 It is a matter for ministerial discretion as to whether the authority (and, in England, the appellant) have to give notice. Consequently these parties should be alert for any direction being given and ensure that it is complied with. At the start of the hearing or inquiry the Inspector will usually ask the local planning authority’s advocate or representative if the notice requirements have been complied with. The authority should have a copy of any direction and certification of notices and advertisements. If it appears that notice has not been given correctly and there may be people who would have wished to take part or simply attend but who are not present or are unable to play a proper role because of the error, then it is likely that the hearing will be adjourned. If such a notification error is not corrected, then the appeal decision is likely to be quashed if substantial prejudice arises.233 However, a failure to provide additional notice, even if it was intended to do so, will probably not justify

English Inquiries Rules, r 11(7); English Inspectors Inquiries Rules, r 9(6). English Hearings Rules, r 6(5), (6). 231 Welsh Appeals Regulations, reg 43(1). The reference in sub-para (c) to ‘hearing’ appears to be an error and it should refer to inquiry. Similar requirements apply to notice of hearings: reg 30(1). 232 English Inquiries Rules, r 11(8); English Inspectors Inquiries Rules, r 9(7); English Hearings Rules, r 6; Welsh Appeals Regulations, regs 30(5), 43(5). 233 R v London Borough of Lambeth Council, ex p Sharp (1988) 55 P & CR 232, CA. 229 230

153

7.141  Appeal against an Enforcement Notice the quashing of the decision.234 Where there has been a representation that notice will be given (whether by the Planning Inspectorate or the local planning authority) then failure to give such notice is a breach of a legitimate expectation.235 7.141 The Planning Inspectorate will notify those entitled to appear of the name of the Inspector and any assessor and the matters on which the assessor is to advise the Inspector.236 If a replacement Inspector is appointed, the Planning Inspectorate will, if practicable, notify this before the inquiry begins. The Inspector will in any event announce his or her name at the start of the inquiry. It is of some use to know what the Inspector’s professional background is (such as planner, architect, solicitor) and the Inspector’s previous decisions can be examined. Advocates and witnesses 7.142 The roles of advocates and witnesses are distinctly different. The responsibility of a witness is to give relevant evidence. That evidence should be truthful. Witness evidence is of two types: evidence of fact and expert evidence. Evidence of fact is evidence of what happened or what the position is or, sometimes, what a party intends to do. Expert evidence is the professional view of an expert on a matter within their professional expertise.237 For example, a highways consultant in an appeal might give evidence of the acceptability of an access to a site. The consultant’s evidence should be the consultant’s own opinion, rather than running whatever argument is best for his client. Hopefully, if the client is listening to his experts, conflict does not arise. In planning appeals, views on the merits of the scheme are likely to be presented by individuals without professional expertise. Those views can be given as evidence and in inquiries can be tested in cross-examination. They will often be right. An intelligent layperson is quite capable of exposing flaws in expert evidence and it is a mistake, made sometimes but too often, to assume that local residents cannot contribute on technical matters. 7.143 Conversely an advocate’s task is to put his client’s case as effectively as it can be put. An advocate is not giving evidence or expressing their own opinion, even on matters within their expertise, such as the law. The advocate’s conduct of the case is constrained by professional rules. An advocate may not say something that they know to be untrue, or mislead the tribunal; they must not put an argument which is so poor as to be unarguable and should ensure that the tribunal is aware of any case which contradicts their submissions. Whilst promoting their client’s interests, advocates should contribute to the effective management of the case. Questioning of witnesses can be robust (and there is no reason why that cannot be politely done), but advocates should not raise irrelevant matters or subject a witness to ridicule or abuse. They should avoid criticising third parties who are not before the tribunal where possible and should only criticise a witness if they have taken the opportunity to put that criticism to the witness. R v Secretary of State for the Environment, ex p Kent [1988] 3 PLR 17. R  (Majed) v London Borough of Camden [2009]  EWCA  Civ 1029, [2010]  JPL  621; R  (Vieira) v London Borough of Camden [2012] EWHC 287 (Admin). 236 English Inquiries Rules, r 5; English Inspectors Inquiries Rules, r 5; English Hearings Rules, r 7; Welsh Appeals Regulations, reg 29(5), 42(5). The matters to be determined at the inquiry or hearing will also be provided in Wales. 237 For guidance on the expert witness role see Planners as Expert Witnesses (RTPI  Practice Advice, September 2018). 234 235

154

The inquiry 7.147 THE INQUIRY Assessors 7.144 An assessor may be appointed to assist an inquiry Inspector on particular matters.238 The assessor will normally be a member of the Planning Inspectorate and will have expertise in a particular aspect of the case. Because of the narrow range of issues in enforcement notice appeals, the appointment of assessors is rare. In the inquiry the assessor will sit and retire with the Inspector. An assessor may ask questions. Conventionally, in a case decided by ministers, the assessor will produce their own report, which will be appended to the Inspector’s report and taken into account by the Inspector in preparing their own report. The formal recommendation to the Minister will be from the Inspector. In practice the Inspector and assessor will have been working together closely in the inquiry process. Proofs and statements of evidence 7.145 A proof of evidence is a statement from a witness setting out his evidence. A proof must be submitted in advance where a party who is entitled to appear (so including the appellant, local planning authority or rule 6 party) intends to give evidence by reading from a statement. Historically, the obligation only arose when the witness was dealing with a ground (a) appeal or deemed planning permission (reflecting the position on planning appeals) but advance knowledge of the detail of factual evidence or planning judgment on the other grounds is also important. In Wales the parties are required to prepare statements of evidence but these are exactly the same as proofs of evidence. In the rest of this chapter, proofs of evidence will include statements of evidence. 7.146 A proof will frequently be ‘taken as read’ at the inquiry with the summary only read out along with any supplementary questions in examination in chief. Planning inquiries have not moved as far as the civil courts in simply asking a witness to confirm their written statement with very limited room for further questions-inchief. In part this reflects the absence of a formal mechanism for written response to the other side’s proof and the need for the public to be able to follow the proceedings, but also a more relaxed approach by Inspectors so they can see how witnesses explain their evidence. 7.147 The proof should concisely but comprehensively set out the witness’s evidence. It should be clearly structured. If a planning witness is dealing with all the issues on the appeal then the headings may be along these lines: Introduction: Witness’s Qualifications Site Location and Description Planning History Relevant Planning Policies

See Town and Country Planning Act 1990, Sch  6, para  6 for Inspector determined appeals. For notification of the appointment of an assessor, see English Inquiries Rules, r 12; English Inspectors Inquiries Rules, r 10; Welsh Appeals Regulations, reg 36(1); Welsh Appeals Regulations, reg 37.

238

155

7.148  Appeal against an Enforcement Notice The Issues: (i)

The Ground (e) Appeal

(ii) The Ground (b) Appeal (iii) The Ground (c) Appeal (iv) The Ground (d) Appeal (v) Urgent demolition in a conservation area (in England) (vi) The Ground (a) Appeal (vii) The Ground (f) appeal (viii) The Ground (g) Appeal Conclusions

7.148 The structure of the issues reflects the logical sequence of the grounds of appeal – procedural failure, whether there is a breach which can still be enforced against, whether planning permission should be granted for it, whether the steps are excessive and whether more time should be allowed. The pages and paragraphs should be numbered. Appendices should be provided in a separate, paginated bundle, preferably in A4 size, although some plans and photographs may be best seen in A3. Guidance on the contents of proofs in inquiries is given in Procedural Guide Enforcement notice appeals – England.239 7.149 A summary should be produced if the proof is more than 1,500 words long. It should itself be less than 1,500 words and should summarise the evidence in the proof. It must not contain new material or merely state the topics that are covered by the proof. 7.150 Expert evidence (including the views of local authority officers on the merits of schemes) should include an endorsement that the evidence is the professional opinion of the witness. Some professional bodies use a set format; alternatively, the Planning Inspectorate recommends:240 ‘The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.’

Whilst not required by Inspectorate guidance, it is appropriate for proofs or statements on factual matters in enforcement appeals to contain a statement of truth that the maker of the statement believes the facts stated in the document are true. 7.151 If a person entitled to be heard at the inquiry proposes to call a witness giving evidence by reading a proof (or in Wales, a statement), copies of the proof and any summary should be sent to the Planning Inspectorate at least four weeks before the inquiry, or as specified in any timetable arranged by the Inspector.241 In England Para D.12.1. Procedural Guide –Enforcement Notice Appeals – England, para J.2.1; Procedural Guide – Wales, Annex 5, para 2.2. 241 English Inquiries Rules, r 16(1), (3); English Inspectors Inquiries Rules, r 15(1), (3); Welsh Appeals Regulations, reg 44(4). 239 240

156

The inquiry 7.154 three copies are to be sent, with being circulated by the Planning Inspectorate, if the parties had not already supplied copies to each other. Producing evidence at the inquiry for the first time tends to lead to delay as it is read and possible adjournment whilst matters are investigated. There is no provision in the rules for supplementary proofs dealing with matters raised in other parties’ proofs. It might be agreed at a preinquiry meeting that these can be produced, but usually the opportunity to respond to the other side’s evidence is in examination-in-chief. Supplementary proofs can be useful if the response is so technical or detailed that it is useful to have it available in writing. These should be sent to the other parties and the Inspector as soon as possible. Third parties (other than those entitled to be heard) are not obliged to serve proofs. As a matter of practice they should if the evidence is detailed or amounts to expert evidence. They are entitled to copy proofs received by the local planning authority under the Rules. Statement of common ground in English inquiries 7.152 The appellant and local planning authority are required to provide an agreed statement of common ground not less than four weeks before the inquiry.242 The statement will usually try to set out a description of the site, the planning history, identify the relevant policies, the matters not in dispute between the main parties and those which are in dispute. A model format is on the Planning Portal website. Whilst the statement is required to be produced by the same time as the proofs of evidence, it is more useful if it can be worked up by the parties before the proofs are written. That way, the parties can avoid including descriptive material in their proofs and the statement of common ground. The statement of common ground is not required to be agreed with third parties, although there may be occasions when this would be useful. For example, it may be possible to agree a statement of common ground on highways matters between the appellant, local planning authority and the highway authority. 7.153 There is no statutory requirement for a statement of common ground in Wales, although the Welsh guidance encourages their production and provides a template.243 They are not part of the procedures in Northern Ireland, although cooperation is encouraged. Skeleton submissions 7.154 The rules make no provision for skeleton arguments but it can be useful to produce one in enforcement and lawful development certificate appeals. Such appeals can raise factual and legal issues which only become clearer once proofs have been exchanged. A skeleton argument dealing with legal submissions that will be made, or concisely pulling together the factual position as it then appears could be useful. Whilst such points can be made in opening submissions, it is often beneficial to allow the Inspector and the other parties to assimilate the arguments in advance. Any skeleton argument should be submitted as early as possible before the inquiry, and copied to the other main or rule 6 parties.

English Inquiries Rules, r 17; English Inspectors Inquiries Rules, r 16. Procedural Guide – Wales, Annex 4.

242 243

157

7.155  Appeal against an Enforcement Notice THE INQUIRY PROCEEDINGS 7.155 Procedure at the inquiry is essentially a matter for the Inspector.244 The normal form is set out here. The Inspector will introduce themselves and explain the procedure to be followed. The Inspector will ask who wishes to appear. The advocates present will state who they are, in the case of counsel who instructs them and their professional client’s address, the name and address of the party they represent and the witnesses they propose to call.245 Any person appearing on their own behalf will give their name and address. Journalists present are asked to give the name and address of their organisation so that a copy of the decision letter can be sent to them. The Inspector will usually want to check that the formalities for giving notice of the inquiry have been carried out. The local planning authority should have copies of any site or press notices or notification letter with details of where they were displayed or published or to whom they were sent. 7.156 The Inspector will set out what he considers to be the main issues to be considered and any matters on which he requires further explanation.246 This statement is important in practice as an indication of what the Inspector has understood about the case from pre-reading. However it does not prevent parties from raising any relevant issues.247 Unless the Inspector invites discussion of what are the main issues at that point, the parties can set our their views of the main issues in opening. 7.157 The appellant will open with an opening speech setting out his case. The Inspectorate preference is for short, 5–10 minute openings, except in major inquiries. Practice varies as to whether the local planning authority and any rule 6 parties also make opening statements. If the inquiry is likely to last for several days (or longer) or there are reasonable numbers of members of the public present, then it is useful for those parties to deliver short openings.248 Where a one-day inquiry only involves the appellant and local authority, a local authority or other opening may be unnecessary. There is no obligation to provide written submissions for opening or closing speeches, except for closing submissions in inquiries lasting four or more days. However, it may be useful to the inspector and the parties and save time note taking. In particular, a written opening is helpful if the issues have moved on from the statements of case or any skeletons. On a case that lasts more than a day, a written (or at least partly written) closing will be helpful. If the appeal is recovered for determination by the Minister then a written closing is essential. This will be the basis of the party’s case in the Inspector’s report. The High Court has encouraged the use of skeleton arguments in inquiries where there are points of law that may go to the courts on appeal.249

Inquiry practice and procedure in planning appeals and call-in inquiries is considered in R Harwood, Planning Permission (Bloomsbury Professional, 2016) at paras 23.82–23.141. This is generally applicable to enforcement and lawful development inquiries bearing in mind that legal and factual issues are more likely to arise in these cases. 245 The advocate can simply say that the addresses will be in the papers. A note can be handed up with these details to save the Inspector’s writing. 246 Inquiries Rules, r 18(2); Inspectors Inquiries Rules, r 17(2); Welsh Appeals Regulations, reg 45(2). 247 Explicitly provided for in England in the Inquiries Rules, r 18(3) and the Inspectors Inquiries Rules, r 17(3) and a matter of fairness in other nations. 248 Public and press attendance usually declines after the first morning. 249 P G Vallance Ltd v Secretary of State for the Environment [1993] 1 PLR 74, 78. 244

158

The inquiry proceedings 7.161 7.158 The appellant will then call his witnesses. The usual practice in enforcement inquiries is that the appellant starts,250 but on appeals against the refusal or nondetermination of planning applications, the local planning authority is expected to call its evidence first to focus discussion on the reasons for refusal. Where an inquiry deals with both an enforcement appeal and a planning appeal, the rules point in different directions. It may be that the best approach is for the appellant to start if legal grounds of appeal are raised and the local authority to start if a ground (a) appeal is the main issue. 7.159 Evidence-in-chief is subject to the normal rule against leading questions. The restrictions on admissibility of evidence in criminal or civil proceedings do not apply. The Inspector will give appropriate weight to the evidence: if it is hearsay, then less reliance is likely to be placed upon it. Repetitious or irrelevant evidence or questioning may be ruled out by the Inspector.251 7.160 On the usual basis that the inspector and the other parties have had sufficient opportunity to read the proof, at most the summary only will be read out.252 The main proof will then be taken as read and considered as part of the witness’s evidence. Questions may be asked in chief to highlight areas in the main proof or to address matters in the other side’s evidence or new developments. 7.161 Witnesses at planning inquiries are normally not examined on oath. However, if factual disputes are likely to arise, as is common on enforcement appeal grounds (b) to (e), witnesses on those issues will be sworn or affirmed by the Inspector under s 250 of the Local Government Act 1972. The appellant’s witness will then be open to cross-examination by the local planning authority. This cross-examination may include questions on any relevant matters on which the witness can be expected to give factual or expert evidence. This will include parts of the proof that were not read out. The Inspector may then permit cross-examination by other parties opposing the appeal. The appellant, local planning authority and any person served with a copy of the enforcement notice are entitled to cross-examine (implicitly witnesses they disagree with). In England other public authorities entitled to appear and rule 6 parties are not given the statutory right to do so.253 Persons invited to attend the inquiry are though entitled to cross-examine in Wales.254 Other cross-examination is said to be at the Inspector’s discretion. However, that discretion has to be exercised fairly.255 It is inconceivable that a rule 6 party or other person entitled to appear would not be able to cross-examine witnesses whose evidence they were challenging. The Inspector may refuse to permit the giving of evidence, cross-examination or

Subject to any other determination by the Inspector, the appellant is required to proceed first in England: Inquiries Rules, r 18(4); Inspectors Inquiries Rules, r 17(4). 251 Inquiries Rules, r 18(6); Inspectors Inquiries Rules, r 17(6); Welsh Appeals Regulations, reg 45(7). 252 English Inquiries Rules, r 16(5); English Inspectors Inquiries Rules, r 15(5); Welsh Appeals Regulations, reg 44(6) require only the summary to be read out unless the Inspector permits or requires otherwise. It might not be necessary to even read the summary out, particularly if there are no members of the public present. 253 English Inquiries Rules, r 18(5); English Inspectors Inquiries Rules, r 17(5). 254 Welsh Appeals Regulations, reg 45(6). 255 Nicholson v Secretary of State for Energy (1978) 76 LGR 693, [1978] 1 EGLR 111; Aston v Secretary of State for Communities and Local Government [2013] EWHC 1936 (Admin), [2014] 2 P & CR 10 at paras 78–89 per Wyn Williams J. 250

159

7.162  Appeal against an Enforcement Notice submissions that he considers to be irrelevant or repetitious.256 That allows proper control over the proceedings, but the Inspector must be careful to act fairly and not to exclude relevant matters. Any such error could leave the decision vulnerable to challenge. The witness can then be re-examined by the appellant’s advocate. Re‑examination can only cover matters raised in cross-examination and should not be leading. 7.162 The Inspector may then question the witness. If the Inspector raises new points, the appellant’s advocate (and sometimes the authority’s advocate), with the Inspector’s permission, may ask further questions on those points. This further questioning is relatively rare. The Inspector’s role is more inquisitorial than that of a judge in adversarial court proceedings. However the Inspector’s interventions must be fair and not show a risk of bias. Inspectors can raise questions with witnesses whilst they are being examined by advocates, but that is best confined to ensuring that questions are answered and that the answers are clear. An Inspector should not take over the examination of a witness or disrupt an advocate’s questions more than is necessary. 7.163 The appellant will then call his remaining witnesses, following the same procedure. Organised supporters of the appellant, such as other persons served, may give evidence at this point. They may be cross-examined by the local planning authority and, at the Inspector’s discretion, other opponents of the appeal. The authority’s witnesses may be cross-examined by the appellant and questioned by the Inspector. 7.164 After the local planning authority’s evidence is concluded, third parties can give evidence or make statements. Those opposing the appeal are open to crossexamination by the appellant and those supporting to cross-examination by the local planning authority. Cross-examination of a third party by another third party will rarely be permitted. 7.165 Conditions to be imposed in the event of planning permission being granted will usually be discussed after the evidence has been heard. The local planning authority will propose any conditions it wants (without prejudice to its opposition to the grant of planning permission). These will be discussed in a more informal session,257 along with any proposals by the appellant and third parties. Even if conditions are agreed between the parties, the Inspector is likely to still have questions about them. If there are major factual or judgment issues about potential conditions then these should be addressed in the witnesses’ evidence. Any planning obligation will also be discussed in that session, usually beginning with an explanation of its terms by the appellant’s advocate or solicitor. 7.166 Closing submissions will then be made. Third parties will speak first, followed by the local planning authority and, in England, the appellant is entitled to the final word unless otherwise agreed.258 Inspectors will often request a written English Inquiries Rules, r 18(6), English Inspectors Inquiries Rules, r 17(6); Welsh Appeals Regulations, reg 45(7). If oral evidence is prevented under this provision then the person restrained may submit evidence or submissions in writing by the close of the inquiry. 257 Advocates and witnesses tend to make comments in these sessions without the formality of giving evidence. 258 English Inquiries Rules, r 18(4); English Inspectors Inquiries Rules, r 17(4). It would be normal practice to allow the appellant the final word in any event. 256

160

Hearings 7.170 text of the closing to be handed up when it is delivered.259 Where the Inspector is reporting to the Secretary of State a full written text is essential as this will provide the basis of the Inspector’s summary of the party’s case in the report and will also be available to the Minister.260 Even where a written text is produced, the closing will still be delivered orally, allowing the Inspector to make notes of further submissions. After the closing speeches, applications for costs can be made. The Inspector will then close the inquiry, unless otherwise agreed, further material or submissions may not be made after this point. An accompanied site visit will usually take place at this point, although it may have occurred at an earlier break in the proceedings. Whilst inquiries are normally very orderly, an Inspector can require any person behaving in a disruptive manner to leave and refuse to permit them to return or allow them to return only on conditions. HEARINGS 7.167 Until 2002 in England (and 2003 in Wales) there was no statutory procedure for hearings. Some preliminary matters were dealt with by the Enforcement Notices and Appeals Regulations. Hearings legislation was introduced in those reforms. It is now contained in the Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002 and the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017. Northern Irish procedures are in the Commission’s guidance covering informal and formal hearings. Informal hearings in Northern Ireland are conducted in the same way as hearings on the mainland. Formal hearings share more similarities with inquiry processes and are considered further below. 7.168 Appeals conducted by hearings are invariably determined by Inspectors, since a recovered appeal will usually need the more intensive evidence gathering of an inquiry. 7.169 The Inspector’s name will be notified to the parties in advance.261 An assessor may be appointed to advise the Inspector on a particular topic.262 7.170 English hearings are to be held within 12 weeks of the starting date unless the Minister considers this to be impracticable.263 The Welsh deadline is within four weeks of the end of the representation period (so 10 weeks after the starting date), again subject to practicality.264 At least four weeks’ notice of the date, time and place

It is essential to have copies for the other advocates and desirable to have sufficient copies for those attending the session, including members of the public. If an English inquiry is programmed to last for four days or more than a written copy of the closing is required by the Inquiries Rules, r 18(14) and the English Inspectors Inquiries Rules, r 17(14). Where closings are delivered in any inquiry in Wales, a written copy should be submitted before the inquiry closes: Welsh Appeals Regulations, reg 45(15). The Inspector may agree to extend this period: reg 7. 260 An electronic copy of the closing might also be requested to help the Inspector write up the report to the Minister. 261 Town and Country Planning Act 1990, Sch  6, para  6(2); Planning Act (Northern Ireland) 2011, s 204(1), (2); English Hearings Rules, r 7(1); Welsh Appeals Regulations, reg 27. 262 Welsh Appeals Regulations, reg 28. There is no notification requirement in England, although it would be good practice to identify an assessor and their matters in advance of the hearing. 263 English Hearings Rules, r 6(1). 264 Welsh Appeals Regulations, reg 29(1), (2). 259

161

7.171  Appeal against an Enforcement Notice of the hearing shall be given by the Minister to the appellant, local planning authority and any person entitled to be heard (including in Wales, interested persons).265 7.171 The Ministers may require the local planning authority to publicise the hearing by newspaper notice and by sending a notice to any identified persons or classes of persons.266 A  site notice may also be required in Wales.267 Whilst not included in the English provisions, displaying the notice at the site is one effective means of informing people who are regularly in the locality. 7.172 The accommodation for the hearing should be informal, with the Inspector and the parties sitting round a table. Small committee rooms in the council offices have been recommended. At the start, the Inspector will explain that the hearing will take the form of a discussion, which he will lead. Usually the Inspector will circulate an agenda just before the hearing starts. He will review the case as he sees it and outline the main issues and matters that require clarification. This does not prevent parties from raising other issues.268 The order of the issues is not prescribed, although the Northern Irish guidance to consider the legal issues including nullity and grounds (b)–(f) first will tend to reflect common practice.269 The appellant or his agent will start the discussion. Questions may be asked informally during the proceedings, provided they are relevant and the discussion is orderly. Interested third parties who are not otherwise entitled to be heard may be present and may join in the discussion at the Inspector’s discretion.270 The discussion is intended to be ‘inspector-led’ and inquisitorial, but the rules of natural justice must be observed.271 If it becomes apparent that cross-examination is required, then the Inspector will need to decide, having consulted the main parties, whether to close the hearing and hold an inquiry (on a different occasion) instead. It is still possible to cross-examine, with the Inspector’s permission, in a hearing,272 but anything more than a couple of questions from a party to clarify a case ought to be left to an inquiry on proper notice.273 The rules refer to evidence being called274 but in practice there is not the formal calling of evidence. Where a party has an advocate and one or more expert or factual witnesses then there can be a rough distinction between evidence and submissions. Where a party’s main representation also provides their sole or main evidence (such as a planning consultant or planning officer), the role of advocate and witness is essentially merged. 7.173 Closing submissions may be made, at the Inspector’s discretion, although these are rare since the parties’ cases on the issues would be set out under each issue.

English Hearings Rules, r 6(2); Welsh Appeals Regulations, reg 29(4). The Welsh notice must also contain the name of the Inspector and the matters identified for consideration: reg 29(5). 266 English Hearings Rules, r 6(5); Welsh Appeals Regulations, reg 30(1)(b), (c). 267 Welsh Appeals Regulations, reg 30(1)(a). 268 English Hearings Rules, r 11(4), (5). 269 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 67. 270 English Hearings Rules, r 9(2); Welsh Appeals Regulations, reg 33(6). 271 Rydon Homes v Secretary of State for the Environment (1995) 70 P & CR 657. 272 English Hearings Rules, r 11(2), (3); Welsh Appeals Regulations, reg 33(3). 273 In Northern Ireland the Commissioner ‘may allow some questioning between parties on issues not already covered in the round-table discussion’: Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 68. 274 English Hearings Rules, r 11(6); Welsh Appeals Regulations, reg 33(6). 265

162

Formal hearings in Northern Ireland 7.176 If an Inspector allows closing submissions in Wales then a written copy of those submissions should be handed in before the hearing closes.275 7.174 Whilst lacking formal cross-examination by the parties, the informal hearing must still be a sufficiently robust process to enable the Inspector to understand and resolve the issues which arise. In Dyason v Secretary of State for the Environment Pill LJ warned:276 ‘The hearing must not become so relaxed that the rigorous examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden on an inspector.’

Dyason concerned an appeal against the refusal of planning permission. The burden on the decision maker will be greater in enforcement appeals where the facts need to be established with clarity and legal issues, or the application of the law, regularly arise. 7.175 A  party is entitled to be represented by any other person,277 and so can attend with a solicitor or counsel. However, for many years the Planning Inspectorate thought it odd for lawyers to appear at hearings. It is now common for advocates to represent parties at hearings, particularly because the Inspectorate have been pushing cases down to hearings which would previously have been dealt with by inquiries. Parties consequently often consider they need to have professional advocates as well as witnesses. An advocate/witness combination can be effective in hearings, especially where there are legal or merits based submissions to make or several witnesses to marshall. In the hearing it is useful to distinguish between points best made by submission or by an expert explaining their professional view. The Planning Inspectorate has asked that the other side is told in advance if a party intends to be represented at the hearing by a lawyer.278 Third parties may take part, at the Inspector’s discretion, although if many other people want to take an active part then it may be more suitable to hold an inquiry. The appellant will have the last word. The hearing may be adjourned for discussion to continue on site or if the appellant or the local planning authority wish, an accompanied site inspection will be carried out following the close of the hearing. FORMAL HEARINGS IN NORTHERN IRELAND 7.176 At a formal hearing evidence is probed through questioning by opposing parties and by the Commissioner.279 As with other hearings legal issues will be dealt with before any other issues. Parties, in turn, may briefly explain their position and address points made by other parties. The usual sequence is that the council presents its evidence first and is questioned; followed by objectors (or their spokesperson); Welsh Appeals Regulations, reg 33(12). This may be after the closing has been delivered. The Inspector can extend the time for receipt of the submissions: Welsh Appeals Regulations, reg 7. 276 [1998] JPL 778, followed in Re Stewart’s Application [2003] NICA 4 at para 21 per Carswell LCJ. 277 English Hearings Rules, r 9(3); Welsh Appeals Regulations, regs 31(3), 33(14). 278 The Inspectorate’s view about advance notice of the use of advocates was relayed ot the Planning and Enviroment Bar Association. This was also seen as desirable in Belfast City Council v Planning Appeals Commission [2018] NIQB 17 at para 109 per McCloskey J. 279 See Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 69. 275

163

7.177  Appeal against an Enforcement Notice then the appellant; and finally supporters (or their spokesperson). Parties may be professionally represented and may put forward witnesses to answer questions and discuss points arising from their written evidence, which will be taken as read. The Commissioner will take an active role in investigating evidence and may ask questions at any stage of the proceedings. The guidance is that closing statements will not be required. SITE VISITS AND THE ADJOURNMENT OF HEARINGS TO THE SITE 7.177 Almost all enforcement appeals require a site visit before they can be sensibly decided.280 There are no statutory procedures for site visits in English written representations appeals,281 but the normal practice is to carry out an accompanied or unaccompanied site visit.282 An accompanied site visit will be attended by the appellant (or a representative) and a local planning authority officer. In the company of both persons, the Inspector will go onto the appeal site and look at the site from the surrounding area.283 The Inspector may also look at the appeal site from third parties’ properties if previously asked to do so. On an unaccompanied site visit the Inspector will turn up, without notice, and view the site and its surroundings from the highway and any other publicly accessible points. The Inspector would not go on private land (including the appeal site). Prior to a hearing or inquiry the Inspector will usually try to view the site from the highway or other land on which the public have a right of access. Such a visit will be informal and unaccompanied. The Inspector will normally inform the parties at the hearing if such an informal visit has taken place and if there was anything particular to note. 7.178 A hearing may be adjourned to the site for the discussion to be concluded.284 An adjournment to the site is permitted in England if the Inspector is satisfied that:285 ‘(a) the hearing would proceed satisfactorily and that no party would be placed at a disadvantage; (b) all parties present at the hearing would have the opportunity to attend the adjourned hearing; (c) the local planning authority and the appellant have not raised reasonable objections to it being continued at the appeal site.’

7.179 Alternatively the Inspector may close the hearing and may then hold a site visit at his initiative and, in England, shall conduct a site visit if requested by the appellant or local planning authority.286 During an inquiry or after its close the Inspector may carry out an accompanied site visit and, in England, has to do so if requested by the appellant or local planning authority.287 The holding of a site

Exceptions would be cases that turn solely on points of law. Although there are in all Welsh appeals: Welsh Appeals Regulations, reg 8. 282 See Procedural Guide Enforcement notice appeals – England para B.9; Procedural Guide – Wales, Annex 7, para 10. 283 See the Planning Appeals Commission’s What to Expect at an Accompanied Site Visit. 284 Including in Northern Ireland: Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 72. 285 English Hearings Rules, r 12(1). 286 English Hearings Rules, r 12(2). 287 English Inquiries Rules, r 19(2); English Inspectors Inquiries Rules, r 18(2). 280 281

164

The decision 7.183 inspection is in the Inspector’s discretion in all Welsh appeals, but given the need to act fairly and be properly informed, it is very unlikely that one will not be carried out if a main party requests it. 7.180 If the Inspector needs to enter private property, or a party wants to point out something particular and he agrees, the site visit following a hearing or inquiry will be accompanied. A representative of the appellant (or the appellant himself) and a representative of the local planning authority will attend as may any other person served with a copy of the enforcement notice. An accompanied site inspection is not a further opportunity to argue the case, so the parties’ role is confining to pointing out matters and ensuring fair play. Where an Inspector and the local planning authority attended for an accompanied site visit but the appellant’s representative was not present, it was unfair for the Inspector to proceed accompanied by the planning officer.288 7.181 In England ‘adjourning the hearing to the appeal site’ or inspecting the land under the hearing or inquiries rules requires the Inspector to go onto the appeal site. Simply viewing the appeal site from the road is insufficient,289 although that might be excused if there has been the willing consent of the parties. 7.182 It is important that the Inspector sees sufficient on the site visit to decide the case with regard to all relevant matters. In Chichester District Council v First Secretary of State,290 the local planning authority contended that a building which had been unlawfully constructed on a farm was a new dwelling. The Inspector granted planning permission for the building, conditioned to use as an agricultural workshop and feedstore. Having carried out an unaccompanied site visit in the written representations appeal, the Inspector failed to look inside the property even though the authority had asked for this to be done, which was insufficient and the decision was remitted. THE DECISION Ministerial decision-making 7.183 Where the appeal is being decided by the Minister, the Inspector will write a report291 setting out procedural matters, summarising the notices, identifying policy and summarising the parties’ submissions. The critical part of the report is the Inspector’s assessment of the appeal and recommendation to the Minister.292 If an assessor has been appointed, any assessor’s report will be appended to the Inspector’s report and the Inspector will state his conclusions on it. The Inspector will not take into account any representations received after the close of the inquiry unless he has specifically requested them to address particular points. The Minister has a discretion

R (Tait) v Secretary of State for Communities and Local Government [2012] EWHC 643 (Admin). Payne v Secretary of State for Communities and Local Government [2010]  EWHC  3528 (Admin), [2011] JPL 767. 290 [2006] EWHC 1876 (Admin), [2007] JPL 389. 291 English Inquiries Rules, r 20(1); Welsh Appeals Regulations, reg 48(1). The summaries will usually be edited versions of the parties’ closings, so a cogent, written closing is essential. 292 English Inquiries Rules, r 20(2); Welsh Appeals Regulations, reg 48(2). Reasons must be given for not making a recommendation if, very unusually, it does not do so. 288 289

165

7.184  Appeal against an Enforcement Notice whether to take into account any later material293 but that must be exercised fairly and ensuring that the Minister has regard to all material matters. In practice, the parties should say everything they need to say to the Inspector and only make representations to the Minister on later developments. 7.184 An Inspector’s report is the Inspector’s own work and view. Sometimes Inspectors will ask other Inspectors to read the draft report to check for clarity and obvious errors but the Planning Inspectorate has no control over the report. The report will be sent with all the inquiry documents to the Ministry of Housing, Communities and Local Government or the Welsh Ministers. It will then be considered by civil servants. They will then prepare a briefing for the Minister deciding the appeal which will be sent with the report and any critical documents. The determining Minister will then decide the case. A decision letter will be prepared. If the Minister differs from the Inspector on a material matter of fact or takes into account any new evidence or new fact (other than changing government policy) and consequently is disposed to disagree with the Inspector’s recommendation, then notice must be given to the persons who were entitled to appear at the inquiry or hearing and did so.294 They must be told of the disagreement and the reasons for it, and given an opportunity to make written representations on the point within a three-week period. If the notice is because of new evidence or a new matter of fact, these parties may ask for the inquiry to be reopened to address those matters.295 In Wales the appellant or the local planning authority may insist on re-opening the hearing or inquiry in such circumstances.296 The Minister’s decision on the appeal will be in a decision letter accompanied by the Inspector’s report. Inspector’s decision-making 7.185 Where the decision remains transferred to the Inspector, he will write up the decision, having considered any assessor’s report. If the Inspector proposes to take into account any new evidence or new matter of fact then notice must be given to the parties who were entitled to and did appear, allowing them three weeks to make written representations or request a re-opening of the inquiry or hearing.297 An Inspector may give the decision at the hearing or inquiry, with the written decision – with full reasons – to follow. This though is very rare.298 The decision 7.186 Whether the appeal is decided following an inquiry or hearing, Ministerial or Inspectorial decisions must be accompanied by written reasons.299 There is no English Inquiries Rules, r 20(4). English Inquiries Rules, r 20(5), (6); English Hearings Rules, r 13; Welsh Appeals Regulations, reg 48(8), (9). 295 English Inquiries Rules, r 20(7)–(9); Welsh Appeals Regulations, reg 48(10). 296 Welsh Appeals Regulations, reg 48(11). 297 English Inspectors Inquiries Rules, r 19(3), (4); English Hearings Rules, r 14(3)–(5); Welsh Appeals Regulations, reg 47(7)–(9). 298 The only occasion the author was present at such a determination was a (correct) ruling that an enforcement notice was a nullity on the first morning of a two day inquiry. That this occurred on the Thursday before Christmas was fortuitous. 299 English Inquiries Rules, r 21; English Inspectors Inquiries Rules, r 20, English Hearings Rules, rr 15(2), 16(2). 293 294

166

The decision 7.188 statutory duty to give reasons in English written representations cases although conventionally reasons are given.300 In practice the reasons are contained in the same document as the formal decision. The Ministerial decision letter will contain the Minister’s reasons. The letter will explicitly adopt the Inspector’s reasons or set out where the Minister disagrees with the Inspector and why. An Inspector’s decision will set out the entirety of the reasoning although it will be much shorter than a report. A decision is aimed primarily at the parties, who know what has happened at the inquiry or hearing and what is in the appeal papers, whereas a report has to explain the case to ministers and civil servants. 7.187 The adequacy of reasons in planning decisions and other contexts has generated a mass of case law. Since a reasons challenge is inherently fact-sensitive it is unproductive to search the cases for too many detailed rules. What may be an acceptable omission in one case might not be acceptable in another. The most useful, and most often quoted, summary of the Court’s approach to reasons was given by Lord Brown of Eaton-under-Heywood in South Buckinghamshire District Council v Porter (No 2):301 ‘The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.’

7.188 The decision with its reasons must be sent302 to the appellant, the local authority, those who were entitled to and did take part in the inquiry or hearing, along with anyone who did take part in the inquiry or hearing and had asked to be sent a copy of the decision.303 In Northern Ireland it will go to all parties who provided a statement of case or participated in the public proceedings.304

The practice of giving reasons will in any event give rise to a legitimate expectation that reasons will be given: Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin) at para 51 per Lindblom LJ. The Planning Appeals Commission’s promise to give reasons will have the same effect: Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals paras 75, 76.‘Conclusions’ are required to be given in Wales: Welsh Appeals Regulations, reg 47(2). 301 [2004] UKHL 33, [2004] 1 WLR 1953 at para 36. 302 Traditionally this has been by post, but may be by email or by informing participants that the documents have been put on a website and how to access them. 303 English Inquiries Rules, r 21; English Inspectors Inquiries Rules, r 20; English Hearings Rules, rr 15, 16. 304 Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, 75, 76. 300

167

7.189  Appeal against an Enforcement Notice 7.189 The Minister, Inspector or the Commissioner can do the following in determining the appeal:305 •

correct any defect, error or misdescription in the enforcement notice, or vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority; this power includes deleting part of the site as outside the planning unit or narrowing the description of the activity. However, it does not allow a correction that goes to ‘the substance of the matter’ (Miller-Mead v Minister of Housing and Local Government).306 The power cannot correct a notice that is a nullity. Injustice would arise, for example, if the variation sought to correct an inconsistent or confused notice which meant that the appellant ‘would not have known in advance the case he had to meet and the preparatory and evidential steps he should take’;307

•

where the decision is to allow the appeal, quash the notice;308

•

grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control (in respect of all or part of the matters or land);309

•

discharge any condition or limitation subject to which planning permission was granted;310

•

determine whether, on the date on which the appeal was made, any existing use of land, operations or failure to comply with conditions or limitations was lawful, and issue a certificate of lawfulness of existing use or development (CLEUD).311

COSTS 7.190 Normally each party to an enforcement notice appeal bears its own costs.312 Costs are only awarded against a party if it has acted unreasonably and this has caused another party to incur wasted costs; in contrast to civil litigation, costs do not follow the event. A number of different provisions apply the power to award costs. In England and Wales, by the Local Government Act 1972, s 250(5), the Secretary of State may order the payment of parties’ costs at inquiries. This is applied to enforcement notice appeals by s 320 of the 1990 Act. The power is also applied to hearings by s 322 and to written representation appeals by s 175(7). Where an inquiry or hearing is arranged but cancelled, s 250(5) is applied by s 322A. These powers can also be exercised by Inspectors. The Planning Appeals Commission is empowered to

Town and Country Planning Act 1990, s 176(1). [1963] 2 QB 196. 307 Sarodia v London Borough of Redbridge [2017] EWHC 2347 (Admin) at para 27 per Jay J, see also paras 30, 31. 308 Town and Country Planning Act 1990, s 176(2). 309 Town and Country Planning Act 1990, s 177(1)(a); Planning Act (Northern Ireland) 2011, s 145(1)(a). 310 Town and Country Planning Act 1990, s 177(1)(b); Planning Act (Northern Ireland) 2011, s 145(1)(b). 311 Town and Country Planning Act 1990, s 177(1)(c); Planning Act (Northern Ireland) 2011, s 145(1)(c). See Chapter 23. 312 Planning Practice Guidance ID: 16-028-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 1.2; Costs Awards Guidance, para 11. 305 306

168

Costs 7.194 make orders as to the costs of parties to an appeal under the Planning Act (Northern Ireland) 2011, s 205, and for cancelled hearings, s 206. Costs advice is contained in Planning Practice Guidance (England);313 Development Management Manual, Section 12 Annex Award of Costs, (Wales); and Costs Awards Guidance (Northern Ireland). 7.191

Costs may be awarded where:314

‘••

a party has behaved unreasonably; and

•

the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.’

7.192 ‘Unreasonable’ has its normal meaning, rather than its special meaning in judicial review.315 A costs award can cover the whole of a party’s costs (‘a full award’) or a part of those costs (‘a partial award’).316 A partial award might cover the costs of a particular issue or ground or a particular stage or period of time in the proceedings. Various types of unreasonable behaviour are set out in the national guidance documents and these can be divided into procedural failures or substantive matters going to the merits of a party’s case in whole or in part. These are all examples317 and examples from one jurisdiction may be useful in the others. Parties should focus on the broad questions of whether the conduct was unreasonable and whether it caused wasted expense. It is essential to show the nature of the wasted expenditure and that it was caused by the behaviour complained of. Substantive unreasonable behaviour by the local planning authority 7.193 If the local planning authority fails to take into account relevant judicial authority, government policy and well-publicised appeal decisions in issuing an enforcement notice, they may be liable in costs. They should be able to produce evidence substantiating each reason.318 If an enforcement notice is withdrawn because it was not expedient to issue it or it had an incurable defect, then costs may be awarded. Costs are likely to be awarded if the authority acted contrary to, or not following, well-established case law.319 A fundamental error of law or fact is an example given in Northern Ireland.320 7.194 There should be reasonable grounds for concluding that there was a beach of planning control. Authorities are at risk of an award of costs if it is concluded that an appeal could have been avoided by more diligent investigation that would have Planning Practice Guidance ID: 16-027-20140306 to 16-056-20161210. Planning Practice Guidance ID: 16-030-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 2.1; Costs Awards Guidance, para 12. 315 Manchester City Council v Secretary of State for the Environment [1988]  JPL  774; R  (Hann) v Secretary of State for the Environment, Transport and the Regions [2001]  EWHC (Admin) 930. Planning Practice Guidance ID: 16-031-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.1; Costs Awards Guidance, para 13. 316 See Planning Practice Guidance ID: 16-040-20140306; Development Management Manual, Section 12 Annex Award of Costs, paras 2.20, 2.21; Costs Award Guidance, paras 27, 28. 317 Costs Awards Guidance, para 16. 318 See generally Planning Practice Guidance ID: 16-049-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.11. 319 Development Management Manual, Section 12 Annex Award of Costs, para 3.11. 320 Costs Awards Guidance, para 14. 313 314

169

7.195  Appeal against an Enforcement Notice either avoided the need to serve the notice in the first place, or ensured that it was accurate.321 Insufficient communication might also be at fault in such cases.322 Unreasonable behaviour by the appellant 7.195 It may be unreasonable to appeal if the appeal or ground of appeal had no reasonable prospect of succeeding on the available evidence.323 Ground (a) appeals may be unreasonable if:324 (a) there has been a recent planning appeal in respect of the same, or a very similar, development on the same, or substantially the same site where the Secretary of State or an Inspector decided that the proposal was unacceptable and circumstances have not materially changed in the intervening period; (b) the development is clearly not in accordance with the development plan, and no other material considerations such as national planning policy are advanced that indicate the decision should have been made otherwise, or where other material considerations are advanced, there is inadequate supporting evidence. If appeals on other grounds have no reasonable prospect of success, then costs may be awarded. Unreasonable behaviour in procedural matters by the appellant and the local planning authority 7.196

Various acts by either party could be unreasonable, for example:

•

failing to comply with the rules or regulations applicable to the appeal;

•

failing to provide an adequate statement of case;325

•

unreasonably late submission of a statement of case, or amendment to a statement of case, or proof of evidence or summary, causing the inquiry or hearing to be adjourned or unnecessarily prolonged;

•

introducing a new issue forcing the adjournment of the inquiry or hearing or prolonging the appeal;326

•

uncooperative behaviour (the English guidance refers to ‘lack of co-operation with the other party or parties’);327

•

not agreeing a statement of common ground in a timely manner or not agreeing factual matters common to witnesses of both principal parties;328

Planning Practice Guidance ID: 16-048-20140306; see alternatively Development Management Manual, Section 12 Annex Award of Costs, para 3.11. 322 Development Management Manual, Section 12 Annex Award of Costs, para 3.11. 323 Planning Practice Guidance ID: 16-053-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.7; Costs Awards Guidance, para 14. 324 Planning Practice Guidance ID: 16-053-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.7; Costs Awards Guidance, para 14. 325 Development Management Manual, Section 12 Annex Award of Costs, para 3.6. 326 Development Management Manual, Section 12 Annex Award of Costs, para  3.10; Costs Awards Guidance, para 14. 327 Planning Practice Guidance ID: 16-047-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.6. 328 Planning Practice Guidance ID: 16-047-20140306. 321

170

Costs 7.199 •

introducing fresh and substantial evidence at a late stage necessitating an adjournment, or extra expense for preparatory work that would not otherwise have arisen; or

•

providing information that is shown to be manifestly inaccurate or untrue.329

7.197 Some enforcement notice related actions by local planning authorities could be characterised as procedurally unreasonable behaviour:330 •

withdrawal of any reason for refusal or reason for issuing an enforcement notice;

•

failing to provide relevant information within statutory time limits, resulting in an enforcement notice being quashed without the issues on appeal being determined;

•

withdrawing an enforcement notice without good reason.

Cancellation of inquiry or hearing 7.198 Where the late cancellation of an inquiry or hearing (that is after the formal notification by the Planning Inspectorate of the arrangements or after those arrangements are made by the Commission) occurs because of unreasonable behaviour by a party, then costs may be awarded.331 A party who withdraws an enforcement notice or appeal without good reason is likely to have acted unreasonably.332 Third parties 7.199 Awards of costs either in favour or against third parties (who are not rule 6 parties in England) are made only in exceptional circumstances333 but the normal principles apply to rule 6 parties. Generally non-rule 6 third parties will not receive costs because the appeal or the refusal is unreasonable. Costs may be awarded to or against such third parties for unreasonable behaviour in procedural matters.334 Third parties in Northern Ireland have the same costs entitlement and liability as main parties, although public bodies which provide evidence in support of a party are not themselves subject to the costs regime.335

Planning Practice Guidance ID: 16-047-20140306, 16-052-20140306; Development Management Manual, Section 12 Annex Award of Costs, paras 3.6, 3.10. 330 Planning Practice Guidance ID: 16-047-20140306; Development Management Manual, Section 12 Annex Award of Costs, para 3.10. A significant change in circumstances which was outside the control of the party concerned might justify the withdrawal of a notice: Costs Awards Guidance, para 14. 331 Town and Country Planning Act 1990, s 322A; Planning Act (Northern Ireland) 2011, s 206. 332 Development Management Manual, Section 12 Annex Award of Costs, para 3.10. 333 Planning Practice Guidance, ID: 16-056-20161210; Development Management Manual, Section 12 Annex Award of Costs,para 2.11. 334 Planning Practice Guidance, ID: 16-056-20161210. 335 Costs Awards Guidance, paras 7, 15. An example of potentially unreasonable third party conduct is given as ‘unreasonably prolonging proceedings or unreasonably abandoning or failing to support with credible evidence a significant issue which they had raised and which no other party was pursuing’ (para 15). 329

171

7.200  Appeal against an Enforcement Notice THE COSTS APPLICATION 7.200 The English guidance is that the application for costs should normally be made at the inquiry or hearing before the close of the proceedings. The applications are dealt with after closing submissions. Historically, any written submissions in support of a costs application were only produced as the oral application was made. Parties often made explicit or implicit threats during the course of an appeal, such as using a proof of evidence to describe the other side’s position as ‘unreasonable’. The 2009 Costs Circular envisages a more up-front, and less tactical, approach. That is maintained in the Planning Practice Guidance. Where circumstances allow, costs applications should be made in writing before the hearing or inquiry.336 The written submissions can be updated orally in the light of events at the inquiry or hearing. The Planning Practice Guidance envisages that oral submissions will be made, but it is quite common for them to be addressed solely by written representations. If a costs application is made in the absence of the party against whom the order is sought, then it will be dealt with on written representations. 7.201 If the inquiry or hearing is cancelled, applications for costs should be made to the Costs and Decisions Team in the Planning Inspectorate, no later than four weeks after having received confirmation of the cancellation.337 In the case of appeals determined via written representations, the costs application must be made in writing by any party no later than the final comments stage.338 Late applications for costs can be made in any case provided that good reason can be shown.339 7.202 In Wales costs applications should generally be made in writing and responded to within the statutory representation periods. Appellants are encouraged to submit costs applications for substantive awards in writing with the appeal form, and local planning authorities and third parties should make such applications in their four-week statements. Responses to these can be made in the following submission stage.340 Costs applications relating to procedural unreasonableness during an appeal should be raised in writing at the earliest possible opportunity, although a final opportunity to apply for costs orally will be made at the end of a hearing or inquiry.341 The party against whom the application is made will be able to respond orally or in writing and the Inspector will then decide whether further responses are necessary.342 7.203 In England and Wales Inspectors may initiate an award of costs.343 A party will be given an opportunity to respond to any suggestion by an Inspector that costs may be awarded.344 It is critical that the Inspector formulates the potential basis for a costs award in clear terms. In Wales any potential costs award initiated by the

Planning Practice Guidance, ID: 16-035-20161210. A  template for written costs applications is available from the Planning Inspectorate, but does not have to be used. 337 Planning Practice Guidance, ID: 16-035-20161210; WO Circular 23/93, Annex 5, para 2. 338 Planning Practice Guidance, ID: 16-035-20161210. 339 Planning Practice Guidance, ID: 16-035-20161210. 340 Development Management Manual, Section 12 Annex Award of Costs, Schedule A, para A1 to A4. 341 Development Management Manual, Section 12 Annex Award of Costs, Schedule A, para A8 to A11. 342 Development Management Manual, Section 12 Annex Award of Costs, Schedule A, para A11 to A12. 343 Planning Practice Guidance, ID: 16-029-20140306, 16-036-20140306, 16-038-20140306; Development Management Manual, Section 12 Annex Award of Costs, Schedule A, para A13. 344 Planning Practice Guidance, ID: 16-038-20140306. 336

172

Correction of errors in decisions in England and Wales 7.207 Inspector will be determined by the Welsh Government Planning Directorate rather than by the Inspector.345 7.204 In Northern Ireland costs applications should be made with the final written submission in written representations cases or as soon as reasonably practicable after the behaviour occurred in hearing cases.346 If an appeal is withdrawn or an arranged hearing does not take place, then any costs claim must be submitted in writing to reach the Commission no later than 10 working days after the date on which the Commission sent notification that the appeal had been withdrawn or the hearing cancelled.347 An opportunity will be given to respond to a cost claim in writing in 10 working days (or 5 working days if the claim is based on behaviour at an accompanied site visit) or orally at the hearing.348 7.205 The costs decision will be in a separate letter to the decision letter on the appeal. If the appeal is determined by the Secretary of State, the Inspector will report on the costs application and usually make a recommendation. A  costs award will identify the appeal for which costs are awarded and in the event of a partial award, the particular elements of the appeal which are covered (usually by reference to ground, issue, time or stage of the process). The Inspectorate or Commission will not determine the quantum of costs and are not interested in any costs estimates, beyond needing to be satisfied that some wasted costs arose from the unreasonable behaviour. In England and Wales the quantum of costs will be determined by a costs judge of the Senior Courts Costs Office (the SCCO) if not agreed between the parties. The costs award must be registered with the SCCO before a detailed assessment can be carried out by a costs judge. In Northern Ireland a Taxing Master of the High Court can carry out a detailed assessment if costs are not agreed.349 For major costs claims the receiving party (ie the one which got the costs award) may need to instruct costs draftsmen and, if there is a difficult issue or hearing, costs counsel. CORRECTION OF ERRORS IN DECISIONS IN ENGLAND AND WALES 7.206 A  decision once issued is final, subject to challenge in the courts. It confers rights, ends processes or imposes liabilities on parties. It is not implicit that even obvious errors can be corrected by administrative means. There might be circumstances where what has been sent out is not actually a decision, for example because it fails to say whether the appeal is allowed or dismissed or there are obviously pages missing from the document. In such cases there would still be power to send out the actual decision. 7.207 The Planning and Compulsory Purchase Act 2004 introduced a statutory slip rule for planning appeals, including enforcement notice appeals.350 Where a

347 348 349 350 345 346

Development Management Manual, Section 12 Annex Award of Costs, Schedule A, para A14 to A19. Costs Award Guidance, para 20. Costs Award Guidance, para 20. Costs Award Guidance, para 23. Costs Award Guidance, para 30. Planning and Compulsory Purchase Act 2004, s 59(4). Listed building, conservation area enforcement notice and hazardous substances contravention notice appeal decisions may also be corrected under the slip rule.

173

7.208  Appeal against an Enforcement Notice decision contains a ‘correctable error’ the Minister or the Inspector have a power to issue a fresh decision.351 A correctable error is an error:352 ‘(a) which is contained in any part of the decision document which records the decision, but (b) which is not part of any reasons given for the decision.’

7.208 This power can only be exercised if a request to make a correction has been received or the Minister or Inspector have informed the applicant or appellant that they are considering making a correction within the High Court challenge period.353 In Wales, corrections require the consent of the appellant and any other person who owns the land.354 A correction would be made by issuing a correction notice355 which will be the decision as corrected with an introductory paragraph saying that it is a correction notice. A correction notice would become the determination of the appeal. Time for bringing High Court proceedings, or the taking effect of an enforcement notice would run from that date.356 Any High Court proceedings brought against the original decision would become academic (save for costs issues) and any proceedings should be brought again against the correction notice. 7.209 Aside from the slip rule provisions, it is not possible for a Minister or Inspector to withdraw an enforcement notice appeal decision once it has been issued.357 NATIONAL SECURITY CASES 7.210 The general principle is that the planning process operates in public. In public inquiries, it has long been the case that oral and documentary evidence has to be heard by and available to the public, subject to limited exceptions for national security or measures to ensure the security of any premises or property in the national interest (although fairness ensured that the parties could still be present).358 In conjunction with the extension of planning control over Crown land, the Planning and Compulsory Purchase Act 2004 introduced a system of special advocates in certain planning cases.359 7.211 If the Secretary of State is proposing to direct that the persons able to see particular evidence in an appeal is restricted for national security or property protection purposes, then the Attorney General or Counsel General to the Welsh Ministers may appoint a special advocate to represent the interests of persons excluded from the proceedings.360 Planning and Compulsory Purchase Act 2004, s 56. Planning and Compulsory Purchase Act 2004, s 59(5). 353 Planning and Compulsory Purchase Act 2004, s 56(4). This does not include any potential extension of time for appealing. 354 Planning and Compulsory Purchase Act 2004, s 56(3)(c), (6). 355 Planning and Compulsory Purchase Act 2004, s 57(1). 356 Planning and Compulsory Purchase Act 2004, s 58. 357 Connors v Secretary of State for Communities and Local Government [2017]  EWCA  Civ 1850, [2018] JPL 516 at paras 88–92 per Lindblom LJ. 358 Town and Country Planning Act 1990, s 321. 359 For a discussion of this change see S Tromans et al, Planning and Compulsory Purchase Act 2004: A Guide to the New Law (The Law Society, 2005) Chapter 7. 360 Town and Country Planning Act 1990, ss 321(5), 322A, 322B. 351 352

174

National security cases 7.212 7.212 The enforcement rules and regulations are amended to provide that the Minister is not required to disclose information which could harm national security or disclose measures to protect property where a national security direction has been made.361 Evidence and statements of case would be split between open and closed evidence, the closed evidence only being available to the Inspector and securityvetted participants, essentially government representatives and special advocates. There would then be open and closed Inspector’s reports and decisions.

Welsh Appeals Regulations, reg 51, Sch 2.

361

175

Chapter 8

Enforcing Enforcement Notices: Prosecution and Direct Action

8.01 If, after the period for compliance with the enforcement notice has expired, the notice has not been complied with in whole or part, further steps will need to be taken. Failure to comply imposes criminal liability. Additionally the local planning authority or the Minister can carry out works on the land required by the notice. As with other situations involving breaches of planning control, injunctions are available. These are considered in Chapter 14 below. OFFENCES 8.02 Two separate offences for breach of enforcement notices are created: one committed by owners, the other committed by persons having control of or an interest in the land. The owner offence creates strict liability if the enforcement notice has not been complied with. The control offence applies to causing or permitting activities contrary to the notice. Owner 8.03 It is an offence for the owner of the land to be in breach of an enforcement notice.1 The owner is in breach of the notice:2 ‘Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.’

Elements of the owner offence 8.04 (a)

The prosecution must prove: the defendant was the owner3 at the relevant time;4

(b) the terms of the enforcement notice;

Town and Country Planning Act 1990, s 179(2); Planning Act (Northern Ireland) 2011, s 147(2). Town and Country Planning Act 1990, s 179(1); Planning Act (Northern Ireland) 2011, s 147(1). 3 The owner is the person entitled to the ‘rack rent’, that is, the market rent: Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1), see R (Newham London Borough Council) v Stratford Magistrates’ Court [2016] EWHC 302 (Admin) and paras 6.31–6.33 above. 4 R v Ruttle, ex p Marshall (1989) 57 P & CR 299. 1 2

176

Offences 8.07 (c) the date on which it should have been complied with (this must be alleged in the information);5 and (d) the failure to comply on the date alleged. The owner of registered land is the proprietor registered at the Land Registry. If property is sold then it remains in the transferor’s ownership until the new proprietor is registered, even if this is some time after the conveyance and transfer of possession.6 So, ownership should be proved by producing the office copy of the Land Registry entry for the property. Where land is unregistered, completed Planning Contravention Notices or interest in land notices7 can also provide evidence. There is a presumption of continuing ownership where there is evidence of ownership at a particular date.8 8.05 If the notice was complied with and then buildings or works were reinstated or restored in breach of the enforcement notice, the owner is not liable under these provisions for failing to remove or alter this development. This is set out in England and Wales:9 ‘no person shall be liable under section 179(2) for failure to take any steps required to be taken by an enforcement notice by way of removal or alteration of what has been so reinstated or restored.’

However in all three jurisdictions a person who reinstates or restores the buildings or works will have committed a summary offence.10 8.06 A resumption of a use which is prohibited by an enforcement notice will be an offence under the principal enforcement notice provisions.11 For the enforcement notice offence it is not necessary for the prosecution to prove that the local planning authority decision to issue the notice was valid and within its powers, for example that authority had been properly delegated.12 Control or interest 8.07 The control or interest offence is committed by ‘a person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4)’.13 Subsection (4) is in Town and Country Planning Act 1990, s  179(4) and Planning Act (Northern Ireland) 2011, s 147(4) and provides:

Maltedge Ltd v Wokingham District Council (1992) 64 P & CR 487. East Lindsey District Council v Thompson [2001] EWHC Admin 81, (2001) 82 P & CR 33 but see to the contrary, R v Surrey County Council, ex p Bridge Court Holdings Ltd [2000] PLCR 344. East Lindsey is the better view. 7 Town and Country Planning Act 1990, s 330; Planning Act (Northern Ireland) 2011, s 240. 8 Whitfield v Gowling (1974) 28 P & CR 386. 9 Town and Country Planning Act 1990, s 181(5)(b); Planning Act (Northern Ireland) 2011, s 149(5) is to the same effect. 10 Town and Country Planning Act 1990, s 181(5)(a); Planning Act (Northern Ireland) 2011, s 149(5). See para 8.59 below. 11 Town and Country Planning Act 1990, s 179(2); Planning Act (Northern Ireland) 2011, s 147(2). See Pathfield Estates Ltd v Haringey London Borough Council [2013] EWHC 2053 (Admin); R v Ahmed [2014] EWCA Crim 1270. 12 R v Wicks [1998] AC 92. 13 Town and Country Planning Act 1990, s 179(5); Planning Act (Northern Ireland) 2011, s 147(5). 5 6

177

8.08  Enforcing Enforcement Notices: Prosecution and Direct Action ‘A person who has control of or an interest14 in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.’

Elements of the control offence 8.08 The control offence is solely concerned with the carrying on of an activity. It does not cover a failure to take required steps to remedy a breach of planning control. Only the owner is criminally liable for a failure to reverse unlawful operational development. The prosecution must prove: (a)

the defendant had control of or an interest in the land at the relevant time;

(b) the terms of the enforcement notice; (c)

the date on which it should have been complied with (as said above, this must be alleged in the information);15

(d) the activity required by the notice to cease was being carried on the date alleged; and (e)

the defendant caused or permitted the activity to be carried on.

8.09 ‘Permitting’ includes giving express permission but also failing to take reasonable steps to prevent it. A  failure to take unreasonable steps does not constitute permitting.16 Whether steps are reasonable is a matter for the tribunal of fact (the magistrates or the jury). However, it is unreasonable to require a defendant physically to remove persons contravening the enforcement notice. Depending on the circumstances, it may be reasonable for the defendant to take legal proceedings against the contraveners.17 The defendant must have the power to forbid the contravener from carrying on the activity. CHARGING OFFENCES 8.10 In England and Wales local planning authorities should have regard to the Code for Crown Prosecutors in bringing prosecutions.18 This is based upon the principles endorsed by the Attorney General for all those who prosecute on behalf of the public. There are two main criteria that must be satisfied: (a)

evidential sufficiency – that there is sufficient, admissible and reliable evidence that a criminal offence has been committed by an identifiable person. The test is usually whether there is a reasonable prospect of a conviction;

(b)

public interest – once there is sufficient evidence, the prosecutor must consider whether it is in the public interest to prosecute. In a planning context the factors include harm caused in planning terms and whether the offence is continuing when the prosecution is brought.19

16 17 18 19 14 15

In Northern Ireland the provision refers to an estate rather than an interest. Maltedge Ltd v Wokingham District Council (1992) 64 P & CR 487. Test Valley Investments Ltd v Tanner (1964) 15 P & CR 279. Ragsdale v Creswick [1984] JPL 883. Issued with respect to the Crown Prosecution Service under the Prosecution of Offences Act 1985, s 10. Wokingham Borough Council v Scott [2019] EWCA Crim 205.

178

Charging offences 8.15 Similar principles are set out in the Code for Prosecutors issued by the Director of Public Prosecutions for Northern Ireland.20 8.11 A conviction may give rise to a Proceeds of Crime Act order against the defendant for, broadly, any monies received in breach of the enforcement notice. 37.5% of the recovered proceeds are retained by the prosecuting authority. The Court of Appeal warned in Wokingham Borough Council v Scott:21 ‘The decision to prosecute is a serious step and one that must be taken with the utmost care. We understand the argument that the making of a POCA order on conviction may act as a deterrent to offending and has the effect of extracting ill-gotten gains from offenders. This was no doubt Parliament’s intent in enacting the POCA. But where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest test within the Code for Crown Prosecutors’.

8.12 A decision whether to prosecute should be properly recorded, including the conclusions reached on the two criteria and the reasons for them. If a prosecution is brought, that documentation may need to be put before the Court in the context of whether there has been authorisation to bring the proceedings and any abuse of process argument.22 A decision not to prosecute may have to be explained to third parties. 8.13 During the course of a prosecution, the local planning authority should continue to review the appropriateness of continuing the proceedings. New evidence may affect the prospects of conviction or the balance of the public interest may change, for example because of compliance. 8.14 A decision to prosecute must be made in respect of each defendant, having regard to their circumstances and involvement. It is not appropriate to ‘lump’ them together.23 8.15 As either way offences, which can be tried in the magistrates’ court or the Crown Court, there is no time limit on the period for bringing a prosecution. However, an excessive delay, particularly where it causes prejudice to the defendant, may amount to an abuse of process. The offences are single rather than continuing, but may be charged by reference to a particular day or a longer period of time.24 It is common to charge for a day on which an inspection by the local planning authority took place. If a longer period is charged, this will usually be between the dates of two inspections. Alternatively, Lord Roskill in Chiltern District Council v Hodgetts25 suggested that a failure to cease an activity should be charged from the date compliance was first required to the date when the information was laid or the notice was complied with, whichever was the earlier.

22 23 24 25 20 21

Under the Justice (Northern Ireland) Act 2002, s 37. [2019] EWCA Crim 205, [2020] 4 WLR 2. For the latter, see Wokingham Borough Council v Scott [2019] EWCA Crim 205, [2020] 4 WLR 2. Wokingham Borough Council v Scott [2019] EWCA Crim 205, [2020] 4 WLR 2. Town and Country Planning Act 1990, s 179(6); Planning Act (Northern Ireland) 2011, s 147(6). [1983] 1 All ER 1057.

179

8.16  Enforcing Enforcement Notices: Prosecution and Direct Action 8.16 Further offences can be charged in respect of a later period of time. It is provided that ‘a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence’.26 It has been held at first instance that an offence can be committed after an earlier acquittal: the enforcement notice remains in being. Whilst it will depend on the circumstances, the prosecution should be heard even if a planning application has recently been submitted, unless there is a prospect that the application will be determined shortly.27 Even then, since the application does not affect the commission of the offence, the arguments for delay are slim. However, adjournment of sentence pending determination of the planning application is more common. FIXED PENALTY NOTICES IN NORTHERN IRELAND 8.17 As an alternative to bringing a prosecution, a council in Northern Ireland may serve a fixed penalty notice on anyone it believes to have breached an enforcement notice. If the person served pays then they may not be prosecuted. However no liability arises if the £2,000 demanded under the notice is not paid: the council would then have to decide whether to prosecute the alleged breach of the enforcement notice. 8.18 A  fixed penalty notice may only be given to a person by an authorised officer28 of the council.29 The officer may give a person a notice if he ‘has reason to believe that [they have] committed an offence under section 147 in the district of that council’. Those are the offences of failing to comply with an enforcement notice, whether as owner, controller or person with an estate in the land. 8.19

The fixed penalty notice shall specify:

(a)

the step specified in the enforcement notice which has not been carried out or the activity which is required to, but has not, ceased;30

(b)

by reason of para (a), the notice must identify the enforcement notice concerned;

(c)

The 28 day period following the date of the notice within which a prosecution will not be brought and in which the fixed penalty can be paid;

(d) the £2,000 amount of the fixed penalty;31 (e)

the person to whom and the address at which the penalty must be paid.32

Town and Country Planning Act 1990, s 179(6); Planning Act (Northern Ireland) 2011, s 147(6). R v Beaconsfield Magistrates, ex p South Buckinghamshire District Council (1993) 157 JP 1073. 28 An authorised officer is a council employee who is authorised in writing by the council for the purpose of giving notices under this section: Planning Act (Northern Ireland) 2011, s 153(12). Issuing a fixed penalty notice is therefore not a decision which can be taken by a council committee or individual councillor. 29 Planning Act (Northern Ireland) 2011, s 153(1). 30 Planning Act (Northern Ireland) 2011, s 153(3). 31 The sum is prescribed by the Planning (Amount of Fixed Penalty) Regulations (Northern Ireland) 2015, reg 2(a). 32 The final three requirements are in Planning Act (Northern Ireland) 2011, s 153(4). 26 27

180

Fixed penalty notices in Northern Ireland 8.23 It is probably implicit (and certainly good practice) for the notice to set out the 25% discount which applies if the penalty is paid within 14 days. The Department may prescribe a form which would have to be used,33 but has not done so. 8.20 If notice is given then no proceedings may be instituted within the period of 28 days following the date of the notice.34 The prohibition will operate against proceedings brought by any person: it is not limited to a prosecution by the council. If the person pays the fixed penalty sum within that period then they may not be convicted ‘of that offence’.35 The issue arises as to what ‘that offence’ is. A failure to comply with a step or prohibition will often be a continuing offence. It may be that the activity (such as residential use) continues for months after it was required to cease and could even be continuing when a fixed penalty notice is given. In other situations, the notice may be breached irregularly, for example, a noise limit condition. The notice is not required to specify the date or period of the alleged offence, merely the step or activity involved in the contravention, which suggests that this is not important. It appears to be implicit that all breaches of the step or activity up to the date of the notice are covered by the penalty. There would be little benefit for a person to pay off some of the alleged offences which have been committed whilst remaining open to prosecution on others. 8.21 Where a breach is continuing or may recur in the future, the payment of a fixed penalty would not prevent a prosecution being brought for future breaches. A  council is prohibited from serving ‘more than one notice under this section in relation to a particular step or activity’.36 The implication is that it would otherwise be able to do so; future offences could be committed. It would also be highly damaging to the planning system to allow a requirement of an enforcement notice to be set aside at a cost which might prove to be very modest. The objective of remedying a breach or its impacts is not achieved merely by a payment. 8.22 If the notice covers past offences but allows the enforcement notice to be enforced in the future, an issue may arise whether a prosecution can subsequently be brought for breaches occurring within the 28-day period when the penalty is paid, whether before or after that payment. If a breach was continuing at the date of service, a fixed penalty notice may have a limited ability to end the contravention by removing the risk of prosecution if the person could still be subject to proceedings for post-service breaches. 8.23 Different notices may be served against contraventions of different steps or restrictions in the same notice.37 Where a notice consists of several requirements (such as cease the activity, demolish the building, remove the debris and replant the land), payment under a notice in relation to one step will not prevent a prosecution for a breach which has already occurred under another step. A potential payer will want to be certain as to what alleged liability is being set aside.

35 36 37 33 34

Planning Act (Northern Ireland) 2011, s 153(8). Planning Act (Northern Ireland) 2011, s 153(2)(a). Planning Act (Northern Ireland) 2011, s 153(2)(b). Planning Act (Northern Ireland) 2011, s 153(5). Planning Act (Northern Ireland) 2011, s 153(5) only prohibits more than one notice ‘in relation to a particular step or activity’.

181

8.24  Enforcing Enforcement Notices: Prosecution and Direct Action 8.24 The council may provide various means of making payment but the payer is entitled to pay by sending the sum by pre-paid post.38 A posted payment is received when the letter would have been delivered in the ordinary course of the post,39 providing a protection against late delivery. It also means that payment is made when a cheque is (or should be) received, rather than when it is cleared. 8.25 There is no right of appeal or statutory challenge against a fixed penalty notice because it does not impose liability upon any person, merely providing recipients with a means of avoiding a criminal liability which is said to have already arisen. Since a failure to pay should lead to the council considering whether to prosecute, it would be sensible to dispute liability rather than simply fail to pay.40 8.26 Like any other acts of a public authority, the service of a fixed penalty notice is amenable to judicial review, although the circumstances in which that is an appropriate means of challenge will be limited. A person who has been served might want to vindicate their position by such proceedings rather than to defend a criminal prosecution, but a factual dispute is likely to only be suitable for the criminal courts. A third party could either challenge the service of a fixed penalty notice (as being unlawfully lenient compared to a criminal prosecution) or the failure to take action to enforce an enforcement notice. Judicial reviews of any fixed penalty notice decisions are likely to be difficult where they turn on the exercise of discretion, but may be more suitable for disputes about the meaning of the underlying enforcement notice. A council may only use its fixed penalty notice receipts for its functions under the planning enforcement Part of the Act.41 ASSURANCES OF NON-PROSECUTION 8.27 A local planning authority in England or Wales may give a person a binding, but revocable, assurance that they will not be prosecuted for breach of an enforcement notice, or breach of specified elements of the enforcement notice. This power is contained in s 172A, inserted by the Localism Act 2011, and binds all prosecutors.42 Section 172A(1) provides: ‘When, or at any time after, an enforcement notice is served on a person, the local planning authority may give the person a letter— (a) explaining that, once the enforcement notice had been issued, the authority was required to serve the notice on the person, (b) giving the person one of the following assurances— (i) that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the enforcement notice, or

Planning Act (Northern Ireland) 2011, s 153(6). The letter may contain the amount of the payment ‘in cash or otherwise’, allowing cheques to be sent (as well as the less likely course of posting a four figure sum in notes). 39 Planning Act (Northern Ireland) 2011, s 153(7). 40 This is encouraged by Enforcement Practice Note 4: enforcement procedures, para 7.13. 41 Planning Act (Northern Ireland) 2011, s 155(2)(a). Regulations may allow their use for other functions (s 155(2)(b)) but this power has not been exercised. 42 Town and Country Planning Act 1990, s 172A(5). 38

182

Defences 8.31 (ii) that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the matters relating to the enforcement notice that are specified in the letter, (c) explaining, where the person is given the assurance under paragraph (b)(ii), the respects in which the person is at risk of being prosecuted under section 179 in connection with the enforcement notice, and (d) stating that, if the authority subsequently wishes to withdraw the assurance in full or part, the authority will first give the person a letter specifying a future time for the withdrawal that will allow the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance.’

8.28 Two issues arise on the formality and technical compliance of the assurance. A person who relies upon an assurance should not be at risk of prosecution because of a technical or formal error in the document prepared by the authority. This can be addressed by a reasonable construction of the provisions and care as to what errors render an assurance unlawful. For example, whilst s  172A(1) refers to a letter, it could be sent electronically and need not be written in letter form. A failure of the letter to state that the notice had to be served or that it could be withdrawn ought not to remove the recipient’s protection before it is withdrawn. 8.29 There is an important drafting error in subsection (1)(a).43 The letter has to explain to the recipient that the authority was required to serve the notice on the person, but there will be cases where a person is at risk of prosecution having become involved in the land after the enforcement notice was issued. That person would not have been served with a copy of the enforcement notice. It may be sensible for a purchaser of land to have time to remedy its predecessors’ breaches without being at risk of prosecution. Indeed, it is unlikely that someone would buy land if they thought they would put themselves at risk of prosecution under a previously served notice. An assurance in those circumstances would not fall within all the terms of s 172A(1), although that ought not to matter or such a prosecution might be an abuse of process. 8.30 An assurance under s 172A can be withdrawn in full or in part at any time in writing. Such a withdrawal will be from a specified time, which ‘will give the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance’.44 A prosecution may only be brought for breaches following the specified time.45 DEFENCES 8.31 A  number of defences are set out to either offence. The ability of the defendant to challenge the validity of an enforcement notice in criminal proceedings is also considered in Chapter 24 [High Court].

A more minor error is that an authority will serve a copy of an enforcement notice rather than the notice itself. 44 Town and Country Planning Act 1990, s 172A(2), (3). 45 Town and Country Planning Act 1990, s 172A(4). 43

183

8.32  Enforcing Enforcement Notices: Prosecution and Direct Action The owner offence 8.32 It is a defence for a person charged under the owner offence ‘to show that he did everything he could be expected to do to secure compliance with the notice’.46 In R v Beard47 the Court of Appeal held: ‘Before a defence can arise under that sub-section the owner must show that compliance with the notice is not within his own unaided powers otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of sub-section (3). We accept as does counsel for the prosecution that the phrase ‘everything he could be expected to do’ must implicitly be read as ‘reasonably expected’. It applies an objective criterion of reasonableness having regard to all the relevant circumstances, in particular any disability to which the owner of the land is subject.’

8.33 The defence is concerned with the defendant’s inability to comply, rather than excusing any unwillingness to comply or indicating that it is undesirable to comply. In some cases a defendant might be entitled to do nothing if there was nothing he could reasonably be expected to do.48 It might be physically impossible to carry out the works required by the notice, for example because ground settlement would mean that a reinstated rear wall, following the demolition of an unlawful extension, would not comply with the notice.49 However, the defence is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site has become available where the activity in question could be continued.50 Similarly it is not open to a defendant to seek to rely on the defence on the basis that compliance with the notice would breach his rights under the European Convention on Human Rights as these matters are considered earlier in the enforcement process.51 Additionally the defence cannot operate as a disguised challenge to the validity of the enforcement notice, which is prohibited by s 285(1).52 The question of whether or not a defendant has done all that he can ‘reasonably be expected’ to do is a matter for the tribunal of fact whether the magistrates or the jury.53 In Wood a conviction was quashed where the Crown Court judge had ruled that the defence was not available before hearing any evidence, although there may be circumstances where this is appropriate.54 In terms of the ability of a landowner to secure compliance when there are other persons on the land it should be noted that the owner can obtain an order from the magistrates’ court requiring the occupier to permit him to take the steps required in the enforcement notice.55 The defendant’s Town and Country Planning Act 1990, s 179(3); Planning Act (Northern Ireland) 2011, s 147(3). [1997] 1 PLR 64 at 70. 48 R v Beard [1997] 1 PLR 64. 49 London Borough of Camden v Galway-Cooper [2018] EWHC 1355 (Admin). 50 Wycombe District Council v Wells [2005] EWHC 1012 (Admin), [2005] JPL 1640. 51 R v Clarke [2002] EWCA Crim 753, [2002] JPL 1372 at paras 18, 19. 52 See R v Clarke [2002] EWCA Crim 753, [2002] JPL 1372 at para 14; Planning Act (Northern Ireland) 2011, s 147(8). 53 Kent County Council v Brockman [1996] 1 PLR 1. 54 R v Wood [2001] EWCA Crim 1395 at para 11; cf R v Clarke [2002] EWCA Crim 753, [2002] JPL 1372. 55 Public Health Act 1936, s 289. 46 47

184

Defences 8.37 personal and financial circumstances are also relevant, although the courts should be rigorous in the proof expected of an impecunious defendant.56 8.34 The question is the reasonableness of the defendant’s actions given their knowledge, rather than the actions of others.57 However the Court will not be blind to self-inflicted obstacles. In a breach of condition notice case the equivalent reasonable measures defence was not available to a company which owned a house when the director of the company refused to allow the works to be carried out. Supperstone J said it was ‘contrived for the Appellant to suggest that it could not obtain the consent needed when the person allegedly withholding consent was its own director’.58 Defence of lack of knowledge 8.35 There is no mental element required for the enforcement notice offences and lack of knowledge of the existence or effect of an enforcement notice is not in itself a defence.59 A limited ‘lack of knowledge’ defence is provided:60 ‘Where— (a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and (b) the notice is not contained in the appropriate register kept under section 188, it shall be a defence for him to show that he was not aware of the existence of the notice.’

8.36 The defence therefore applies to both offences. The person need not have been entitled to be served with a copy of the enforcement notice, he may have come onto the scene later. The appropriate register is the Enforcement Register. The register entry should be adequate to show what steps are required, or which activity must cease. It is probably not necessary for all the requirements of s 188 and the Development Management Procedure Order61 in respect of the register to have been complied with. 8.37 The defendant’s knowledge is of the existence of the notice. This is different to knowing its precise terms, but knowledge in broad terms of the land affected and the substance of the prohibitions or steps required may be necessary for a person to be aware of the existence of a notice. Knowledge is tested on the date on which the offence is alleged to have been committed.

Kent County Council v Brockman [1994] Crim LR 296, [1996] 1 PLR 1. Mirza v London Borough of Newham [2017]  EWCA  Crim 924 where the owner let her husband manage the property but knew of an enforcement notice, reasonableness was concerned with her actions rather than his. 58 Lawson Builders Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3368 (Admin) at para 70. The title of the case arises because the appeal by case stated from the magistrates’ court was conjoined with an application against Inspectorate appeal decisions. 59 R v Collett [1994] 1 WLR 475. 60 Town and Country Planning Act 1990, s 179(7). Planning Act (Northern Ireland) 2011, s 147(7) is to the same effect. 61 Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43; Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 30. 56 57

185

8.38  Enforcing Enforcement Notices: Prosecution and Direct Action LIABILITY OF DIRECTORS 8.38 If a corporate body is guilty of an offence under the Town and Country Planning Act 1990, then its managers would also be guilty of that offence if it was ‘committed with the consent or connivance of, or to be attributable to any neglect on their part. Section 331(1) provides: ‘Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of— (a) a director, manager, secretary or other similar officer of the body corporate, or (b) any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against accordingly.’

This provision is also applied to offences under the Planning (Listed Buildings and Conservation Areas) Act 199062 and the Planning (Hazardous Substances) Act 1990.63 There is no equivalent provision in the Planning Act (Northern Ireland) 2011. 8.39 Where consent is alleged a defendant has to be proved to know the material facts which constitute the offence by the body corporate and to have agreed to its conduct of the business on the basis of those facts although this may be established by inference as well as by proof of an express agreement. In a health and safety case Lord Hope of Craighead observed:64 ‘it will be a relatively short step for the inference to be drawn that there was connivance or neglect on his part if the circumstances under which the risk arose were under the direction or control of the officer. The more remote his area of responsibility is from those circumstances, the harder it will be to draw that inference.’

PROCEDURAL RULES 8.40 Criminal procedure in England and Wales is now largely set out in the Criminal Procedure Rules 2012. The Criminal Procedure Rules, first produced in 2005, replace in a structured fashion, a mass of procedural rules for the magistrates’ courts and Crown Courts. 8.41

The most important provisions in planning cases are:

•

Part 1: the overriding objective

•

Part 7: starting a prosecution in the magistrates’ court

•

Part 9: allocation and sending for trial

•

Part 10: committal for trial

•

Part 14: the indictment

By Planning (Listed Buildings and Conservation Areas) Act 1990, s 89(1). Planning (Hazardous Substances) Act 1990, s 37. 64 R v Chargot Ltd [2008] UKHL 73, [2009] 1 WLR 1 at para 34. 62 63

186

Procedural rules 8.44 •

Part 21: initial details of the prosecution case

•

Part 22: disclosure

•

Part 27: witness statements

•

Part 37: trial and sentence in the magistrates’ court

•

Part 39: trial on indictment

Additionally appeals from the magistrates’ court to the Crown Court, or from either court to the High Court by case stated are dealt with by Parts 63 and 64 respectively. The information or written charge 8.42

An information or written charge to begin a prosecution must contain:65

‘(a) a statement of the offence that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.’

As mentioned earlier, the period for compliance with the enforcement notice must be alleged in the information (and later, any indictment).66 Mode of trial 8.43 As an either way offence, the prosecution can be tried in the magistrates’ court or the Crown Court. Unless a very substantial fine is anticipated, the local planning authority will normally wish summary trial, for the following reasons: (i)

it is usually quicker and cheaper;

(ii) an acquittal can be appealed. Since prosecutions do fail on technical points, this can be important; (iii) detailed factual or legal disputes are difficult to explain to a jury. The choice for the defence is more finely balanced. One factor is whether a jury or bench of magistrates are more likely to have sympathy with the defendant in the particular circumstances. The particular defence to be run may work better in different tribunals. Form of an indictment 8.44 Each count on an indictment sets out a statement of offence and particulars, for example:

Criminal Procedure Rules, r 7.3(1). Maltedge Ltd v Wokingham District Council (1992) 64 P & CR 487.

65 66

187

8.45  Enforcing Enforcement Notices: Prosecution and Direct Action Indictment IN THE CROWN COURT AT NORTH LONDON THE QUEEN v JOHN SMITH charged as follows Statement of Offence Breach of an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990 Particulars John Smith, between 10 January 2013 and 1 April 2019, failed to take a step required by an enforcement notice issued by the London Borough of Middlesex under the Town and Country Planning Act 1990 and dated 2 October 2017, namely to demolish the rear extension to the house at 1, Green Road, London N1 4DH when that notice had to be complied with by 9 January 2019, in breach of the enforcement notice. Duties of disclosure 8.45 Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed. 67 The same rules apply to summary trial.68 In the Crown Court the defendant must give a defence statement and the defendant may give a defence statement in the magistrates’ court.69 Following service of a defence statement, the defendant may apply for an order that the prosecution disclose material,70 having ordinarily asked the prosecution for the material. In practice, it is for the defence to request disclosure. Officer’s reports, notes of inspections, internal memoranda and letters of complaint can be sought. The whole of the planning files relating to the property (or even neighbouring properties) could be relevant. This can undermine the prosecution case, such as what was found at an inspection, or support a defence, for example by bringing evidence that the use may have become lawful by passage of time and so prejudice has occurred within s 285(2). 8.46 In enforcement notice cases the width of disclosure is narrowed by the limited scope for challenging the validity of the notices.71 If the point to which the material relates cannot be raised in those criminal proceedings, disclosure cannot be required. The defence is under no general duty of disclosure. However, expert evidence to be used by the defence, including the professional opinion of a planning consultant, should be disclosed to the prosecution as soon as practicable after committal to the Crown Court.72 There is an exception for expert evidence going only to sentencing which need not be disclosed.73

69 70 71 72 73 67 68

Attorney General’s Guideline on Disclosure of Information, para 1. R v Bromley Justices, ex p Smith [1995] 1 WLR 944. Criminal Procedure and Investigations Act 1996, ss 5, 6. See Criminal Procedure Rules, r 22.5 for the process. See Town and Country Planning Act 1990, s 285 and R v Wicks [1998] AC 92. Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI 1987/716). Rule 3(1).

188

Sentences 8.51 SENTENCES 8.47 On summary conviction the maximum sentence is an unlimited fine.74 On conviction on indictment, the fine is also unlimited.75 As a general point any fine should reflect the seriousness of the offence.76 It should also take into account the financial circumstances of the offender, as far as they are known or appear, and may thereby increase or reduce the fine.77 The statutory purposes of sentencing, to be considered in every case are:78 ‘(a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.’

8.48 By Town and Country Planning Act 1990, s 179(9) determining a fine the court shall particularly ‘have regard to any financial benefit which has accrued or appears likely to accrue to [the defendant] in consequence of the offence’.79 The clearest example is where the defendant carried on a business in breach of the enforcement notice. A lack of financial benefit must also be taken into account as a factor militating against a large sentence.80 However, there was no obligation to order a fine in the full amount of that benefit, or even a large proportion of it.81 8.49 It would be wrong in principle to impose a fine in respect of the financial benefit from the offence under s  179(9) if it has already been the subject of a confiscation order under the Proceeds of Crime Act, as this would amount to doublecounting.82 That principle was not offended when the profits of the landowner of an unauthorised public house were considered, where confiscation proceedings were only taken against the operator.83 8.50 Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into his financial circumstances.84 8.51 In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.85 A  statutory aggravating factor is any previous conviction, having regard to the nature of

Town and Country Planning Act 1990, s 179(8).The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 18. 75 Town and Country Planning Act 1990, s 179(8). 76 Criminal Justice Act 2003, s 164(2). 77 Criminal Justice Act 2003, s 164(3), (4). 78 Criminal Justice Act 2003, s 142(1). 79 Also in Planning Act (Northern Ireland) 2011, s 147(9). 80 R (Manorgale Ltd) v Thames Magistrates’ Court [2013] EWHC 535 (Admin). 81 R v Rance [2012] EWCA Crim 2023, [2013] Crim LR 74. 82 R v Kohali [2015] EWCA Crim 1757, [2016] 1 Cr App R (S) 30 at para 27 per Lang J. 83 R v MA Kelly’s Estates [2018] EWCA Crim 2722. 84 Criminal Justice Act 2003, s 164(1). 85 Criminal Justice Act 2003, s 143(1). 74

189

8.52  Enforcing Enforcement Notices: Prosecution and Direct Action the previous offence, its relevance to the current offence and the time since that conviction.86 The commission of an offence whilst on bail is also an aggravating factor87 and this point would hold for a continuing breach of an enforcement notice once proceedings had commenced. A guilty plea must also be taken into account, having regard to when the plea was indicated and the circumstances.88 Culpability is a factor, both in terms of the intentionality or otherwise of the alleged breach of the enforcement notice and any continuing failure to comply.89 8.52 The harm caused in planning terms is an important factor in sentencing. The sentence would be lower if planning permission for the development is granted after the breach of the enforcement notice. Where a planning application or appeal in respect of the development covered by the enforcement notice is in progress it may be sensible to adjourn sentence until the outcome is known.90 Factors identified as relevant to sentencing in the Health and Safety case of R  v F  Howe and Sons (Engineers) Ltd91 may be relevant to planning offences, with appropriate adjustments. Aggravating factors include financial profit from the breach, deliberate breaches and a failure to heed warnings. Mitigating factors include prompt admission of responsibility and a timely plea of guilty, steps to remedy deficiencies after they are drawn to the defendant’s attention, and a good record. Other relevant factors will include the extent of the breach or breaches, for example whether it was an isolated incident or continued over a period and, importantly, the defendant’s resources and the effect of the fine on its business. 8.53 Prosecuting authorities in regulatory offences are encouraged to prepare a schedule setting out the facts of the case and relevant aggravating factors (and it is suggested, mitigating factors): R v Friskies Petcare (UK) Ltd.92 If there is a guilty plea the defendants should set out in writing the mitigating features that the court should take into account. These documents are known as Friskie schedules.93 It should then be apparent whether there are issues between the parties which need to be resolved in a Newton hearing prior to sentence. Compensation orders may be made, for example for the benefit of neighbours, but the loss must be capable of being quantified.94 Checklist for prosecutors in sentencing 8.54 A number of matters should be shown in evidence in respect of sentence, if applicable. These matters would be irrelevant and potentially prejudicial with respect to determining guilt or innocence so should not be put into the trial:95 Criminal Justice Act 2003, s 143(2). Criminal Justice Act 2003, s 143(3). 88 Criminal Justice Act 2003, s 144(1). Some credit must still be given if the breach of the enforcement notice is continuing: R v Smith [2014] EWCA Crim 1508 at para 13 per Judge Zeidman. 89 See R v Smith [2014] EWCA Crim 1508 at para 14, 15; R v Dagim Fish & Deli Ltd [2014] EWCA Crim 2927 ‘there had to be an element of deterrence in a case where a party deliberately and flagrantly breached planning permission and then quibbled, dissembled and delayed when it came to enforcement’ at para 12 per Simon J; R v MA Kelly’s Estates [2018] EWCA Crim 2722 at para 28. 90 R v Newland (1987) 54 P & CR 222. 91 [1999] 2 All ER 249. 92 [2000] 2 Cr App R(S) 401. 93 In the magistrates’ court the schedule ought not to be provided to the justices before a plea of guilty is indicated or conviction to avoid prejudicing the court with irrelevant material. 94 R v Briscoe (1994) 15 Cr App R (S) 699. 95 R v Sandhu [1997] JPL 853, [1997] Crim LR 288. 86 87

190

Proceeds of Crime Act 2002 8.56 (a)

Seriousness of the breach of planning control The effect the breach has had on amenity or other interests of planning importance. A planning officer can give evidence of this. Alternatively it can be shown by committee reports or by any appeal decision.

(b) Wilful disregard of the enforcement notice If the defendant knew of the notice and failed to comply with it despite warnings from the local planning authority, his offence will be treated more seriously. Warning letters, the defendant’s replies and his involvement in any appeal can be put in evidence. (c)

Profit from the breach The local planning authority will rarely know the income derived from the breach, but they can show where commercial advantage has been gained from a breach.

(d) Whether the breach is continuing on the date of conviction If the defendant has failed to comply after the date for which he is prosecuted, and even after the prosecution has been brought, this should be shown. PROCEEDS OF CRIME ACT 2002 8.55 The Proceeds of Crime Act 2002 (‘POCA’) provides for confiscation orders made by the Crown Court for the recovery of money made or property received from criminal activity. Confiscation orders are made where a defendant is convicted in the Crown Court, committed to the Crown Court for sentence or the case is referred by the magistrates’ court for POCA and the prosecution asks for an order or the court believes it is appropriate to do so.96 The order may be in respect of the particular criminal conduct in the conviction or for a criminal lifestyle in respect of which the defendant has benefited.97 A  criminal lifestyle arises when an offence ‘constitutes conduct forming part of a course of criminal activity’ (that is, being convicted in those proceedings of three or more offences from which he has benefited or having convictions on at least two previous separate occasions offences from which he has benefited in the six years before the current proceedings were begun) or the offence was committed over a period of at least six months and he has benefited from it.98 If a person has a criminal lifestyle, then all income in the previous six years is assumed to be from crime unless proven otherwise. 8.56 The confiscation order will require the defendant to pay the ‘recoverable amount’ which is the defendant’s benefit from the conduct, reduced to the ‘available amount’ if the defendant has insufficient resources.99 The benefit is recoverable whether or not it has been retained and is the value of the property or advantage obtained by the defendant, not his net profit after deduction of expenses or any

Proceeds of Crime Act 2002, s 6 (in England and Wales) and s 156 (in Northern Ireland). Proceeds of Crime Act 2002, ss 6(4), 156(4). If the conviction is for a single day, then the proceeds of the particular criminal conduct will be any gain on that day, and not any other income in breach of the enforcement notice: R v Panayi [2019] EWCA Crim 413, [2019] 4 WLR 85 at paras 23, 33. 98 Proceeds of Crime Act 2002, ss 75, 233. 99 Proceeds of Crime Act 2002, ss 7, 156. 96 97

191

8.57  Enforcing Enforcement Notices: Prosecution and Direct Action amounts payable to co-conspirators.100 Breaches of enforcement notices can lead to substantial benefit from criminal conduct, and may be within the criminal lifestyle definition. This will often be the case when the enforcement notice prohibits the carrying on of a use which generates an income. In R v del Basso101 land was being used to provide a park and ride facility for passengers using Stansted Airport in breach of an enforcement notice. The recoverable amount was assessed as the total income received, before payment of staff costs, rent and tax and was over £1.8 million.102 8.57 In a number of cases substantial confiscation orders have been made against landlords who rented out unlawfully converted flats in breach of planning enforcement notices: for example, orders of £186,000 and £112,500 have been made103 There are though occasions when it is simpler for any profit to be reflected in a fine,104 not least because of the immense complexity of the confiscation process. The benefit must be arising from the criminal conduct, so a confiscation order could not be made where a landlord of residential property was not licensed under the Housing Act 2004 but he still had a right to rent.105 Confiscation cannot take place against income received in breach of planning control which is not at the time an offence.106 8.58 The proceeds of crime cases do sound a warning to those operating businesses in breach of enforcement notices. As the Crown Court judge, HH Judge Michael Baker QC, said in del Basso:107 ‘I  conclude with a final observation about the mentality of the [appellants] and other similar law breakers. I have received the strong impression that neither the [appellants] nor … their accountant appreciated fully the risk that the companies and individuals involved in the park and ride operation faced from confiscation proceedings. They have treated the illegality of the operation as a routine business risk with financial implications in the form of potential fines or, at worst, injunctive proceedings. This may reflect a more general public impression among those confronted by enforcement notices with the decision whether to comply with the law or to flout it. The law, however, is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal businesses confiscated. This may greatly exceed their personal profits. In this respect they are in the same position as thieves, fraudsters and drug dealers.’

SUBSEQUENT DEVELOPMENT IN BREACH OF AN ENFORCEMENT NOTICE 8.59 Reinstating or restoring buildings or works which have been removed or altered under an enforcement notice is a summary offence:108 R v May [2008] UKHL 28, [2009] 1 Cr App R (S) 31 at para 48. [2010] EWCA Crim 1119, [2011] 1 Cr App R (S) 41. 102 It is also not possible to deduct from the unlawful proceeds, income that could have been received if the property had been used in compliance with the enforcement notice, such as by renting out the house as a single dwelling: R v Evangelou [2019] EWCA Crim 1414. 103 Reported by the Local Government Lawyer, 30 March 2010 and 23 November 2011. 104 The confiscation proceedings failed in R v Rance [2012] EWCA Crim 2013, [2013] Crim LR 74. 105 R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840, [2012] HLR 46. 106 R v Ali [2014] EWCA Crim 1658, [2015] 1 WLR 841. 107 Quoted and endorsed by the Court of Appeal at para 46 of their judgment. 108 Town and Country Planning Act 1990, s 181(5). Planning Act (Northern Ireland) 2011, s 149(5) is to the same effect. 100 101

192

Direct action – carrying out works in default of compliance 8.63 ‘Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice— (a) he shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale’.

8.60 The offence is created because the enforcement notice will not, in terms, have banned the restoration or reinstatement of the operational development enforced against. The statutory defences in s 179(3), (7) and the exception to the restrictions on collateral challenge in s 285(2) do not apply to this offence. The maximum sentence is currently £5,000 (or £7,500 in Northern Ireland). ENFORCEMENT NOTICES ISSUED BY THE SECRETARY OF STATE OR THE DEPARTMENT 8.61 A prosecution for failure to comply with an enforcement notice issued by the Secretary of State can be brought by any person, including the Minister and the relevant local planning authority. THIRD PARTIES 8.62 Prosecutions are usually brought by the local planning authority. However, any person may bring a prosecution for failure to comply with an enforcement notice. Other public authorities, neighbours, commercial rivals and pressure groups can all bring prosecutions, although this is rare, if not unprecedented. Given the limited scope of collateral challenge in criminal proceedings,109 evidence of how and why the enforcement notice was issued is unlikely to be relevant. This makes third party prosecutions easier. The Director of Public Prosecutions has the power to take over prosecutions begun by other persons, including public authorities.110 This may happen, and the prosecution be dropped, if a private prosecution is considered to be against the public interest. DIRECT ACTION – CARRYING OUT WORKS IN DEFAULT OF COMPLIANCE 8.63 The local planning authority is empowered to undertake direct action, that is to enter land to take the steps required by an enforcement notice and recover the cost from the landowner. Town and Country Planning Act 1990, s 178(1) provides: ‘Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may— (a) enter the land and take the steps; and (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.’

The Planning Act (Northern Ireland) 2011, s 146(1) is in the same terms but adds ‘and those expenses shall be a civil debt recoverable summarily’. Town and Country Planning Act 1990, s 285 and R v Wicks [1998] AC 92. See Chapter 24. Prosecution of Offences Act 1985, s 6(2).

109 110

193

8.64  Enforcing Enforcement Notices: Prosecution and Direct Action 8.64 The power includes steps required in the notice that incidentally cease an activity on the land.111 The scope of the ability to carry out works not set out in an enforcement notice was considered by the High Court in Egan v Basildon District Council112 where Edwards-Stuart J held that the local authority could take any step incidental to the discharge of the s 178 function113 meaning that ‘the council may do anything reasonably necessary to achieve compliance with the steps required by the enforcement notice provided that such action is not something that could itself have been the subject of an enforcement notice’.114 In that case, which concerned the removal of travellers from Dale Farm he found: (a) Where a notice required the removal of hardstanding it would also allow the removal of a building erected on that surface after the issue of the enforcement notice.115 (b) Where a building had been unlawfully constructed prior to the issue of an enforcement notice but was not mentioned in the notice, it could not be permanently removed by direct action.116 (c) The council could temporarily remove structures such as gates, walls and fences to gain access to land to carry out direct action works, but it had to put these back once the works have been completed.117 8.65 There is no duty to consult any person who will be affected by direct action before deciding to carry it out since their right to make representations arises in any earlier enforcement notice appeal.118 8.66 If the intention is to remove or alter buildings or works which have been restored or reinstated after earlier compliance with the enforcement notice, the local planning authority must give 28 days’ notice to the owner and occupier.119 In other circumstances there is no statutory requirement to give notice before works are carried out,120 but that is usually done. Direct action is normally the culmination of a long enforcement process and notice of the date of the works gives the landowner a final opportunity to comply. A confrontation may be more likely to be avoided if it is known when works will be carried out, rather than having contractors suddenly turn up at 6am. 8.67 Where the decision to take direct action is made by officers under delegated powers then it will need to be published on the Council’s website, with reasons, under the Openness of Local Government Body Regulations 2014.121 Such as the removal of caravans which terminated the caravan use in Midlothian District Council v Stevenson [1985] SLT 424, [1986] JPL 913. 112 [2011] EWHC 2416 (QB), [2012] PTSR 1117. 113 At para 27. 114 At para 41. 115 At paras 26, 28. 116 At paras 36–38. 117 At paras 36, 37. At Dale Farm the enforcement notices had not required the removal of walls, fences and gates. The consequence of Egan was that the council dug out hardstanding in numerous plots and had to leave the walls in place, creating a heavily cratered site. 118 R (Usher) v Forest Heath District Council [2017] EWHC 2511 (Admin) at paras 29, 30 per Nathalie Lieven QC. 119 Town and Country Planning Act 1990, s 181(4); Planning Act (Northern Ireland) 2011, s 149(5). 120 Usher at para 48 per Nathalie Lieven QC. 121 Usher at para 45 per Nathalie Lieven QC. 111

194

Securing entry 8.70 8.68 A challenge to the exercise of the power can be brought by judicial review.122 This could be on the grounds that the decision to enter the land was unreasonable. In R (O’Brien) v Basildon Borough Council, Ouseley J held whilst quashing various decisions of the Council to take direct action:123 ‘184 It is in my view necessary for a local planning authority in deciding whether to use s  178 to consider and weigh various factors: the degree of harm done to the interests protected by planning control; the need for a swift or urgent remedy; the need to uphold and enforce planning control embodied in an effective enforcement notice and the criminal law; the personal circumstances and impact on the individuals of removal. 185 Part of that will involve the question of whether they have somewhere else to go or whether inevitably they will have to camp on the roadside, or in some other unauthorised Green Belt location of indeterminate harm. But it is also relevant, and the more plainly so where the conclusion is that the occupants have nowhere lawful or suitable to go, to consider the prospects of success which they might have on a planning application or on appeal, and the time scale over which that might be resolved.’

8.69 The decision to take direct action must have regard to the relevant circumstances at the time, including human rights, the Children Act and the prospects of obtaining planning permission on the current or another site.124 There is no requirement to pursue other enforcement mechanisms, such as prosecutions or injunctions, before resorting to direct action, even if human rights are engaged.125 If the works proposed are likely damaging operations affecting a designated site or area of special scientific interest then advance notice would have to be given to the relevant statutory nature conservation body.126 The adequacy of a local planning authority’s consideration of direct action was endorsed by the Court of Appeal in R (McCarthy) v Basildon District Council,127 although by the time the proceedings had concluded, so much time had passed that the issue had to be reconsidered.128 SECURING ENTRY 8.70 It is an offence to wilfully obstruct a person acting in the exercise of these entry powers. The offence is summary-only and is punishable by a level 3 fine (£1,000).129 An order can be obtained from the civil courts requiring an owner or occupier to allow the local planning authority to gain access under this section. Such an order can also be obtained under s 222 of the Local Government Act 1972.130 An order allowing the local planning authority to obtain access to carry out works may be possible under the s 187B injunction power.131

R v Greenwich London Borough Council, ex p Patel [1985] JPL 851. [2006] EWHC 1346 (Admin), [2007] 1 P & CR 16 at paras 184, 185. See also the judge’s comments at paras 145–150 and 152–156. 124 See generally, Sheridan v Basildon District Council [2011] EWHC 2938 (Admin). 125 R (O’Brien) v Basildon Borough Council [2006] EWHC 1346 (Admin), [2007] 1 P & CR 16. 126 Wildlife and Countryside Act 1981, s 28H; Environment (Northern Ireland) Order 2002, Art 39. 127 [2009] EWCA Civ 13, [2009] JPL 1074. 128 See R (Sheridan) v Basildon District Council [2011] EWHC 2938 (Admin) which declined to quash the later decision to take direct action. 129 Town and Country Planning Act 1990, s 178(6); Planning Act (Northern Ireland) 2011, s 146(9). 130 Wandsworth London Borough Council v Asghar [1989] EGCS 95. 131 For discussion of s 222 of the Local Government Act 1972 and planning injunctions, see Chapter 14. 122 123

195

8.71  Enforcing Enforcement Notices: Prosecution and Direct Action RECOVERING EXPENSES 8.71 The local planning authority can recover expenses reasonably incurred in taking the steps from the owner.132 These include such sums as appear to the local planning authority to be reasonable in respect of their establishment charges.133 8.72 This liability functions primarily as a civil debt, but certain special powers are given to facilitate recovery: (a) the local planning authority can sell any materials removed when taking the steps required unless their owner claims and takes them away within three days of their removal from the property.134 The balance of the proceeds, after deducting the expenses, is paid to the owner;135 (b) the expenses become a charge on the property, binding on successive owners, from the date of completion by the local planning authority of the steps required under the notice.136 8.73 If the person pursued as the owner is receiving rent as agent or trustee for another person, then his liability is limited to the total amount of rent in his hands on and after the service of a demand for payment by the local planning authority. The balance of the expenses is recoverable from the person the agent or trustee is acting for.137 DIRECT ACTION AND ENFORCEMENT NOTICES ISSUED BY THE SECRETARY OF STATE OR THE DEPARTMENT 8.74 The Secretary of State, Welsh Ministers and the Department are empowered to take direct action in respect of enforcement notices they have issued, on the same basis as local planning authorities on their notices.138 In relation to an enforcement notice issued by the Minister or the Department these provisions are to be read as if any reference to local planning authority was to be substituted by a reference to the Secretary of State or the Department.139 This allows the national authority to take direct action but appears to remove the ability for local planning authorities to take direct action on those enforcement notices as the reference to the authority is substituted, not added to. There is no obvious reason why a local planning authority should not be able to take direct action to enforce a notice issued by the Minister, and this text merits amendment.

Town and Country Planning Act 1990, s 178(1); Planning Act (Northern Ireland) 2011, s 146(1). Local Government Act 1974, s 36. 134 Public Health Act 1936, s 276(1) as applied by Town and Country Planning Act 1990, s 178(3)(a) and the Town and Country Planning General Regulations 1992 (SI 1992/1492), reg 14(1); Planning Act (Northern Ireland) 2011, s 146(3). 135 Public Health Act 1936, s 276(2); Planning Act (Northern Ireland) 2011, s 146(4). 136 Town and Country Planning Act 1990, s  178(5), Town and Country Planning General Regulations 1992 (SI 1992/1492), reg 14(2); Planning Act (Northern Ireland) 2011, s 146(7). 137 Public Health Act 1936, s 294 as applied by Town and Country Planning Act 1990, s 178(3)(c) and the Town and Country Planning General Regulations 1992 (SI 1992/1492), reg 14(1); Planning Act (Northern Ireland) 2011, s 146(6). In Northern Ireland the charge is enforceable as if it was a mortgage: Planning Act (Northern Ireland) 2011, s 146(7). 138 Town and Country Planning Act 1990, s 182(4); Planning Act (Northern Ireland) 2011, s 139(5). 139 Town and Country Planning Act 1990, s 182(4); Planning Act (Northern Ireland) 2011, s 139(5). 132 133

196

Chapter 9

Environmental Impact Assessment

9.01 Environmental impact assessment (EIA) has become an integral part of the planning process for large-scale development projects. It usually arises when a planning permission or other form of consent is sought. Enforcement cases will often be sufficiently small scale that EIA is not an issue. Environment Impact Assessment has been raised as relevant to enforcement in five respects: (1) EIA of the grant of planning permission on an enforcement notice appeal; (2) EIA of revocation, modification and discontinuance orders; (3) whether enforcement proceedings must be taken because an unlawful project would otherwise avoid EIA; (4) EIA and lawful development certificates; and (5) EIA of steps required or direct action in enforcement matters. 9.02 The current regulations are in England the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the English EIA Regulations); Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the Welsh EIA Regulations) and the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2017 (the Northern Irish EIA  Regulations). This regime continues following Brexit.1 ENVIRONMENTAL IMPACT ASSESSMENT IN OUTLINE 9.03 EIA was introduced by European Directive 85/337/EEC and subsequently amended by Directives 97/11/EC, 2003/35/EC and 2009/31/EC. In 2011 the Directive was replaced by the Consolidated Environmental Impact Assessment Directive 2011/92/EU and has subsequently been amended by Directive 2014/52/ EU. The critical obligation is contained in Art 2(1): ‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. These projects are defined in Article 4.’ The European Communities Act 1972 was repealed on exit day (31 January 2020): European Union (Withdrawal) Act 2018, s 1. The 1972 Act though continues to have effect in domestic law during the implementation period: European Union (Withdrawal) Act 2018, s 1A. ‘EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day’ subject to modifications: ss 1B, 2. By s 5(2) of the 2018 Act ‘the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’.

1

197

9.04  Environmental Impact Assessment 9.04 Article 4 identifies two categories of projects. Projects listed in Annex I of the Directive will automatically require Environmental Impact Assessment, such as an oil refinery, a motorway or a large power station (described in the UK as Schedule 1 development). Where projects fall within Annex II, Member States are required to determine, through a case-by-case examination or the setting of thresholds or criteria, whether EIA is required. Annex II covers a wide range of projects from intensive agriculture, to mineral extraction, urban development, the food industry and flood defence works (included in the UK regulations as Schedule 2). The essential question is whether these projects are likely to have significant effects on the environment. 9.05 In the UK, environmental impact assessment has either been integrated into existing consent regimes or new regimes have been devised and in either case separate regulations have been produced. In England the regulations applying to the planning process are currently the various 2017 regulations which replaced previous regulations and transposed the 2014 Directive.2 Consents under other regimes such as highways, pipelines, harbours and electricity projects are governed by other EIA regulations. Where it takes place, EIA has usually been incorporated into the process of granting planning permission or another domestic law consent rather than being a separate consent. Environmental impact assessment processes involve the following stages: (a)

deciding whether EIA is required using selection criteria (screening);

(b) if EIA is required, considering what impacts should be subject to assessment (scoping); (c) the preparation of an Environmental Statement by the developer – the statement will explain the scheme, the environmental baseline which is capable of being affected by the scheme, the likely significant effects of the scheme, the mitigation proposed in respect of those effects and the alternatives considered by the developer. As part of the statement, there will be a non-technical summary produced; (d) consultation of public bodies and the public on the Environmental Statement and any further information produced by the developer; (e) consideration of the Environmental Statement, the developer’s further information and the responses to the consultation by the decision-maker; and (f)

the production of a reasoned decision on the application.

EIA OF THE GRANT OF PLANNING PERMISSION ON AN ENFORCEMENT NOTICE APPEAL 9.06 It is possible that development requiring environmental impact assessment takes place without planning consent. This is perhaps most likely with minerals and waste development or caravans but in R  (Ardagh Glass) v Chester City Council3 an entire glass factory was built without planning permission. Planning permission may be granted in an enforcement notice appeal or on a retrospective planning The previous English and Welsh regulations are described in the 2nd edition of this book, and are considered in detail in Stephen Tromans QC, Environmental Impact Assessment: Law and Practice 2nd edn (Bloomsbury Professional Publishing, 2012). 3 [2010] EWCA Civ 172, [2010] Env LR 32. 2

198

EIA of the grant of planning permission on an enforcement notice appeal 9.07 application. In Ardagh the Court of Appeal rejected the argument that because of the need to enforce the EIA Directive and, to avoid a developer obtaining an advantage by developing before securing consent, planning permission could not be granted for EIA development after it had taken place. This would be contrary to common sense and disproportionate.4 However the Court of Appeal recognised that granting permission for EIA development after it had been carried out should be the exception. It referred to the decision of the European Court of Justice in Commission v Ireland (C-215/06).5 Sullivan LJ then held, citing the judgment of HH Judge Mole QC in the High Court in Ardagh: ‘27 In [102] of the judgment the judge said that retrospective planning permission could lawfully be granted for EIA development provided the decision taker, whether the local planning authority or the Secretary of State, made it plain, “that a developer would gain no advantage by pre-emptive development and that such development will be permitted only in exceptional circumstances.” 28 In [103] the judge referred to the approach to be adopted by the Secretary of State on an appeal against an enforcement notice, but his observations are equally applicable to a local planning authority considering an application under s 73A: “The [decision-taker] can and in my view should also consider, in order to uphold the Directive, whether granting permission would give the developer an advantage he ought to be denied, whether the public can be given an equal opportunity to form and advance their views and whether the circumstances can be said to be exceptional. There will be no encouragement to the pre-emptive developer where the [decision-taker] ensures that he gains no improper advantage and he knows he will be required to remove his development unless [he] can demonstrate that exceptional circumstances justify its retention.” 31 … In the present case, by way of contrast, there is a discretion to grant retrospective planning permission conferred by s  73A and s  177, but there is no requirement that planning permission shall be granted. It is therefore perfectly possible for the decision taker to ensure that the discretion is exercised so as to conform with the ECJ’s judgment. To that end, I would endorse those passages which I have set out in [102] and [103] of the judge’s judgment. They accord with the ECJ’s judgment in the Ireland case and, if the decision taker exercises his discretion in accordance with that guidance, there will, in my judgement, be no breach of community law.’

9.07 A  planning permission granted in an enforcement notice appeal would be a development consent, as it entitles the developer to proceed with the project. Consequently, it was appreciated that the EIA regime should apply if planning permission was to be granted in an enforcement appeal. This would involve deciding whether EIA was needed for planning permission for the particular development which was subject of the enforcement notice and, if so, the carrying out of an EIA before the grant of planning permission. This issue was identified sometime after the first EIA regulations had been made in 1988. Consequently, the Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995 were made and applied to enforcement notices issued on or after 2  October 1995.6 Those regulations were replaced by reg 25 of the EIA Regulations 1999. EIA is now applied to enforcement notices by the various 2017 EIA Regulations. There is little substantive difference between the three sets of regulations in England, Wales Ardagh at paras 15 and 16 per Sullivan LJ. [2008] ECR I-4911. 6 Guidance on these regulations was given in Department of the Environment Circular 13/95 (Welsh Office Circular 39/95). 4 5

199

9.08  Environmental Impact Assessment and Northern Ireland, so they can be considered together. The Secretary of State, the Welsh Ministers, their inspectors and the Commission are prohibited from granting planning permission on an enforcement notice appeal where EIA is required unless an EIA has been carried out and taken into account in the decision.7 An appeal may be allowed on other grounds, such as there being no breach of planning control or that the time for enforcing had expired, without compliance with the EIA provisions. The decision whether EIA is required in an enforcement notice appeal 9.08 It is initially for the local planning authority which issues the enforcement notice to decide whether EIA is required. If it appears to the authority that the breach of planning control in the enforcement notice is Schedule 1 or Schedule 2 development then it must adopt a screening opinion (or in Northern Ireland, screening determination) prior to issuing the notice, having taken reasonable steps to inform itself before doing so.8 Schedule 1 development is the same as that listed in Annex I of the EIA Directive. Schedule 2 development is the Annex II list of projects (with minor clarifications in the UK regulations) where any part is to be carried out in a defined sensitive area or the relevant threshold or criterion in Sch  2 of the UK regulations is met or exceeded.9 A screening opinion is a written statement of the opinion of the local planning authority whether EIA is required.10 All Schedule  1 development requires EIA. Schedule 2 development only requires EIA if it is likely to have a significant effect on the environment by reason of its nature, size or location.11 If the conclusion is that EIA is required then the local planning authority must serve with the copies of the enforcement notice a notice which includes the screening opinion, the reasons for it and a statement that copies of an environmental statement have to be submitted with any appeal notice.12 This notice is referred to in England as a regulation 37 notice, in Wales as a regulation 45 notice and as a regulation 34 notice in Northern Ireland. The requirement that the notice says that an environmental statement has to be submitted with the appeal is misleading as an appeal can be considered on all grounds except seeking a grant of planning permission without an environmental statement and even in that case, an environmental statement can be sent in after the appeal has been submitted.

English EIA Regulations, reg 36; Welsh EIA Regulations, reg 44; Northern Irish EIA Regulations, reg 33. The decision must state that the environmental information has been taken into account. 8 English EIA  Regulations, reg  37(1); Welsh EIA  Regulations, reg  5(1). The Northern Irish EIA Regulations, reg 34(1) require ‘steps to obtain information about the development having regard to the requirements of regulation 8(3) and the obligations under regulation 32, in order to inform a screening determination’. 9 English EIA Regulations, reg 2(1); Welsh EIA Regulations, reg 2(1); Northern Irish EIA Regulations, reg 2(1). Sensitive areas are Sites of Special Scientific Interest, National Parks, World Heritage Sites, scheduled monuments, areas of outstanding natural beauty, Special Areas of Conservation, Special Protection Areas and in England, the Broads. The Secretary of State, Welsh Ministers or the Department can require EIA of projects which are in the Annex II categories but are outside sensitive areas and fail to meet the thresholds or criteria: English EIA  Regulations, reg  5(7); Welsh EIA  Regulations, reg 5(12); Northern Irish EIA Regulations, reg 3(1). 10 English EIA Regulations, reg 2(1); Welsh EIA Regulations, reg 2(1). 11 Development requiring EIA is called ‘EIA development’: English EIA Regulations, reg 2(1); Welsh EIA Regulations, reg 2(1); Northern Irish EIA Regulations, reg 2(1). 12 English EIA Regulations, reg 37(3); Welsh EIA Regulations, reg 45(2), Northern Irish EIA Regulations, reg 34(2) . Two copies of the environmental statement are required in England and Wales, but only one in Northern Ireland. Copies of the notices are to be sent by the local planning authority to the Secretary of State, the bodies consulted on EIAs and, in England, any persons likely to be affected by or having an interest in the notice. 7

200

Environmental statements in enforcement appeals 9.10 9.09 A  person served with a notice requiring EIA may ask the Secretary of State or Welsh Ministers to make a screening direction giving their view whether EIA is required.13 A  screening direction prevails over a screening opinion. The regulations say that the direction must be requested within three weeks of receipt of the notice, but since any person (including third parties) may ask for a screening direction, the local authority’s opinion can be overruled at any point.14 In Northern Ireland a person served with a regulation 34 notice may request a hearing before the Commission as to whether EIA should be required.15 If an appeal is submitted for Schedule 1 or Schedule 2 development without a screening decision having been made the Secretary of State or Welsh Ministers shall make a screening direction.16 ENVIRONMENTAL STATEMENTS IN ENFORCEMENT APPEALS 9.10 If the unlawful development or part of it is EIA development, then an environmental statement must be submitted by the appellant with the appeal or in a later period allowed by the Secretary of State or the Welsh Ministers.17 In that latter case the Minister would issue a notice within three weeks of receiving the appeal specifying a period for the submission of the environmental statement. A longer period may subsequently be allowed. In Northern Ireland the period is six months from the determination or any extended period agreed in writing between the appellant and the Commission.18 If no environmental statement is submitted within the period then the deemed planning application and any ground (a) appeal will lapse. These lapse in their entirety and an appeal seeking permission for part of the development (which might not require EIA) would therefore be lost. Putting together an environmental statement is a substantial exercise19 and may require surveys to be carried out at particular times of the year or for long periods (such as ecological or groundwater surveys). There are practical reasons why an environmental statement may be considerably delayed. However, in deciding on the appropriate period to allow, the Minister is entitled to consider the extent of the need to resolve the enforcement appeal with reasonable expedition.

English EIA Regulations, reg 37; Welsh EIA Regulations, reg 46; Northern Irish EIA Regulations, reg 34(6). 14 English EIA Regulations, reg 5(7); Welsh EIA Regulations, reg 5(11). 15 Northern Irish EIA Regulations, reg 34(6). The request must be made within four weeks of service of the enforcement notice. Following the hearing, the Department will decide whether to confirm the screening determination: reg 35. 16 This is correctly set out straightforwardly in the regulations applying to Wales: EIA  Regulations 1999, reg 25(9). In England, however, the EIA Regulations are phrased less simply. Whilst headed ‘Appeal to the Secretary of State without a screening opinion or screening direction’, reg  40(1) requires a screening direction without reference to whether an opinion or direction has already been adopted. However that screening direction has to be made before notice is given under reg 41 that an environmental statement is required because the appeal is for unauthorised EIA development and is not accompanied by an environmental statement. 17 English EIA Regulations, reg 41; EIA Regulations 1999, reg 25(12). 18 Northern Irish EIA Regulations, reg 35. The six-month period is not automatically extended from the date of confirmation. 19 Local planning authorities and statutory consultees are required to co-operate in the statement preparation process if asked: English EIA Regulations, reg 39; EIA Regulations 1999, reg 47; Northern Irish EIA Regulations, reg 36(1). 13

201

9.11  Environmental Impact Assessment 9.11 If an environmental statement is submitted, then the Minister will send a copy to the local planning authority.20 The Minister or the Inspector may also require further information to be submitted if the statement does not meet the requirements for an environmental statement.21 Publicity of the receipt of the environmental statement is given by: (a)

the Minister or the Commission notifying the persons who received copies of the regulation 37, 45 or 34 notices;22 and

(b)

the local planning authority (or the Commission) advertising the environmental statement (and also any further information submitted).23

9.12 The advertisement will give a period of at least 30 days for inspection of the documents and to make comments to the national authority24 although they have to be available with the planning register kept by the local planning authority in any event.25 This consultation period will run independently of the periods under the various enforcement regulations and rules, although it is desirable for it to tie in with the six-week period from the starting date if the environmental statement is submitted with the appeal. These representations, along with all of the other submissions on the appeal, will be considered in determining the appeal. A reasoned decision is produced in an appeal in any event, but the Minister must ensure that the decision or a statement with it includes information on public participation, the main measures to address major adverse effects of the development and how to challenge the decision.26 ENVIRONMENTAL IMPACT ASSESSMENT OF REVOCATION, MODIFICATION AND DISCONTINUANCE ORDERS 9.13 If a modification order is made on a planning permission or a discontinuance order requires a use to be carried out or operational development altered, then it is the discontinuance order or the planning permission as modified which authorises the developer to proceed. This is consequently a development consent under the EIA  Directive, a point which is more obvious when planning permission is granted in a discontinuance order. None of the earlier EIA  Regulations applied to discontinuance or modification orders but the EIA Directive applied by direct effect: see Smout v Welsh Ministers.27 In Smout planning permissions for land filling had been modified to exclude an area which had been designated as a Special Area of Conservation because of the presence of great crested newts. This exclusion resulted in the phasing and final landform of the remainder of the site being changed and

English EIA Regulations, reg 42(a); Welsh EIA Regulations, reg 50(a); Northern Irish EIA Regulations, reg 37(1) (or the Department if it is a Departmental enforcement notice). 21 English EIA Regulations, regs 25(1), (11) , 46; EIA Regulations 1999, regs 51(1) applying reg 24(1), (10); Northern Irish EIA Regulations, reg 38(1) applying reg 21(1), (2). 22 English EIA Regulations, reg 42(b); Welsh EIA Regulations, reg 50. 23 English EIA Regulations, reg 44; Welsh EIA Regulations, reg 52; Northern Irish EIA Regulations, reg 39. 24 English EIA  Regulations, reg  44(1)(e)–(g); Welsh EIA  Regulations, reg  52(1)(f); Northern Irish EIA Regulations, reg 39(1)(e). 25 English EIA Regulations, reg 45; Welsh EIA Regulations, reg 53; Northern Irish EIA Regulations, reg 39(1)(e). 26 English EIA Regulations, reg 45(3) applying reg 30; Welsh EIA Regulations, reg 52(1)(f); Northern Irish EIA Regulations, reg 39(1)(e). 27 [2011] EWCA Civ 1750, upholding [2010] EWHC 3307 (Admin), [2011] Env LR 17. 20

202

Whether enforcement proceedings must be taken 9.16 the claimant contended that the project could not proceed without the modification. The courts accepted that the Welsh Ministers had to consider whether EIA was required but they were entitled to find that it was not necessary in that case. The simple revocation of a planning permission could not require EIA as there would be no development consent remaining.28 A discontinuance order which required the removal of the entirety of a major development might require EIA if that demolition was likely to have significant environmental effect, although that is unlikely to arise. 9.14 As a response to the Smout decision, EIA procedures have been introduced for modification or discontinuance orders in Wales.29 A  screening decision must be made in respect of a section 97 or 104 order made in relation to Schedule  2 development prior to the order being made or confirmed.30 Equivalent provision has not however been made in the English or Northern Irish EIA Regulations. WHETHER ENFORCEMENT PROCEEDINGS MUST BE TAKEN BECAUSE AN UNLAWFUL PROJECT WOULD OTHERWISE AVOID ENVIRONMENTAL IMPACT ASSESSMENT 9.15 A  fundamental requirement of European Union law is that the member states take steps to enforce it effectively.31 The environmental impact assessment regime requires detailed assessments of particular projects before they are authorised. If a project is constructed without the necessary planning permission and is not subsequently required to obtain planning permission then any EIA which would have been required for that scheme will not have been carried out. The time limits for taking enforcement action will ultimately mean that the development becomes lawful without having been subject to EIA. Whilst the UK legislation provides for a discretionary system of enforcement, the need to enforce European law may compel a planning authority to enforce against a particular project. 9.16 From 2017 this European duty has been incorporated into the transposing regulations in England, Wales and Northern Ireland. The English EIA Regulations provide:32 ‘Relevant planning authorities, in the exercise of their enforcement functions, must have regard to the need to secure compliance with the requirements and objectives of the Directive.’

Enforcement functions are defined widely, being issuing enforcement notices, breach of condition notices, stop notices, temporary stop notices, planning contravention notices and applying for planning enforcement orders and planning injunctions.33 Questions may though arise if a revocation order has the effect of changing an overall scheme which contains other, unrevoked, planning permissions. 29 Welsh EIA Regulations, reg 40. 30 Welsh EIA Regulations, reg 40(2). By reg 40(1) the s 97 orders are those modifying rather than entirely revoking a planning permission. 31 Treaty on European Union, Art 4(3) and see, for example, Francovich (C6/90) [1993] 2 CMLR 66 and R (Wells) v Secretary of State for Transport, Local Government and the Regions (C-201/02) [2004] 1 CMLR 31. 32 English EIA Regulations, reg 35. To the same effect are Welsh EIA Regulations, reg 43; Northern Irish EIA Regulations, reg 32. 33 English EIA Regulations, reg 34. The same list of functions is used in Wales and Northern Ireland except for the English-only planning enforcement orders: Northern Irish EIA  Regulations, reg  42; Northern Irish EIA Regulations, reg 32. 28

203

9.17  Environmental Impact Assessment 9.17 The potential need to enforce for the purposes of European law had been recognised in a variety of UK and European cases. These shed some light on how the new statutory duty is to be approached. In R (Prokopp) v London Underground Ltd34 deemed planning permission had been granted for a railway line, the East London Line Northern Extension. That planning permission had lapsed because there had been a failure to comply with a condition on the permission. The local planning authorities concerned decided not to enforce against the development if planning obligations were entered into, replicating the conditions on the expired permission. Ultimately the courts upheld the decision, considering that an adequate EIA had been carried out of the original approval and that the decision not to enforce was not a development consent. Schiemann LJ did consider the more general question of enforcement and EIA:35 ‘I would accept for the purposes of the present appeal that if a project which falls within the Directive goes ahead without there having been an Environmental Impact Assessment and the national authorities simply stand by and do nothing then this might well amount to a breach of our obligations under the Directive. But that is not this case.’

9.18 In Commission v United Kingdom (C-98/04) the Commission challenged the lawful development certificate system. Whilst the proceedings failed, as discussed further below, Advocate General Colomer discussed whether there might be a duty to enforce in EIA cases:36 ‘27. Community law precludes implementation of such projects without prior authorisation and, if appropriate, without assessment of their impact, where implementation becomes irreversible with the passage of time. 28. That is precisely the effect of the United Kingdom system, which, as the case of the scrap yard over which these proceedings arose demonstrates, and as the defendant Government accepts, allows action to be taken in breach of the directive, without prior evaluation or impact assessment, and to be legitimised by the passage of time so that the situation can no longer be remedied. […] 32. It is a matter of analysing whether, regardless of the passage of time, the United Kingdom legislation allows the possibility that activities included in the first two annexes might be carried out without approval and without the required consent; as we have already seen, that question must be answered unequivocally in the affirmative. 33. If those responsible for monitoring the lawfulness of town planning do not react on learning that a facility is operating without an assessment of its effects on the environment having been carried out, or, where its scale is evident, do not require its assessment, they are tacitly consenting to it and, thereby, contravening the directive. … 34. In short, the obligation on the Community Member States to adopt the rules necessary to achieve the result sought by the directive is binding on all public authorities under the third paragraph of Article  249  EC, so that national legislation which allows the administration to take no action and allow a project awaiting consent and assessment of its effects on the environment to be implemented without those assessments being made infringes Articles 2(1) and 4 of the directive, as the United Kingdom Government accepts.’

[2003] EWCA Civ 961, [2004] Env LR 8. Prokopp at para 38. 36 Commission v UK, AG’s opinion at paras 27–34. 34 35

204

Whether enforcement proceedings must be taken 9.22 9.19 In R  (Ardagh Glass) v Chester City Council37 a rival glass manufacturer, Quinn Glass, had built a factory without planning permission, there having been permission for a smaller factory on the site. Ultimately planning permission was granted, quashed by the court and subsequent planning applications refused by the Secretary of State. By the time of the instant proceedings, the plant had been substantially complete for approaching four years. Having ordered the Council to take enforcement action on domestic grounds, HH Judge Mole QC held, commenting on Prokopp:38 ‘a purposive interpretation of art.2(1) strongly suggests that for the defendant councils to permit the Quinn Glass development to achieve immunity, whether by a positive decision not to take enforcement action or by mere inaction, would, as Schiemann L.J. contemplated, amount to a breach of the UK’s obligations under the Directive.’

The Court of Appeal upheld the judge’s refusal to order the authority to serve a stop notice, considering that the enforcement notice was sufficient to ensure the removal of the unauthorised EIA development if retrospective planning permission was refused.39 9.20 In R (Baker) v Bath and North East Somerset Council40 Judge Birtles quashed defective EIA screening opinions on planning applications for unlawful waste sites but declined to order the Council to take enforcement action. He considered that it was not known whether the proposals were in fact for EIA development and EIA screening was being progressed.41 The conclusion also appears to have been influenced by the absence of an imminent danger that the development would become lawful by the passage of time.42 Even where EIA is required, there may be a degree of discretion as to the timing of any enforcement action, particularly where the developer is seeking to produce an adequate environmental statement.43 9.21 The Court of Appeal in R  (Evans) v Basingstoke and Deane Borough Council held that the enforcement time limits were lawful.44 The expiry of a time limit could not be side-stepped by imposing a duty on the local planning authority to make a discontinuance order, although the authority would have the discretion to do so if it considered it expedient.45 9.22 Friends of the Earth Ltd’s Application for Judicial Review46 concerned sand extraction by dredging in Lough Neagh which had been proceeding for 80 years without ever having planning permission. Up to 1.5 million tonnes were being dug up each year. The Department issued an enforcement notice, requiring the cessation of the mining works, and said it should be subject to EIA and Habitats Regulation Assessment (the lough being a Special Protection Area). The enforcement notice was appealed, thereby suspending its effect. It was decided by the Minister that a 39 40 41 42 43 44 45 46 37 38

[2009] EWHC 745 (Admin), [2009] Env LR 34. Ardagh at para 110. [2010] EWCA Civ 172, [2010] Env LR 32 at para 22 per Sullivan LJ. [2009] EWHC 3320 (Admin). Baker at paras 36–40. See the Council’s submissions at Baker, para 32. R (Baker) v Bath and North East Somerset Council [2013] EWHC 946 (Admin). [2013] EWCA Civ 1635, [2014] 1 WLR 2034 at para 45 per Sullivan LJ. Evans at paras 46-47 per Sullivan LJ. [2017] NICA 41, [2018] Env LR 7; reversing [2016] NIQB 91.

205

9.23  Environmental Impact Assessment stop notice would not be issued. This decision was quashed by the Court of Appeal. The present concern was to stop the unauthorised dredging in Lough Neagh, which should be distinguished from the removal of unauthorised buildings in Ardagh Glass where an enforcement notice was and it was lawful not to serve a stop notice.47 There was, though, still a discretion whether to use a stop notice.48 9.23 The Court of Appeal held that the precautionary principle should be applied.49 Given the repeated finding that the operations are likely to have significant impact on the environment the decision maker cannot simply put in the balance the absence of evidence of harm.50 Subsequently the Department declined again to issue a stop notice on the basis that mitigation measures and working conditions were implemented and adhered to. ENVIRONMENTAL IMPACT ASSESSMENT AND LAWFUL DEVELOPMENT CERTIFICATES 9.24 The European Commission’s complaint about the lawful development certificate system in Commission v United Kingdom (C-98/04) was that it allowed ‘by-passing of the procedures governing application for consent and environmental impact assessment’.51 The European Court of Justice dismissed the claim as inadmissible as it failed to challenge the time limits on enforcement action and these were inseparable from the certificates. It is suggested that there can be no need for EIA of lawful development certificate applications as they simply identify what development is or has become lawful. The critical issue is the need to enforce to ensure that EIA is carried out, as the Advocate General identified. ENVIRONMENTAL IMPACT ASSESSMENT OF STEPS REQUIRED OR DIRECT ACTION IN ENFORCEMENT MATTERS 9.25 In R (McCarthy) v Basildon District Council52 the council proposed to take direct action under s  178 of the Town and Country Planning Act 1990 to remove travellers’ caravans and tipped material from 54 plots on a former scrapyard at Dale Farm. The courts rejected arguments that the council’s proposed physical works might constitute a project under the EIA Directive and so require EIA.53

49 50 51 52 53 47 48

Friends of the Earth at para 32 per Weatherup LJ. Friends of the Earth at para 33 per Weatherup LJ. Treaty on European Union, Art 191(2). Friends of the Earth at para 37 per Weatherup LJ. Commission v UK, judgment, at para 19. Sub nom R (Sheridan) v Basildon District Council. [2011] EWHC 2938 (Admin) at paras 127, 128 per Ouseley J and [2011] EWCA Civ 1374 at para 33 per Sullivan LJ.

206

Chapter 10

Stop Notices

10.01 The enforcement notice procedure can be slow in securing compliance with planning control. An enforcement notice will take at least 28 days to take effect, and there is then a period to take the steps required. The process can be delayed by an appeal to the Minister or Planning Appeals Commission and then to the High Court. 10.02 A  stop notice allows the local planning authority to ban activity almost immediately. However, it may only be served with or after a copy of the enforcement notice dealing with that activity. If the planning authority wishes to prohibit activity before issuing an enforcement notice, then a temporary stop notice can be served, as discussed in Chapter 12 below. A stop notice cannot be appealed. Failure to comply with a stop notice is a criminal offence, although compensation may be payable if the enforcement notice is subsequently quashed or either notice is withdrawn. 10.03 Stop notices are provided for in the Town and Country Planning Act 1990, ss 183–186 and the Planning Act (Northern Ireland) 2011, ss 150 and 151. Policy on their use is contained in the Planning Practice Guidance; Welsh Office Circular 24/97, Annex 3; and, in Northern Ireland, Enforcement Practice Note 4: Enforcement Procedures, section 8. 10.04 Stop notices are used to support relatively few enforcement notices. In 2017/18, 100 stop notices were served by English district-level authorities as against 4,273 enforcement notices; 141 stop notices had been served in the previous year.1 Use of stop notices has varied from authority to authority. According to MHCLG, 47 of the 133 stop notices served by English district-level authorities in the 2018 calendar year were served by just three authorities.2 ISSUE OF A STOP NOTICE 10.05 For England and Wales the power to issue stop notices is in the Town and Country Planning Act 1990, s 183(1). It provides: ‘Where the local planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a “stop notice”) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.’ MHCLG, Live tables on planning application statistics, table P127. Live tables, table P130. The MHCLG statistics can though contain serious errors. In the second edition of this book I recorded the government statistic that one district council had served more stop notices in a particular year than had the authorities in the entire North of England. The enforcement officer of that authority subsequently wrote to put the figure right.

1 2

207

10.06  Stop Notices 10.06 The Northern Irish provision is ultimately to the same effect:3 ‘Where the council considers it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, it may, when it serves the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a “stop notice”) referring to, and having annexed to it a copy of, the enforcement notice and prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.’

10.07

Stop notices are subject to the following restrictions:

(a)

they are dependent upon a copy of an enforcement notice being served with or before the stop notice;4

(b)

they can only prevent ‘relevant activity’ required to cease under the enforcement notice or activity which is part of that activity or associated with it;5

(c) they cannot require steps to be taken, for example, a stop notice can require building activity to cease, but not require the removal of the unauthorised development; (d) they may not be served where the enforcement notice has taken effect,6 although they may be served when taking effect is delayed by an enforcement notice appeal; (e) In England and Wales they may not prevent the use of any building as a dwellinghouse.7 In Northern Ireland this restriction is extended to not prohibiting ’any person from continuing to use any building, caravan or other structure situated upon the land as that person’s permanent residence whether as owner, occupier, tenant, patient, guest or otherwise’;8 (f)

they may not ‘prohibit the carrying out of any activity if the activity has been carried out without planning permission (whether continuously or not) for a period of more than four years ending with the service of the notice’9 unless the activity is, or is incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.10 In Northern Ireland the period is five years, the same as the time limit for enforcement against uses.11 The English and Welsh period is less than the usual ten-year time limit for enforcement action against uses on the basis that a stop notice is not justified against a use which has been carried on for a number of years. The four- or

5 6 7 8 9

Planning Act (Northern Ireland) 2011, s 150(1). Town and Country Planning Act 1990, s 183(1); Planning Act (Northern Ireland) 2011, s 150(1). Town and Country Planning Act 1990, s 183(2); Planning Act (Northern Ireland) 2011, s 150(2). Town and Country Planning Act 1990, s 183(3); Planning Act (Northern Ireland) 2011, s 150(3). Town and Country Planning Act 1990, s 183(4). Planning Act (Northern Ireland) 2011, s 150(4). Town and Country Planning Act 1990, s 183(5). 10 Town and Country Planning Act 1990, s 183(5A); Planning Act (Northern Ireland) 2011, s 150(8). It may still be possible to enforce against these activities even if they started more than four or five years previously: the time limit for operational development runs from substantial completion of the operations rather than their start. The continuation of mineral extraction is a fresh breach on each occasion. Continuing waste deposit might constitute a fresh breach and in England and Wales is subject to the 10-year limit. Importantly, the continuation of all of these activities is capable of causing additional harm and so justifying a stop notice. 11 Planning Act (Northern Ireland) 2011, s 150(7). 3 4

208

The decision to serve 10.10 five-year period does not include any time that the activity is carried on with planning permission, for example, under a temporary planning permission.12 10.08 In England and Wales stop notices can prohibit the use of land for residential caravans. They had been prevented from doing so prior to 1991 but the change was made on the recommendation of the Carnwath Report.13 The Court of Appeal held in R  (Wilson) v Wychavon District Council14 that the ability to use stop notices against residential caravans but not against dwellinghouses was compatible with the anti-discrimination provisions of the European Convention on Human Rights. The provision served a legitimate aim and there were differences between a dwellinghouse (where construction could be subject to a stop notice and, if constructed, the impact of the building would remain) and residential caravans, which could be brought onto land or removed rapidly. THE DECISION TO SERVE 10.09 The decision to serve a stop notice is an exercise of discretion which needs to take into account the different effects of the notice to an enforcement notice. A stop notice will cause an immediate, or near immediate, halt to activity without its merits having been tested on an enforcement notice appeal. The economic impact on those directly affected and more widely is relevant to decision whether it is expedient to serve.15 In a commercial context, the speed at which the notice takes effect is likely to cause loss by the disruption involved. Conversely it requires a halt to activities which might otherwise carry on for a year if the enforcement notice is appealed. The merits of the scheme might already have been addressed in a planning application or planning appeal. 10.10

The Planning Practice Guidance advises:16

‘The power to serve a stop notice is discretionary. Before serving such a notice a local planning authority must be satisfied that it is expedient that any relevant activity should cease before the expiry of the period for compliance specified in an enforcement notice. The relevant local planning authority should ensure that an assessment of the likely consequences of serving the notice is available to the Committee or officer who will authorise service of it. The assessment should examine among other things the foreseeable cost and benefits likely to result from the stop notice. The local planning authority should ensure that a stop notice’s requirements prohibit only what is essential to safeguard amenity or public safety in the neighbourhood; or to prevent serious or irreversible harm to the environment in the surrounding area. Before deciding to serve a stop notice, the local planning authority’s representative should discuss, whenever practicable, with the person carrying on the activity, whether there is

This was a change introduced by the Planning and Compensation Act 1991 following the Carnwath Report, para  9.9 to reverse Scott Markets Ltd v Waltham Forest London Borough Council (1979) 38 P & CR 597. 13 Robert Carnwath QC, Enforcing Planning Control at para 9.10. 14 [2007] EWCA Civ 52, [2007] QB 801, paras 66–73 per Richards LJ. 15 Friends of the Earth Ltd’s Application for Judicial Review [2017] NICA 41, [2018] Env LR 7 at para 3 per Weatherup LJ. 16 ID 17b-032-20140306.

12

209

10.11  Stop Notices any alternative means of production or operation which would overcome the objections to it in an environmentally and legally acceptable way.’

10.11 Welsh Office Circular 24/97 Annex 3, paras 3.19 to 3.23 provide guidance on deciding to serve a stop notice. Local planning authorities are advised to carry out a ‘quick but thorough’ cost/benefit assessment. The costs to the firm, operator or landowner prevented from carrying out the activity should be compared to the benefits to the amenity of the neighbourhood. The stop notice’s requirements should: ‘prohibit only what it is essential to safeguard amenity or public safety in the neighbourhood; or to prevent serious or irreversible harm to the environment in the surrounding area’.17

10.12 If practicable, the local planning authority should discuss alternative means of production or operation with the person carrying on the activity.18 The circular says that benefits to the amenity of the neighbourhood should be considered in terms of the number of people likely to benefit and how adversely affected their amenities would be without the stop notice.19 There may of course be other benefits in addition to those mentioned in the circular, such as preventing harm to nature conservation interests or the historic environment. 10.13

The Northern Ireland Enforcement Practice Note 4 advises:20

‘It is essential that careful consideration be given to the positive and negative consequences of serving a stop notice. The costs of service of a stop notice, while usually confined to the firm, landowner or operator, may also impact on the local economy.’

10.14 The long cancelled Department of the Environment Circular 21/91 had said that possible compensatory liability was material in deciding whether to serve.21 This text was omitted from the 1997 circulars but the point is correct in the light of the Supreme Court’s decision in R (Health & Safety Executive) v Wolverhampton City Council.22 10.15 The discretion to serve a stop notice was considered in Elmbridge Borough Council v Wendy Fair Markets Ltd.23 The effect of an enforcement notice had been suspended whilst an application for leave to appeal to the High Court under s 289 was pursued. The LPA then served a stop notice on Wendy Fair Markets. Wendy Fair Markets then applied to quash the stop notice. Mr Justice Harrison dismissed this application. The note in the Journal of Planning and Environment Law on the Court of Appeal decision contains his main points: (a)

the contents of what was then the English Enforcement Circular can be relevant;

(b) the Circular is advisory and not binding on the local planning authority;

WO Circular 24/97 Annex 3, para 3.20. WO Circular 24/97 Annex 3, para 3.21. 19 WO Circular 24/97 Annex 3, para 3.22. 20 EPN4, para 8.4. 21 Circular 21/91 Annex 3, para 24. 22 [2012] UKSC 34, [2012] 1 WLR 2264. 23 [1995] JPL 928, CA. 17 18

210

The decision to serve 10.18 (c)

in the particular case, concerning the Green Belt, the planning issue was clear cut and there was no need to carry out a detailed cost/benefit analysis of the effect of serving the stop notice;24

(d) a stop notice can prevent unauthorised use in an important and sensitive part of the Green Belt and the delay to the enforcement notice taking effect was relevant by lengthening the period of unauthorised use; (e)

a purpose of preventing a profit being made from the unauthorised use would be unlawful; and

(f)

the court should only interfere with a decision under s 183 if it is clear that the decision has been reached in an unlawful way.

10.16 The Court of Appeal granted leave to appeal against this decision. It considered arguable that there must be some reason to make discontinuance essential to safeguard the amenity of the area or public safety, to abate a nuisance or to prevent serious damage to the environment. The substantive appeal was not determined as the enforcement notice came into effect first when the Court of Appeal decided it could not consider an appeal against a refusal of leave under s 289.25 10.17 Large-scale sand extraction from Lough Neagh had been carried out for 80 years without planning permission, despite it more recently becoming a Special Protection Area under the Birds Directive. The Department decided to issue an enforcement notice, but the effect of that was suspended by an appeal. The Department’s decision not to serve a stop notice was quashed by the Court of Appeal in Friends of the Earth Ltd’s Application for Judicial Review.26 It was accepted that there were likely significant effects on the SPA, triggering the need for Environmental Impact Assessment and appropriate assessment under the Habitats regime. The Minister had erred in deciding that it was not known whether the environmental impact would be unacceptable and instead should have applied the precautionary approach in European law.27 On a smaller scale, in R v Hounslow London Borough Council, ex p Dooley, a travel agency had been converted without planning permission into a restaurant. The local planning authority issued an enforcement notice against the entire use and a stop notice against evening use. Having regard to the then equivalent English guidance in Circular 10/97 the High Court considered that a cost/benefit analysis which simply said that there would be a potential financial impact on the operators from curtailing their activities was sufficient in that case.28 10.18 It is lawful to serve a second stop notice in respect of the same activity without the first notice having been withdrawn or quashed.29 This may be useful if there is a challenge to the first notice, for example, to its service.

For discussion of this point see Shona Emmett, ‘Stop Notices and the Cost Benefit Assessment’ [1996] JPL 3. 25 Wendy Fair Markets Ltd v Secretary of State for the Environment [1996] JPL 649. 26 [2017] NICA 41, [2018] Env LR 7. 27 Friends of the Earth at para 34 per Weatherup LJ. 28 (2000) 80 P & CR 405 at 417 per George Bartlett QC. 29 Dooley at 413 per George Bartlett QC. 24

211

10.19  Stop Notices FORM OF THE STOP NOTICE 10.19 The stop notice must refer to the relevant enforcement notice, and specify the land and activities covered and the date on which it will take effect. There is no prescribed form for the stop notice but almost identical model notices are provided in the Planning Practice Guidance and the Appendix to Annex 3 of Welsh Office Circular 24/97. The stop notice should precisely and unambiguously set out the activities prohibited. The enforcement notice cannot be relied upon to say what is or is not permitted.30 In Dhar, an extension was being constructed in excess of that approved in a planning permission. The local planning authority issued an enforcement notice, which required the extension to be reduced to that permitted. It then served a stop notice, which in terms prohibited the carrying out of building operations in connection with the extensions generally and also annexed a copy of the enforcement notice. The Court of Appeal held that the stop notice was invalid because it should have been confined to works in breach of planning control rather than prohibiting all operation development on the site. They disagreed with the argument that the enforcement notice could be considered. Russell LJ said: ‘It is the stop notice which defines the extent of the prohibition: it is a contravention of the stop notice which was the subject matter of this prosecution, and in our judgment because of the penal consequences that flow from such a contravention, the terms of the stop notice must be strictly construed. If the meaning is unambiguous assistance is not to be derived from other documents.’

10.20 Whilst the enforcement notice must be appended to the stop notice, a recipient still has to be able to understand what the stop notice is prohibiting. A  different result might be reached if the stop notice expressly incorporated the prohibition in the enforcement notice and was consistent with it. However, the better practice is to include all the requirements on the stop notice itself, rather than relying on the enforcement notice. This also reduces the risk of error in any site notice. 10.21 Having identified the land by a description and a plan, the Planning Practice Guidance model suggests specifying the breach this way: ‘4. Activity To Which This Notice Relates [Specify the activity required by the enforcement notice to cease, and any activity carried out as part of that activity, or associated with it] 5. What You Are Required To Do Cease all the activity specified in this notice.’

10.22 The advice on the text to insert in section 4 needs to be considered with care. If the entirety of the use identified by the enforcement notice is to be covered by the stop notice then that should be set out. Otherwise the section should just identify the activity which the stop notice will prohibit, rather than any wider activity in the enforcement notice. A stop notice should be as precise as possible, but it may be that the nature of the breach requires judgment to be exercised as to the lawfulness of a particular activity. For example a stop notice could prohibit the use of a house for religious purposes, otherwise than as incidental to the enjoyment of the house as a house.31 R v Dhar [1993] 2 PLR 60, [1993] Crim LR 615, CA; cf Bristol Stadium v Brown [1980] JPL 107 where it was said that the stop notice incorporated the terms of the enforcement notice. 31 R v Runnymede Borough Council, ex p Sarvan Singh (1987) 53 P & CR 281. 30

212

Enforcement register 10.26 10.23 A  stop notice can only require activity to cease, so positive steps in an enforcement notice (such as demolishing a building) cannot be included in the stop notice. The stop notice might also be against only the part of the unlawful use that causes the greatest harm. For example, the stop notices in Dooley restricted only the evening use of the unlawful restaurant. SERVICE AND SITE NOTICES 10.24 A stop notice may be served by the local planning authority ‘on any person who appears to them to have an interest in the land or to be engaged in any activity prohibited by the notice’.32 This includes the owner. The stop notice must refer to the enforcement notice to which it relates and have a copy of that notice annexed to it.33 Additionally, the local planning authority may display a site notice after a stop notice has been served. The site notice is a notice:34 ‘(a) stating that a stop notice has been served and that any person contravening it may be prosecuted for an offence … (b) giving the date when the stop notice takes effect, and (c) indicating its requirements.’

10.25 ‘Indicating’ requirements is on its face a lesser requirement than setting out or specifying the requirements of the stop notice. However the context is of a site notice which gives rise to criminal liability if the underlying stop notice is not complied with. If a person is aware of the existence of the stop notice from a site notice and breaches the stop notice then he will have no defence to criminal proceedings even if he has not seen the stop notice itself. It follows that a site notice should indicate the stop notice’s requirements in sufficient detail that a reader will know what activity is prohibited. ENFORCEMENT REGISTER 10.26 Details of stop notices issued are required to be entered in the relevant enforcement register.35 The enforcement register shall contain: ‘the date of service and, if applicable, of withdrawal of any stop notice referring to the enforcement notice, together with a statement or summary of the activity prohibited by any such stop notice’.36 Town and Country Planning Act 1990, s  183(6); Planning Act (Northern Ireland) 2011, s  150(10) (which refers to an estate in the land). 33 Town and Country Planning Act 1990, s 184(1); Planning Act (Northern Ireland) 2011, s 150(1). 34 Town and Country Planning Act 1990, s 184(6). For site notices in Northern Ireland, Planning Act (Northern Ireland) 2011, s 150(10) is to the same effect. 35 Town and Country Planning Act 1990, s 188(1)(c); Planning Act (Northern Ireland) 2011, s 242(1) (g). The register was introduced in England and Wales for notices issued on or after 27 November 1981: Town and Country Planning Act 1971, s  92A(2) and Town and Country Planning General Development (Amendment) (No 2) Order 1981. 36 Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43(2) (h) (for the register of enforcement notices and stop notices and other enforcement action); Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 30(1)(h) (register of enforcement notices and stop notices); Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 26(f) (for the enforcement notices register). 32

213

10.27  Stop Notices In England and Wales there is an obligation to enter the information as soon as practicable and in any event within 14 days of the event.37 TAKING EFFECT 10.27 The stop notice must specify the date on which it will take effect.38 For clarity, the subsection provides that the stop notice cannot be contravened until that date. In England and Wales the date must usually be at least three days after the service of the notice, but notices can take effect in shorter periods, or even immediately, if special reasons are given. The date of taking effect:39 ‘(a) must not be earlier than three days after the date when the notice is served, unless the local planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and (b) must not be later than twenty-eight days from the date when the notice is first served on any person.’

10.28 The three-day limitation gives the person served some time to end the activity. Three days after includes the date on which the notice takes effect, so a stop notice served on 3 November can take effect under the three-day limitation on 6 November.40 The requirement for ‘special reasons’ for a shorter period means that there must be some particular justification for urgency.41 The overriding urgency of stopping the breach must justify a lesser period or an immediate halt to the activity. Welsh Office Circular 24/97 provides the example that: ‘it may be considered essential to protect an area of special landscape value, or a conservation area, from operational development (such as buildings, roadways or other hard surfaces) which, if continued, would be especially harmful.’42

10.29 Although the example is of locally designated areas, a period of less than three days can be justified in areas without special designation if the harm is extensive or difficult to reverse. Commonplace examples include unlawful demolition of buildings or harm to nature conservation interests. 10.30 Conversely stop notices in Northern Ireland take effect immediately on service unless the council can justify a delay:43 ‘The date specified in a stop notice must be the date when the notice is served, unless the council considers that there are special reasons for specifying a later date, but the date specified in the notice must, in any case, be a date not later than 28 days from the date when the notice is first served on any person.’

39 40 41

DMPO, Art 43(8); DMPO Wales, Art 30(5). Town and Country Planning Act 1990, s 184(2); Planning Act (Northern Ireland) 2011, s 150(5). Town and Country Planning Act 1990, s 184(3). R (Dooley) v Hounslow London Borough Council (2000) 80 P & CR 405 at 409. This is subject to public law review by the Courts: see Community Windpower Ltd v East Ayrshire Council [2017] CSIH 67, 2018 SCLR 339 at para 36. 42 Welsh Office Circular 24/97 Annex 3, para 3.29. 43 Planning Act (Northern Ireland) 2011, s 150(6). 37 38

214

Withdrawal of a stop notice and cessation of effect 10.34 10.31 The maximum 28-day period from service before a stop notice takes effect matches the minimum period between a copy of an enforcement notice being served and taking effect.44 If a period for compliance with planning control of more than 28 days is acceptable, then an enforcement notice alone is appropriate. A stop notice can later be issued if the taking effect of the enforcement notice is delayed by an appeal. In practice the seriousness of the harm resulting from the breach will mean that stop notices come into effect in much less than 28 days. WITHDRAWAL OF A STOP NOTICE AND CESSATION OF EFFECT Withdrawal 10.32 The local planning authority may withdraw a stop notice by serving notice upon the persons served with it.45 Additionally, if a site notice was displayed, they must display a notice of the withdrawal in its place.46 Unlike enforcement notices withdrawal only takes effect when notice of the withdrawal is first served rather than on the decision to withdraw.47 The local planning authority may serve a further stop notice on those persons or on others.48 Cessation of effect 10.33

A stop notice will cease to have effect when:49

‘(a) the enforcement notice to which it relates is withdrawn or quashed; or (b) the period for compliance with the enforcement notice expires; or (c) notice of the withdrawal of the stop notice is first served …’

Conventionally, therefore, a stop notice will be in effect until the enforcement notice has to be complied with. Since enforcement notices usually contain a compliance period after they have taken effect, a stop notice would continue in force during any such period. 10.34 The different wording of paragraphs (a) and (c) is because withdrawal takes effect at different times: an enforcement notice is withdrawn on the decision to withdraw, whilst a stop notice requires service of the withdrawal. An enforcement notice is quashed when the Secretary of State or Inspector’s decision is sent out to the parties. Where several people had been served with a stop notice, then the first service of notice of withdrawal of the stop notice occurs for the purposes of paragraph (c) when one of those people is served.

46 47

Town and Country Planning Act 1990, s 172(3)(b); Planning Act (Northern Ireland) 2011, s 138(3)(b). Town and Country Planning Act 1990, s 183(7); Planning Act (Northern Ireland) 2011, s 150(11). Town and Country Planning Act 1990, s 184(7); Planning Act (Northern Ireland) 2011, s 150(11). Town and Country Planning Act 1990, s 184(4); Planning Act (Northern Ireland) 2011, s 150(9). Cf Town and Country Planning Act 1990, s 173A(1); Planning Act (Northern Ireland) 2011, s 141(3). 48 Town and Country Planning Act 1990, s 183(7); Planning Act (Northern Ireland) 2011, s 150(11). 49 Town and Country Planning Act 1990, s 184(4); Planning Act (Northern Ireland) 2011, s 150(9). 44 45

215

10.35  Stop Notices 10.35 Additionally if an enforcement notice is varied to so as to cut back on the activities it prohibits, then the effect of a stop notice is cut back to no more than those activities.50 10.36 Whilst a stop notice will remain in effect in the period between the decision to withdraw and service of the withdrawal, it is unlikely to be in the public interest to prosecute for a breach that occurred in that period. The Town and Country Planning Act 1990 does not explicitly say that posting a notice on site that the stop notice is withdrawn causes it to cease to have effect, but it is questionable whether the stop notice can still be effective in such circumstances. If an enforcement notice is quashed on appeal to the Secretary of State, the stop notice ceases to have effect immediately. It cannot be suspended or revived by an appeal to the High Court against the Secretary of State’s decision.51 Section 184(4)(b) emphasises the temporary nature of stop notices: they apply until the enforcement notice should have been complied with. Criminal liability is then applied by the enforcement notice. Where the time for the enforcement notice taking effect is delayed by an appeal, a stop notice would continue to have effect in that period as well as during the enforcement notice’s compliance period. VALIDITY AND CHALLENGE 10.37 The validity of a stop notice may be challenged by judicial review or as a defence to criminal proceedings. Such a notice cannot be appealed to the Secretary of State. Conversely, there are no statutory bars to challenge in the High Court or other legal proceedings. The decision to issue the notice can be challenged on normal judicial review grounds. In R v Rochester upon Medway City Council, ex p Hobday,52 a council decision to issue a stop notice was challenged (unsuccessfully) on Wednesbury unreasonableness grounds. A stop notice which prohibits acts, only some of which are in breach of planning control, is invalid.53 10.38 The approach to challenging stop notices has been complicated by relatively old case law. A  challenge to the validity of a stop notice was considered by the Divisional Court, but rejected on its merits in Bristol Stadium v Brown.54 In R  v Jenner,55 Mr Jenner had sought to argue in criminal proceedings that the activity had been carried on for more than the period within which a stop notice had to be served.56 The Crown Court had ruled that it was not possible to challenge the validity of a stop notice by way of defence to a prosecution and so he could not run this point. Without upsetting that conclusion, the Court of Appeal in Jenner had said that a defendant could simply show that the activity had been carried on for so long that it cannot be prohibited by a stop notice. In those circumstances the notice did not apply to that activity. Watkins LJ did observe that judicial review was not a suitable means of resolving those issues. In R v Epping Forest District Council ex p

Town and Country Planning Act 1990, s 184(5); Planning Act (Northern Ireland) 2011, s 150(9)(d). R v Secretary of State for the Environment, ex p Hillingdon London Borough Council [1992] 2 PLR 91. 52 [1989] 2 PLR 38. 53 R v Dhar [1993] 2 PLR 60, CA. 54 [1980] JPL 107. 55 [1983] 1 WLR 873. 56 At the time the Town and Country Planning Act 1971, s 90(2) provided a 12-month period. 50 51

216

Compensation 10.42 Strandmill,57 it was again alleged that the activity had been carried out for more than the prescribed period. Whilst the committee could have rationally concluded that a notice could be served on the material they had, the applicant asked the Court to determine as a matter of fact whether the activity had been going on for that period. Nolan J considered that whilst Wednesbury review could be carried out, the period for which the activity had been carried out was left to any criminal proceedings. 10.39 R (JRP Holdings Ltd) v Spelthorne Borough Council58 again concerned the submission that the activity had been carried on for more than the relevant period of four years. The Council accepted that this was likely to be the case, but that this did not invalidate the stop notice. Dyson LJ agreed saying: ‘if the stop notice issued in respect of the change of use enforcement notice was served in breach of s 183(5) that would not be a ground for judicial review, although it would be a defence to a criminal prosecution’.59

10.40 However, the House of Lords in Boddington v British Transport Police60 established that the lawfulness of a legal instrument or administrative decision could be challenged by way of defence to criminal proceedings unless the statutory context was clearly against such a challenge (eg R v Wicks61). The validity of a stop notice would be able to be raised in criminal proceedings. In those circumstances the Jenner distinction between the lawfulness of the stop notice and its scope (arising from the time limit on activities rather than the wording of the notice) becomes unnecessary. It is not difficult to say that a notice, which purports to prohibit activities that it is not able on the facts to prohibit, is unlawful or that the decision to issue it was irrational. The person served should not have to assume that the notice does not mean what it says. 10.41 The critical factors should be the nature of the argument raised and the ability to prove the respective contentions. Judicial review concerns the lawfulness of the authority’s decision and the court’s ability to review factual findings is limited, essentially to whether there was no evidence which could have supported that finding or the assessment was irrational. Conversely the criminal courts have to make findings of fact, such as whether the activity has been carried on for more than four years. A disputed question of fact is better resolved in criminal proceedings where witnesses can be called and cross-examined. Conversely, an issue as to the meaning of the General Permitted Development Order may be readily resolved by judicial review. COMPENSATION 10.42 Compensation may be payable for loss due to the service of a stop notice if the stop notice or its enforcement notice is withdrawn, varied or quashed and the activity prohibited was not in breach of planning control. Compensation may be payable if:62 [1990] JPL 415. This was one of a number of enforcement cases involving Wendy Fair Markets. [2007] EWCA Civ 1122, [2008] JPL 696. This is a decision on a permission application and so strictly ought not to be cited. 59 At para 7. 60 [1999] 2 AC 143. 61 [1998] AC 92. 62 Town and Country Planning Act 1990, s 186(1). The Planning Act (Northern Ireland) 2011, s 185(1) is to the same effect. 57 58

217

10.43  Stop Notices ‘(a) the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 174 [ie that planning permission should be given]; (b) the enforcement notice is varied (otherwise than on the grounds mentioned in that paragraph) so that any activity the carrying out of which is prohibited by the stop notice ceases to be a relevant activity; (c) the enforcement notice is withdrawn by the local planning authority otherwise than in consequence of the grant by them of planning permission for the development to which the notice relates; or (d) the stop notice is withdrawn.’

10.43 No compensation is payable ‘in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control’.63 This prevents the unmeritorious recovery of compensation where the stop notice or enforcement notice is quashed or withdrawn because of defects or for reasons of expediency. It need not be the breach of planning control identified in the notice. In Huddlestone v Bassetlaw District Council64 holiday lodges had been sited without complying with conditions requiring the approval of details and compliance with a plan. The local planning authority had issued an enforcement notice alleging that this was done without planning permission on the basis that the breaches meant that the consent had not been implemented. On appeal the enforcement notice was quashed because these failures did not prevent the implementation of the permission but were simply breaches of condition. No compensation was payable as the activity prohibited by the stop notice was a breach of planning control, albeit not the one described in the enforcement notice.65 That the owner could have remedied these failures by seeking approval of the details and complying with the siting plan did not allow compensation to be claimed.66 In considering in a compensation claim whether there is a breach of planning control, the Upper Tribunal (Lands Chamber) may be bound by earlier decisions as to lawfulness on the basis of res judicata.67 Claimants for compensation 10.44 The only person entitled to compensation is one who ‘when the stop notice is first served, has an interest in or occupies the land to which the notice relates’.68 The interest may be legal or equitable but a mere right to use the land was insufficient: International Ferry Traders Ltd v Adur District Council.69 In International Ferry Traders a stop notice had been served and an enforcement notice issued against the use of quays for the docking of ships and the loading and unloading of cargoes and the temporary storage of cargo. The controversy had arisen because the cargoes were live animals. The enforcement notice was subsequently quashed. The Court of Appeal agreed with the Lands Tribunal that licences to use the land which were expressed not to give a right to exclusive possession did not give rise to an interest in 65 66 67 68

Town and Country Planning Act 1990, s 186(5)(a); Planning Act (Northern Ireland) 2011, s 185(5)(a). [2019] EWCA Civ 21, [2019] PTSR 1129. At para 30 per Lindblom LJ. At paras 32–34 per Lindblom LJ. Payne v Caerphilly County Borough Council [2009] RVR 66 (Lands Tribunal). Town and Country Planning Act 1990, s 186(2); Planning Act (Northern Ireland) 2011, s 185(1) is to the same effect. 69 [2004] EWCA Civ 288, [2004] JPL 1610. 63 64

218

Compensation 10.47 the land.70 In International Ferry Traders, the Lands Tribunal held that an occupier of part of the land subject to a stop notice could claim compensation.71 A contractual licensee may be, but is not necessarily, an occupier.72 The exporters in that case had insufficient control of the land to be occupiers. A  contractor carrying out the activity is not entitled to claim against the authority unless he is also the occupier. He may have contractual claims against the person employing him. Ultimately such claims may then reach the site owner or occupier who may recover those sums as compensation.73 Entitlement to compensation 10.45 If the necessary conditions are satisfied, compensation is recoverable ‘in respect of any loss or damage directly attributable to the prohibition contained in the notice’ or, where the enforcement notice is varied, the activities which are no longer prohibited by the stop notice.74 Any ‘compensation must be for ascertainable loss, and the loss must be “directly attributable” to the prohibition in the stop notice itself, not to some other cause’ and be an actual loss, rather than one which would have arisen if the landowner had acted differently.75 The loss or damage ‘shall include any sum payable in respect of a breach of contract caused by the taking of action necessary to comply with the prohibition’.76 In Shopsearch UK  Ltd v Greenwich London Borough Council77 the Lands Tribunal held that there was no power to award exemplary damages as s 186 is concerned with loss or damage directly attributable to the prohibition. In that case compensation was awarded to a freeholder for the loss of rent and abortive advertising costs following service of a temporary stop notice and a stop notice against an alleged use as a bar and lap-dancing club. 10.46 Interest is payable from the date of service of the stop notice.78 However, that is service on any person: the stop notice need not have been served on the claimant for that person to be able to make a claim. The effect of a failure to provide information to the local planning authority on compensation 10.47 If the claimant was statutorily required to provide information before the stop notice was served, compensation is not awarded if he failed to provide information or co-operate and had he done so the loss or damage could have been avoided. This applies if the claimant should have provided information that could have led to the stop notice not being served or it being varied. In England and Wales compensation is not awarded if:

At para 23 per Pill LJ, following Stevens v Bromley London Borough Council [1972] 1 Ch 400 and distinguishing Pennine Raceway v Kirklees Metropolitan Borough Council [1983] QB 382. 71 International Ferry Traders see Court of Appeal at para 16. 72 International Ferry Traders see Court of Appeal at para 24. 73 Town and Country Planning Act 1990, s 186(4); Planning Act (Northern Ireland) 2011, s 185(4). 74 Town and Country Planning Act 1990, s 186(2); Planning Act (Northern Ireland) 2011, s 185(1). 75 Huddlestone v Bassetlaw District Council [2019] EWCA Civ 21, [2019] PTSR 1129 at para 25 per Lindblom LJ. 76 Town and Country Planning Act 1990, s 186(4); Planning Act (Northern Ireland) 2011, s 185(4). 77 [2009] RVR 198, [2009] JPL.1375 at para 41. 78 Planning and Compensation Act 1991, s 80 and Sch 18, Pt I, para 1. 70

219

10.48  Stop Notices (a)

the claimant was required to provide information under: (i)

a planning contravention notice (see Town and Country Planning Act 1990, s 171C);

(ii) a section 330 Town and Country Planning Act notice; or (iii) a notice under the Local Government (Miscellaneous Provisions) Act 1976, s 16; and (b) the loss or damage claimed could have been avoided if he had provided the information or otherwise co-operated with the local planning authority when responding to the notice.79 10.48 Similar provision is made in Northern Ireland if notices were served on the claimant under s 133 or 240 and there was a failure to provide the information requested or otherwise co-operate.80 To rely on the proviso the local planning authority will have had to seek information under one of these statutory notice provisions. A failure of the claimant to reply, or reply fully, to correspondence does not protect the authority. Of course, if a stop notice has to be served urgently then the information-gathering notices may be too slow to be used for that notice.81 The most obvious circumstance for this proviso to apply is where an explanation in response to a notice would have persuaded the planning authority that there was no breach of planning control. That is a matter of fact. The extent to which the local planning authority was willing to accept any later explanation that the activities were lawful may indicate whether service of the stop notice would have been avoided by a response to information-gathering notices. The claims procedure 10.49 Compensation claims are made to the local planning authority.82 In England and Wales the procedure is set out in the Town and Country Planning General Regulations 1992. The claim is made in writing, delivered or sent by pre-paid post, to the local planning authority.83 The claim must be made within ‘12 months from the date of the decision in respect of which the claim or notice is made or given’,84 unless this period is extended by the Secretary of State in any particular case. Northern Irish claims must be made in writing85 within six months from the date of decision or such longer period allowed by the council.86 Time runs from the date of the decision to vary, quash or withdraw the relevant notice. So where an enforcement notice is quashed on appeal, time runs from the appeal decision even if there is a subsequent appeal to the High Court against that decision.87 The period cannot be extended after

Town and Country Planning Act 1990, s 186(5)(b). Planning Act (Northern Ireland) 2011, s 185(5)(b). 81 The minimum compliance periods for planning contravention notices and section 330 notices are 21 days, see Chapter 5. 82 Town and Country Planning Act 1990, s 186(3); Planning Act (Northern Ireland) 2011, s 185(3). 83 Town and Country Planning General Regulations 1992, reg 12(1). 84 Town and Country Planning General Regulations 1992, reg 12(2). 85 Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 30(1). 86 Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 30(2). 87 See International Ferry Traders Ltd v Adur District Council [2004] EWCA Civ 288, [2004] JPL 1610 paras 1, 6, 7 per Pill LJ. 79 80

220

Service of stop notices by Ministers or the Department 10.52 it has expired.88 No particular form of claim is prescribed, but it must unequivocally state that a claim is being made.89 In the International Ferry Traders case it was sufficient to say in a letter:90 ‘In the light of the decision of the Secretary of State dated January 28, 1998 we write to give you notice that it is the intention of our client company to claim compensation from your authority under s 186 of the Town and Country Planning Act 1990. Full details of the claim will be served on you in due course.’

10.50 There was no need to specify the heads of claim nor the sum sought. Pill LJ said in International Ferry Traders:91 ‘I accept [IFT’s] submission that a claim was made and that the distinction claimed by the Council is not a real one. The inference that a claim was not being made in the letter could not properly be drawn from the terms of the letter. The future aspect upon a reading of the first paragraph as a whole goes to the “full details” of the claim and not the existence of the claim. Nor is it correct that the regulations require that the main heads of claim should have been indicated within the 12-month period. However, having reached that conclusion, I add that in order to avoid points like this being taken and in the interests of the administration of justice, claimants should make any claim they propose to make clearly and promptly, giving appropriate details as soon as they reasonably can.’

10.51 If the claim, or its amount, is not accepted, then the claim is referred to the Upper Tribunal (Lands Chamber), which is still semi-officially referred to as the Lands Tribunal, or in Northern Ireland, the Lands Tribunal92. The procedure is set out in Land Compensation Act 1961, ss 2 and 4, the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 and the Lands Tribunal and Compensation Act (Northern Ireland) 1964 and Lands Tribunal Rules (Northern Ireland) 1976. SERVICE OF STOP NOTICES BY MINISTERS OR THE DEPARTMENT 10.52 The Secretary of State, Welsh Ministers and the Department may serve a stop notice in the same way as the local planning authority. The Secretary of State and Welsh Ministers may serve a stop notice if it appears to them expedient that such a notice should be served in respect of any land.93 In Northern Ireland the Department are simply given a discretion to serve (‘may’),94 but that is the same in practical terms. The notice will have the same effect as if it had been served by the local planning authority.95 In all three nations the Minister or Department must consult the local planning authority before serving a stop notice.96 A decision to serve or not to serve a stop notice is amenable to judicial review. The Department’s decision in 2015 not to serve a stop notice against unauthorised sand extract in Lough Neagh was R v Secretary of State for the Environment ex p Hillingdon London Borough Council (1992) 64 P & CR 105, [1992] 2 PLR 91. 89 Texas Homecare Ltd v Lewes District Council (1985) 51 P & CR 205. 90 International Ferry Traders at paras 38, 39. 91 At para 39. 92 Town and Country Planning Act 1990, s 186(6). The Lands Chamber is still semi-officially referred to as the Lands Tribunal. 93 Town and Country Planning Act 1990, s 185(1). 94 Planning Act (Northern Ireland) 2011, s 151(1). 95 Town and Country Planning Act 1990, s 185(2); Planning Act (Northern Ireland) 2011, s 151(3). 96 Town and Country Planning Act 1990, s 185(3); Planning Act (Northern Ireland) 2011, s 151(2).

88

221

10.53  Stop Notices quashed on Environmental Impact Assessment grounds.97 Compensation required to be paid under s 186 in respect of a Secretary of State’s stop notice is paid by the local planning authority named by the Secretary of State in the stop notice as the authority responsible for that matter in that area,98 which might be thought to be a little unfair. PROSECUTION FOR FAILING TO COMPLY WITH A STOP NOTICE Prosecution by the local planning authority 10.53 Stop notices are imposed where there is an urgent need to stop the activity being carried on. If it were appropriate to serve the notice, failure to comply would cause substantial planning harm. In these circumstances, the local planning authority would expect to take criminal proceedings promptly if the notice is not complied with. Prosecution by third parties 10.54 As with enforcement notices, prosecutions are usually brought by the local planning authority, but third parties may also prosecute. THE OFFENCE 10.55 Failure to comply with a stop notice is an offence, subject to the same powers to fine as failure to comply with an enforcement notice. Much of the commentary and case law on enforcement notice prosecutions is relevant to stop notice prosecutions.99 The Town and Country Planning Act 1990, s 187(1) provides: ‘If a person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.’

10.56

The Northern Irish provision is to the same effect:100

‘A person who contravenes a stop notice after a site notice has been displayed or the stop notice has been served on that person shall be guilty of an offence.’

10.57 ‘Contravening’ means carrying out the activity prohibited by the notice. It includes causing or permitting the stop notice’s contravention.101 A person does not need to have knowledge of the existence of the notice before committing an offence: lack of knowledge is potentially a defence, but that would be for the defence to prove. It is possible for a person to be served with a notice without knowing of its existence: for example if the notice is left at their usual or last known place of abode and they have either moved or were simply not there until after the offence has said to have been committed.102 The intention is that any person will know of the stop

Friends of the Earth’s Application for Judicial Review [2017] NICA 41, discussed at para 10.17 above. Town and Country Planning Act 1990, Sch 1, para 16(1), (2)(b). 99 See Chapter 8 above. 100 Planning Act (Northern Ireland) 2011, s 150(12). 101 Town and Country Planning Act 1990, s 187(1B); Planning Act (Northern Ireland) 2011, s 150(14). 102 See the modes of service in Town and Country Planning Act 1990, s 329. 97 98

222

Defences 10.61 notice before they can have committed an offence, but the prosecution do not have to prove that. 10.58 The offence may be charged for a day or a longer period.103 As with enforcement notices, a person may be convicted of a second or subsequent offence after the date of the preceding conviction.104 In practice this will not occur unless the taking effect of the enforcement notice has been delayed by an appeal. DEFENCES 10.59

The one statutory defence is provided by s 187(3):105

‘… it shall be a defence for the accused to prove— (a) that the stop notice was not served on him, and (b) that he did not know, and could not reasonably have been expected to know, of its existence.’

10.60 This defence is only applicable if the prosecution is because a site notice has been displayed (as otherwise the only defendants would have been served). Knowledge is tested at the time the offence is alleged to have been committed. A defendant who was present on the land after the site notice had been displayed would have been reasonably expected to know of its existence unless the notice had been removed or he was subject to some disability. It will depend on the circumstances whether a defendant who did not enter the land, such as the employer of building contractors or an absent owner could reasonably have been expected to have been told of the notice by any employee or other person on the land. The defence must be proved on the balance of probabilities. 10.61 The validity of a stop notice may be raised a defence to a prosecution. This includes underlying matters, including that the alleged breach has been carried on beyond the four- or five-year period within which a stop notice must be served;106 the activity is not a breach of planning control; the stop notice has not been served at all;107 or the notice has a defect on its face which makes it a nullity. However a stop notice is not invalid because a copy of the enforcement notice was not served as required if it is shown that the local planning authority took all such steps as were reasonably practicable to effect proper service.108

Town and Country Planning Act 1990, s 187(1A); Planning Act (Northern Ireland) 2011, s 150(13). Town and Country Planning Act 1990, s 187(1A); Planning Act (Northern Ireland) 2011, s 150(13). 105 Town and Country Planning Act 1990, s 187(3); Planning Act (Northern Ireland) 2011, s 150(17). The Northern Ireland defence uses the same language but omits the sub-paragraphing. 106 R v Jenner [1983] 1 WLR 873; R v Epping Forest District Council, ex p Strandmill [1990] JPL 415; and R (JRP Holdings Ltd) v Spelthorne Borough Council [2007] EWCA Civ 1122, [2008] JPL 696 at para 7 per Dyson LJ. 107 JRP Holdings at para 8 per Dyson LJ. 108 Town and Country Planning Act 1990, s 184(8); Planning Act (Northern Ireland) 2011, s 150(18). 103 104

223

10.62  Stop Notices SENTENCE 10.62 On conviction, whether summary or on indictment, in England and Wales the maximum sentence is an unlimited fine.109 In Northern Ireland the maximum sentence in the magistrates’ court is £100,000 with an unlimited fine available in the Crown Court.110 In determining a fine the court shall particularly ‘have regard to any financial benefit which has accrued or appears likely to accrue to [the defendant] in consequence of the offence’.111 The financial benefit could be continuing a profitable use, or the payment received by building contractors, see Chapter 8 on enforcing enforcement notices. The confiscation provisions of the Proceeds of Crime Act 2002 could also be used against those convicted of breaches of stop notices.

Town and Country Planning Act 1990, s 187(2). The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 18. 110 Planning Act (Northern Ireland) 2011, s 150(15). 111 Town and Country Planning Act 1990, s 187(2A); Planning Act (Northern Ireland) 2011, s 150(16). 109

224

Chapter 11

Temporary Stop Notices

11.01 A  temporary stop notice may be issued by a local planning authority to prohibit an activity which is in breach of planning control. The process is very similar to the stop notice procedure, except that a temporary stop notice can be served before an enforcement notice has been served and only has effect for a maximum of 28 days. Temporary stop notices therefore provide a means of enforcement which does not have to await the drafting of an enforcement notice or the identification of who to serve with a copy of the enforcement notice. 11.02 A  temporary stop notice would tend to be used in these ways. Most commonly the temporary stop notice would be issued and served and if the local planning authority was not satisfied that the activity restrained by the notice had ceased, the authority would issue an enforcement notice and serve a stop notice to continue the prohibition after the end of the 28-day period. It would take advantage of that period to prepare the enforcement notice. An alternative course would be to use a temporary stop notice in conjunction with a breach of condition notice. Since 28 days must elapse before a breach of condition notice takes effect, a temporary stop notice could be used for that interim period. Whilst intended to be a quick enforcement mechanism, local planning authorities must still exercise care with temporary stop notices. The financial consequences for the person served may be substantial, and if the activity prohibited was in fact lawful, the authority will be liable to pay compensation for any loss caused. 11.03 Temporary stop notices were introduced by the Planning and Compulsory Purchase Act 2004 as ss 171E–171H in Part VII of the Town and Country Planning Act 1990, and the Planning Act (Northern Ireland) 2011, ss  135–137. Since their introduction, temporary stop notices have proved more popular than stop notices. From a high of 530 temporary stop notices having been served by English district level authorities in 2006/2007, numbers have settled down to under 300 per year (249 in 2017/2018).1 The use of temporary stop notices may reflect the level of development activity more than other enforcement mechanisms, as they are a quick way of bringing a developer to heel if works have started without complying with planning conditions. Guidance is given in the Planning Practice Guidance.2 The temporary stop notice powers were brought into force in Wales on 22  June 2015. Guidance on their use in Wales and a model notice are contained in the Development Management Manual Section 14 Annex: Enforcement Tools.

Ministry of Housing, Communities and Local Government, Live tables on planning application statistics, table P127. 2 The previous advice in ODPM  Circular 02/2005 Temporary Stop Notice was cancelled on the publication of the Planning Practice Guidance. 1

225

11.04  Temporary Stop Notices TEMPORARY STOP NOTICES 11.04 A  temporary stop notice may be issued if the local planning authority thinks:3 ‘(a) that there has been a breach of planning control in relation to any land, and (b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately.’

11.05

The notice must:4

‘(a) specify the activity which the authority think amounts to the breach; (b) prohibit the carrying on of the activity (or of so much of the activity as is specified in the notice); (c) set out the authority’s reasons for issuing the notice’

11.06 A  temporary stop notice might therefore act against only the most troublesome part of the breach of control (such as restricting the hours on an unlawful use). The former Circular expresses caution about confining a notice to part of a site if there is a risk that the activity will be moved to another part of the site.5 However, the notice can only apply to the land in respect of which there is the breach of planning control and where a use is concerned; this depends upon the identification of the planning unit.6 A model temporary stop notice is provided in the Planning Practice Guidance. Issuing a temporary stop notice 11.07 Once a temporary stop notice has been issued, a copy must be displayed ‘on the land’ along with a statement of the effect of the notice and of the provisions on criminal offences.7 The copy notice and statement should be firmly fixed to a structure on the land that is the subject of the notice or put on a stake forced into the ground. It is insufficient to put the display on a structure next to the land, such as a lamp post. A temporary stop notice ‘has effect from the time a copy of it is first displayed’ under the statute.8 The effect of the notice is therefore immediate (as subsection (1) also says); unlike many stop notices a temporary stop notice does not provide for a period for compliance. There is an issue as to whether a temporary stop notice has effect on an individual served with the notice at a time prior to the display of the notice on the site or where a display is not in accordance with the legislation. Subsection (6) says the notice has effect from when it is displayed and, by subsection (7) the duration of the notice expires at the end of the period

Town and Country Planning Act 1990, s 171E(1). The Planning Act (Northern Ireland) 2011, s 135(1) adds after ‘any land’, ‘in its district’. The 1990 Act treats it as implicit that local planning authorities only act in relation to land in their area. 4 Town and Country Planning Act 1990, s  171E(3); Planning Act (Northern Ireland) 2011, s  135(3) (substituting ‘council’ for ‘authority’). 5 The now cancelled Circular 02/2005, para 10. 6 See Chapter 2. 7 Town and Country Planning Act 1990, s 171E(5); Planning Act (Northern Ireland) 2011, s 135(5). 8 Town and Country Planning Act 1990, s 171E(6); Planning Act (Northern Ireland) 2011, s 135(6). 3

226

Temporary stop notices 11.09 starting with the date of the display.9 However the legislation says that an offence is committed by a person who contravenes a temporary stop notice which has been served on him or which has been displayed.10 The implication is that a notice can be contravened before it has been displayed or if it has never been displayed,11 notwithstanding the earlier provision. In any event, however, the prudent advice to a person served with a notice would be to stop the activity even if there appeared to be no site notice. 11.08 Subject to the notice taking effect on service, an authority could give time for compliance by serving the notice and then delaying the display of a copy of the notice on the ground. However that would need to be explained to those served (as they are likely to stop immediately upon service otherwise) and any delay would need to be very short otherwise it would be inappropriate to use the temporary stop notice procedure. The better course would be to say that a notice will be served and displayed at a certain date and time. The notice may be served on any person who the authority thinks is carrying on the activity, is an occupier of, or has an interest in, the land.12 There is no obligation to serve all or any such persons, reflecting the fact that action might be taken before the authority have managed to find out who is involved in the breach of control. Similarly, any service would be on those the authority think are involved or have an interest. The authority can therefore act on belief about their identity rather than having to be correct about this.13 If the persons prove not to have been involved then that does not affect the operation of the notice. However, since the local planning authority will wish to shut down the breach as soon as possible, it is sensible to serve those who might be involved. Duration of a temporary stop notice 11.09

A temporary stop notice ceases to have effect:14

‘(a) at the end of the period of 28 days starting on the day the copy notice is so displayed, (b) at the end of such shorter period starting on that day as is specified in the notice, or (c) if it is withdrawn by the local planning authority.’

Since the 28-day period starts on the day of display, a temporary stop notice displayed on a Monday will cease to have effect at the end of the Sunday just under four weeks later, unless an earlier date has been specified.15

Under Town and Country Planning Act 1990, s 171E; Planning Act (Northern Ireland) 2011, s 135. Town and Country Planning Act 1990, s 171G(1); Planning Act (Northern Ireland) 2011, s 137(1). 11 Circular 02/2005 para 5, 6 and 44 appeared to assume this is the case. 12 Town and Country Planning Act 1990, s 171E(4); Planning Act (Northern Ireland) 2011, s 135(4). 13 Unlike other notices. See the discussion in Planning Law in Wales Consultation Paper Law Com No 233 (November 2017), para 12.48. 14 Town and Country Planning Act 1990, s 171E(7); Planning Act (Northern Ireland) 2011, s 135(7), substituting ‘council’ for ‘local planning authority’. 15 The Law Commission raise a question whether the 28 days starts at the beginning of the day of display (as suggested above), the time of display or at the end of the day: Planning Law in Wales Consultation Paper Law Com No 233 (November 2017), para 12.48. In those three cases a notice displayed at 5pm on Sunday would expire at the end of the Sunday four weeks later, at 5pm on the Monday or the end of the Monday respectively. They suggest that the legislation should provide for the 28-day period to be counted from the day following display. 9

10

227

11.10  Temporary Stop Notices 11.10 Whilst it might seem sensible to withdraw a temporary stop notice when a (permanent) stop notice takes effect, the withdrawal of a temporary notice gives rise to compensation. In those circumstances a temporary stop notice should be allowed to run its course even though there would be a period of overlap with a stop notice. Alternatively the stop notice could be drafted to come into effect as soon as the temporary notice expires. 11.11 Regularising the breach of planning control such as by the grant of planning permission or the approval of details under a planning permission does not terminate the effect of the notice, however there is some protection against compensation claims if the notice is then withdrawn, as discussed further below. Exceptions to the use of temporary stop notices 11.12 Limitations on the ability to issue a temporary stop notice have been introduced in respect of dwellinghouses, residential caravans, activities carried on for more than four years and concerning repeated use of temporary stop notices. The residential caravan exception was revoked in 2013. Dwellinghouses and residential caravans 11.13

In England and Wales s 171F(1) of the 1990 Act provides:

‘A temporary stop notice does not prohibit– (a) the use of a building as a dwellinghouse; (b) the carrying out of an activity of such description or in such circumstances as is prescribed.’

The language of the provision is that the ‘notice does not prohibit’, so it would not have such an effect regardless of the wording of the notice. In criminal proceedings it would have to be applied in such a fashion.16 Any notice ought not to be drafted to contain, on its face, an unlawful prohibition. 11.14 With respect to dwellinghouses the provision reflects the stop notice regime. The Town and Country Planning (Temporary Stop Notice) (England) Regulations 2005 were made under sub-section (1) in respect of residential caravans. The stationing of a caravan could not be prohibited by a temporary stop notice in these circumstances:17 ‘(a) the caravan is stationed on the land immediately before the issue of the temporary stop notice; and (b) the caravan is at that time occupied by a person as his main residence; unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious so as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect.’

This may raise the question whether a notice which on its face contains an unlawful prohibition is invalid in its entirety and so the whole notice falls. 17 Town and Country Planning (Temporary Stop Notice) (England) Regulations 2005, reg 2(2). 16

228

Temporary stop notices 11.18 11.15 The effect was that temporary stop notices could prohibit works to enable land to be used for caravans (such as laying hardstanding and installing water pipes) and could prevent further caravans from being brought onto the site, but could not require the removal of residential caravans unless the risk of harm proviso was satisfied. This limitation caused problems when caravans were moved onto a site over a weekend.18 The difficulty was that unless the use was brought to an end very quickly – in a matter of days – it might in practice take years to resolve. No similar restriction had been applied to the use of stop notices but their service is delayed by the need to issue an enforcement notice. The restriction was unnecessary as a proportionate response, having regard to the effect on rights under Article 8 of the European Convention on Human Rights, was required in any event. The 2005 regulations were revoked in their entirety with effect from 4 May 2013, so this restriction no longer applies.19 Restrictions on temporary stop notices in Northern Ireland 11.16

In Northern Ireland:20

‘A temporary stop notice does not prohibit— (a) any person from continuing to use any building, caravan or other structure situated on land to which the temporary stop notice relates as that person’s permanent residence whether as owner, occupier, tenant, patient, guest or otherwise; (b) the carrying out of an activity of such description or in such circumstances as is prescribed.’

Four years’ activity 11.17 As for stop notices,21 a temporary stop notice in England and Wales ‘does not prohibit the carrying out of any activity which has been carried out (whether or not continuously) for a period of four years ending with the day on which the copy of the notice is first displayed’.22 This restriction limits its effect against uses as the restriction does not apply to activity consisting of or incidental to building, engineering, mining or other operations or the deposit of refuse or waste materials.23 In Northern Ireland the period is five years, the same as the time limit for enforcement against uses.24 The four- or five-year limit is applied ignoring any period during which the activity is authorised by a planning permission.25 This means that a notice can be issued if an activity started under a temporary planning permission and that temporary permission (or the final temporary permission) expired during the fouryear period. 11.18 The effect of the prohibition is that notwithstanding the terms of any notice, a temporary stop notice does not prohibit activity that has been carried on unlawfully for more than four years (or five years in Northern Ireland). 20 21 22 23 24 25 18 19

For example, see the facts of Mid-Suffolk District Council v Upton [2007] EWHC 2296 (QB). Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013. Planning Act (Northern Ireland) 2011, s 136(1). See Town and Country Planning Act 1990, s 183(5), (5A). Town and Country Planning Act 1990, s 171F(2). Town and Country Planning Act 1990, s 171F(3); Planning Act (Northern Ireland) 2011, s 136(3). Planning Act (Northern Ireland) 2011, s 136(2). Town and Country Planning Act 1990, s 171F(4); Planning Act (Northern Ireland) 2011, s 136(4).

229

11.19  Temporary Stop Notices Second temporary stop notices 11.19 Only one temporary stop notice may ‘be issued in respect of the same activity unless the local planning authority has first taken some other enforcement action in relation to the breach of planning control which is constituted by the activity’.26 So the general rule is that a temporary stop notice can only be used once against a particular breach. The purpose is to avoid repeated restrictions being imposed which a landowner or developer has no practical ability to challenge. The expectation is that the planning authority will have used the time given by the notice to take other action, if required. This generates a few issues. If a defective temporary stop notice is issued, a replacement notice cannot be issued unless it can be said that the first notice was not a temporary stop notice. Where the original notice has an error on its face such that it is a nullity (such as failing to contain a prohibition on the activity) then it can readily be said that there was no original notice. If the notice would have been found ultra vires then it is debatable whether a second notice can be issued before the High Court rules on the unlawfulness. Since the Court would not be able to determine the point very quickly, that is a practical problem. If the notice is lawful, but the Council wish to change the nature of the prohibition (against the same activity) then they cannot do so by a new notice. 11.20 Second temporary stop notices are allowed if the authority has issued an enforcement notice, served a breach of condition notice or obtained a planning injunction.27 This allows a prohibition to be imposed prior to an enforcement notice or breach of condition notice taking effect, although a stop notice may still have to be served in the event of an enforcement notice appeal. The rationale for allowing a temporary stop notice to be served when an injunction has been obtained is less clear. Enforcement is best left to the court order once it has to be complied with. The Court will have considered the appropriate period for compliance so it is not obvious why the planning authority should be able to institute an immediate ban (although they could use an enforcement notice and stop notice to do the same). The decision to issue a temporary stop notice 11.21 Provided that there is a breach of planning control underway, the decision to issue a temporary stop notice is a matter of discretion. In reaching that decision the local planning authority must have regard to the nature and impact of the breach and the effect on the person carrying out the breach. 11.22

The Welsh advice is:28

‘The decision to issue a TSN should not be taken unless a brief but comprehensive analysis of the likely consequences of the requirements within the notice has been carried out and that it is the most proportionate course of action.”

Town and Country Planning Act 1990, s 171F(5); Planning Act (Northern Ireland) 2011, s 136(5). For these purposes only, obtaining a planning injunction under Town and Country Planning Act 1990, s  187B or Planning Act (Northern Ireland) 2011, s  156 is enforcement action: Town and Country Planning Act 1990, s 171F(6); Planning Act (Northern Ireland) 2011, s 136(6). The injunction has to be granted, merely having commenced proceedings is not sufficient to allow a second notice. 28 Development Management Manual Section 14 Annex: Enforcement Tools. 26 27

230

Temporary stop notices 11.26 11.23

The Planning Practice Guidance advises:29

‘The effect of issuing a temporary stop notice will be to halt the breach of planning control, or the specified activity immediately. This can have immediate serious consequences on a business. Local planning authorities should therefore ensure that a quick but adequate assessment of the likely consequences of issuing a temporary stop notice is available to the officer who will authorise issue of the notice. It should not be necessary to carry out a detailed cost/benefit assessment, but the assessment should examine the foreseeable costs to the company, operator, or landowner, against whose activities the stop notice is directed and the benefit to amenity in the vicinity of the site which is likely to result from a temporary stop notice. The local planning authority should ensure that a temporary stop notice’s requirements prohibit only what is essential to safeguard amenity or public safety in the neighbourhood; or to prevent serious or irreversible harm to the environment in the surrounding area. Before deciding to serve a temporary stop notice, the local planning authority’s representative may choose to discuss, whenever practicable, with the person carrying on the activity whether there is any alternative means of production or operation which would overcome the objections to it in an environmentally and legally acceptable way.’

The Planning Practice Guidance therefore reflects the longstanding advice on stop notices.30 In saying that the authority ‘may choose to discuss, whenever practicable’ alternative measures before service, the PPG changes from advice in the 2002 circular that it should, whenever possible, have such discussions.31 Offences 11.24

The Town and Country Planning Act 1990, s 171G(1) provides:32

‘A person commits an offence if he contravenes a temporary stop notice– (a) which has been served on him, or (b) a copy of which has been displayed in accordance with section 171E(5).’

11.25 A notice can only be contravened when it is in effect. Whether a temporary stop notice has effect following service but before display is discussed above. It could not be contravened after it has ceased to have effect. 11.26 The section establishes that contravention of a temporary stop notice includes causing or permitting the contravention of the notice33 and an offence may be charged by reference to a day or a longer period of time.34 By subsection (4) a person may be convicted of more than one offence under the same notice at different dates or times. The utility of this provision is perhaps limited to occasions when a person quickly accepts a caution and then contravenes the notice again. A court

31 32

PPG, ID 17b-041-20140306. In the cancelled Circular 10/97, Annex 3, paras 3.20–3.22. See cancelled Circular 02/2005, para 38. Similarly, the Northern Irish offence is (Planning Act (Northern Ireland) 2011, s 137(1)): ‘A person commits an offence if that person contravenes a temporary stop notice—(a) which has been served on that person; or (b) a copy of which has been displayed in accordance with section 135(5)’. 33 Town and Country Planning Act 1990, s 171G(2); Planning Act (Northern Ireland) 2011, s 137(2). 34 Town and Country Planning Act 1990, s 171G(3); Planning Act (Northern Ireland) 2011, s 137(3). 29 30

231

11.27  Temporary Stop Notices conviction within the 28-day period is not practical and multiple breaches can be dealt with as an offence over a period. 11.27

It is a defence for a person to prove, on the balance of probabilities:35

‘(a) that the temporary stop notice was not served on him, and (b) that he did not know, and could not reasonably have been expected to know, of its existence.’

11.28 The prosecution would need to prove that the temporary stop notice was in effect by showing beyond reasonable doubt that the notice had been displayed on the site (or if this was adequate on its own, that the notice had been served on the defendant). The defence might only arise if the notice was displayed but the defendant had not been served with it. 11.29 Reasonably, the penalties for contravention of a temporary stop notice are the same as for contravention of a stop notice. The offence is triable either way, with an unlimited fine in the magistrates’ court or Crown Court in England and Wales.36 The maximum fine in the Northern Irish magistrates’ court is £100,000, but again an unlimited sum in the Crown Court.37 As with other planning offences, the presence or lack of financial benefit has to be taken into account in sentencing.38 Compensation 11.30 As with stop notices, compensation may be payable if a temporary stop notice is issued and the activity was at the time lawful. 11.31 A person who had an interest or estate in the land ‘at the time the notice is served … is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice’39 in the following circumstances: (a)

‘the activity which is specified in the notice is authorised by planning permission or by a development order, a local development order, a Mayoral development order or a neighbourhood development order;’40 The authorisations referred to are planning permission and a variety of orders which themselves grant planning permission. This mixes up the consent and certain means by which the consent is granted. Planning permission will

Town and Country Planning Act 1990, s 171G(5). The legislation explicitly puts the burden of proof on the defendant. As a burden on the defence, it must be shown on the balance of probabilities. Planning Act (Northern Ireland) 2011, s 137(3) is to the same effect: ‘(a) that the temporary stop notice was not served on him or her; and (b) that that person did not know, and could not reasonably have been expected to know, of its existence.’ 36 Town and Country Planning Act 1990, s 171G(6). The maximum sentence in the magistrates court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 18. 37 Planning Act (Northern Ireland) 2011, s 137(5). 38 Town and Country Planning Act 1990, s 171G(7); Planning Act (Northern Ireland) 2011, s 137(7). 39 Town and Country Planning Act 1990, s 171H(4); Planning Act (Northern Ireland) 2011, s 187(4). 40 Town and Country Planning Act 1990, s 171H(1)(a). Mayoral and neighbourhood development orders apply in England only. For the means of granting planning permission other than on an application, see Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) Chapter 26. 35

232

Temporary stop notices 11.31 encompass those orders as well as planning permission granted following an application made to the local planning authority or the Minister and permission granted by simplified planning zone schemes or enterprise schemes. Ministers are also able to grant deemed planning permission in connection with other infrastructure consents and this is treated as planning permission for these purposes.41 ‘Authorised by planning permission’ would mean authorised to be carried out at the time in the light of conditions attaching to the permission. So activity which is in breach of a condition or where a permission is not implemented because of non-compliance with a condition cannot trigger compensation. Compensation is not payable if the planning permission is granted on or after the date on which a copy of the notice is first displayed under section 171E(6),42 even if the notice is kept in force after the permission is granted. (b) ‘a certificate in respect of the activity is issued under section 191 or granted under that section by virtue of section 195;’43 Section 191 certificates are certificates of lawfulness of proposed use or development (‘CLEUD’) and section 195 is the appeal provision for such certificates. The provision does not say when the certificate has to be issued, but says ‘is issued’ rather than ‘has been issued’. If the certificate pre-dates the temporary stop notice then it would be a major blunder for the authority to have issued the notice in the first place. A CLEUD certifies the lawfulness of activities at the date of the application, so it is possible for a CLEUD to be applied for before a temporary stop notice is issued and granted after that time. A CLEUD applied for after the notice is issued can only certify lawfulness at the date of the application, when circumstances might have changed, although that is catered for by the absence of compensation for unlawful activity, as discussed below. It might therefore be that a certificate which is applied for subsequently or issued in an enforcement notice appeal, relates to a date after the temporary stop notice has ceased to have effect. The purpose of the provision is to give a right to compensation if it is subsequently determined that the prohibited activity was lawful and it avoids the Lands Chamber having to decide whether planning permission was required. It may be appropriate to take a wide view of the date of certificates which can give rise to compensation, provided of course that they can be seen as determinative of the position at the time of the temporary stop notice. A  potential claimant who contends that the activity did not amount to development would have to secure a CLEUD to be able to claim compensation. A  person relying on a planning permission could proceed to make a claim without obtaining a certificate, but might have to prove the effect of the permission in the compensation claim. (c)

the authority withdraws the notice. Authorities should therefore be careful before withdrawing a temporary stop notice since that will give rise to compensation, subject to the exceptions below.

Town and Country Planning Act 1990, s 90(3). Town and Country Planning Act 1990, s 171H(2). 43 Town and Country Planning Act 1990, s 171H(1)(b). 41 42

233

11.32  Temporary Stop Notices However if a notice has halted lawful works then the compensation bill will be reduced by removing the notice and allowing the development to resume. 11.32

Compensation is payable in Northern lreland under similar circumstances:44

‘(a) the activity which is specified in the notice is authorised by planning permission or a development order; (b) a certificate in respect of the activity is issued under section 169 or granted under that section by virtue of section 173; (c) the council withdraws the notice.’

11.33 In respect of all of these bases, no compensation is payable in ‘respect of the prohibition in a temporary stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control’45 and this provides important protection for local planning authorities. If the CLEUD arises from a consent issued after the notice or a notice is withdrawn because permission has been granted or for a technical defect, there will not be compensation payable if the notice attacked a breach of planning control. Other provisions governing stop notice compensation also apply to temporary stop notices and so compensation is not payable for losses that could have been avoided if the claimant had complied with requests for information under a planning contravention notice, section 330 notice or notice under section 16 of the Local Government (Miscellaneous Provisions) Act 1976.46 11.34 The claim procedure is as considered in Chapter 10 on stop notices. The claim must be made within 12 months or any longer period allowed by Ministers and disputed claims are dealt with by the Upper Tribunal (Lands Chamber).47 Northern Irish claims must be made in writing48 within six months from the date of decision or such longer period allowed by the council.49 Disputes will be resolved by the Lands Tribunal in Northern Ireland.50

Planning Act (Northern Ireland) 2011, s 187(1). Town and Country Planning Act 1990, s 186(5)(a) as modified by s 171H(5); Planning Act (Northern Ireland) 2011, s 187(7)(a). 46 Town and Country Planning Act 1990, s 186(5)(b) as modified by s 171H(5). Under the Planning Act (Northern Ireland) 2011, s  187(7)(b) the relevant requirements were to provide information under ss 133 or 240. 47 Town and Country Planning Act 1990, s 186, as applied by s 171H(5), and Town and Country Planning General Regulations 1992, reg 12(2). 48 Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 30(1). 49 Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 30(2). 50 Planning Act (Northern Ireland) 2011, s 187(8). 44 45

234

Chapter 12

Breach of Condition Notices

12.01 Whilst enforcement notices can be issued against breaches of conditions or limitations, a faster enforcement method was introduced in the Planning and Compensation Act 1991: the breach of condition notice. A breach of condition notice specifies steps to comply with a condition1 giving a set period for compliance. Failure to comply with the conditions or to do the specified steps is an offence. The notice is served by the local planning authority. Unlike an enforcement notice, there is no ability to appeal to the Minister. The planning merits of the condition are irrelevant, although the legality of it is not. Therefore, the delays (and safeguards) in the appeal process are not present. The validity of a breach of condition notice can be challenged by judicial review or as a defence to a prosecution. 12.02 In England and Wales the breach of condition notice provisions are in the Town and Country Planning Act 1990, s 187A. Elsewhere they are in the Planning Act (Northern Ireland) 2011, s 152. The Planning Practice Guidance para 17b-046 to 049, Annex 4 of Welsh Office Circular 24/97 and section of Enforcement Practice Note 4 give specific guidance on breach of condition notices. Such notices are less used than enforcement notices, some 759 breach of condition notices being served by English district level local planning authorities in 2017/2018, as against 4,273 enforcement notices being issued.2 SERVICE 12.03 (a)

A local planning authority ‘may’ serve a breach of condition notice if:

planning permission has been granted subject to conditions;3

(b) the permission has been implemented;4 and (c)

any of the conditions has not been complied with.5

12.04 The breach of condition notice may be served on any person who is, or has been, carrying out or causing or permitting another to carry out the development and anyone in control of the land.6 By analogy with enforcement notices, permitting This includes limitations: Town and Country Planning Act 1990, s  187A(13)(a); Planning Act (Northern Ireland) 2011, s 152(13)(a). 2 MHCLG, Live tables on planning application statistics, table P127. 3 Town and Country Planning Act 1990, s 187A(1); Planning Act (Northern Ireland) 2011, s 152(1). 4 See Handoll v Warner Goodman & Streat (1995) 70 P & CR 627. 5 Town and Country Planning Act 1990, s 187A(2); Planning Act (Northern Ireland) 2011, s 152(2). 6 Town and Country Planning Act 1990, s  187A(2); Planning Act (Northern Ireland) 2011, s  152(2). The Northern Irish term for the developer is ‘any person who is carrying out or has carried out the development’ (s 152(2)); with carrying out including ‘causing or permitting another to do so’ (s 152(13)). 1

235

12.05  Breach of Condition Notices something includes giving express permission and failing to take reasonable steps to prevent it.7 A breach of condition notice binds the person served with the notice, unlike an enforcement notice, which binds the land and so may affect persons who are not served with a copy of it.8 12.05 A  person in control of the land can only be required to comply with conditions regulating the use of the land.9 The view is that the person currently in control10 should not be made liable for the acts of a person who carried out development before he took control. The person in control when operational development was carried out would probably have permitted the development and so could be served with a breach of condition notice for that development. In Davenport v London Borough of Hammersmith and Fulham11 a planning permission for a motor vehicle repairs on a site had included a condition prohibiting the parking of vehicles left with or under the control of the applicant on the public road leading up to the site. The site was being run by two brothers, one of whom had applied for the original consent. Breach of condition notices were served against the garage leaving customers’ cars on the road. Whilst a notice could be served on the brother who had carried out the development, the conviction of the other brother was quashed. Richards J held that the condition regulated the use of the road and whilst the brother was in control of the garage site he did not have control of the public highway which was outside the site. 12.06 The statutory time limits for taking enforcement action apply.12 For conditions, these are ten years unless the condition relates to a change of use of a building to use as a single dwellinghouse where a four-year period applies or a different period is available under a planning enforcement order. If an enforcement notice is in effect in respect of the breach, a breach of condition notice can be served at any time.13 12.07 Government guidance particularly recommends the use of a breach of condition notice when a valid condition has clearly been breached.14 Where there is scope for argument about the interpretation, validity or enforceability of a condition, that guidance suggests that the local planning authority proceed by enforcement notice rather than breach of condition notice. There is no guidance as to whether to serve a notice when a condition is valid but there is dispute about its planning merits. Where for example, an application has been made for the lifting or varying of the condition or that issue is going to appeal, the local planning authority will need to balance their view of the harm to the public interest with the possibility of the condition being lifted on appeal.

Test Valley Investments Ltd v Tanner (1964) 15 P & CR 279. The Law Commission suggest that breach of condition notices should be issued and copies served: Planning Law in Wales Consultation Paper Law Com No 233 (November 2017), para 12.63. 9 Town and Country Planning Act 1990, s 187A(4); Planning Act (Northern Ireland) 2011, s 152(4). 10 The person in control will not always be the owner, for example, if the land is let: Nourish v Adamson [1998] JPL 859. 11 (1999) 78 P & CR 421, [1999] JPL 1122. 12 Town and Country Planning Act 1990, s 171B; Planning Act (Northern Ireland) 2011, s 132. See the discussion of time limits in Chapter 3 above. 13 Town and Country Planning Act 1990, s 171B(4)(a); Planning Act (Northern Ireland) 2011, s 132(4)(a). 14 Circular 24/97 Annex 4, para 4.6. 7 8

236

Drafting notices 12.11 12.08 The minimum period for compliance is not less than 28 days beginning with the date of service of the notice.15 Welsh Office Circular 24/97 advises that the compliance period should be commensurate with the requirements of the notice.16 It should reflect the time in which compliance can be achieved. The circular advises that normally a breach of condition notice is only served on one person17 and this reflects the legislative structure of having a notice served on a person rather than a notice issued and copies served. Best practice is to serve notices each of which identifies who it is served on. Particularly where there are several companies or individuals involved with a site, and potentially several notices, it may be difficult to work out who has actually been served with a notice. It may be the case that separate notices are served on different developers or controllers of land which are identical in all respects except for the addressee. DRAFTING NOTICES 12.09 (a)

The notice will specify:

the conditions which must be complied with;18

(b) ‘the steps which the LPA consider ought to be taken, or the activities which ought to cease’, to comply with these conditions;19 (c)

the period, of not less than 28 days beginning with the date of service, allowed for compliance.20

12.10 Several conditions may be specified in one notice, however, if there are to be different compliance periods, the circular advises that separate notices ought to be issued so there is no doubt as to which compliance period applies to which condition.21 This might be over-cautious advice. It is not uncommon for notices to contain several different requirements for compliance (such as ceasing the activity, demolishing the building, removing the debris and laying topsoil and seeding). What matters is that it is clear to a recipient what has to be done and when it has to be done by. It is legitimate to use a notice against a breach of part of a condition which is being contravened in wider terms.22 12.11 A  model breach of condition notice is provided in the Planning Practice Guidance. This also specifies in the notice the subject land, the relevant planning permission, the consequences of noncompliance, the council officer responsible for enquiries and encourages the person served to seek professional advice.

17 18 19

Town and Country Planning Act 1990, s 187A(7)(a); Planning Act (Northern Ireland) 2011, s 152(7). Circular 24/97 Annex 4 para 4.14. Circular 24/97 Annex 4 para 4.13. Town and Country Planning Act 1990, s 187A(2); Planning Act (Northern Ireland) 2011, s 152(2). Town and Country Planning Act 1990, s 187A(5). Planning Act (Northern Ireland) 2011, s 152(5) is to the same effect. 20 Town and Country Planning Act 1990, s 187A(7); Planning Act (Northern Ireland) 2011, s 152(7). 21 Circular 24/97 Annex 4, para 4.9. 22 A  notice could require only the cessation of concrete recycling when the condition required the cessation of the waste operations and the restoration of the site when a temporary permission expired: Fowles v Heathrow Airport Ltd [2008] EWHC 219 (Ch) at paras 76, 79 per Lewison J. There was an issue about the enforceability of the restoration element of the condition since it contained no timescale: see paras 81–83. 15 16

237

12.12  Breach of Condition Notices THE ENFORCEMENT REGISTER 12.12 In England and Wales details of breach of condition notices must be entered on the register of enforcement notices and stop notices.23 The register entry shall include the address (or a location plan), the name of the serving authority, the date of service, sufficient details of the planning permission to enable it to be identified, a statement or summary of the condition not complied with and the notice’s requirements, including the compliance period.24 The register entries are to be removed if the notice is withdrawn or quashed by a court.25 A  planning register in Northern Ireland will contain ‘brief details’ of breach of condition notices, including the date of issue, any variation, withdrawal or expiry.26 COMPLIANCE 12.13 The person served (‘the person responsible’)27 is required to secure compliance with the notice. Failure to secure compliance is a criminal offence (subject to possible defences), even if the notice should not have been served. Therefore, a person wrongly served with a notice should promptly inform the local planning authority and ask them to withdraw it. If they do not, he should seek judicial review to have the notice quashed. WITHDRAWAL OR EXTENSION OF TIME 12.14 The local planning authority may withdraw a breach of condition notice, whether or not the period for compliance has expired.28 Withdrawal does not prevent the service of a further notice in respect of the conditions in that notice or other conditions. It should be remembered that the extension of the time limit for taking further enforcement action to four years in England and Wales (or five years in Northern Ireland) from the service of the notice will still apply where a notice is withdrawn.29 The period for compliance may be extended by the local planning authority serving a further notice.30 That extension should be for a set period. Whilst the statute is not clear, more than one extension can probably be granted. Such withdrawals or extensions must be served by notice on the person responsible.31 Unlike enforcement notices,32 there is no power to waive or relax the requirements of the breach of condition notice. The local planning authority must withdraw the notice and reissue if it intends to make such a change.

Town and Country Planning Act 1990, s 188(1). Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 43(3); Town and Country Planning (Development Management Procedure) (Wales) Order 2012, Art 30(2). 25 2015 DMPO, Art 43(4), 2012 DMPO, Art 30(3). 26 Planning Act (Northern Ireland) 2011, s 242(1)(n); Planning (General Development Procedure) Order (Northern Ireland) 2015, Art 27. 27 Town and Country Planning Act 1990, s 187A(3); Planning Act (Northern Ireland) 2011, s 152(3). 28 Town and Country Planning Act 1990, s 187A(6); Planning Act (Northern Ireland) 2011, s 152(6). 29 Town and Country Planning Act 1990, s 171B(4)(b); Planning Act (Northern Ireland) 2011, s 132(4)(b). 30 Town and Country Planning Act 1990, s 187A(7)(b); Planning Act (Northern Ireland) 2011, s 152(7)(b). 31 Town and Country Planning Act 1990, s 187A(6), (7); Planning Act (Northern Ireland) 2011, s 152(6), (7). 32 Town and Country Planning Act 1990, s 173A; Planning Act (Northern Ireland) 2011, s 141, 142. 23 24

238

Fixed penalty notices in Northern Ireland 12.18 EFFECT OF PLANNING PERMISSION 12.15 Planning permission granted for development already carried out will disapply any inconsistent parts of a breach of condition notice.33 This planning permission would be under s 73A34 (planning permission for development already carried out). If a condition to which a breach of condition notice relates is discharged, then that part of the breach of condition notice ceases to have effect.35 This applies to a retrospective planning permission and a grant of planning permission to develop land without compliance with conditions previously attached.36 If a condition in a breach of condition notice is superseded by a new permission pursuant to a section 73 application, then a new breach of condition notice would have to be served to force compliance with that new condition under the new consent. The breach of condition notice requires compliance with the conditions specified in the notice: a different, but replacement, condition is not covered. Criminal liability incurred before the grant of planning permission is unaffected.37 However, the local planning authority would have to consider whether it was in the public interest to prosecute for an act which was now acceptable in planning terms. Any sentence is likely to be reduced as a result. FIXED PENALTY NOTICES IN NORTHERN IRELAND 12.16 As an alternative to bringing a prosecution, a council in Northern Ireland may serve a fixed penalty notice on anyone it believes to have breached a breach of condition notice. If the person served pays then they may not be prosecuted. However no liability arises if the £300 demanded under the notice is not paid: the council would then have to decide whether to prosecute the alleged breach of the enforcement notice. 12.17 A  fixed penalty notice may only be given to a person by an authorised officer38 of the council.39 A person may be given a notice if the council officer has reason to believe that they are a person responsible in breach of the notice under s 152(9). 12.18

The fixed penalty notice shall specify:

(a)

the step specified in the breach of condition notice which has not been carried out or the activity which is required to, but has not, ceased;40

(b)

by reason of para (a), the notice must identify the enforcement notice concerned;

(c)

the 28-day period following the date of the notice within which a prosecution will not be brought and in which the fixed penalty can be paid;

35 36 33 34



37 38



39 40

Town and Country Planning Act 1990, s 180(1); Planning Act (Northern Ireland) 2011, s 148(1). Or Planning Act (Northern Ireland) 2011, s 55. Town and Country Planning Act 1990, s 180(2); Planning Act (Northern Ireland) 2011, s 148(2). So under Town and Country Planning Act 1990, ss 73, 73A; Planning Act (Northern Ireland) 2011, ss 54, 55. Town and Country Planning Act 1990, s 180(3); Planning Act (Northern Ireland) 2011, s 148(3). An authorised officer is a council employee who is authorised in writing by the council for the purpose of giving notices under this section: Planning Act (Northern Ireland) 2011, s 154(12). Planning Act (Northern Ireland) 2011, s 154(1). Planning Act (Northern Ireland) 2011, s 154(3).

239

12.19  Breach of Condition Notices (d) the £300 amount of the fixed penalty;41 (e)

the person to whom and the address at which the penalty must be paid.42

12.19 It is probably implicit (and certainly good practice) for the notice to set out the 25% discount which applies if the penalty is paid within 14 days. The Department may prescribe a form which would have to be used,43 but has not done so. 12.20 No proceedings may be instituted within the period of 28 days following the date of the fixed penalty notice.44 The prohibition on bringing proceedings operates against any person: it is not limited to a prosecution by the council. If the person pays the fixed penalty sum within that period then they may not be convicted ‘of that offence’.45 The issue arises as to what ‘that offence’ is. A failure to comply with a step or prohibition will often be a continuing offence. It may be that the breach of condition continues for months after it was required to cease and could even be continuing when a fixed penalty notice is given. In other situations, the notice may be breached irregularly, for example, a noise limit condition. The notice is not required to specify the date or period of the alleged offence, merely the step or activity involved in the contravention, which suggests that this is not important. It appears to be implicit that all breaches of the step or activity up to the date of the notice are covered by the penalty. There would be little benefit for a person to pay off some of the alleged offences which have been committed whilst remaining open to prosecution on others. 12.21 Where a breach is continuing or may recur in the future, the payment of a fixed penalty would not prevent a prosecution being brought for future breaches.46 12.22 Different notices may be served against contraventions of different steps or restrictions in the same notice but not more than one notice in respect of the same breach.47 Where a notice consists of several requirements (such as cease the activity, demolish the building, remove the debris and replant the land), payment under a notice in relation to one step will not prevent a prosecution for breach which has already occurred under another step. A potential payer will want to be certain as to what alleged liability is being set aside. 12.23 The council may provide various means of making payment but the payer is entitled to pay by sending the sum by pre-paid post.48 A posted payment is received when the letter would have been delivered in the ordinary course of the post,49 providing a protection against late delivery. It also means that payment is made when a cheque is (or should be) received, rather than when it is cleared.

The sum is prescribed by the Planning (Amount of Fixed Penalty) Regulations (Northern Ireland) 2015, reg 2(b). 42 The final three requirements are in Planning Act (Northern Ireland) 2011, s 154(4). 43 Planning Act (Northern Ireland) 2011, s 154(8). 44 Planning Act (Northern Ireland) 2011, s 154(2)(a). 45 Planning Act (Northern Ireland) 2011, s 154(2)(b). 46 See para 8.21 above. 47 Planning Act (Northern Ireland) 2011, s 154(5) only prohibits more than one notice ‘in relation to a particular step or activity’. 48 Planning Act (Northern Ireland) 2011, s 154(6). The letter may contain the amount of the payment ‘in cash or otherwise’, allowing cheques to be sent (as well as the less likely course of posting a four figure sum in notes). 49 Planning Act (Northern Ireland) 2011, s 154(7). 41

240

Prosecution 12.29 12.24 There is no right of appeal or statutory challenge against a fixed penalty notice because it does not impose liability upon any person, merely providing recipients with a means of avoiding a criminal liability which is said to have already arisen. Since a failure to pay should lead to the council considering whether to prosecute, it would be sensible to dispute liability rather than simply omit to pay.50 12.25 Like any public authority acts, the service of a fixed penalty notice is amenable to judicial review although the circumstances in which that is an appropriate means of challenge will be limited.51 12.26 A  council may only use its fixed penalty notice receipts for its functions under the planning enforcement Part of the Act.52 PROSECUTION 12.27 If the notice is not complied with then the person responsible is in breach of the notice and commits an offence.53 The legislation provides:54 ‘If at any time after the end of the period for compliance with the notice— (a) any of the conditions specified in the notice is not complied with; and (b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased, the person responsible is in breach of the notice.’

12.28 Relatively little guidance has been provided as to when prosecutions should be brought. The now revoked PPG18 considered it inappropriate to prosecute for a failure to comply with a limitation imposed on permitted development under the General Permitted Development Order unless the breach of condition notice included a full explanation of the allegedly unauthorised development and the householder has failed to take satisfactory steps to regularise it, despite being allowed adequate time.55 12.29 (a)

The prosecution must prove:

that the defendant was served;

(b) any of the specified conditions are not complied with; (c)

the steps specified have not been taken, or the activities have not ceased; and

(d) the period for compliance has ended. The Divisional Court in Nourish v Adamson56 said that it was an essential element of the offence that the defendant should be the person having control of the land. This

This is encouraged by Enforcement Practice Note 4: enforcement procedures, para 7.13. See para 8.26 above. 52 Planning Act (Northern Ireland) 2011, s 155(2)(a). Regulations may allow their use for other functions (s 155(2)(b)) but this power has not been exercised. 53 Town and Country Planning Act 1990, s 187A(8), (9). 54 Town and Country Planning Act 1990, s 187A(8); Planning Act (Northern Ireland) 2011, s 152(8). 55 Paragraph 18. 56 [1998] JPL 859. 50 51

241

12.30  Breach of Condition Notices appears to be on the basis that the notice was served on the defendant as having control of the land under s 187A(2)(b) as distinct from having carried out the development under sub-paragraph (a). There may be a question whether this has to be proved by the prosecution or is a matter going to the validity of the notice, and so a point to be proved by the defence. In Nourish, the court considered that the magistrates had been entitled to find that the owner was in control, subject to the defendant being under an evidential burden to give a reason why he did not have control (such as having leased the land). 12.30 Failure both to comply with the conditions and to take the steps or cease the activities specified must be proven.57 A responsible person is not in breach if he complies with the conditions, but in a different way to that specified in the notice. The offence is a continuing offence and may be charged for a day or a longer period. A second prosecution may be brought for any time after the date of a conviction if the notice is still breached.58 The offence is tried summarily in the magistrates’ court. In England and Wales any prosecution must be brought within six months of the offence last being committed, only covering breaches in those six months.59 DEFENCES 12.31

Two statutory defences are provided.

(a) The defendant ‘took all reasonable measures to secure compliance with the conditions specified in that notice’60 This defence is comparable to that of doing everything that could be expected to secure compliance with an enforcement notice.61 The reasonable measures are to secure compliance with the condition and therefore need not be measures to carry out the steps specified. The provision is not explicit as to whether the measures are those that were reasonable after the notice was served or the developer must show that the condition could not have been complied with by reasonable measures when it was originally breached. This is particularly important for a developer who in carrying out the development failed to comply with conditions, but disposed of his interest and control of the site before the notice was served. In those circumstances he cannot comply with the notice. The former view, that reasonable measures are considered after the notice is served, is preferable. This defence may apply if the compliance period is unreasonable. Case law on the reasonable measures defence to a prosecution for breach of an enforcement notice is relevant to this defence.62 A breach of condition notice case where the defence failed is Lawson Builders where the defendant company could not rely upon one of its directors refusing to allow the required

Quinton v North Cornwall District Council [1994] CLY 4315, Truro Crown Court. Town and Country Planning Act 1990, s 187A(10); Planning Act (Northern Ireland) 2011, s 152(10). 59 In Northern Ireland, a prosecution for contravention of a breach of condition notice may be brought within three years from the time when the offence was committed or ceased to continue: Planning Act (Northern Ireland) 2011, s 244. 60 Town and Country Planning Act 1990, s 187A(11)(a); Planning Act (Northern Ireland) 2011, s 152(11)(a). 61 Town and Country Planning Act 1990, s 179(3); Planning Act (Northern Ireland) 2011, s 147(3). 62 Lawson Builders Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3368 (Admin) at paras 65–70 per Supperstone J. See paras 8.32–8.34 for enforcement notice case law. 57 58

242

Challenge to the validity of a breach of condition notice by judicial review 12.34 works to be carried out. An early Crown Court decision63 that s 187A(11) can only be relied upon if it is proven that it was not possible to comply with the steps specified in the notice applies too high a test. (b)

Where the defendant was served as having control of the land, that he no longer had control on the date on which the offence is alleged to have taken place.64

The defences must be proven by the defendant on the balance of probabilities. SENTENCE 12.32 The maximum sentence for an offence committed in England is a level 4 fine, currently £2,500, but the maximum sentence in Wales and Northern Ireland is a level 3 fine (£1,000).65 CHALLENGE TO THE VALIDITY OF A BREACH OF CONDITION NOTICE BY JUDICIAL REVIEW 12.33 The service of a breach of condition notice can be challenged by judicial review.66 This may include a formal defect in the notice, or its service on someone who cannot be a person responsible. The court can investigate whether a condition has not been complied with before the notice is served as this goes to the jurisdiction of the local planning authority to serve the notice.67 Another jurisdictional matter, allowing the court to determine the underlying facts, is whether the person served is carrying out or has been carrying out the development or has control of the land. The validity of the condition can be challenged, as can the reasonableness of serving the breach of condition notice. The notice could also fail to include the necessary details. Where the challenge to the notice turns on potentially contentious matters of fact or judgments which are matters of fact and degree then the legal complaint which arises might be best raised in criminal proceedings rather than judicial review. The Planning Court is not suited to resolve factual disputes nor matters of planning judgment, such as whether a change amounts to a material change of use, although those may have to be determined by the criminal courts.68 12.34 In Trim v North Dorset District Council,69 a breach of condition notice had been served in January 2008 against breach of an equestrian occupancy condition on a house. Mr Trim commenced civil proceedings in December 2009, seeking a declaration that the notice had been served outside the 10-year period. The Court of Appeal held that it was an abuse of process to challenge the notice in private law Quinton v North Cornwall District Council [1994] CLY 4315. Town and Country Planning Act 1990, s 187A(11)(b); Planning Act (Northern Ireland) 2011, s 152(11) (b). 65 Town and Country Planning Act 1990, s 187A(12) as substituted by the Localism Act 2011, s 126(2); Planning Act (Northern Ireland) 2011, s 152(12). For offences committed in England prior to 6 April 2012, the maximum sentence is a level 3 fine. 66 Planning Practice Guidance, ID 17b-049-20140306. For an unsuccessful challenge, see R(XPL Ltd) v Harlow Council [2016] EWCA Civ 378, [2016] JPL 878. 67 R v Ealing London Borough Council, ex p Zainuddin [1995] JPL 925. 68 For example, see R  (Johnson) v Royal Borough of Windsor and Maidenhead [2019]  EWHC  160 (Admin) at para 60 per Justine Thornton QC. 69 [2010] EWCA Civ 1446, [2011] 1 WLR 1901. 63 64

243

12.35  Breach of Condition Notices proceedings: the appropriate means were judicial review or as a defence to a criminal prosecution. It also refused to extend time for bringing judicial review. One of Mr Trim’s arguments was that he was left in limbo with a breach of condition notice in place but the local planning authority had not sought to prosecute. One potential route, not canvassed in the judgment, would have been to have asked the authority to withdraw the notice if they were unwilling to enforce it, and bring judicial review proceedings if they did not. VALIDITY IN CRIMINAL PROCEEDINGS 12.35 The original enforcement circular following the 1991 reforms (Circular 17/92) considered that the validity of a breach of condition notice could be challenged in the magistrates’ court by way of defence to a prosecution. This was revised in Circular 10/97 in the light of the Court of Appeal’s judgment in R v Wicks,70 which had taken a restrictive approach to defendants challenging in criminal proceedings notices which had been served on them. The circular therefore suggested that the validity of a notice could ‘probably not be challenged by way of defence to a prosecution brought by an LPA if the notice is valid on its face’71 However, the House of Lords judgment in Wicks took a narrower view, excluding collateral challenge to a notice because of the particularities of the enforcement notice regime. In Diellito v Ealing London Borough Council,72 the Divisional Court considered that the absence of a right of appeal against a breach of condition notice, amongst other factors, permitted the validity of the notice to be challenged in criminal proceedings. The defendant was therefore entitled to contend that the notice was invalid as the 10-year period for taking enforcement action had expired and the condition being enforced was invalid. The court considered the merits of the condition point (rejecting it) and returned the case to the magistrates’ court to consider the time limit. Similarly, it was possible to argue in Davenport v London Borough of Hammersmith and Fulham73 that breach of condition notices were invalid because the underlying condition was unlawful and a notice was served on a person who was not the developer and did not have control of the land. Whilst the challenge to the condition failed, the Divisional Court held one of the notices to be invalid because it was served on a person who was not the developer nor in control of the land.

[1995] 93 LGR 377. Circular 10/97 Annex 4, para 4.20. It therefore remains the text in WO Circular 24/97. 72 [2000] QB 381. 73 (1999) 78  P  & CR  421. The alleged invalidity of the condition was also raised and dismissed in Nourish v Adamson [1998] JPL 859 without the Court having to conclude whether the point could be taken. 70 71

244

Chapter 13

Submission Notices in Northern Ireland

13.01 Where it appears that development has been carried on without planning permission a council in Northern Ireland may issue a notice requiring the submission of a planning application. This is referred to as a submission notice. A limited right of appeal is given and it is an offence not to comply with the notice. 13.02 The power and appeal provisions are in the Planning Act (Northern Ireland) 2011, ss 43, 44. THE ISSUE OF A SUBMISSION NOTICE 13.03

A council may issue a submission notice:1

‘Where it appears to a council that development has been carried out— (a) without the grant of the planning permission required in that behalf in accordance with this Part; or (b) without the grant of any approval of the council required in that behalf under a development order.’

13.04 A notice may therefore be issued if no planning permission has been granted for the development or a prior approval for permitted development has not been granted. In the latter case the development would be without permission. Submission notices cannot be used solely in respect of breaches of condition,2 but it may be that a failure to comply with a pre-commencement condition means that the planning permission has not been implemented. In such cases the development will have been carried out without the grant of the required planning permission. 13.05 If post-implementation the development fails to comply with the approved drawings then whilst planning permission might be required to remedy the breach, the issue will arise whether the departure means that the development is without planning permission or merely in breach of condition requiring compliance with the drawings. 13.06 The submission notice would require ‘the making of an application for such planning permission or approval to the council within 28 days from the service of the

Planning Act (Northern Ireland) 2011, s 43(1). It is implicit that a council may only issue a notice in respect of development which has taken place in its area. 2 An approval required under a condition is different to an approval required under a development order: see appeals under Planning Act (Northern Ireland) 2011, s 58(1)(b), (c). 1

245

13.07  Submission Notices in Northern Ireland notice’.3 The legislation therefore proceeds on the basis that an application for approval under the General Permitted Development Order can be made retrospectively.4 13.07 Any application must be accompanied by the prescribed fee before the duty can be seen to be complied with.5 The legislation is silent whether an application will be made even if it is defective in other ways. 13.08 The requirement to make the application ‘to the council’ relates to both planning permissions and other approvals.6 Since any planning application is to be made to the council this raises an issue about the use of such notices for development of regional significance. The power to issue such notices refers to the need for planning permission, rather than permission following an application to the council, so is in those terms unrestricted. However an application for a development of regional significance is made to the Department7 but a submission notice requires the application to go to the council. 13.09 The effect of a notice is to impose a 28-day period for compliance, although that may be extended by the council.8 It would appear from the legislation that the extended period would not be contained on the notice itself, but an extension could be given at the same time as the notice is issued or a copy served. An extension could be granted at a later date – the power is in those respects unrestricted – although there is doubt whether more time can be given after the period for compliance has ended. As discussed below, it is not possible to withdraw a notice after there should have been compliance9 and it would be curious to be able to bypass that restriction by belatedly extending time and then withdrawing the notice. 13.10 A  submission notice ‘must specify the matters alleged to constitute the development to which the notice relates’.10 It must therefore be sufficiently clear to a person served what the notice relates to and what is required to comply with it. Implicitly the land subject to the notice must be identified, given the obligations to serve copies of the notice on the owners11 and occupiers of the land to which it relates.12 13.11 A  submission notice may only be issued ‘within the period of five years from the date on which the development to which it relates was begun’.13 Whilst this matches the five-year time limit for the making of a material change of use without permission, it will expire earlier than the limitation period for operational Planning Act (Northern Ireland) 2011, s 43(1). The fee setting powers in Planning Act (Northern Ireland) 2011, s 223(5) are also to the same effect. English authority is that prior approval cannot be obtained retrospectively, but that is without these provisions: Airwave mm02 Ltd v First Secretary of State [2005] EWHC 1701 (Admin), [2006] JPL 362 at para 32, per Judge Gilbart QC. 5 Planning Act (Northern Ireland) 2011, s 43(12). 6 An interpretation confirmed by the offence, which is committed ‘if the application referred to in the notice is not made to the council’: Planning Act (Northern Ireland) 2011, s 43(5). 7 See Planning Act (Northern Ireland) 2011, s 26; Planning (Development Management) Regulations (Northern Ireland) 2015, reg 3. 8 Planning Act (Northern Ireland) 2011, s 43(11). 9 Planning Act (Northern Ireland) 2011, s 43(9). 10 Planning Act (Northern Ireland) 2011, s 43(3). 11 Defined in Planning Act (Northern Ireland) 2011, s 250(1). See paras 6.31–6.32 above. 12 See Planning Act (Northern Ireland) 2011, s 43(4). Enforcement Practice Note 4 recommends that the notice shows the land on an attached OS plan: para 4.6. 13 Planning Act (Northern Ireland) 2011, s 43(2). 3 4

246

Appeals 13.17 development. Building, engineering, mining or other operations carried out without planning permission become lawful five years after the operations were substantially completed.14 SERVICE 13.12 A copy of the submission notice must be served on the owner and on the occupier of the land to which it relates.15 No timescale is provided in the Planning Act (Northern Ireland) 2011 for service, but it must be done expeditiously to give the recipient time to make a planning application or an appeal. WITHDRAWAL OF A SUBMISSION NOTICE 13.13 The council may withdraw a notice at any time before the period allowed for compliance.16 Notice of the withdrawal must be given to those served with copies of the notice as soon as reasonably practicable.17 APPEALS 13.14 A person who has been served with a copy of the submission notice may appeal to the Planning Appeals Commission. Advice on the process is given in the PAC’s Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals 13.15

The only grounds of appeal available are:18

‘(a) that the matters alleged in the notice do not constitute development; (b) that the development alleged in the notice has not taken place; (c) that the period of 5 years referred to in section 43(2) had elapsed at the date when the notice was issued.’

The period of five years referred to is that from the start of the development. 13.16 In addition ‘The appellant may challenge the validity of [a] submission notice on the ground that there is some fundamental defect in its drafting or authorisation’.19 This is concerned with nullity points.20 Correctable defects may also be raised. 13.17 However it cannot be contended in an appeal that the development which was the subject of the notice is lawful under a planning permission, including as 16 17 18 19

Planning Act (Northern Ireland) 2011, s 132(1). Planning Act (Northern Ireland) 2011, s 43(4). Planning Act (Northern Ireland) 2011, s 43(9). Planning Act (Northern Ireland) 2011, s 43(10). Planning Act (Northern Ireland) 2011, s 44(2). Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals, para 39. 20 Whilst expressing no conclusion on this point, Weatherup J  said it appeared that invalidity or uncertainty on the face of the notice could be raised: In the Matter of an Application by the Department of the Environment for Northern Ireland for Judicial Review [2004] NIQB 51, [2005] NI 119 at para 33 per Weatherup J. 14 15

247

13.18  Submission Notices in Northern Ireland permitted development.21 Provided that the notice constitutes a notice, appeals may only be brought to the PAC on the specified grounds.22 13.18 Any appeal must be made before the end of the period allowed for compliance.23 This includes any extended period allowed by the council for compliance.24 No particular form is prescribed but any appeal must be submitted in writing indicating ‘the grounds of the appeal and state the facts on which it is based’.25 13.19 The appellant and the council have a right to an oral hearing in front of a commissioner.26 13.20

In determining an appeal, the Commission:27

‘(a) must quash the notice, vary the terms of the notice or uphold the notice; (b) may correct any informality, defect or error in the notice, or vary its terms, if it is satisfied that the correction or variation can be made without injustice to the appellant or to the council.’

SUSPENSION OF THE NOTICE 13.21 Once an appeal is brought, the notice is of no effect pending the final determination or withdrawal of the appeal.28 The suspension of the notice would seem to extend to the duration of a judicial review since an appeal is the only mechanism for challenging a submission notice on the grounds of appeal29 and there must be access to the court in respect of those issues. As the compliance period is only 28 days, judicial review proceedings would be nugatory if the notice had effect whilst they were ongoing. 13.22 To give time to submit a planning application following the failure of an appeal, the compliance period would start to run from that day. HIGH COURT CHALLENGES 13.23 A submission notice may be challenged in the High Court by judicial review at two stages: •

against the issue of the notice;

•

against the Planning Appeals Commission’s decision on the appeal.

In the Matter of an Application by the Department of the Environment for Northern Ireland for Judicial Review at para 35 per Weatherup J. 22 In the Matter of an Application by the Department of the Environment for Northern Ireland for Judicial Review at para 40 per Weatherup J. 23 Planning Act (Northern Ireland) 2011, s 44(1). It is safest to construe the time limit as applying to the receipt of the appeal by the Planning Appeals Commission, although the legislation simply says ‘appeal’ by notice in writing within the period. 24 Planning Act (Northern Ireland) 2011, s 43(11). 25 Planning Act (Northern Ireland) 2011, s  44(3). A  form can be downloaded or completed online at pacni.gov.uk. 26 Planning Act (Northern Ireland) 2011, s 44(4). 27 Planning Act (Northern Ireland) 2011, s 44(6). 28 Planning Act (Northern Ireland) 2011, s 44(5). 29 Planning Act (Northern Ireland) 2011, s 44(7). 21

248

Failure to comply with a submission notice 13.28 13.24 It is important to recognise the narrow scope of appeals to the Commission. Judicial review proceedings on grounds which cannot be the basis of an appeal should be brought straightaway. There might be an argument for extending time for applying for judicial review if an appeal is being pursued which could resolve the entire case. However a safer course might be to file the judicial review claim and seek an immediate stay of the proceedings pending the determination of the appeal. If the only challenge is by judicial review of the issue of the notice, then an interim order should be sought staying the notice. FAILURE TO COMPLY WITH A SUBMISSION NOTICE 13.25 (a)

An offence is committed:30

by a person served with a copy of the notice;

(b) if that person was an owner or occupier of the land at the time of service; (c) where ‘the application referred to in the notice’ has not been made to the Council within the period allowed for compliance. 13.26 An owner of the land has a limited defence if he has disposed of it before the end of the compliance period.31 That person may then file a complaint in the magistrates’ court to bring the subsequent owner into the proceedings.32 If the planning application was not made in time then the subsequent owner ‘may’ be convicted of the offence if the original owner proves that the failure to make the application was due, in whole or in part, to his default.33 If having demonstrated the fault of the subsequent owner, the original owner is acquitted if he shows that he had taken all reasonable steps to secure compliance with the notice.34 13.27 The burden of proof in establishing both elements for the defence is on the original defendant. Securing a conviction may only be done on the criminal standard of beyond all reasonable doubt but, being a defence, the taking of all reasonable steps by the original defendant is to be proved on the balance of probabilities. The drafting is not clear whether the conviction of the subsequent owner is necessary for the defence to be established. This affects whether the original owner can be acquitted if the subsequent owner’s default is only shown to the balance of probabilities: that is, sufficient to establish a defence but not enough to secure a conviction. 13.28 The validity of a submission notice may not be raised as a defence to a prosecution on any of the grounds upon which it could have been, or was, appealed to the planning appeals commission.35 Whether other legal errors can be raised in criminal proceedings is open to debate: the general principle is that unlawfulness of the public law decision can be a defence but that depends on the statutory context.36

32 33 34 35 36 30 31

Planning Act (Northern Ireland) 2011, s 43(5). Planning Act (Northern Ireland) 2011, s 43(6). Planning Act (Northern Ireland) 2011, s 43(6). Planning Act (Northern Ireland) 2011, s 43(7). Planning Act (Northern Ireland) 2011, s 43(7). Planning Act (Northern Ireland) 2011, s 44(7). DPP v Boddington [1999] 2 AC 143. See also Dill v Secretary of State for Communities and Local Government (Supreme Court 2020, judgment pending).

249

13.29  Submission Notices in Northern Ireland The existence of a limited right of appeal renders submission notices more like enforcement notices, where judicial review grounds cannot be raised in criminal proceedings.37 If there is an error on the face of the notice which means in reality that a prosecution cannot be brought, for example because the land is not identified, then such nullity points could be taken in any event. The High Court has said, obiter, that a submission notice may be challenged as a defence to criminal proceedings on the basis of an invalidity of the notice on its face or failing for uncertainty.38 However it also considered that a claim that the development had planning permission was not appropriate for determination in a criminal court so that ought to be brought by judicial review.39 13.29 The offence is summary only, with a maximum sentence of a level 3 (£1,000) fine.40 That sum may be small compared to the cost of submitting many planning applications, but any further failure to make the application following conviction is also an offence, subject to a daily fine of one-tenth of the level 5 fine (so £100 per day) for each day following the first conviction.41

R v Wicks [1998] AC 92. In the Matter of an Application by the Department of the Environment for Northern Ireland for Judicial Review [2004] NIQB 51, [2005] NI 119 at para 33 per Weatherup J. 39 At para 37 per Weatherup J. However as a fact finding tribunal, a criminal court is at least as well placed as the High Court exercising the judicial review jurisdiction to compare the development carried out with a claimed planning permission. 40 Planning Act (Northern Ireland) 2011, s 43(5). 41 Planning Act (Northern Ireland) 2011, s 43(8). 37 38

250

Chapter 14

Injunctions

14.01

Planning enforcement is principally concerned with:

•

ending the contravention;

•

ceasing the use; and

•

restoring the land.

14.02 Criminal sanctions can only act indirectly. An owner or other interested person who fails to comply can be prosecuted and fined. If this stance is maintained after conviction then another prosecution can be brought. However, the criminal court cannot order compliance with planning control. Additionally, none of the enforcement, stop and breach of condition notice measures can be used in advance of a breach of planning control. 14.03 The civil courts, by means of an injunction, can order a person to obey the planning laws. If he fails to, he can then be imprisoned for contempt of court. The injunction jurisdiction in planning matters began hesitantly and in exceptional circumstances, relying on the general power of local authorities to bring proceedings in the interests of the inhabitants of their areas. It was put on an explicit statutory basis by the Planning and Compensation Act 1991 and has become a useful and effective tool for local planning authorities in planning enforcement. In 1994/1995, 91 injunctions were sought: all but two were granted. The use of injunctions peaked at 101 being sought in 2004/2005. Use has though declined; in 2018/2019, 43 were obtained and two applications refused.1 English and Welsh local planning authorities are able to obtain injunctions for planning breaches under their general powers to bring proceedings in s  222 of the Local Government Act 1972 and under specific statutory provision. Section 187B of the Town and Country Planning Act 1990 allows injunctions to be sought to restrain breaches of planning control and similar provisions apply for the trees, listed buildings and conservation areas, and hazardous substances regimes.2 The same procedural approach applies to all injunctions under the Planning Acts and so these can be considered together. In this chapter they will be referred to as planning injunctions. A compendious power to obtain a planning injunction is also contained in the Planning Act (Northern Ireland) 2011, s 156. The tests to obtain a planning injunction are more easily met and consequently s 222 is usually only employed for applications that fall outside those powers. Third parties cannot bring civil proceedings to enforce planning law directly against developers and landowners, but may be able to bring a relator action or seek an injunction to preserve the position whilst public law proceedings are brought against an authority. Department of Communities and Local Government figures. Town and Country Planning Act 1990, s 214A; Planning (Listed Buildings and Conservation Areas) Act 1990, s 44A; Planning (Hazardous Substances) Act 1990, s 26AA.

1 2

251

14.04  Injunctions SECTION 222 OF THE LOCAL GOVERNMENT ACT 1972 14.04 Local authorities in England and Wales have a general power to bring proceedings under s 222 of the Local Government Act 1972. This provides: ‘Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area— (a) they may prosecute or defend or in the case of civil proceedings may institute them in their own name …’.

This local authority power includes seeking injunctions to restrain breaches of the criminal law. It was frequently used to uphold the old Sunday trading laws.3 14.05 A breach of planning control does not give rise to a civil cause of action at common law, so s 222 was used in regulatory enforcement only where a criminal offence had been committed. An injunction could only be sought under s 222 for breaches of planning control if a criminal offence had been committed.4 However, the local authority needed to go beyond showing simply a breach of the criminal law. It was said in one case that the breach had to be ‘deliberate and flagrant’.5 In City of London Corpn v Bovis Construction Ltd,6 Bingham LJ laid down the following principles: (a)

that the jurisdiction is to be invoked and exercised exceptionally and with great caution;

(b) that there must certainly be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area; and (c) that the essential foundation for the exercise of the court’s discretion to grant an injunction is not that the offender is deliberately and flagrantly flouting the law but the need to draw the inference that the defendant’s unlawful operations will continue unless and until effectively restrained by the law and that nothing short of an injunction will be effective to restrain them. 14.06 This approach imposes severe limitations upon the injunction power under s 222. It is very difficult to seek an injunction unless criminal proceedings had been tried. Even then much more than the criminal offence needs to be shown for an injunction. These powers were applied in planning enforcement. In Runnymede Borough Council v Ball,7 an injunction was obtained against gypsies to prevent the unlawful use of land as a caravan site in breach of enforcement and stop notices. This was justified because irreparable damage would occur which might not be preventable by issuing proceedings in the magistrates’ court.

For example, Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754. Runnymede Borough Council v Smith [1986] JPL 592; Doncaster Borough Council v Green (1991) 64 P & CR 73; East Hampshire District Council v Davies [1991] 2 PLR 8. 5 Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754. 6 [1992] 3 All ER 697, CA. 7 [1986] JPL 288. 3 4

252

Statutory planning injunctions under s 187B 14.10 Defendants under section 222 injunctions 14.07 Because the injunction will be to enforce the criminal law, the order may only be sought against a person who had or would have committed the criminal offence in question. STATUTORY PLANNING INJUNCTIONS UNDER S 187B OF THE TOWN AND COUNTRY PLANNING ACT 1990 14.08 Following the report of Robert Carnwath QC, Enforcing Planning Control, the Planning and Compensation Act 1991 made substantial changes to planning enforcement in England and Wales. A  major reform was the creation of specific injunction powers. Section 187B(1) provides: ‘Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.’

On this application, ‘the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach’.8 Scope of the section 187B power 14.09 The power is wide and not constrained to breaches of the criminal law.9 Whilst injunctions will frequently be sought when an enforcement notice is not complied with, they can be an alternative to the existing procedures. To prevent an apprehended breach of planning control, a qua timet injunction can be sought. Mandatory injunctions can be obtained to compel the defendant to carry out works: for example, Croydon London Borough Council v Gladden.10 In Gladden the Order required the removal of a life-size model Spitfire from the garden of a suburban house. Injunctions can be obtained on an interim, and occasionally without warning, basis. 14.10 The operation of the power is generally wider than those under s 222 of the Local Government Act 1972 and should not be construed as impliedly limited by the restrictions in Bovis and other cases: see Runnymede Borough Council v Harwood.11 One constraint though is that any injunction must be against a breach of planning control. Sullivan LJ pointed out in Trott v Broadland District Council:12 ‘While a failure to comply with a requirement of an enforcement notice may, in some circumstances, also amount to a failure to comply with a condition in a planning permission, it does not follow that there has been a failure to comply with a condition merely because there has been non-compliance with a requirement of an enforcement notice.’ Town and Country Planning Act 1990, s 187B(2). As made clear in Doncaster Borough Council v Green (1992) 64 P & CR 73, 83. 10 [1994] 1 PLR 30, 35. 11 [1994] 1 PLR 22, 24. 12 [2011] EWCA Civ 301 at para 24. In that case an Inspector had varied an enforcement notice to require access to a piece of land to be given to residents of a block of flats when the underlying planning permission did not require such access. The Council’s s 187B injunction was therefore discharged. 8 9

253

14.11  Injunctions 14.11 A failure to comply with a requirement of an enforcement notice which is not based on a breach of planning control might be enforced against by an injunction under s 222 of the Local Government Act 1972.13 The merits of such proceedings might require careful consideration, as the complaint might be technical rather than underpinned by planning merits. The role of the court 14.12 The court in Hambleton District Council v Bird,14 took a narrow view of the ability of the court to do other than grant an injunction. Gypsies were using land at a farm for residential caravans in breach of an enforcement notice. A later application for planning permission had been refused. The Court of Appeal held that the essential test was whether nothing short of an injunction would be effective to restrain the defendants. Whilst this test is apparently tough, the local authority’s powers to seek an injunction were viewed benevolently. Following Mole Valley District Council v Smith15 the court held that whether it is necessary or expedient to seek an order was for the local planning authority alone. It determined the balance of the public interest. The possibility of planning permission being granted in the future was not a legitimate reason for refusing an injunction. Since there had been a consistent intention by the defendants to remain at the farm and break the law, the injunction was granted. 14.13 The Hambleton approach was followed in Aylesbury Vale DC v Miller16 and Tandridge DC v Delaney.17 In Aylesbury, the High Court accepted that it could consider whether the Council decision to seek an injunction was Wednesbury unreasonable, but said that matters previously considered by the Council were not to be revisited. In Tandridge it was found that the court could consider changes in planning circumstances since the last consideration of the matter in the planning process. 14.14 The Hambleton approach was overturned by the Court of Appeal in South Bucks District Council v Porter.18 The case concerned the relationship of s  187B with the Human Rights Act 1998, in that case, Art 8 of the European Convention on Human Rights. The Hambleton approach relied upon whether the injunction was necessary to stop the contraventions, but did not include the other element of proportionality in Convention cases: that it does not impose an excessive burden on the individual. The introduction of this balance then opened out issues for the court’s consideration. The Court of Appeal showed scepticism as to whether Hambleton was correct in a purely ‘domestic law’ context. Implicitly their proportionality approach is the same in property rights cases engaging Art 1 of the First Protocol, subject to the recognised differences between the two provisions. Virtually all planning injunction cases will engage Art 1, First Protocol or Art 8 rights. The exceptions would be certain trespasser cases where the court is unlikely to find much difficulty in making an order on any approach. So Hambleton has now been displaced.19 See Trott at para 32. [1995] 3 PLR 8. 15 [1992] 3 PLR 22. 16 [1999] 7 WLUK 718. 17 [2000] 1 PLR 11. 18 [2001] EWCA Civ 1549, [2002] JPL 608. 19 One further consequence is that WO Circular 24/97 Enforcing Planning Control no longer accurately reflects the law at para 5.10. 13 14

254

Statutory planning injunctions under s 187B 14.16 14.15 The House of Lords dismissed the local authorities’ appeals in Porter.20 Lord Bingham of Cornhill summarised the court’s discretion as:21 ‘The court’s discretion to grant or withhold relief is not however unfettered (and by quoting the word “absolute” from the 1991 circular in paragraph  41 of his judgment Simon Brown LJ cannot have intended to suggest that it was). The discretion of the court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court’s discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697, 714), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant.’

14.16 Lord Bingham also took this view on the relationship between sanctions and granting injunctions: ‘Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate: there is not one law for the law-abiding and another for the lawless and truculent. When making an order, the court should ordinarily be willing to enforce it if necessary. The rule of law is not well served if orders are made and disobeyed with impunity. These propositions however rest on the assumption that the order made by the court is just in all the circumstances and one with which the defendant can and reasonably ought to comply, an assumption which ordinarily applies both when the order is made and when the time for enforcement arises. Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment. The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment. But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply.’

This balancing exercise is not applicable or revisited when a person comes onto a property in breach of an existing injunction.22

Wrexham County Borough Council v Berry [2003] UKHL 26, [2003] JPL 1412. Para 29. 22 South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429, [2006] 1 WLR 658 at para 27 per Sir Anthony Clarke MR. 20 21

255

14.17  Injunctions 14.17 Considerations under the Human Rights Act23 may apply, as could those under the Children Act 2004 and the Public Sector Equality Duty in the Equality Act 2010, 24 particularly in traveller cases. The economic consequences of the decision may be relevant, including the effect on neighbours and businesses of allowing unlawful activity to continue.25 A prior acquittal on an enforcement notice prosecution does not prevent an injunction being granted.26 Defendants 14.18 Section 187B injunctions can be sought against any person who is carrying out or permitting acts in breach of planning control or whom the court considers responsible to remedy a breach of planning control. The section does not itself say who the defendants can be but the purpose of the injunction is to restrain ‘any actual or apprehended breach of planning control’.27 An injunction can be granted against anyone if it is effective to achieve this. Possible defendants are as follows: (a) those carrying on or instructing the carrying on of the activity in breach of planning control. This includes persons who could not be criminally liable if enforcement action was taken (eg persons not in control); (b) those permitting the activity in breach of planning control. They must have the power to prevent the breach, either because of an interest in the land or control over the persons carrying out the activity; (c)

those with the power, whether as of right or in practice, to remedy the breach. Only an owner can be criminally liable for failing to take these steps;

(d) those criminally liable under an enforcement notice, a stop notice or a breach of condition notice. Injunctions can be sought against persons whose identity is unknown28 and the procedure is discussed further below. AREA-WIDE INJUNCTIONS 14.19 A planning injunction can be granted over the whole of the local planning authority’s area against named defendants if there is sufficient basis for concluding that they will simply go and breach planning control on other unauthorised land if an injunction is granted in respect of specific locations. In considering an injunction on a district-wide basis, Patterson J said:29 ‘It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have As well as Porter, Art 8 cases include Ilyas v Aylesbury Vale District Council [2011] EWCA Civ 1377 and Forest of Dean District Council v Wildin [2018] EWHC 2811 (QB). 24 See Chapter 4 above. 25 Harlow District Council v McGinley [2017] EWHC 1851 (QB) at para 29 per Jay J. 26 South Hams District Council v Halsey [1996] JPL 761, CA. 27 Town and Country Planning Act 1990, s 187B(1). 28 Town and Country Planning Act 1990, s 187B(3). 29 Harlow District Council v Stokes [2015] EWHC 953 (QB) at para 17. 23

256

Area-wide injunctions 14.21 set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third, the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.’

An argument that an area-wide injunction will simply displace the problem to another area is not likely to have much force in resisting an application. Those other authorities can decide on what action to take themselves.30 14.20 An injunction could also be sought against persons unknown31 against particular types of breaches over the local planning authority’s own open land or the authority’s area as a whole. These need to be considered with more care. An injunction can only be granted against an actual or apprehended breach of planning control, so there must be good reason to think that the feared breach is likely to happen, probably because similar breaches have been occurring. The injunctive remedy must be proportionate to the potential harm, particularly where the circumstances of the individuals who might cause the breaches will be unknown (by definition) and so could not be considered. Parliament has chosen not to apply immediate criminal liability to most breaches of planning control and that ought not to be introduced by injunctions. 14.21 In Epsom and Ewell Borough Council v Persons Unknown32 the authority sought a mandatory injunction, pursuant to the Local Government Act 1972, s 222, to restrain rights of access against persons unknown occupying land, depositing waste and fly-tipping on land belonging to the local authority for three years. The High Court recognised that there was a sufficiently real and imminent risk of this conduct, but a distinction should be drawn between criminal conduct (such as fly-tipping) and non-criminal breaches. Leigh-Ann Mulcahy QC confined the injunction to occupation by 10 or more vehicles and bringing of vehicles onto the local authority’s land for the purposes of disposing of waste and other forms of fly-tipping other than from vehicles. The Court distinguished Wolverhampton City Council v Persons Unknown33 where an injunction was granted over a large range of public and private sites, but on the basis that other sites could still be occupied and so it was not a boroughwide ban.34 Thirty-eight injunctions in similar terms had been granted by the High Court and the issue was first considered by the Court of Appeal in Bromley London Borough Council v Persons Unknown.35 In Bromley Leigh Ann Mulcahy QC had refused to grant ‘a de facto boroughwide prohibition of encampment and upon entry/ occupation…in relation to all accessible public spaces in Bromley except cemeteries See Harlow District Council v McGinley [2017] EWHC 1851 (QB) at para 28 per Jay J; Nuneaton and Bedworth Borough Council and Warwickshire County Council v Cochrane [2019] EWHC 917 (QB) at para 10 per Timothy Straker QC; London Borough of Havering v Stokes [2019] EWHC 3006 (QB) at paras 22–24 per Pepperall J. 31 For qua timet injunctions against persons unknown in a tortious context, see Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515, [2019] 4 WLR 100. 32 [2019] 5 WLUK 342. 33 [2018] EWHC 3777 (QB). 34 At para 10 per Jefford J. 35 [2020] EWCA Civ 12. 30

257

14.22  Injunctions and highways’ based on trespass (for the Council’s sites) and planning law.36 Coulson LJ emphasised that in gypsy and traveller cases it was good practice for the local planning authority to carry out an Equalities Impact Assessment before seeking an injunction.37 The cumulative effect of injunctions in numerous local authority areas was relevant as a factor reducing the options for travellers.38 The Court warned against the use of area-wide injunctions,39 seen in the context of non-criminal trespass and planning breaches by persons unknown, in practice constituting an ethnic ground. In gypsy and traveller cases, evidence as to the extent of alternative provision was important.40 INJUNCTIONS FOR TREES, HERITAGE AND HAZARDOUS SUBSTANCES 14.22 Local planning authorities are given similar powers to s  187B to seek injunctions in respect of: •

‘actual or apprehended offence under section 210 or 211 to be restrained by injunction’ being breaches of tree preservation orders or offences against trees in conservation areas;41

•

listed buildings;42

•

conservation area consent in Wales;43 and

•

hazardous substances.44

PLANNING INJUNCTIONS IN NORTHERN IRELAND 14.23 Statutory injunction powers are also available in Northern Ireland. In keeping with the practice of putting all enforcement powers in the same part of the Planning Act (Northern Ireland) 2011, there is a compendious injunction provision in s 156. This covers planning, listed buildings, conservation areas and trees:45 ‘Where the council considers it necessary or expedient for— (a) any actual or apprehended breach of planning control; (b) any actual or apprehended contravention of sections 85(1) or (5) [listed buildings and conservation areas], 126 [tree preservation orders] or 127 [trees in conservation areas]; or (c) any actual or apprehended contravention of hazardous substances control, to be restrained by injunction, it may apply to the court for an injunction.’

38 39 40 41 42 43 44 45 36 37

[2019] EWHC 1675 (QB). [2020] EWCA Civ 12 at para 52. At paras 75–78 per Coulson LJ. See paras 99–109. At para 108. Town and Country Planning Act 1990, s 214A. Planning (Listed Buildings and Conservation Areas) Act 1990, s 44A. Planning (Listed Buildings and Conservation Areas) Act 1990, s 44A as applied by s 74(3). Planning (Hazardous Substances) Act 1990, s 26AA. Planning Act (Northern Ireland) 2011, s 156(1). Injunctions to enforce planning agreements under s 76 remain separate.

258

The contents of witness statements or affidavits 14.26 The court may ‘grant such an injunction as the court thinks appropriate for the purpose of restraining the breach’.46 The court is the county court or the High Court.47 THE PLANNING AND GENERAL INJUNCTION POWERS COMPARED 14.24 In practice the s 187B power is much wider than the s 222 power. It is not restricted to enforcement against criminal offences and is granted more readily. It should therefore be used instead of s 222, unless there is doubt as to whether there is a breach of planning control or there is another, distinct, claim against the defendant. A good illustration of such a situation is a breach of advertising control, which may be a breach of planning control but is also a separate offence under s 224 of the Act. In these circumstances it may be appropriate to bring claims under both s 187B and s 222. PROCEDURE FOR OBTAINING AN INJUNCTION IN ENGLAND AND WALES 14.25 Applications for planning injunctions have to be brought by a Pt 8 claim in the High Court or in the County Court. 48 In the High Court the claim should be filed in the Queen’s Bench Division.49 Injunction applications under s  222 would usually be brought under Pt  8 as there tend not to be substantial disputes of fact. The Pt 8 procedure is quicker than bringing conventional proceedings by Pt 7 claim, as exchanges of pleadings and automatic disclosure does not apply. The Pt 8 claim form50 will state that Pt 8 applies, the remedy sought and the enactment that the claim is made under.51 The claim form should be accompanied by evidence in the form of a witness statement or statements and exhibited documents.52 Following the Civil Procedure Rules reforms there is no longer any need for evidence to be contained in an affidavit. There should be a witness statement from a planning officer. Witness statements from neighbours and other third parties are sometimes put in but this should only be to deal with points that council officers can not adequately deal with. THE CONTENTS OF WITNESS STATEMENTS OR AFFIDAVITS 14.26

The witness statements (in Northern Ireland, affidavits) should detail:

•

the property, with a plan exhibited;

•

the current use of the property or the operational development complained of;

•

in what way the development is in breach of planning control;

•

when (as far as is known) the breach commenced;

Planning Act (Northern Ireland) 2011, s 156(2). Planning Act (Northern Ireland) 2011, s 156(4). 48 CPR  8.1(6); Practice Direction 8A, Alternative Procedure for Claims, paras 9.1, 9.4. These are applications under Town and Country Planning Act 1990, ss 187B, 214A; Planning (Listed Buildings and Conservation Areas) Act 1990, s 44A; Planning (Hazardous Substances) Act 1990, s 26AA. 49 Practice Direction 8A, Alternative Procedure for Claims, para 9.4. 50 Form N208: see Practice Direction 8A, para 4.2. 51 CPR 8.2(c). 52 Practice Direction 8A, para 7. The evidence could simply be in the claim form, but this is unlikely to be sufficient for a planning injunction. 46 47

259

14.27  Injunctions •

the harm in planning terms caused by the development (to be stated by the planning officer);

•

any planning permissions or refusals relevant to the development;

•

whether planning permission is likely to be granted if applied for;

•

the identification of the defendants;

•

the defendant’s role in the property or breach of planning control;53

•

whether enforcement action has been taken;

•

any criminal prosecutions of the defendant or connected persons in respect of planning matters on the property, unless they disclose spent convictions;54

•

communications between the defendant and the local planning authority, including any showing knowledge of the breach of planning control and that the defendant will not voluntarily remedy the breach;

•

the local planning authority’s view that an injunction is necessary or expedient;

•

if an interim injunction is to be applied for, an explanation why such relief is necessary;

•

if a without notice interim injunction is sought, its urgency must be explained as should any decision not to inform the defendant of the application.

EXHIBITS REQUIRED 14.27

The exhibits are likely to include:

•

a plan of the property;

•

evidence of title to the property and the defendant’s role in the property – is that person able to comply with an order?

•

photographic evidence of the development complained of and breaches of any notices;

•

any enforcement notice or other notice breached;

•

planning contravention notices or section 330 notices which disclose relevant information;

•

any relevant inspector’s report or decision and Secretary of State’s decision;

•

committee or delegated reports setting out the local planning authority’s view on the development;

•

correspondence between the parties.

Where vehicles are involved, it is a matter of evidence whether it can be concluded that their registered keepers are responsible for the breaches: see London Borough of Havering v Stokes [2019] EWHC 3006 (QB) at paras 11–13 per Pepperall J. 54 Rehabilitation of Offenders Act 1974, s 4(1). 53

260

The defendant’s response 14.31 INJUNCTIONS AGAINST PERSONS UNKNOWN 14.28 A local planning authority may obtain a planning injunction against a person whose name is unknown to them.55 This provides a remedy against persons who are uncooperative and refuse to give their names. It may also be used in emergency situations where there is not time to identify all the persons concerned. The claim form must describe the defendant by reference to: 56 ‘(a) a photograph, (b) a thing belonging to or in the possession of the defendant, or (c) any other evidence’

with sufficient particularity to enable service to be effected.57 14.29

The claimant must file a witness statement stating:

‘(a) that the applicant was unable to ascertain’, the defendant’s identity within the time reasonably available to him, (b) the steps taken by him to ascertain the defendant’s identity, (c) the means by which the defendant has been described in the claim form; and that the description is the best that the applicant is able to provide’.58

14.30 Given the normal requirement for personal service, the defendants should be identified individually. A collective identification, eg ‘all persons on the land and controlling certain vehicles’, is inadequate.59 A marked photograph is appropriate, as may be the use of nicknames. Identifying by possessions is more difficult; ‘man in hard hat and fluorescent jacket’ would not have sufficient particularity, especially on a building site. THE DEFENDANT’S RESPONSE 14.31 A defendant must file an acknowledgment of service not more than 14 days after service of the claim form and serve it on the other parties.60 The acknowledgment must state whether the claim is contested. The defendant is not required to file a defence.61 If an acknowledgment is not filed in time then the defendant may only take part in the hearing of the claim with the court’s permission.62 The defendant’s evidence should be filed and served with the acknowledgment of service.63 The claimant has a further 14 days to file and serve any written evidence in reply to the defendant’s evidence.64 CPR 8.2A, Practice Direction 8A, para 20.2. Practice Direction 8A, para  20.4. These rules also apply to tree injunctions under s  214A and injunctions under s 44A of the Listed Buildings Act and s 26AA of the Hazardous Substances Act. 57 Practice Direction 8A, para 20.5. 58 Practice Direction 8A, para 20.6. 59 See [1996] JPL 91 for an (unnamed) example. 60 CPR 8.3, using form N210: Practice Direction 8A, para 5.2. 61 CPR 8.9(a)(ii). 62 CPR 8.4. 63 CPR 8.5(3), (4). 64 CPR 8.5(5), (6). 55 56

261

14.32  Injunctions INTERIM INJUNCTIONS 14.32 An interim injunction takes effect before the merits of the matter have been finally determined. A party seeking an order without notice must make full and frank disclosure of anything known to it that might lead a court to refuse relief. If full and frank disclosure is not made, the injunction is liable to be discharged at a later hearing regardless of the merits of the case. Interim orders can be obtained in a matter of days, or even hours. Injunctions can be obtained outside court hours, if need be over the telephone. An interim application should be made ‘on notice’ where possible. An application notice should be filed under CPR 23.3. Service must be made as soon as practicable after it is filed and at least three days before the court is to deal with the application, along with any witness statement and a draft order.65 More urgent cases can arise and application can be made without notice ‘if it appears to the Court that there are good reasons for not giving notice’.66 Reasons for not giving notice must be included in the evidence.67 ‘Without notice’ means without giving formal notice in accordance with the rules (ie within three days). However injunction applications may need to be made urgently, and can be granted out of court hours, over the telephone.68 14.33 Further, ‘except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application.’69 Even if an application is being made urgently – for example to stop demolition or prevent the laying of hardstanding at a potential caravan site – as much notice as possible should be given to the other side. Usually the court would want to know that a warning had been given and why it was thought that an injunction was necessary to stop the actual or apprehended breach. In the planning context, secrecy would only be required if there was good reason to believe that serious planning harm would result if warning were given (eg demolition of a listed building). 14.34 Applications for interim injunctions would be considered in the principles of American Cyanamid v Ethicon:70 that there must be a serious question to be tried and then whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought. Where a breach has been allowed to continue for a long period, it may be appropriate to proceed straight to a permanent injunction. However, delay in applying for an interlocutory injunction is not a factor when there is no arguable case against the grant of a permanent injunction.71 14.35 The prospects of success for any planning application or appeal may be relevant, but the Court will not usually be willing to delay an injunctive remedy simply to allow such a route to be taken. In Mid-Bedfordshire District Council v Brown Mummery LJ said a lengthy suspension ‘would tend to defeat the whole purpose of applying for an injunction to enforce planning controls, to dilute the requirement for obtaining prior planning permission for a change of land use and

CPR 23.7(1). CPR 25.3(1). 67 CPR 25.3(3). 68 For an example, see East Hertfordshire District Council v Thomas Doherty [2019] EWHC 2292 (QB) at para 7. 69 Practice Direction 25A Interim Injunctions, para 4.5. 70 [1975] AC 396. 71 Stoke-on-Trent City Council v W & J Wass [1992] 2 PLR 22. 65 66

262

The final hearing 14.38 to secure by unlawful actions a temporary and special exemption from generally applicable planning controls’.72 14.36 An interim injunction will usually contain a provision allowing an application to be made to the Court to discharge or vary it. That route should be taken rather than the order being breached and a later attempt being made to suspend it.73 A breach will be a factor against making a later change to an order since there is an overarching public interest in ensuring that court orders are respected and obeyed.74 CROSS-UNDERTAKING IN DAMAGES 14.37 In litigation generally, a private person seeking an interim injunction will normally have to give a cross-undertaking in damages. He will promise to pay damages to the person who is subject to the injunction if the Court considers it appropriate to do so: usually if the claim fails at trial or the injunction is discharged or the proceedings withdrawn without good reason. It is settled that the Crown, when enforcing the law, will not normally, as a matter of the court’s discretion, be required to give a cross-undertaking.75 The same principle applies to local authorities and other public authorities which are seeking to enforce the law in the interests of the public generally.76 As a matter of practice, cross-undertakings have not been required in planning injunctions. THE FINAL HEARING 14.38 When the claim form is issued, the court will fix a hearing date.77 Usually a date will be fixed relatively early but the parties will need to consider whether they can be ready for a final hearing in that time and the time allocated will be adequate. On the hearing date, the court will either finally dispose of the claim or give case management directions.78 If the final hearing cannot take place on that date, it would be helpful to agree a refixing or directions to avoid the hearing. The final hearing of an injunction application will often simply be dealt with by oral submissions on the filed evidence. Evidence can only be considered if it has been filed in accordance with CPR 8.5, an extension of time has been granted for the evidence,79 or the court gives permission. The parties may agree to extend time for the defendant’s evidence by up to 14 days (if the agreement is filed with the acknowledgment of service) and extend time for a written response from the claimant by 28 days.80 If there are disputes of fact or expert opinion that need to be resolved, then the court may require

[2004] EWCA Civ 1709 at para 10. See Mid-Bedfordshire District Council v Brown at para 25 per Mummery LJ. 74 See Broxbourne Borough Council v Robb [2011] EWCA Civ 1355. 75 Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295. 76 Kirklees Borough Council v Wickes Building Supplies Ltd [1992] 3 All ER 717, HL; Financial Services Authority v Sinaloa Gold [2013] UKSC 11, [2013] 2 AC 28. 77 Practice Direction 8A, para 20.7. Notice of this date must be served by the claimant on or with the claim form: Practice Direction 8A, para 20.9. 78 Practice Direction 8A, paras 8, 20.10. 79 Practice Direction 8A, para 7.4. 80 The ability of the parties to agree an extension of the time limits under CPR 2.11 is limited to these periods by Practice Direction 8A, para 7.5. 72 73

263

14.39  Injunctions or permit a party to give oral evidence.81 Usually the parties will attempt to resolve whether oral evidence is required and the court may give directions that a witness attend to be cross-examined.82 Such directions will often identify the particular issues on which cross-examination may take place. FORM OF INJUNCTIONS 14.39 The Court of Appeal gave guidance on the form of planning injunctions in London Borough of Brent v Dowman.83 An enforcement notice had been upheld preventing the use of a shop as a repair workshop for cars. It was accepted that some work on cars was ancillary to the shop use. The court considered the Mansi principle, Keene LJ saying:84 ‘[it] has implications for the exercise of a court’s discretion when an injunction is sought under section 187B. If such an injunction is granted, it should not normally be so worded as to restrain the landowner from using his land in a way which is permitted development under the Act or the 1995 Order or is ancillary to the primary use of the land, that being a primary use which the enforcement notice does not seek to prevent. It would not normally be just for an owner to be at risk from an injunction for some use or activity for which he could not be successfully prosecuted under the enforcement notice.’

This is more properly a question of the jurisdiction of the court rather than a matter going to its discretion. The court only has power to grant an injunction to restrain an actual or apprehended breach of planning control; although that may be wider than the subject of any current enforcement notice. 14.40 Faced with a list of prohibited activities, the Court of Appeal preferred a more general formulation of the injunction preventing use:85 ‘as a repair workshop for vehicles, provided that the premises may be used for fitting to cars goods sold in the shop in a manner ancillary to the use of the premises as a retail shop.’

14.41 The court declined to order the removal of items, being uncertain what was appropriate for the permitted activities. Pill LJ gave a further reason:86 ‘It does not necessarily follow from a finding that a business use is not permitted that an order should be made requiring equipment which could be used to carry out that use be removed from the premises. In some circumstances it may be necessary to order removal to give efficacy to the order of the Court but the burden is upon the party seeking the injunction to show that the order for removal is necessary in the particular circumstances. Interference with an owner’s right to retain his goods on his premises would need to be justified.’

CPR 8.6(2). CPR 8.6(3). 83 [2003] EWCA Civ 920, [2004] JPL 195. 84 Para 17. The Mansi principle is considered further in Chapter 6, above. The need to avoid infringing permitted development rights was also identified by Coulson LJ in Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12 at paras 90–93. 85 Para 41 per Keene LJ. 86 Para 52. 81 82

264

Injunctions sought by third parties 14.45 PENAL NOTICE 14.42 The local planning authority will undoubtedly wish to enforce a planning injunction by proceedings for contempt of court if it is breached. There must be:87 ‘prominently displayed, on the front of the copy of the judgment or order served in accordance with this Section, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets’

14.43

The Practice Direction suggests:88

‘a penal notice endorsed on it as follows (or in words to substantially the same effect)— “If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.”’

Where an undertaking is accepted from a defendant, the court may decline to allow contempt of court proceedings ‘unless the party giving the undertaking has made a signed statement to the effect that that party understands the terms of the undertaking and the consequences of failure to comply with it’.89 COMMITTAL 14.44 An injunction is enforced by committal for contempt. The court that made the order may fine or imprison anyone subject to and in breach of the order. Failure to comply with a court order or an undertaking given to the court is contempt of court, punishable by an unlimited fine and up to two years’ imprisonment.90 The question in determining whether a contempt of court has occurred is whether that person has breached the order or undertaking. The merits of the order and the balancing exercise involved in deciding to make an injunction are not relevant to whether the order has been breached.91 The local planning authority would apply to the court for the defendant to be committed for contempt.92 Procedural rules for committal applications are in CPR Part 81 and the accompanying practice direction.93 INJUNCTIONS SOUGHT BY THIRD PARTIES 14.45 The planning regime is a system of control exercised by public authorities in the public interest. The statutory powers to apply for injunctions are given to local planning authorities and in respect of breaches of historic environment controls, CPR 81.9. Practice Direction 81, para 1. 89 Practice Direction 81, para 2.2. 90 Contempt of Court Act 1981, s 14(1), (2). 91 South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429, [2006] 1 WLR 658 at para 33 per Sir Anthony Clarke MR. 92 For committals on planning injunctions see Guildford Borough Council v Smith [1994]  JPL  734 and Broxbourne Borough Council v Robb [2011] EWCA Civ 1355, South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429, [2006] 1 WLR 658. 93 A useful discussion of committal in the planning context is in Westminster City Council v Addbins Ltd [2012] EWHC 3716 (QB), [2013] JPL 654. 87 88

265

14.46  Injunctions Historic England and the Welsh Ministers. With limited exceptions, such as being a party to a planning obligation or becoming entitled to compensation, it does not create private rights. Contracts can require compliance with planning control (it is a common provision in a lease that a tenant complies with planning and other regulations). Agreements relating to the carrying out or occupation of proposed development will require one party or another to secure any necessary planning consent.94 14.46 Some actions which are in breach of planning control might also give rise to a tortious claim: a noisy activity might constitute a private or public nuisance; or a new building might interfere with a right of light. They might also involve a breach of a restrictive covenant over the land. However a breach of planning control does not in itself give rise to a private law cause of action. A third party, whether a neighbour, interest group or commercial rival who wishes to stop a breach of planning control has potentially three ways of obtaining an injunction against the developer: (a)

a relator action; or

(b) obtaining an injunction (usually on an interim basis) in support of a challenge to the planning authority’s approval of the scheme or failure to act; (c)

if the breach is being carried out by a public authority, an injunction in judicial review proceedings against that authority.

Relator actions 14.47 The Attorney General is the guardian of the public interest on behalf of the Crown. He is entitled to bring actions to protect that interest, even if no private interest of the Crown is involved. This can include seeking injunctions to prevent breaches of the law, but the power must be exercised with caution.95 The Attorney General could decide to seek an injunction on behalf of the Crown to enforce planning control. He is very unlikely to do so unless the local planning authority is failing to act or he seeks to enforce an enforcement notice issued by the Secretary of State under s 182. It is this jurisdiction that is invoked by third parties by means of a relator action. The third party (the relator) must instruct solicitors and counsel who must certify that the action is proper for the Attorney General’s acceptance and that the relator will be responsible for the costs. Once the Attorney General accepts the action he takes no further part in the proceedings and it continues as private litigation. It is entirely a matter for the Attorney General whether he will allow a relator action to be brought. The courts will not intervene if he declines.96 14.48 This procedure was used by local planning authorities in planning cases before the enactment of s 222 of the Local Government Act 1972. However, with the 1972 Act and the subsequent specific provisions it is now redundant for local authority purposes. Relator actions have been used by local residents in respect of planning matters.97 In New Zealand a neighbour used the procedure to declare a planning permission void and obtain an injunction against the unauthorised use of the land.98 See Walter Lilly & Co v Clin [2018] EWCA Civ 490. Gouriet v Union of Post Office Workers [1978] AC 435. 96 London County Council v Attorney General [1902] AC 165. 97 For examples see de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 1995, para 2-100. 98 Attorney General v Codner [1973] 1 NZLR 545. 94 95

266

Interim injunctions to prevent works prejudicing court proceedings 14.50 INTERIM INJUNCTIONS TO PREVENT WORKS PREJUDICING COURT PROCEEDINGS 14.49 The High Court has power to grant an interim injunction to prevent its proceedings being frustrated by subsequent events, such as the destruction of the subject matter of the case. So if a planning permission authorises the demolition of a historic building, then the High Court is able to grant an interim injunction preventing demolition pending the determination of a judicial review of that decision. Similarly, if a local planning authority is failing to act against an allegedly unlawful development then the court may grant an injunction to hold the line. In R (Prokopp) v London Underground Ltd, two local authorities had agreed not to take enforcement action against the demolition of Bishopsgate Goods Yard and the construction of railway. An interim injunction was granted to prevent the demolition of the Goods Yard. Collins J explained the power at the later substantive hearing:99 ‘If a developer is about to take what may be irrevocable steps which are said to be unlawful but the [local planning authority] is not taking action, there must be a way in which the court can preserve the position. Thus I  am satisfied that an individual can seek and, if appropriate, obtain interim relief to prevent such arguably unlawful action. His claim will initially be against the developer, but he must notify the [local planning authority] and add it (as has been done here) as defendant. The developer will then become an interested party and the claim will proceed against the [local planning authority]. The court will in such a case have imposed time limits on the [local planning authority] to ensure that it makes its decisions within a reasonable time. What a private individual cannot do, at least in a public law claim, is to obtain a permanent injunction the effect of which is to take the enforcement action which is the responsibility of the [local planning authority] and which contains safeguards for the developer in the form of rights of appeal on specific grounds. Clearly if an individual’s private law rights (for example in nuisance) are being infringed, different considerations apply, but that claim would be in private and not in public law.’

14.50 Applications for interim injunctions would be considered in the principles of American Cyanamid v Ethicon:100 that there must be a serious question to be tried and then whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought. As it is not possible to rebuild a historic building that is demolished, the balance of convenience will tend to lie in favour of granting an interim injunction. Reflecting the approach in environmental justice cases to ensuring that proceedings are not prohibitively expensive to members of the public and interest groups, claimants have tended not to be required to give a cross-undertaking that they will pay damages to the developer for losses caused by the interim injunction if the claim fails.101 This approach has been formalised in respect of claims under the Aarhus Convention challenging ‘acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’.102 The practice direction on interim injunctions provides:103

[2003] EWHC 960 (Admin) at para 15. [1975] AC 396. 101 See the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Art 9; the Environmental Impact Assessment Directive, Art 11; and Ensuring access to environmental justice in England and Wales (‘the Sullivan Report’), paras 73–83. 102 Aarhus Convention, Art 9(3). 103 Practice Direction 25A – Interim Injunctions, para 5.3. 99

100

267

14.51  Injunctions ‘If in an Aarhus Convention claim to which rules 45.43 to 45.45 apply the court is satisfied that an injunction is necessary to prevent significant environmental damage and to preserve the factual basis of the proceedings, the court will, in considering whether to require an undertaking by the applicant to pay any damages which the respondent or any other person may sustain as a result and the terms of any such undertaking – (a) have particular regard to the need for the terms of the order overall not to be such as would make continuing with the claim prohibitively expensive for the applicant; and (b) make such directions as are necessary to ensure that the case is heard promptly’

14.51 If the works or use is being carried out by a public authority in breach of planning control then the decision to carry on that activity may be susceptible to judicial review. So activity which is part of promoting a statutory role, such as providing car parking or housing clearance, would be reviewable, but that may be more debatable if the authority is acting purely like a private landowner.104 BREACHES BY PUBLIC AUTHORITIES 14.52 Public authorities will hopefully always seek to obey the law and be successful in doing so. However it might happen that they do breach planning control or commit an offence under related regimes, such as advertising control or trees. The commission of the breach might itself be a public law decision which is susceptible to judicial review. That might not always be the case. There may be room for argument whether the particular act was a purely private action of a body which happens to be a public authority. A departure from approved plans by low level operatives might be in a different category to the unlawful consequence of a formal decision. 14.53 In Cook105 it was held that a councillor could bring judicial review proceedings for an injunction to stop his council from displaying a banner in breach of the Planning (Control of Advertisements) Regulations (Northern Ireland) 1973. In that case it was said that a rate payer did not have sufficient interest to do so, although that might be seen as out of step with other decisions on standing.

See consideration of the reviewability of decisions to sell property in R (Pepper) v Bolsover District Council [2001] JPL 804. 105 [1986] NI 242. 104

268

Chapter 15

Discontinuance, Revocation and Maintenance of Land

15.01 There is a range of powers for dealing with an undesirable use or condition of land which might not be a breach of planning control. This chapter focuses on four planning provisions and identifies a variety of environmental powers which might be useful. The planning powers are:1 (1) discontinuance – which requires the cessation or limitation of uses or the removal or alteration of buildings on land whether or not these are unlawful; (2) revocation or modification – which eliminates or alters planning permissions insofar as they have not been carried out. This is not strictly enforcement, but is allied to those powers; (3) completion – requiring the development authorised by a planning permission to be finished or the balance of the permission expire; and (4) in England and Wales, section 215 notices for the maintenance of land – these can require the clean-up of land which causes harm to the amenity of the area. As there is an overlap with advertising enforcement, the removal of graffiti and other signs under the Town and Country Planning Act 1990, s 225F is discussed in Chapter 18 on advertising control. DISCONTINUANCE ORDERS 15.02 The local planning authority is empowered to require the discontinuance of any use of land or require that buildings should be altered or removed, whether the use or buildings are lawful or unlawful. Compensation may be payable for losses caused by discontinuance orders. Consequently discontinuance orders tend to be used in a limited number of cases against lawful development as enforcement action can be taken without a compensation risk against unlawful development. The power may be exercised where:2 ‘… it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) (a) that any use of land should be discontinued, or that any conditions should be imposed on the continuance of a use of land; or Discontinuance, revocation, modification and completion are also considered in Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) at Chapter 4. 2 Town and Country Planning Act 1990, s 102(1). Planning Act (Northern Ireland) 2011, s 73(1) is to the same effect. 1

269

15.03  Discontinuance, Revocation and Maintenance of Land (b) that any buildings or works should be altered or removed, [the local planning authority] may by order— (i) require the discontinuance of that use, or (ii) impose such conditions as may be specified in the order on the continuance of it, or (iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be.’

Similar provisions are made with respect to mineral workings in England and Wales.3. The proper planning of an area is broad and may, for example, include the desirability of preserving the character of a listed building and/or its setting.4 15.03 A discontinuance order may only take effect if confirmed by the Minister or the Department.5 Prior to confirmation, the owner or occupier of the land affected by the order and any other person who in the authority’s opinion will be affected by the order are entitled to a hearing.6 The planning authority simply need to show that the statutory test of expediency is met, there being no higher test of a compelling case.7 In England and Wales a confirmed order may only be challenged by application to the High Court under s 288 of the Town and Country Planning Act 1990.8 It is not possible for the local planning authority to withdraw a discontinuance order once they have given notice of its confirmation, even if an appreciation of the scale of likely compensation means that the authority now wish they had not made the order. 15.04 Compensation is payable if the development is lawful.9 However, compensation is not recoverable if the use or development is contrary to law10 and this includes a breach of planning control which can still be the subject of enforcement action.11 15.05 The Secretary of State, Welsh Ministers and the Department are able to make a discontinuance order.12 Any compensation due as a result of a ministerial order is payable by the local planning authority. 15.06 It is an offence to use land in breach of a discontinuance order or to contravene a condition in such an order.13 Contravening a requirement of a minerals special order or causing or permitting its contravention is also an offence under s  189.14 It is a ‘defence for a person charged with an offence under this section to prove that he took all reasonable measures and exercised all due diligence to avoid commission of the Town and Country Planning Act 1990, s  102(8) and Sch  9 (special minerals orders). The general regime applies to minerals in Northern Ireland. 4 R (on the application of Chant) v Secretary of State for Transport, Local Government and the Regions [2006] EWHC 1440 (Admin) at paras 50, 52 per Sullivan J. 5 Town and Country Planning Act 1990, s 103; Planning Act (Northern Ireland) 2011, s 74. 6 Town and Country Planning Act 1990, s 103(4); Planning Act (Northern Ireland) 2011, s 74(4). 7 Chant at paras 39, 40 per Sullivan J. 8 Town and Country Planning Act 1990, ss 284(2), 288. 9 Town and Country Planning Act 1990, s 115. 10 Land Compensation Act 1961, s 5, r (4). 11 Hughes v Doncaster Metropolitan Council [1991] 1 AC 382. 12 Town and Country Planning Act 1990, s 104; Planning Act (Northern Ireland) 2011, s 75. 13 Town and Country Planning Act 1990, s 189(1)(a); Planning Act (Northern Ireland) 2011, s 168. 14 Town and Country Planning Act 1990, s 189(2). 3

270

Revocation or modification 15.08 offence by himself or by any person under his control’.15 The offence is triable either way, being punishable with an unlimited fine in the magistrates or the Crown Court. The local planning authority can enter land and carry out the steps required under a discontinuance or special minerals order, recovering the cost from the owner.16 15.07 Because of the potential liability for compensation discontinuance orders are rarely used. The discontinuance process might be employed with enforcement notices where the undesirable activities consist of a mix of lawful and unlawful uses. Essentially the enforcement notices would deal with the unlawful uses and a discontinuance order would address the totality. That is a risky enterprise if the extent of the lawful uses is not correctly ascertained. In Jefferey v First Secretary of State17 a local authority had made a discontinuance order for the use of land for siting touring caravans and tents, believing that the touring caravan part of the use was limited by planning condition to a three-week period in the summer of 1999 to accommodate those attending the total solar eclipse. The authority were so shocked when the Secretary of State ruled that the condition was invalid and so the touring caravan use was permanent that they brought three sets of High Court proceedings, all of which failed.18 The authority would not have made a discontinuance order if it had appreciated that a seven-figure compensation liability would result. Ultimately they granted permission for a permanent touring caravan use on the site. REVOCATION OR MODIFICATION 15.08 A  planning permission may be revoked or modified.19 This is not strictly an enforcement mechanism as it does not seek to remedy any unlawful action but removes or alters a planning permission. It does, however, provide a means of exercising greater control or remedying erroneous planning decisions. The Town and Country Planning Act 1990, s 97(1) provides:20 ‘If it appears to the local planning authority that it is expedient to revoke or modify— (a) any permission (including permission in principle) to develop land granted on an application made under this Part, or (b) any permission in principle granted by a development order, the authority may by order revoke or modify the permission to such extent as they consider expedient.’

The authority shall have regard to the development plan to other material considerations.21

Town and Country Planning Act 1990, s 189(4). Planning Act (Northern Ireland) 2011, s 168(3) is to the same effect. 16 Town and Country Planning Act 1990, s 190; Planning Act (Northern Ireland) 2011, s 168(5). 17 [2007] EWCA Civ 584, [2006] EWHC 2920 (Admin), [2007] JPL 907. 18 See Teignbridge District Council v First Secretary of State [2006] EWHC 2745 (Admin). 19 Town and Country Planning Act 1990, s 97; Planning Act (Northern Ireland) 2011, s 68. 20 The text quoted is the English version from 13 July 2016. The Welsh text omits permission in principle and is set out in Richard Harwood, Planning Permission (Bloomsbury, 2016) para 4.26. 21 Town and Country Planning Act 1990, s 97(2). 15

271

15.09  Discontinuance, Revocation and Maintenance of Land 15.09

The Planning Act (Northern Ireland) 2011, s 68(1) provides:

‘If it appears to a council, having regard to the local development plan and to any other material considerations, that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part or on an appeal under section 143, the council may, subject to subsections (2) to (4), by order revoke or modify the permission to such extent as (having regard to those matters) it considers expedient.’

Revocation or modification can therefore be applied to a permission granted following an application or at an enforcement notice appeal. 15.10 Given the duty to have regard to the development plan, the presumption in favour of the plan applies.22 Revocation and modification deals with development which has not yet taken place:23 ‘The power conferred by this section may be exercised (a) in the case of planning permission that relates to the carrying out of building or other operations, at any time before those operations have been completed; (b) in the case of planning permission that relates to a change of the use of any land, at any time before the change has taken place’.

15.11 A revocation or modification order of a planning permission for building or other operations does not affect so much of those operations as has been carried out.24 However, it may affect how that operational development is used (for example, by imposing conditions on hours of operation). 15.12 In a similar way to a discontinuance order, a revocation or modification order must be confirmed by the Minister or the Department unless all the landowners and occupiers of the land subject to the order and any other person who in the local planning authority’s opinion will be affected by the order have notified the authority in writing that they do not object to it.25 15.13 Compensation is payable by the local planning authority for any loss caused by a revocation or modification order.26 Care must be taken to establish that the order caused the loss. If the developer needs another consent (such as a species licence) which would not have been granted then any loss would not have been caused by the revocation or modification order.27 15.14 The Secretary of State, Welsh Ministers or the Department may make revocation orders, although compensation claims will fall on the local authority. In England, ministerial policy is to use such powers:

Planning and Compulsory Purchase Act 2004, s 38(6); Planning Act (Northern Ireland) 2011, s 6(4). Town and Country Planning Act 1990, s 97(3). The text quoted is the English version from 13 July 2016; the Welsh text and also the Planning Act (Northern Ireland) 2011, s 68(2) are to the same effect. 24 Town and Country Planning Act 1990, s 97(4); Planning Act (Northern Ireland) 2011, s 68(2). 25 Town and Country Planning Act 1990, ss 98, 99; Planning Act (Northern Ireland) 2011, ss 70, 71. Publicity for unopposed orders in Northern Ireland is prescribed by Planning General Regulations (Northern Ireland) 2015, reg 11. 26 Town and Country Planning Act 1990, s 107; Planning Act (Northern Ireland) 2011, s 174. 27 MWH Associates Ltd v Wrexham County Borough Council [2012] EWCA Civ 1884, [2013] RVR 112. 22 23

272

Completion notices 15.18 ‘in exceptional circumstances … generally … only if the original decision is judged to be grossly wrong, so that damage is likely to be done to the wider public interest’.28

The use of the revocation power by local authorities is rare: only three opposed revocation orders were submitted to the Secretary of State for Communities and Local Government between 2009 and 2016.29 15.15 There is no provision relating to failure to comply with a revocation or modification order. As the order has prospective effect only, the question is whether what is then done is without a necessary planning permission having regard to the order or whether it is in breach of a condition on the relevant planning permission as modified by the order. Such a breach of planning control would then be enforced against in the usual way. COMPLETION NOTICES 15.16 Planning permission for the carrying out of development in the future has to contain a condition requiring the development to be begun within a certain period. Unless it is a temporary planning permission (granted for a limited period) the permission will not state a period by the end of which the development must be completed. The right to develop under a planning permission is not lost by inaction, provided development has begun.30 Whilst a developer will usually want to press on once works have started, it is possible therefore to have an untidy and inactive building site or half completed building harming local amenity for many years. 15.17 A completion notice will invalidate a permission one year (or later) after the notice takes effect, providing a strong incentive to complete the development. It cannot require the development to be completed. It may be served by the local planning authority or council subject to confirmation by the Minister or the Department.31 Such notices may also be served by the Secretary of State, Welsh Ministers or the Department.32 15.18 A  completion notice may be used where development has begun but has not been completed under a planning permission provided that the deadline for the start of development imposed by a condition has passed.33 Additionally a notice may be used where development authorised under an enterprise zone is incomplete after the area has ceased to be in such a zone.34 Similarly the regime applies to simplified planning zones in England and Wales.35 In England, a completion notice may be

House of Commons 16 Mar 2006: Column 2446W (Yvette Cooper). House of Commons Written Answer 02 March 2016 (Brandon Lewis): these appear to be revocations but not necessarily modifications. Modifications are more common, particularly when required under mineral planning or habitats legislation. A rare example of an unopposed revocation order is R (Webb) v Herefordshire District Council [2013]  EWHC  1850 (Admin) (costs judgment). The Ministerial power to make a revocation order has only been used twice in England since 1996: House of Commons Written Answer 02 March 2016 (Brandon Lewis). 30 See Pioneer Aggregates v Secretary of State for the Environment [1985] AC 132. 31 Town and Country Planning Act 1990, s 94; Planning Act (Northern Ireland) 2011, s 64. 32 Town and Country Planning Act 1990, s 96; Planning Act (Northern Ireland) 2011, s 66. 33 Town and Country Planning Act 1990, s 94(1)(a); Planning Act (Northern Ireland) 2011, s 64(1). 34 Town and Country Planning Act 1990, s 94(1)(c); Planning Act (Northern Ireland) 2011, s 39(10). 35 Town and Country Planning Act 1990, s 94(1)(b). 28 29

273

15.19  Discontinuance, Revocation and Maintenance of Land used if development authorised by a neighbourhood development order has not been completed by the expiry of the period for commencement in that order.36 15.19 In all cases the authority may serve a completion notice if in their opinion ‘the development will not be completed within a reasonable period’.37 The completion notice will specify a further period, not less than 12 months after the notice takes effect, at the end of which the planning permission will cease to have effect.38 A notice will only take effect once it is confirmed by the Minister or the Department,39 so the notice should set a period from confirmation. There is no provision for automatic confirmation of unopposed notices. 15.20 Completion notices have to be served on the owner and occupier of the land as well as any other person who in the opinion of the local planning authority will be affected by the notice.40 15.21 The completion notice will specify a period within which the person served may exercise a right to be heard before the Minister (usually by a hearing or inquiry conducted by an Inspector) or the Department (by the Planning Appeals Commission).41 The local planning authority will also be entitled to appear at the oral hearing (although it has no right to demand one).42 Ministers or the Department may confirm or decline to confirm the notice and if confirming, may extend the period at the end of which the permission expires.43 The period will run from confirmation and the permission will become invalid at its conclusion.44 However this invalidity ‘shall not affect any permission so far as development carried out under it before the end of the period … is concerned’.45 Consequently development carried out under the permission before the completion notice is served or confirmed or in the compliance period would remain lawful. This will be the case even if it leaves a partially constructed building. Enforcement action could not be taken against those works on the basis that part of a building was not approved and the local planning authority would need to use a discontinuance order if it sought to remove such lawful works.46 The permission itself is not affected with respect to such development, so ongoing controls (such as hours of operation) or restoration conditions will continue to have effect. 15.22 A  completion notice may be withdrawn at any point before the planning permission ceases to have effect.47 38 39 40 41 36 37



42

45 46 43 44



47

Town and Country Planning Act 1990, s 94(1)(d). Town and Country Planning Act 1990, s 94(2); Planning Act (Northern Ireland) 2011, s 64(2). Town and Country Planning Act 1990, s 94(2), (3); Planning Act (Northern Ireland) 2011, s 64(2), (3). Town and Country Planning Act 1990, s 95(1); Planning Act (Northern Ireland) 2011, s 65(1). Town and Country Planning Act 1990, s 94(4); Planning Act (Northern Ireland) 2011, s 64(4). Town and Country Planning Act 1990, s 95(3); Planning Act (Northern Ireland) 2011, s 65(3). The period must be at least 28 days from service of the notice. Town and Country Planning Act 1990, s 95(3); Planning Act (Northern Ireland) 2011, s 65(3). Other persons served will be allowed to be heard. Town and Country Planning Act 1990, s 95(2); Planning Act (Northern Ireland) 2011, s 65(2). Town and Country Planning Act 1990, s 95(4); Planning Act (Northern Ireland) 2011, s 65(4). Town and Country Planning Act 1990, s 95(5); Planning Act (Northern Ireland) 2011, s 65(5). Cardiff City Council v National Assembly for Wales [2006] EWHC 1412 (Admin), [2007] JPL 60 at paras 26–30 per Davis J. Town and Country Planning Act 1990, s 94(5); Planning Act (Northern Ireland) 2011, s 64(5). Notice of the withdrawal must be served on every party who was served with the notice (s 94(6) and s 64(6) respectively), which is not necessarily those who currently have interests which merit service.

274

Section 215 notices requiring proper maintenance of land 15.25 SECTION 215 NOTICES REQUIRING PROPER MAINTENANCE OF LAND 15.23 Despoiled or badly kept land can affect the amenity of an area. Rubbish and scrap materials may be visually intrusive. They may also cause environmental problems. So, under s 215 of the Town and Country Planning Act 1990, the local planning authority may serve a notice requiring the land to be cleaned up.48 The power is exercisable if it appears that ‘the amenity of a part of [the local planning authority’s] area, or of an adjoining area, is adversely affected by the condition of land in their area’ (s 215(1)). The notice ‘shall require such steps for remedying the condition of the land as may be specified in the notice to be taken within such period as may be so specified’.49 It must be clear what is required. Leggatt J held in Allsop v Derbyshire Dales District Council:50 ‘as a matter of general principle, such notice in order to be valid must identify the condition of the land about which complaint is made and the steps required to remedy that condition with sufficient clarity to enable the recipient of the notice fairly to understand the nature of the complaint and exactly what it is that he must do in order to comply with the notice. That is a basic requirement of fairness and natural justice.’

Similarly in Jolly v Fylde Borough Council,51 the Crown Court held that section 215 notices were subject to the same approach to nullity as enforcement notices. 15.24 Like enforcement notices, the section 215 notice only takes effect after a specified period. This must be at least 28 days after it has been served on the owner and occupier of the land.52 It must be served on all such persons.53 A section 215 notice may only apply to the land which adversely affects the amenity of the area and may not be served on any person who only owns or occupies other land. In Toni & Guy (South) Ltd v London Borough of Hammersmith and Fulham a section 215 notice had been served on all the occupiers of a building when the council required the rendering of the first to third floors of the front elevation. The occupiers of the ground floor appealed and the Council accepted that they had no control over or rights in the parts of the building where the works were required. The notice was quashed with respect to the ground floor occupiers, as the Council had no power to serve them. Appeal 15.25 A person served with a section 215 notice, or any other person interested in the land, has a right of appeal to the magistrates’ court in England and to the Welsh Ministers.54 The appeal must be made before the notice takes effect, and can be on any of the following grounds (s 217(1)): Town and Country Planning Act 1990 Section 215 Best Practice Guidance was issued by the Office of the Deputy Prime Minister in January 2005. Historic England gives guidance on the use of s 215 in heritage cases in Stopping the Rot (3rd Edition, 2016). 49 Town and Country Planning Act 1990, s 215(2). 50 [2012] EWHC 3562 (Admin). 51 Case reference Preston A20120016. 52 Town and Country Planning Act 1990, s 215(3), (4). Where land is registered, service on the address given for the owner at the Land Registry is sufficient: Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 50, [2017] 1 WLR 1970 at para 28 per Lewison LJ. 53 Toni & Guy (South) Ltd v London Borough of Hammersmith and Fulham [2009] EWHC 203 (Admin) at para 25. Although where there are no occupiers, it does not matter if no copy is addressed to the occupiers: Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 50, [2017] 1 WLR 1970 at para 31 per Lewison J. 54 Town and Country Planning Act 1990, s 217(2). 48

275

15.26  Discontinuance, Revocation and Maintenance of Land ‘(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area; (b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III [the requirement to have planning permission]; (c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area; (d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed.’

15.26 The ground (b) appeal, and so the scope of section 215 notices, was considered in Allsop v Derbyshire Dales District Council.55 A  section 215 notice was served on a farmer requiring him to ‘cease the use of the land for the storage of vehicles and trailers’. The storage had been of agricultural trailers but it became apparent in the course of the appeal that the Council’s sole concern was a ‘lurid face’ painted on the side of one of the trailers. The Crown Court varied the notice to prohibit only vehicles or trailers with ‘unorthodox livery’. On appeal by case stated, the High Court quashed the notice holding that a section 215 notice cannot require the cessation of a lawful use. Leggatt J said that ‘the use of the land for storage of vehicles and trailers bearing unorthodox livery’ did not contravene planning control and so ‘the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, a use of land which is not in contravention of Part III’.56 Whilst the general principle is sound, its application to the circumstances may be more open to argument. 15.27 The scope of the regime also arose in R  (on the application of LisleMainwaring) v Crown Court at Isleworth which was one of eight High Court cases prompted, directly or indirectly, by a single redevelopment scheme in Kensington. Mrs Lisle-Mainwaring intended to demolish and rebuild, with a large basement, a building which had been used as offices, as a house. Three weeks after the High Court had quashed her planning permission for the scheme57 she had the front of the building painted with red and white vertical stripes. Permitted development rights exist for painting the exterior of buildings. The council issued a section 215 notice requiring the building to be repainted. Ultimately the owner’s appeal succeeded in the High Court. Gilbart J held it was ‘an improper use of section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land’.58 Additionally, the condition of the land was within ‘the ordinary course of events’ which resulted from the lawful painting.59 Instead, the council could have made a discontinuance order and restricted permitted development rights for painting the building’s exterior.

[2012] EWHC 3562 (Admin) at para 29. At para 27. 57 In Carroll v Secretary of State for Communities and Local Government [2015] EWHC 316 (Admin). 58 Lisle-Mainwaring at para 106 per Gilbart J. 59 See paras 108–113. 55 56

276

Section 215 notices requiring proper maintenance of land 15.31 15.28 An appellant can also contend that the notice is unlawful.60 The notice does not take effect until the appeal is finally determined or is withdrawn.61 An appeal to the magistrates’ court would be made by way of complaint.62 Appeals in Wales require a notice of appeal, with a full statement of case accompanying it or following within seven days (or any prior agreed extension).63 Welsh appeals follow the same processes as those for enforcement notices.64 The magistrates’ court or the Welsh Ministers may quash or vary the notice or correct any informality, defect or error if it is not material. They may also give directions,65 which can be important if the appeal is brought by or is successful in relation to, only some of the persons served. The local planning authority or appellant may appeal the magistrates’ decision to the Crown Court66 or to the High Court by case stated67 or challenge on a matter of court procedure by judicial review. 15.29 If the notice has been served on both the owner and occupier or that person has appealed under s 217, then the notice cannot be challenged in any other proceedings on grounds (a) or (b) above.68 This is a similar bar to s 285(1) in respect of enforcement notices. However, a person who held an interest in the land when the notice was served, but was not himself served and did not appeal, is not subject to the statutory bar in s 216 (criminal) proceedings and so may raise the condition of the land as a defence.69 A person who appeals is treated in later proceedings as having been duly served with the notice.70 Prosecution 15.30 It is an offence for the owner or occupier to fail to take the steps required by the section 215 notice in the specified period (s 216(2)). A form of defence, which has been replaced in most planning law, still applies. If the owner or occupier have ceased to have that status before the end of the compliance period then they are entitled to have their successors brought before the court if prosecuted. If the failure to comply was attributable in whole or in part to the default of a successor then that person is also guilty. If the original defendant in addition proves that he took all reasonable steps to secure compliance with the notice, he will be acquitted.71 The offence is summary only, and is punishable with a level 3 (£1,000) fine. After the first conviction, a subsequent offence is punishable by a daily fine of one-tenth of level 3, that is, £100. Carrying out the works 15.31 If the notice is not complied with, the local planning authority is empowered to enter the land, carry out the works and recover the cost from the owner in a similar manner to carrying out works under an enforcement notice (s 219). 62 63 64 60 61

67 68 69 70 71 65 66

R v Oxford Crown Court, ex p Smith (1989) 154 JP 422. Town and Country Planning Act 1990, s 217(3). Magistrates’ Courts Rules 1981, r 34. Town & Country Planning (Enforcement Notices & Appeals) (Wales) Regulations 2017, reg 10. Under the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017. See Chapter 7 above. Town and Country Planning Act 1990, s 217(5). Town and Country Planning Act 1990, s 218. Magistrates’ Courts Act 1980, s 111(2). Town and Country Planning Act 1990, s 285(3). Town and Country Planning Act 1990, s 285(4). Town and Country Planning Act 1990, s 217(6). Town and Country Planning Act 1990, s 216(5).

277

Chapter 16

Historic Environment

16.01 Protection of the historic environment of buildings, urban and rural landscapes, and the remains of the past is an important part of the planning process. Protection is offered by normal planning controls but special statutory controls are also provided for listed buildings, conservation areas and archaeological remains.1 Policy on the historic environment is contained in England in the National Planning Policy Framework (2018), particularly Section 16, the publications Principles of Selection for Listed Buildings and Scheduled Monuments, with further advice in the Planning Practice Guidance. Historic England produces a range of guidance, some of which deals with enforcement issues. Welsh heritage policy is in Planning Policy Wales (10th edition, 2018) and Technical Advice Note 24 The Historic Environment. Policy in Northern Ireland is contained in the Strategic Planning Policy Statement for Northern Ireland, chapter 6 and Development Management Practice Note 5 Historic Environment. LISTED BUILDING CONTROL 16.02 In England and Wales buildings of special architectural or historic interest may be listed under s 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘the Listed Buildings Act’). In England this power is exercised by the Secretary of State for Digital, Culture, Media and Sport, in Wales by the Welsh Ministers. A Northern Irish list is compiled by the Department under the Planning Act (Northern Ireland) 2011, s  80. In England there are presently about 375,000 listed building entries (which may cover more than one building, such as a terrace, or multiple entries may cover individual structures within an overall site, such as a stable block). As a matter of policy, listed buildings are classified in descending order of importance as Grade I (2 per cent of the total), Grade II* (5.5 per cent) and the remainder as Grade II. 16.03 A listed building is a building on the list.2 ‘Building’ comprises the expanded definition of building in the legislation as including ‘any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building’.3 It is therefore possible for a listing to include only part of a building.4

For a more detailed consideration of this legislation see Richard Harwood, Historic Environment Law (Institute of Art and Law) 2012; Supplement, 2014. 2 Listed Buildings Act, s 1(5); Planning Act (Northern Ireland) 2011, s 80(7). 3 Town and Country Planning Act 1990, s 336(1), as applied by Listed Buildings Act, s 91; Planning Act (Northern Ireland) 2011, s 250(1). For the meaning of building, see Dill v Secretary of State for Communities and Local Government [2018] EWCA Civ 2619, [2019] 1 P & CR 15 (Supreme Court judgment pending). 4 Shimizu Ltd v Westminster City Council [1997] 1 WLR 168 at 180 per Lord Hope of Craighead. 1

278

Listed building control 16.05 The definition of listed building is expressed more widely by s 1(5) in England and Wales as including: ‘(a) any object or structure fixed to the building; (b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before July 1, 1948, shall, [subject to subsection (5A)(a)]5, be treated as part of the building.’ Subsection (5A)(a) allows the list entry in England to provide that an object or structure fixed to the building or which would otherwise be curtilage listed, is not part of the listed building.

16.04

In Northern Ireland the expanded meaning of listed building is:6

‘the following shall be treated as part of the building— (a) any object or structure within the curtilage of the building and fixed to the building; (b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st October 1973.’

‘Fixed’ has been considered as having the same meaning as in property law and depends upon the degree of annexation and the purpose of annexation of the object or structure.7 However the property law cases are affected by their context (landlord and tenant, trusts, agreements for sale) and many are dated.8 A curtilage comprises land and buildings which are ‘part and parcel’ of the land comprised with a building.9 Objects or structures which are fixed or within its curtilage must be ancillary to the listed building to count as part of that building.10 16.05 Works affecting the listed building’s character of special architectural or historic interest are prohibited unless authorised or excepted under the Listed Buildings Act. Section 7 of the Listed Buildings Act provides: ‘Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.’

An offence of carrying out works in contravention of s 7 is created under s 9.

England only. Planning Act (Northern Ireland) 2011, s 80(7). The differences are that fixed objects or structures must be within the curtilage and that curtilage listing applies to pre 1 October 1973 objects. Applications for listed building consent are governed by the Planning (Listed Buildings) Regulations (Northern Ireland) 2015. 7 Debenhams plc v Westminster City Council [1987] AC  396. See also Dill v Secretary of State for Communities and Local Government (2020 Supreme Court judgment pending). 8 The most useful judgments are Leigh v Taylor [1902] AC 157; Berkeley v Poulett (1977) Real Property and Conveyancing 754; and Elitestone v Morris [1997] 1 WLR 687. 9 The leading authority is Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2001] QB 59. Land will remain within the curtilage if it was in the curtilage at the time of listing (R v London Borough of Camden, ex p Bellamy [1992] JPL 255) but the curtilage may be able to expand (R (Sumption) v London Borough of Greenwich [2008] 1 P & CR 320, doubted at the subsequent Court of Appeal permission hearing [2008] EWCA Civ 404). 10 Debenhams plc v Westminster City Council [1987] AC 396. 5 6

279

16.06  Historic Environment 16.06 The Planning Act (Northern Ireland) 2011 brings these two sections together in s 85(1): ‘Subject to this Part, if a person executes or causes to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, and the works are not authorised under subsection (2), that person shall be guilty of an offence.’

16.07

Listed building control therefore applies to two elements:

(1) works for the demolition of a listed building; and (2) works for a listed building’s alteration or extension which would affect its character as a building of special architectural or historic interest. 16.08 Whilst only part of a building may be listed, in the requirement for consent the expression ‘listed building’ means the whole of what has been listed and does not include part of the listed building: see Shimizu Ltd v Westminster City Council.11 Consequently, ‘demolition’ only occurs if there is demolition of the whole or the substantial part of the listed building. In Shimizu, the House of Lords considered that the demolition of a listed building except for its façade, chimney-breasts and chimney-stacks was demolition under s 7.12 The removal of a building which is listed solely by virtue of being within the curtilage of a listed building would not therefore be the demolition of the listed building (since the structure giving rise to the listing remains) but might be works affecting the special architectural or historic interest of the listed building. 16.09 Whether the works affect the building’s special architectural or historic interest is a matter of fact for the decision maker or court concerned, although special interest may be affected by works which are limited in scale.13 The effect of works must be judged in their totality, rather than the effect of incomplete works. In East Riding of Yorkshire Council v Hobson Keene LJ said:14 ‘If what is being done by way of works of alteration to a listed building involves both a stage of removal and dismantling and a stage of replacement or rebuilding, it cannot, in my judgment, be right to cease the assessment of the effect of these works of alteration in an artificial manner part of the way through.’

16.10 Listed building control is independent of any need for planning permission. Frequently, both listed building consent and planning permission is required. Listed building control also covers many works, such as internal works, which are not operational development15. Listed building consent is granted on application by the local planning authority or on appeal or call-in by the Secretary of State for Housing, Communities and Local Government, Welsh Ministers or the Department. It may be granted subject to conditions.16 Listed building consent is not required if the works should be covered by development consent for a nationally significant infrastructure project under the Planning Act 2008.17 [1997] 1 WLR 168. Per Lord Hope at 185 and 187. 13 See Braun v First Secretary of State [2002] EWHC 2767 (Admin) at para 29. 14 [2008] EWHC 1003 (Admin); [2009] PTSR 561 at para 17. 15 Under Town and Country Planning Act 1990, s 55; Planning Act (Northern Ireland) 2011, s 23. 16 Listed Buildings Act 1990. 17 Listed Buildings Act, s 7(2). Similar exemptions mean that conservation area consent (in Wales) and scheduled monument consent are not required for such projects. 11 12

280

Available enforcement mechanisms 16.15 AVAILABLE ENFORCEMENT MECHANISMS 16.11 The local planning authority has the following enforcement mechanisms available in the event of works being carried on without listed building consent or in breach of conditions on a listed building consent: (a)

criminal prosecution;

(b) issuing a listed building enforcement notice and prosecuting for any breach of it; (c)

injunctive proceedings.

Listed building prosecutions England and Wales 16.12 Unlike a breach of planning control (aside from relevant demolition in conservation areas), criminal liability is incurred immediately upon a breach of listed building control. In England and Wales it is an offence to contravene s 7, as s 9(1) quite simply puts it: ‘If a person contravenes section 7 he shall be guilty of an offence.’

16.13

Section 9(1), therefore, gives five questions to be answered in a prosecution:18

(1) Was the building in question a listed building? (2) If so, were the works specified in each count executed for its alteration or demolition? (3)

If so, did the defendant cause the works specified in each count to be executed?

(4)

If so, were the works demolition of the listed building or were they executed in a manner which affected the character of the building as a building of special architectural or historic interest?

(5) If so, were such works authorised? 16.14 It is also an offence ‘if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent’ (s  9(2)). The two offences overlap, because works of demolition will only be authorised (and so avoid liability under s  9(1)) if they ‘are executed in accordance with the terms of the consent and any conditions attached to it’.19 Northern Ireland 16.15 The offence of carrying out unauthorised works in s 85(1) of the Planning Act (Northern Ireland) 2011 has been set out above. Authorised works are those which comply with s 85(2) by:

R v Sandhu [1997] JPL 853, adapted to encompass demolition. Listed Buildings Act, s 8(2)(d).

18 19

281

16.16  Historic Environment ‘(a) written consent for the execution of the works has been granted by a council or the Department and the works are carried out in accordance with the terms of the consent and any conditions which may be attached to the consent; and (b) in the case of demolition— (i) a person duly authorised in writing by the Department has been afforded reasonable access to the building for a period of at least one month following the grant of listed building consent and before the commencement of the works, for the purpose of recording it; or (ii) the Department has stated in writing that it has completed its recording of the building or that it does not wish to record it.

Liability and defences 16.16 A  statutory defence of urgent necessity is provided if it is shown by the defendant on the balance of probabilities:20 ‘(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building; (b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter; (c) that the works carried out were limited to the minimum measures immediately necessary; and (d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.’

16.17 The offence is one of strict liability. A person will be guilty of an offence if s 7 is breached (subject to the statutory defence), even if they were unaware that the building was listed or reasonably considered that listed building consent was not required. Evidence of the defendant’s intention is irrelevant to guilt. In R v Sandhu, the Court of Appeal quashed a conviction for carrying out authorised alterations because inadmissible and prejudicial evidence had been admitted from the local authority’s planning officer and the defendant’s architect and joiner that he had ignored their warnings and chosen an incompetent builder to save costs.21 16.18 Section 9 offences are triable either way. The importance attached to protecting listed buildings is shown by the availability of a sentence of imprisonment: in the Crown Court, two years; in the magistrates’ court, six months. Unlimited fines in summary trial or indictment are also available.22 As with other planning offences, the court should have regard to financial benefit from the breach when determining the size of fines.23 Sentencing for heritage offences is discussed further below.

Listed Buildings Act, s 9(3); Planning Act (Northern Ireland) 2011, s 85(7). [1997] JPL 853. 22 Listed Buildings Act, s  9(4). The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 19. 23 Listed Buildings Act, s 9(5); Planning Act (Northern Ireland) 2011, s 85(6). 20 21

282

Listed building enforcement notices 16.22 In Northern Ireland the maximum sentence in the magistrates’ court is six months’ imprisonment and a fine of up to £100,000.24 A fine and two years’ imprisonment are available in the Crown Court.25 16.19 Best Practice Guidance on Listed Building Prosecutions was published by the Department of Communities and Local Government in 2006 and cancelled in 2014. Whilst this former guidance should be considered with caution,26 it suggests the following public interest factors to consider in listed building prosecution decisions in addition to those in the Code for Crown Prosecutors: •

‘How long the building has been listed

•

Whether the feature that was altered or destroyed was historically or architecturally important or unique

•

Whether or not the feature can be replaced or replicated

•

The extent to which the overall architectural or historic importance of the building has been affected

•

The importance of the building as a whole

•

Whether listed building consent was sought and the extent to which such consent was complied with

•

The extent of compliance with any Listed Building Enforcement Notice (although this of itself does not automatically mean that a prosecution should not proceed)’.

The significance of the first point is not obvious. 16.20 Prosecutions are normally brought by the local planning authority. Historic England can prosecute offences under the Listed Building Act in England,27 although it has done so rarely: the most prominent example was for the demolition in 2003 of the Grade II listed Modern Movement house ‘Greenside’, which had overlooked the 17th green of the West Course at Wentworth in Surrey. LISTED BUILDING ENFORCEMENT NOTICES 16.21 A system of listed building enforcement notices is established on similar lines to enforcement notices for breach of planning control. These powers are exercised by local planning authorities, with Historic England also having jurisdiction in Greater London.28 The national ministers are able to issue listed building enforcement notices following consultation with the relevant local planning authority and, in England, with Historic England.29 16.22

If it appears to the local planning authority in England and Wales:30

Planning Act (Northern Ireland) 2011, s 85(6)(a). Planning Act (Northern Ireland) 2011, s 85(6)(b). 26 For example, the guidance includes a sample notice to be given to new owners of listed buildings which contain serious errors in summarising the legislation. 27 National Heritage Act 1983, s 33(2A). 28 Listed Buildings Act, s 45; Planning Act (Northern Ireland) 2011, s 157. 29 Listed Buildings Act, s 46; Planning Act (Northern Ireland) 2011, s 158. 30 Listed Buildings Act, s 38(1). 24 25

283

16.23  Historic Environment ‘(a) that any works have been or are being executed to a listed building in their area; and (b) that the works are such as to involve a contravention of section 9(1) or (2), they may, if they consider it expedient to do so having regard to the effect of the works on the character of the buildings as one of special architectural or historic interest, issue a listed building enforcement notice.’

16.23 As with issuing enforcement notices, the test for the planning authority is one of expediency, so the authority must consider whether harm was caused by the works. There is, however, no requirement to have regard to the development plan, which means that the statutory presumption in favour of the development plan does not apply. Development plan policies on the historic environment may still though be relevant to any decision to enforce. 16.24 The listed building enforcement notice will specify the alleged contravention and will require steps to be taken (s 38(2)): ‘(a) for restoring the building to its former state; (b) if the authority consider that such restoration would not be reasonably practicable or would be undesirable, for executing such further works specified in the notice as they consider necessary to alleviate the effect of the works which were carried out without listed building consent; or (c) for bringing the building to the state in which it would have been if the terms and conditions of any listed building consent which has been granted for the works had been complied with.’

A listed building enforcement notice can require parts of a building which have been unlawfully removed to be replaced.31 The Northern Irish provisions are to the same effect.32 16.25 Unlike enforcement notices and breach of condition notices for breaches of planning control, there are no time limits for issuing a listed building enforcement notice in England and Wales. In Northern Ireland enforcement is not possible for breaches which occurred before 9th December 1978.33 The lengthy or non-existent time limits can have serious consequences on the sale of a property or for a subsequent purchaser. A listed building enforcement notice may be issued in respect of works carried out by a previous owner of the building, as happened to the unfortunate Mr Braun in Braun v First Secretary of State.34 A prospective purchaser should, therefore, seek to establish whether works have been carried out which needed, or might have needed, listed building consent and either did not have consent or conditions on the consents were not complied with. A judgment then has to be made whether to seek to regularise the position. 16.26 The procedural rules for listed building enforcement notices are similar to those for enforcement notices. The notice must specify the date on which it is to take

R v Leominster District Council, ex p Antique Country Buildings Ltd (1987) 56 P & CR 240; R (C & P Reinforcement Ltd) v East Hertfordshire District Council [2009] EWHC 3128 (Admin). 32 The power to issue a notice and its contents are in Planning Act (Northern Ireland) 2011, s 157(1) and such a notice is described by s 157(2) as a listed building enforcement notice. 33 Planning Act (Northern Ireland) 2011, s 157(3). 34 [2003] EWCA Civ 665, [2003] JPL 1536. 31

284

Listed building enforcement notices 16.27 effect35 and specify a period or periods within which the steps must be taken.36 Listed building consent is deemed to be granted for any remedial works.37 Service of a copy of the notice is required on the owner and occupier of the building and any other person with an interest (or estate) materially affected by the notice.38 A notice may be withdrawn or any of its requirements waived or relaxed.39 16.27 There is a right of appeal to the Secretary of State or the Welsh Ministers under s 39 of the Listed Buildings Act. Eleven grounds of appeal are allowed. These are:40 ‘(a) that the building is not of special architectural or historic interest; (b) that the matters alleged to constitute a contravention of section 9(1) or (2) have not occurred; (c) that those matters (if they occurred) do not constitute such a contravention; (d) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building, that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter, and that the works carried out were limited to the minimum measures immediately necessary; (e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted; (f) that copies of the notice were not served as required by section 38(4); (g) except in relation to such a requirement as in mentioned in section 38(2)(b) or (c), that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out; (h) that the period specified in the notice as the period within which any step required by the notice to be taken falls short of what should reasonably be allowed; (i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose; (j) that the steps required to be taken by virtue of section 38(2)(b) exceed what it is necessary to alleviate the effect of the works executed to the building; (k) that steps required to be taken by virtue of section 38(2)(c) exceed what is necessary to bring the building to the state in which it would have been if the terms and conditions of the listed building consent had been complied with.’

Most of the grounds of appeal replicate those for enforcement notices;41 however, grounds (a), (d) and (i) raise different issues. Ground (a) allows a challenge to the listing of the building. If an appeal is allowed on that ground then the Minister or Inspector will remove the building from the list.42 37 38 39 40

Listed Buildings Act, s 38(3)(a); Planning Act (Northern Ireland) 2011, s 157(4)(a). Listed Buildings Act, s 38(3)(b); Planning Act (Northern Ireland) 2011, s 157(4)(b). Listed Buildings Act, s 38(7); Planning Act (Northern Ireland) 2011, s 157(5). Listed Buildings Act, s 38(4); Planning Act (Northern Ireland) 2011, s 157(6), applying s 138(2), (3). Listed Buildings Act, s 38(5); Planning Act (Northern Ireland) 2011, s 157(6), applying s 141. Listed Buildings Act, s 39(1). For the ability of the appeal to consider what is listed, whether consent is required and the scope of ground (c) see Dill v Secretary of State for Communities and Local Government [2018] EWCA Civ 2619, [2019] 1 P & CR 15 (Supreme Court appeal pending). 41 See Chapter 7 above. 42 Listed Buildings Act, s 41(6)(c). 35 36

285

16.28  Historic Environment 16.28 The grounds of appeal in Northern Ireland contain important differences and are also in a different order:43 ‘(a) that the matters alleged to constitute a contravention of section 85 have not occurred; (b) that those matters (if they occurred) do not constitute such a contravention; (c) that the contravention of that section alleged in the notice occurred before 9th December 1978; (d) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building, that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter, and that the works carried out were limited to the minimum measures immediately necessary; (e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged or different conditions substituted; (f) that copies of the notice were not served as required by section 138(2) and (3), as applied by section 157(6), or, as the case may be, section 139(2) to (4), as applied by section 158(4); (g) that the period specified in the notice as the period within which any step required thereby is to be taken falls short of what should reasonably be allowed; (h) except in relation to such a requirement as is mentioned in section 157(1)(b)(ii) or (iii), the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out; (i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose; (j) that steps required to be taken by virtue of section 157(1)(b)(ii) exceed what is necessary to alleviate the effect of the works executed to the building; (k) that steps required to be taken by virtue of section 157(1)(b)(iii) exceed what is necessary to bring the building to the state in which it would have been if the terms and conditions of the listed building consent had been complied with.’

16.29 The appeal mechanism is essentially the same as enforcement notice appeals in the various nations. Again, it is governed by the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2000, the Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017. Appeals may be determined following inquiry (in England or Wales) or hearing or by a written representations procedure using the enforcement notice appeal rules and regulations and the Northern Ireland procedures.44 The appellant or local planning authority are able to insist on an oral hearing.45 The Planning Act 2008 proposes to introduce a new s 88D into the Listed Buildings Act to allow the Secretary of State to Planning Act (Northern Ireland) 2011, s 159(1). Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002; Town and Country Planning (Enforcement) (Inquiries Procedure) (Determination by Inspectors) (England) Rules 2002; Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002; Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002; Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017. The Planning Appeals Commission’s Procedures for Enforcement Notice, Listed Building Enforcement Notice and Submission Notice Appeals applies in Northern Ireland. 45 Listed Buildings Act, s 40(2); Planning Act (Northern Ireland) 2011, s 143(5), applied by s 159(3). 43 44

286

Listed building enforcement notices 16.34 decide the mode of determination of the appeal.46 As with enforcement notice appeals this would allow the Secretary of State to require an appeal to proceed by written representations against the parties’ wishes. However that provision has not been brought into force for listed building enforcement notice appeals. Like enforcement notices, the effect of a listed building enforcement notice is suspended pending determination of an appeal.47 But this does not affect criminal liability under s  9. Concurrent criminal and appeal proceedings in this situation would pose difficulties and one proceeding may need to be adjourned to avoid prejudicing the other. Failure to comply with a listed building enforcement notice 16.30 The owner of the land commits an offence if he is in breach of a listed building enforcement notice.48 In England and Wales s 43(1) defines breach of the notice as follows: ‘Where, at any time after the end of the period for compliance with the notice, any step required by a listed building enforcement notice to be taken has not been taken, the person who is then owner of the land is in breach of the notice.’

16.31 Other persons interested in or occupying the land are not criminally liable unless they aid or abet the commission of the offence by the owner. As a listed building enforcement notice is solely concerned with remedying unlawful works, rather than ceasing a use of land, an occupier of the land (who is not an owner) is not obliged to comply with the notice. 16.32

Two statutory defences are provided (s 43(4)):49

‘(a) that he did everything he could be expected to do to secure that all the steps required by the notice were taken; or (b) that he was not personally served with a copy of the listed building enforcement notice and was not aware of its existence.’

16.33 The offence is triable either way with unlimited fines on summary trial or on indictment.50 Imprisonment is not available for this offence unlike the s 9 offence. The local planning authority may enter the subject land, carry out the steps specified in the listed building enforcement notice and recover the expenses from the owner. These powers, in s 42 of the Listed Buildings Act, replicate s 178 of the Town and Country Planning Act 1990, including the application of Public Health Act 1936 powers.51 16.34 In Northern Ireland the offences created for breach of an enforcement notice are applied to listed building enforcement notices.52 However there are two offences of breaching enforcement notices: failing to take a step required of an activity failing 48 49 50

Planning Act 2008, s 196 and consequential amendments in Sch 10. Listed Buildings Act, s 39(3); Planning Act (Northern Ireland) 2011, s 143(7), applied by s 159(3). Listed Buildings Act, s 43(2). Listed Buildings Act, s 43(4). Listed Buildings Act, s 43(5). The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 19. 51 See Chapter 8 above. 52 Planning Act (Northern Ireland) 2011, ss 157(6), 158(4) applying s 147. 46 47

287

16.35  Historic Environment to cease, committed by the owner; and carrying out an activity prohibited by the notices, committed by a person with control over or an estate in the land. Since a listed building enforcement notice can only require steps to be taken and does not prohibit activity,53 only the owner offence could be committed. If the notice is not complied with then the council may enter the land and carry out the steps, recovering the costs from the owner of the land.54 Whether to proceed by a listed building enforcement notice or prosecution 16.35 The issue of a listed building enforcement notice is dependent upon a breach of s 9 so the planning authorities, including the Secretary of State and Welsh Ministers, have a choice of measures. Some guidelines on deciding the action to take can be set out. A section 9 prosecution may be more justified if: •

work has been carried out in knowing breach of listed building control;

•

a prison sentence may be justified; or

•

the damage is irreversible and little can be done to alleviate it.

16.36

A listed building enforcement notice may be more likely if:

•

the breach of listed building control was innocent or by a previous owner; or

•

there is argument as to whether a breach of listed building control occurred. It is harder to prove in a criminal court than before an appeal inspector. The breach does not have to be proved on a prosecution for failing to comply with a listed building enforcement notice.

If the building can be restored and the owner will not do so willingly, a listed building enforcement notice is appropriate even if a section 9 prosecution is brought as a criminal court cannot compel restoration works. CHALLENGES TO APPEAL DECISIONS 16.37 The appellant, the local planning authority and any person having an interest in the subject land may challenge the Secretary of State’s decision on a listed building enforcement notice appeal by appeal to the High Court (under s 65 of the Listed Buildings Act, matching s 289 of the Town and Country Planning Act 1990). If listed building consent is granted on the enforcement appeal then this has to be challenged by two proceedings: an application to the High Court under s 64 of the Listed Buildings Act (which is similar to s 288 of the Town and Country Planning Act 1990); and a s 65 appeal.55 Since there are no statutory application or appeal routes to the High Court in Northern Ireland, all challenges to a commissioner’s decision are brought by judicial review.

Planning Act (Northern Ireland) 2011, s 157(1)(b). Planning Act (Northern Ireland) 2011, s 157(6), applying s 146. 55 See Chapter 24. 53 54

288

Injunctions to support listed building control 16.41 VALIDITY OF LISTED BUILDING ENFORCEMENT NOTICES 16.38 Matching the provisions restricting challenges to enforcement notices56, the validity of a listed building enforcement notice ‘shall not, except by way of an appeal … be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought’.57 The principles of R v Wicks58 will apply to restrict challenge by way of defence to criminal proceedings on other grounds unless the notice is a nullity. INJUNCTIONS TO SUPPORT LISTED BUILDING CONTROL 16.39 Injunctions are available to restrain breaches of listed building control in the same way as breach of planning control. The Planning and Compensation Act 1991 created a specific injunction power replicating that in s 187B of the Town and Country Planning Act 1990. It inserted s 44A(1) into the Listed Buildings Act, providing that: ‘Where a local planning authority consider it necessary or expedient for any actual or apprehended contravention of section 9(1) or (2) to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.’

16.40 The court may grant such order as it ‘thinks appropriate for the purpose of restraining the contravention’.59 Historic England is empowered to bring proceedings under s 44A.60 Similarly in Northern Ireland, an injunction can be sought by a council against any ‘actual or apprehended contravention of sections 85(1) or (5)’ where it is necessary or expedient to do so.61 16.41 This injunction power should generally be applied and construed in the same way as planning injunctions.62 It will only apply when a criminal offence of unlawful demolition or works to a listed building has been committed or is anticipated. In Derby City Council v Anthony63 an injunction was granted under s 44A to prevent the demolition of a Grade II listed theatre. The court was prepared to apply the s 9(3) defence of urgent necessity but found, as a matter for the court, that it did not apply. A  more difficult example is Fenland District Council v Reuben Rose (Properties) Ltd,64 where listed building consent had been granted but without the local planning authority notifying the Secretary of State prior to issuing the decision. Four years after the error, the authority sought an injunction on the basis that the consent was invalid and that works in accordance with it would be unauthorised. The Court of Appeal held that an injunction could be granted. This case raises problems of a decision maker’s ability to challenge their own final decisions other than by judicial

Town and Country Planning Act 1990, s 285(1); Planning Act (Northern Ireland) 2011, s 44(7). Listed Buildings Act, s 64; Planning Act (Northern Ireland) 2011, s 159(7). 58 [1998] AC 92. See Chapter 8 above. 59 Listed Buildings Act, s 44A(2). 60 Listed Buildings Act, s 44A(4); National Heritage Act 1983, s 33(2A). 61 Planning Act (Northern Ireland) 2011, s 156(1)(b). 62 See Chapter 14 above. 63 [2008] EWHC 895 (QB). 64 [2000] PLCR 376. 56 57

289

16.42  Historic Environment review and is discussed further in Chapter 1. More generally, the Local Government Act 1972, s 222 jurisdiction to restrain breaches of the criminal law is applicable. Since criminal liability for unauthorised works to a listed building is immediate then, unlike breaches of planning control, s 222 is not dependent upon failure to comply with notices. INTENTIONAL DAMAGE TO A LISTED BUILDING 16.42 If a stranger intentionally damages a listed building without permission from the owner, he will be liable under the Criminal Damage Act 1971 as if he had damaged any other building.65 In England and Wales if the owner intentionally damages his own listed building, even if it does not affect its character, he is guilty of an offence under s 59 subject to a level 3 (£1,000) fine. This maximum sentence is therefore considerably lower than for unlawful works under s 9. 16.43

The section 59 offence is:66

‘If, with the intention of causing damage to a listed building, any relevant person does or permits the doing of any act which causes or is likely to result in damage to the building.’

A person is a relevant person if, apart from s 59(1) he would be entitled to do or permit the act in question. This would include the owner of the building and anyone acting with his permission. Failure to take reasonable steps to prevent damage occurring from the offence after conviction is a further offence, subject to a daily fine of onetenth of level 3 (ie £100).67 16.44

In Northern Ireland the equivalent offence is committed if:68

‘any person who, but for this section, would be entitled to do so— (a) does or permits the doing of any act which causes or is likely to result in damage to the building (other than an act for the execution of excepted works); and (b) does or permits the act with the intention of causing such damage.’

Excepted works are those authorised by a planning permission or a listed building consent,69 so acts which have planning permission but not a necessary listed building consent would be an offence of unauthorised demolition or works, but not intentional damage. 16.45 The maximum sentence in Northern Ireland is a fine at the statutory maximum in the magistrates court or unlimited on indictment.70 A  failure to take such reasonable steps as may be necessary to prevent any damage or further damage resulting from the offence following conviction is subject to a daily fine of one-tenth of level five (so £500 at present) on a further summary conviction.71 67 68 69 70 71 65 66

The maximum sentence is 10 years’ imprisonment: Criminal Damage Act 1971, s 4(2). Listed Buildings Act, s 59(1). Listed Buildings Act, s 59(4). Planning Act (Northern Ireland) 2011, s 103(1). Planning Act (Northern Ireland) 2011, s 103(2). Planning Act (Northern Ireland) 2011, s 103(1). Planning Act (Northern Ireland) 2011, s 103(3).

290

Conservation area consent in Wales 16.48 Building preservation notices 16.46 Unlisted buildings may receive temporary protection from demolition or alteration by service of a building preservation notice. A  local planning authority may serve a building preservation notice on any building in their area if (s 3(1), (2) of the Listed Buildings Act):72 (a)

it is not a listed building;

(b) it appears to them to be of special architectural or historic interest and in danger of demolition or of alteration in such a way as to affect its character as a building of architectural or historic interest; and (c)

they have requested the Secretary of State or the Department to list it.

The notice acts as temporary listing of the building, applying all the listed building provisions (except the intentional damage offence) to the building.73 16.47 It remains in force for six months or until the Minister lists the building or notifies the local planning authority that it will not be listed, whichever is the earlier.74 The lapse of a notice will not affect any criminal liability incurred when the notice was in force, even if the building has not been subsequently listed.75 Historic England may serve building preservation notices in London.76 Building preservation notices are rarely served because if they are not confirmed then compensation is payable by the local planning authority for ‘any loss or damage directly attributable to the effect of the notice’77 which may include standing down contractors. CONSERVATION AREA CONSENT IN WALES 16.48 Buildings in conservation areas which are not listed may only be demolished if conservation area consent is obtained (s  74(1), Listed Buildings Act), subject to limited exceptions. Those exceptions are ecclesiastical buildings, scheduled monuments and various minor works and demolition authorised by other provisions.78 The need for conservation area consent pre-dates the Planning and Compensation Act 1991, which brought demolition of buildings specified by the Secretary of State within the meaning of operational development in s  55 of the Town and Country Planning Act 1990. This procedure is carried out by the listed buildings provisions of the Listed Buildings Act as amended by the Town and Country Planning (Listed Buildings and Conservation Areas) (Wales) Regulations 2012. These regulations apply the section 9 offence and the injunctive powers to demolition in conservation areas and establish conservation area enforcement notices, equivalent to listed building enforcement notices.

74 75 76 77 78 72 73

Listed Buildings Act, s 3(1), (2); Planning Act (Northern Ireland) 2011, s 81(1), (2). Listed Buildings Act, s 3(5); Planning Act (Northern Ireland) 2011, s 81(5). Listed Buildings Act, s 3(3), (4); Planning Act (Northern Ireland) 2011, s 81(3), (4). Listed Buildings Act, Sch 2, para 2; Planning Act (Northern Ireland) 2011, s 83(2). Listed Buildings Act, s 3(8). Listed Buildings Act, s 29. See the Conservation Areas (Disapplication of Requirement for Conservation Consent for Demolition) (Wales) Direction 2017.

291

16.49  Historic Environment 16.49 Demolition must be of the whole building,79 rather than considering whether part of the building has been demolished. Demolition does not though necessarily require the whole building to be pulled down. If the site has been cleared for redevelopment, but part of the building remains, then it might be that demolition has taken place.80 CONSERVATION AREA CONSENT IN NORTHERN IRELAND 16.50 In Northern Ireland, conservation area consent is required for the demolition of all unlisted buildings in conservation areas except for ecclesiastical buildings, scheduled monuments81 and those which are the subject of the Planning (Northern Ireland) Act 2011 Planning (Control of Demolition in Conservation Areas) Direction 2015.82 The concept of demolition is widened to include ‘any structural alteration of that building where the alteration consists of demolishing part of the building’.83 This is a reversal of the House of Lords decision in Shimizu which confined demolition to the whole of buildings. Applications are governed by the Planning (Conservation Areas) (Demolition) Regulations (Northern Ireland) 2015. DEMOLITION IN CONSERVATION AREAS IN ENGLAND 16.51 Since the vast majority of building demolition which required conservation area consent was part of a project involving new build which needed planning permission then there was always a strong case for incorporating demolition in conservation areas within planning control and abolishing conservation area consent. A  review of non-planning consents from Adrian Penfold in 2009 had made that recommendation. Under the Town and Country Planning (Demolition – Description of Buildings) Direction 1995, planning permission was not required for demolition which needed conservation area consent so there was not a duplication of consents at that point. However, in March 2011, the Court of Appeal in R  (SAVE  Britain’s Heritage) v Secretary of State for Communities and Local Government84 declared that most of the Demolition Direction, including that part, was unlawful. Consequently planning permission was also required, although this would usually be granted by the Town and Country Planning (General Permitted Development) Order 1995. The case for abolishing conservation area consent and merging that control with the need for planning permission became overwhelming. Since conservation area consent gave rise to immediate criminal liability, whereas breach of planning control does not, a number of consequential changes were required to maintain the standard of protection. 16.52 The Enterprise and Regulatory Reform Act 2013 introduced a series of amendments to bring about the abolition of conservation area consent and its replacement

Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168 at 183 per Lord Hope of Craighead. Shimizu at 185, 186 per Lord Hope. For the application of Shimizu see Walter Lilly & Co Ltd v Clin [2019] EWHC 945 (TCC) (appeal pending). 81 See Planning Act (Northern Ireland) 2011, s  85(8) for the ecclesiastical and scheduled monument exceptions. 82 Planning Act (Northern Ireland) 2011, s 105(1), (2). 83 Planning Act (Northern Ireland) 2011, s 105(8). 84 [2011] EWCA Civ 334, [2011] JPL 1016. 79 80

292

Demolition in conservation areas in England 16.54 by planning control, with effect from 1st October 2013.85 The need for conservation area consent under s  74 of the Listed Buildings Act was confined to Wales. In England it became an ‘offence for a person to carry out or cause or permit to be carried out relevant demolition without the required planning permission’: s 196D(1) of the Town and Country Planning Act 1990. Similarly, it is also ‘an offence for a person to fail to comply with any condition or limitation subject to which planning permission for relevant demolition is granted’.86 Relevant demolition defined as:87 ‘the demolition of a building that— (a) is situated in a conservation area in England; and (b) is not a building to which section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 does not apply by virtue of section 75 of that Act (listed buildings, certain ecclesiastical buildings, scheduled monuments and buildings described in a direction of the Secretary of State under that section).’

16.53 The health and safety defence in s 9 of the Listed Buildings Act is applied to this provision, so replicating the previous situation under conservation area consent:88 ‘It is a defence for a person accused of an offence under this section to prove the following matters— (a) that the relevant demolition was urgently necessary in the interests of safety or health; (b) that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; (c) that the relevant demolition was the minimum measure necessary; and (d) that notice in writing of the relevant demolition was given to the local planning authority as soon as reasonably practicable.’

The offence is triable either way, with maximum sentences of 12 months’ imprisonment in the magistrates’ court, or two years’ imprisonment in the Crown Court, or a fine in either court.89 Any financial benefit must be taken into account in sentencing90 and a subsequent grant of permission will not affect liability for an offence which has occurred.91 16.54 As planning permission is required for such demolition, the local planning authority has the usual range of enforcement provisions available to it. Historic England would be given power to prosecute or seek a planning injunction in respect of relevant demolition.92 A new ground of appeal against an enforcement notice applies

This is also discussed in the 2014 Supplement to Harwood, Historic Environment Law (Institute of Art and Law). 86 Town and Country Planning Act 1990, s 196D(2). 87 Town and Country Planning Act 1990, s 196D(3). 88 Town and Country Planning Act 1990, s 196D(4). 89 Town and Country Planning Act 1990, s 196D(5). Until the Criminal Justice Act 2003, s 154(1) comes into force, the maximum sentence in the magistrates’ court is six months’ imprisonment: proposed Town and Country Planning Act 1990, s 196D(6). 90 Town and Country Planning Act 1990, s 196D(8). 91 Town and Country Planning Act 1990, s 196D(9). 92 By amending the National Heritage Act 1983, s 33: see Enterprise and Regulatory Reform Act 2013, Sch 17, para 1. 85

293

16.55  Historic Environment for relevant demolition which was urgently necessary in the interests of health and safety:93 ‘(2C) Where any breach of planning control constituted by the matters stated in the notice relates to relevant demolition (within the meaning of section 196D), an appeal may also be brought on the grounds that— (a) the relevant demolition was urgently necessary in the interests of safety or health; (b) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; and (c) the relevant demolition was the minimum measure necessary.’

16.55 There is no time limit for taking enforcement action against relevant demolition, mirroring the current unlimited time for acting against conservation area consent breaches – see s 171B(2A): ‘There is no restriction on when enforcement action may be taken in relation to a breach of planning control in respect of relevant demolition (within the meaning of section 196D).’

For these provisions to be effective, permitted development rights for relevant demolition were removed.94 OUTSTANDING APPLICATIONS OF CONSERVATION AREA CONSENT PROVISIONS IN ENGLAND 16.56 When the need for conservation area consent was abolished from 1 October 2013 in England existing consents (and subsequent approvals of current applications) could be relied upon to authorise demolition after that date. Unauthorised demolition in conservation areas prior to 1  October 2013, and breaches of conditions on conservation area consents after that date in England can still be enforced against using the conservation area provisions. SCHEDULED MONUMENTS 16.57 The Secretary of State and Welsh Ministers may schedule monuments that they consider to be of national importance under s  1 of the Ancient Monuments and Archaeological Areas Act 1979 (AMAAA). In Northern Ireland monuments are scheduled under Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995. Approximately 20,000 monuments are presently scheduled in England. Works95 on a scheduled monument require scheduled monument consent, granted either expressly or under a class consent. Executing or causing or permitting to be executed works to a scheduled monument without authorisation is an offence .96 Town and Country Planning Act 1990, s 174(2C). Presently in Town and Country Planning (General Permitted Development) (England) Order 2015, Sch 2, Part 11, Classes B, C. 95 Defined by AMAAA, s 2; Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 4. 96 AMAAA, s 2(1); Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 4(1). 93 94

294

Scheduled monuments 16.60 This includes carrying out works which do not have consent, or carrying out works without complying with the terms of the consent97 or any conditions attached to it.98 The offence provides for unlimited fine in the Magistrates Court or Crown Court in England and Wales.99 Unlike listed building offences, no penalty of imprisonment is available. 16.58 The Welsh Ministers (in practice, Cadw) are empowered to issue scheduled monument enforcement notices.100 The notice must require works to cease and/or steps taken to restore the monument or land to its previous condition, alleviate the effect of the works or comply with a scheduled monument consent.101 There is a right of appeal to the magistrates’ court on the grounds:102 ‘(a) that the matters alleged to constitute the contravention … have not occurred; (b) that those matters, in so far as they have occurred, do not constitute a contravention of section 2(1) or (6); (c) that works to the monument or land were urgently necessary in the interests of safety or health and that— (i) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; (ii) the works carried out were limited to the minimum measures immediately necessary; and (iii) written notice justifying in detail the need for the works was given to the Welsh Ministers as soon as reasonably practicable; (d) that a copy of the notice was not served as required … (e) that a period specified … falls short of what should reasonably be allowed.”

16.59 There is a power for the Welsh Ministers to take direct action to take the steps required if the notice has not been complied with.103 It is an offence for the owner not to comply with a notice in the specified time, punishable by an unlimited fine.104 16.60 The Welsh Ministers are also empowered to issue a temporary stop notice prohibiting specified works to a scheduled monument ‘if, having regard to the effect of the works on the monument as one of national importance, they consider that it is expedient that the works are stopped immediately (or that part of them is)’.105

AMAAA, s 2(3)(b); Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 4(3)(b). 98 AMAAA, s 2(6); Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 4(6). 99 AMAAA, s  2(10). In Northern Ireland the maximum fine is £5,000 in the magistrates’ court and unlimited in the Crown Court: Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 4(9). 100 AMAAA, s 9ZC, inserted by the Historic Environment (Wales) Act 2016, s 12 from 21 May 2016. 101 AMAAA, s 9ZC(3), (5). 102 AMAAA, s 9ZE(3). 103 AMAAA, s 9ZF(2). 104 AMAAA, s 9ZG. 105 AMAAA, s 9ZI(2), inserted by the Historic Environment (Wales) Act 2016, s 13 from 21 May 2016. 97

295

16.61  Historic Environment AREAS OF ARCHAEOLOGICAL IMPORTANCE 16.61 Areas of archaeological importance can be designated by the Secretary of State, the Welsh Ministers, Historic England or local authorities under Pt II of the Ancient Monuments and Archaeological Areas Act 1979. In these areas there are special notice and access provisions to facilitate rescue archaeology. Failure to comply creates criminal liability.106 There are presently five such areas: the historic town centres of Canterbury, Chester, Exeter, Hereford and York. ARCHAEOLOGICAL INVESTIGATIONS AND METAL DETECTORS 16.62 In England and Wales under the Ancient Monuments and Archaeological Areas Act 1979 the use of metal detectors in ‘protected places’ is prohibited except with the written consent of Historic England or the Welsh Ministers. A  ‘metal detector’ is defined as ‘any device designed or adapted for detecting or locating any metal or mineral in the ground’.107 Whilst the provision was intended to control amateur treasure hunters, much equipment used by professional archaeologists is included within the definition. 16.63 A  protected place is a scheduled monument or a monument under the ownership or guardianship of a public body under the AMAAA or is situated in an area of archaeological importance. 16.64 The use of a metal detector without the necessary consent is a criminal offence punishable by a fine up to level 3.108 Additionally it is an offence to remove any object of archaeological or historical interest which he has discovered by the use of a metal detector in a protected place without such consent. 109 The removal offence is punishable by a £5,000 fine in the magistrates’ court or an unlimited fine on jury trial. Failure to comply with a condition on a metal detector consent amounts to one of two separate offences under sub-section (5). These are: (a) using a metal detector in a protected place in accordance with a consent but failing to comply with any condition attached to it; (b) removing or otherwise dealing with any object which he has discovered by the use of a metal detector in a protected place in accordance with a consent but failing to comply with any condition attached to it. The maximum sentence under subsection (a) is a level 3 fine and under subsection (b) sentencing in the magistrates’ court is to a level 5 fine or an unlimited fine in the Crown Court. 16.65 It is a defence to a prosecution for using a detector without consent that it was not used for detecting or locating objects of archaeological or historical interest (‘the car keys defence’).110 In England it is also a defence to the offence or using a

As they are little used, they are not discussed further here, but are considered in Richard Harwood, Historic Environment Law (Institute of Art and Law, 2012). 107 AMAAA, s 42(2). 108 AMAAA, s 42(1). 109 AMAAA, s 42(3). 110 AMAAA, s 42(6). 106

296

Sentencing 16.67 detector or removing a discovered object without consent that the defendant had taken all reasonable precautions to find out whether the place was a protected place and did not believe that it was a protected place.111 In Wales the accused must additionally prove that he had no reason to believe it was a protected place.112 16.66 In Northern Ireland all archaeological excavations require a licence from the Department for the particular land and archaeological purpose.113 It is a summary offence if a person ‘excavates in or under any land (whether or not such excavation involves the removal of the surface of the land) for the purpose of searching generally for archaeological objects or of searching for, exposing or examining any particular structure or thing of archaeological interest.’114 Any archaeological objects which are found have to be reported to the Department.115 SENTENCING 16.67 The sentencing issues which arise on the various historic environment offences are similar. Various sentencing factors were discussed by the Court of Appeal in R  v Duckworth, where a Grade II  Elizabethan listed building had been demolished without any application for consent. Hobhouse LJ considered previous scheduled monument sentencing decisions in Sims Ltd116 and Simpson117 and said:118 ‘It will only be in exceptional circumstances that it will be appropriate to pass a prison sentence; indeed, the criteria in the Criminal Justice Act have to be satisfied before a prison sentence is passed. There may be cases where the blatancy of the defendant’s conduct and the seriousness of his criminal behaviour do make such a course necessary. … The factors relevant to the sentence must include the following. First, the degree of damage that has been done to the historic structure. The purpose of this legislation is the preservation of the historic monuments and other similar structures that are protected by the legislation. The offence is an offence of damaging or altering those structures without the appropriate consent or permission. Therefore, the first factor in considering the seriousness of the offence is to consider the degree of damage that has been done. A  second factor is the degree of financial gain that the defendant has attempted to achieve. In nearly all cases financial gain will have been the motive of the defendant. If he disregards the provisions of the Act, it will almost certainly have been with a view to saving himself money or to the gaining of profit for himself. Where a financial penalty is being imposed on the defendant, it must take into account the financial advantage which the defendant was attempting to achieve, otherwise the deterrent and punitive effect of the sentence may be lost. Thirdly, and in many respects most importantly, is the degree of culpability of the defendant. These offences can be committed in a number of circumstances. They are

113 114 115 116 117 118 111 112

AMAAA, s 42(7). AMAAA, s 42(8). Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 41. Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 41(1). Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, Art 42. (1993) 14 Cr App R (S) 213. (1993) 14 Cr App R (S) 602. [1995] 16 Cr App R (S) 529 at 531.

297

16.68  Historic Environment sometimes described as offences of strict liability whether or not that term is wholly accurate. But the offence may be committed through a lack of care on the part of the defendant or indeed through ignorance of his proper responsibilities in the relevant matter. On the other hand, it may be a case where the defendant has acted wilfully, in disregard of the need to obtain consent, or he has even acted wilfully, with an intent to damage or destroy an historic structure.’

16.68 In R  v Johnson, the defendant had purchased a 160-year-old house of townscape merit in a conservation area in Twickenham, which he proceeded to demolish without consent. It was accepted that he was grossly negligent in not applying for consent. The agreed financial benefit was £109,000 mainly due to the absence of value added tax on new build works. The Court of Appeal referred to the Institute of Historic Buildings and Conservation’s database of sentences for heritage offences, summarising it in this way:119 ‘First, of the 150 fines recorded on that database, all but 19 are below £15,000. Secondly, of those 19, listed buildings account for 15; and the highest fine relating to an unlisted building in a conservation area is £15,000 (imposed in 2005 for the demolition, acknowledged to be in good faith, of two adjoining properties by a very substantial developer). Thirdly, the next unlisted building is one in the curtilage of a listed building, where the developer was fined £21,000 in 1992. Fourthly, only two entries on the database exceed the fine imposed on the applicant: in 1998 McCarthy and Stone (a major developer) was fined £200,000 for the demolition of Stelvio House, Newport, Gwent (a Grade II listed building); and in 2007 a developer was fined £95,000 on a total of 21 counts for unauthorised alterations to two Grade II* listed buildings in Park Street, Windsor. Fifthly, in 2007 an architectural practice was fined £25,000 and the contractor £20,000 for the substantial demolition of two Grade II Lodges by John Nash; they were listed buildings in Hanover House, Outer Circle, Regent’s Park, London.’

In the Johnson appeal the sentence was reduced from an £80,000 fine to £33,000, making allowance for the early guilty plea. 16.69 Johnson was followed by the Court of Appeal in R v Rance.120 Mr Rance had demolished a Victorian house in a conservation area in Fulham intending to rebuild a home for his family on the site.121 He had not applied for conservation area consent. In the light of the deliberate attempt to disregard planning procedures the Court of Appeal considered that a fine of £50,000 was appropriate, a reduction from the £120,000 imposed by the Crown Court. 16.70 The Institute of Historic Buildings and Conservation’s database122 is a useful resource but like most such lists should be used with caution. Sentences imposed will reflect all the circumstances which cannot be fully recorded on the database. The database is drawn from voluntary reporting, usually by local planning authorities, and so is not comprehensive. It is also not necessarily updated to reflect appeal decisions.

[2012] EWCA Crim 580, [2012] 2 Cr App R (S) 87. [2012] EWCA Crim 2023. 121 Although not in issue in the Court of Appeal, the demolition had consisted of removing the spine and side walls of the house. The front elevation then became unstable and consent was granted for its demolition. 122 At http://www.ihbc.org.uk/resources/resources.html. 119 120

298

Certificates of lawfulness of proposed works to listed buildings in England 16.74 16.71 Much heritage related crime involves theft or criminal damage which is prosecuted under the general offences, so reflecting the harmful intention involved, rather than under the heritage provisions. The Sentencing Guidelines include as aggravating factors ‘Damage caused to heritage and/or cultural assets’.123 A potential significant additional harm in theft offences is ‘Damage to heritage assets’.124 16.72 Historic England has given guidance on the preparation of Heritage Crime Impact Statements. There will usually be a need in heritage cases to produce evidence relevant to sentence, dealing with the historic and architectural importance of the asset, the effect of the unlawful works, possible remediation and any profit made. This evidence would not be relevant to whether an offence was committed unless to prove that a building was listed or that its special historic or architectural interest was affected by works. Evidence that is irrelevant to guilt should not be produced to the jury or magistrates (in the latter case, prior to verdict).125 CERTIFICATES OF LAWFULNESS OF PROPOSED WORKS TO LISTED BUILDINGS IN ENGLAND 16.73 Certificates of lawfulness of proposed works to listed buildings were introduced in England from 6th April 2014. Previously there was no formal mechanism for determining that listed building consent is not required short of doing the act and arguing the issue out in response to enforcement proceedings. A local planning authority may give an informal view (which will usually suffice) or it may decline to take action on a listed building consent application if it considers that consent is not required.126 A system of certificates was introduced as a new s 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990,127 modelled on the lawful development certificate regime.128 A certificate application may be made by ‘a person who wishes to ascertain whether proposed works for the alteration or extension of a listed building in England would be lawful’.129 They need not propose to carry out the works themselves. The ‘works would be lawful if they would not affect the character of the listed building as a building of special architectural or historic interest’.130 That definition of lawfulness is exclusive, so a certificate cannot be granted for works which are lawful because they benefit from an existing listed building consent.131 Legislative amendments to widen the regime are desirable. 16.74 The application must specify the building and describe the works and be in the form prescribed by regulations.132 It must be accompanied by:133 ‘(i) a plan identifying the listed building or buildings to which the application relates drawn to an identified scale and showing the direction of North; Published by the Sentencing Council under the Coroners and Justice Act 2009, s 120. The Theft General guidelines. 125 See R v Sandhu [1997] JPL 853. 126 Chambers v Guildford Borough Council [2008] EWHC 826 (QB), [2008] JPL 1459. 127 Inserted by Enterprise and Regulatory Reform Act 2013, s 61. 128 Much of the case law and discussion in Chapter 23 below will apply to the listed building certificates. 129 Listed Buildings Act 1990, s 26H(1). 130 Listed Buildings Act 1990, s 26H(2). 131 R (on the application of France) v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429, [2017] 1 WLR 3206 at paras 56–78 per Hickinbottom LJ. 132 Listed Buildings Act 1990, ss 26H(1), 26I(1); Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 2. 133 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 2(1)(d). 123 124

299

16.75  Historic Environment (ii) such plans, drawings and information as are necessary to describe the proposed works, together with a description of the part or parts of the listed building or buildings that are likely to be affected; (iii) a statement explaining why the applicant believes the proposed works would not affect the character of the listed building or buildings as a building or buildings of special architectural or historic interest; (iv) such evidence verifying the information included in the application as the applicant can provide; (v) a statement setting out the applicant’s interest in the listed building or buildings, the name and address of any other person known to the applicant to have an interest in the listed building or buildings and whether any such other person has been notified of the application; and (vi) where the application is made in respect of Crown land and where such an application is made by a person authorised in writing by the appropriate authority, a copy of that authorisation.’

16.75 If the local planning authority are provided with ‘information satisfying them that the works described in the application would be lawful at the time of the application, they must issue a certificate to that effect; and in any other case they must refuse the application’.134 They are allowed to allow or refuse an application in part or modify the description. A certificate must:135 ‘(a) specify the building to which it relates; (b) describe the works concerned; (c) give the reasons for determining that the works would be lawful; and (d) specify the date of issue of the certificate.’

Full reasons must be given for any refusal of an application in whole or in part, accompanied by a statement on the right to appeal.136 16.76 The works in a certificate are ‘conclusively presumed to be lawful’ provided that they are carried out within 10 years beginning with the date of issue of the certificate and the certificate has not been revoked.137 Revocation by the local planning authority is only possible:138 ‘if, on the application for the certificate— (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld.’

Listed Buildings Act 1990, s 26H(3). The question is whether the authority considers that they do not affect the special interest of the listed building, and the comment by Hickinbottom LJ in France that the ‘certification procedure is primarily aimed at the many cases where alterations are so small that they could not arguably affect the character of the building as one of special architectural or historic interest’ (at para 76) does not set out the test for determination. 135 Listed Buildings Act 1990, s 26H(4). 136 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 2(6). 137 Listed Buildings Act 1990, s 26H(5). 138 Listed Buildings Act 1990, s 26I(6). The revocation procedure is set out in Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 4. 134

300

Certificates of lawfulness of proposed works to listed buildings in England 16.78 16.77 An offence is created in a similar manner to lawful development certificates:139 ‘A person is guilty of an offence if, for the purpose of procuring a particular decision on an application (whether or not by that person) for the issue of a certificate under section 26H, the person— (a) knowingly or recklessly makes a statement which is false or misleading in a material particular; (b) with intent to deceive, uses any document which is false or misleading in a material particular; or (c) with intent to deceive, withholds any material information.’

The offence is punishable by a fine up to the statutory maximum on summary conviction or imprisonment for up to two years or a fine on indictment.140 16.78 The applicant has a right of appeal141 to the Secretary of State against refusal of the application in whole or in part, modification or substitution of the description or a failure to determine the application within the prescribed period of six weeks (or any longer agreed period).142 An appeal must be brought within six months of the decision or the expiry of the determination period.143 A published form must be used, and submitted with the application, the documents submitted in support of the application, any decision notice and all other relevant correspondence with the local planning authority.144 The appeal will be allowed if refusal was, or would not have been, well-founded.145

Listed Buildings Act 1990, s 26J(1). Listed Buildings Act 1990, s 26J(2). Section 26J(3) is a provision disapplying the six-month period for bringing summary only proceedings, which is entirely redundant as the offence is triable either way and so has no time limit. 141 Listed Buildings Act 1990, s 26K(1), (7). 142 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 2(5). 143 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 3(1). 144 Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014, reg 3(2). 145 Listed Buildings Act 1990, s 26K(4). 139 140

301

Chapter 17

Trees and Hedgerows

17.01

Separate regimes protect certain trees and hedgerows from damage and removal.

TREES 17.02 In England and Wales the Town and Country Planning Act 1990, ss 197– 214D make specific provision for trees.1 The Planning Act 2008 contained provisions to transfer more of the substance of the control to regulations by providing detailed regulation making powers (ss  202A–202G) and omitting many of the substantive provisions in the primary legislation. This change was introduced in England with the detail of the regime in the Town and Country Planning (Tree Preservation) (England) Regulations 2012.2 Wales has not brought the 2008 Act amendments into force and still uses the Town and Country Planning (Trees) Regulations 1999. In Northern Ireland similar provision is made by ss  121–128 of the Planning Act (Northern Ireland) 2011 and the Planning (Trees) Regulations (Northern Ireland) 2015. 17.03 (a)

Trees can be protected in three ways:

tree preservation order;

(b) interim protection in conservation areas; (c)

conditions in planning permissions.

Conditions affecting trees in planning permissions are enforced in the usual way. There is a duty to include appropriate provision for the preservation or planting of trees in a planning permission.3 Tree preservation orders 17.04 Tree preservation orders (‘TPOs’) can be made by local planning authorities to protect individual trees, groups of trees or woodlands if it is ‘expedient in the

Trees are not defined in the legislation. In Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government [2015] EWCA Civ 1250, [2016] 1 WLR 1839 Sir David Keene said at para 42 on the TPO legislation: ‘a tree is to be so regarded at all stages of its life, subject to the exclusion of a mere seed. A seedling would therefore fall within the statutory term, certainly once it was capable of being identified as of a species which normally takes the form of a tree.’ 2 See the Planning Practice Guidance and Protected trees: A  guide to tree preservation procedures (DCLG, 2012). 3 Town and Country Planning Act 1990, s 197(a); Planning Act (Northern Ireland) 2011, s 121. 1

302

Trees 17.05 interests of amenity’.4 A  TPO shall be in the form set out in the Schedule to the Regulations or in a form substantially to the like effect.5 The order must specify the trees, groups of trees or woodlands to which it relates and must indicate the position by reference to a map. The TPO will also identify the type or types of order it is. A TPO may identify an individual tree, a group of identified trees, be an area order which covers those trees in existence in a specified area at the time that the order is made,6 or a woodland order which applies to current and future trees and saplings within the identified area but which allows regeneration and new planting.7 On making a TPO the local planning authority in England or Wales must serve a copy on the owners and occupiers of the land affected.8 In Northern Ireland a copy is to be given to the persons interested in the land affected by the order.9 Where a tree overhangs a boundary, the notice would have to be given in respect of all land under the canopy. Formally the TPO only takes effect when it is confirmed by the local planning authority,10 but English TPOs have provisional effect until a decision on confirmation or six months have expired (whichever is earlier).11 In Wales and Northern Ireland there is discretion to make a provisional TPO which has effect for six months pending confirmation.12 Before deciding whether to confirm the TPO, the local planning authority will take account of objections or representations made within 28 days of service.13 On confirming the TPO the LPA may modify it. However this power is limited, especially if further trees are to be covered.14 The Secretary of State, Welsh Ministers and the Department have reserved power to make TPOs.15 17.05 The validity of a TPO may be challenged by an application to the High Court under s  288 of the Town and Country Planning Act 1990 within six weeks of its confirmation. There is no power to suspend the TPO by interim order under s 288 as the trees may then be cut down before the substantive hearing.16 In England and Wales the validity of a TPO may not be challenged by judicial review, whether before or after confirmation.17 Challenges to TPOs in Northern Ireland are brought by judicial review.

Town and Country Planning Act 1990, s 198(1); Planning Act (Northern Ireland) 2011, s 122(1). Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg  3(1), Town and Country Planning (Trees) Regulations 1999, reg 2(1). In Northern Ireland the order shall be in the form in the schedule to the Regulations: Planning (Trees) Regulations (Northern Ireland) 2015, reg 2. 6 It is a matter of interpretation of the individual TPO, but see Evans v Waverley Borough Council (1995) 94 LGR 227; Barnsley Metropolitan Borough Council v Hadfield [2018] EWHC 866 (QB), [2019] PTSR 111 at paras 69, 81 per Garnham J. 7 See Planning Practice Guidance ID 36-011, 026-029. 8 Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 5; Town and Country Planning (Trees) Regulations 1999, reg 3. 9 Planning (Trees) Regulations (Northern Ireland) 2015. 10 For Wales in the Town and Country Planning Act 1990, s 199(1); Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 4(1); Planning Act (Northern Ireland) 2011, s 122(3). 11 Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 4(2). 12 In Wales, Town and Country Planning Act 1990, s 201; Planning Act (Northern Ireland) 2011, s 123. 13 Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 7, Town and Country Planning (Trees) Regulations 1999, reg 5(1). In Northern Ireland the period is that specified in the notice for the making of the order, which must be at least 28 days after the date of the notice: Planning (Trees) Regulations (Northern Ireland) 2015, regs 3(2)(c), 4. 14 Evans v Waverley Borough Council [1995] 3 PLR 80. 15 Town and Country Planning Act 1990, s 202; Planning Act (Northern Ireland) 2011, s 124. 16 Town and Country Planning Act 1990, s 288(5), (6). See Chapter 24 for High Court challenges, and for more discussion of s 288 see Richard Harwood, Planning Permission (Bloomsbury, 2016) Chapter 25. 17 Town and Country Planning Act 1990, s 284(1), (2). 4 5

303

17.06  Trees and Hedgerows Tree preservation order consents and exemptions 17.06 Subject to exemptions, tree preservation area consent is required to cut down, top, lop, uproot or wilfully damage or destroy a tree or cause or permit the cutting down, topping, lopping, wilful damage or wilful destruction of a tree specified in a TPO.18 There are various exemptions to the requirement for consent. In England these are contained in the regulations,19 whilst in Wales and Northern Ireland they are in the respective Acts and the form of order scheduled to the regulations.20 These exemptions include: works to trees dying, dead or in a dangerous condition; compliance with the requirements of an Act of Parliament; preventing or abating a nuisance;21 development authorised by a planning permission; cultivation of trees for fruit in the course of a business or trade; and felling authorised by a felling licence. 17.07 Tree preservation order consents are granted by the local planning authority (or on appeal, the Secretary of State or Welsh Ministers) and may be subject to conditions. If loss or damage is suffered by reason of the refusal of TPO consent, the grant of any consent subject to conditions or the refusal of consent under any conditions imposed on a consent, then compensation is recoverable under the terms of the TPO.22 The compensation is payable by the authority which made the TPO and the claim should be lodged within 12 months. Disputes as to compensation may be referred to the Upper Tribunal (Lands Chamber).23 Breach of a tree preservation order 17.08 Two separate offences of contravening a TPO are created, depending upon the nature of the contravention. The first offence is under s 210(1), Town and Country Planning Act 1990:24 ‘If any person, in contravention of a tree preservation order (a) cuts down, uproots or wilfully destroys a tree; [or] (b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it.’

In England a paragraph (c) is added to subsection (1) that an offence is also committed if a person ‘causes or permits the carrying out of any of the activities in paragraph (a) or (b)’. This is strictly unnecessary as a person who caused the acts would have See Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 13 and the form in the Schedule at para 3; Town and Country Planning (Trees) Regulations 1999, Schedule form at para 4 for Wales and Planning (Trees) Regulations (Northern Ireland) 2015, Schedule form. 19 Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 14. 20 Town and Country Planning Act 1990, s 198(6) and Town and Country Planning (Trees) Regulations 1999, Schedule form at para  5; Planning Act (Northern Ireland) 2011, s  122(5), Planning (Trees) Regulations (Northern Ireland) 2015, Schedule 3 of the form. 21 In Perrin v Northampton Borough Council [2006] EWHC 2331 (TCC), [2007] Env LR 12 at para 44, 45 per Coulson J it was held that ‘nuisance’ means actionable nuisance in private or public nuisance. 22 In England under Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 24; in Wales under Town and Country Planning Act 1990, s 203 and the Schedule form, para 9; Planning (Trees) Regulations (Northern Ireland) 2015, Schedule 2 of the form. 23 In England under Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 24(9); in Wales under Town and Country Planning Act 1990, s 205; Planning (Trees) Regulations (Northern Ireland) 2015, Schedule  2 of the form, para  6. For examples see John Lyon Charity v Westminster City Council [2012]  UKUT  117 (LC), [2012]  JPL  985; Factorset Ltd v Selby District Council [1995] 2 PLR 11. 24 The Planning Act (Northern Ireland) 2011, s 126(1) is to similar effect. 18

304

Trees 17.11 carried them out and a person who permits is likely to be a secondary party as having aided or abetted, counselled or procured. 17.09 (a)

The prosecution must prove that:

the tree was subject to a TPO;

(b) the defendant carried out the activities identified in the statute; and (c)

the activities were in contravention of the order.

It is for the defendant to prove that any exemption, such as danger, applies.25 17.10 The subsection (1) offence is punishable on the same basis as breach of an enforcement notice: an unlimited fine in the magistrates’ court or in the Crown Court.26 As with many other enforcement offences, regard is to be had to any benefit accruing to the defendant.27 17.11 The second tree offence is under s 210(4), Town and Country Planning Act 1990 or s 126(3), Planning Act (Northern Ireland) 2011 and arises: ‘If any person contravenes the provisions of a tree preservation order otherwise than as mentioned in subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.’

This includes topping, lopping and wilful damage not likely to destroy the tree. The time period for bringing prosecutions under subsection (4) is extended in England. The usual time limit for laying an information or a charge for a summary offence is 12 months. Proceedings may also be brought for the offence within six months of the date on which the prosecutor had sufficient evidence to justify the proceedings, provided the prosecution is brought within three years of the date of the offence.28 The prosecutor may certify when sufficient information was known.29 Whilst that certificate is expressed to be ‘conclusive’ it is subject to review by the magistrates’ court on normal public law grounds, as an abuse of process or if there is fraud, additionally the certificate must comply in substance and form with the statutory requirements.30 This extension to the time limit does not apply in Wales.31 There is no statutory requirement to have regard to financial benefit when sentencing for this offence, and it may be that such a benefit is less likely, but the presence or absence of a financial benefit would be relevant to sentence in any event. R v Alath Construction Ltd [1990] 1 WLR 1255. Town and Country Planning Act 1990, s 210(2). The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 18. In Northern Ireland the offence is triable either way, with a maximum fine of £100,000 in the magistrates’ court and unlimited in the Crown Court: Planning Act (Northern Ireland) 2011, s 126(1). 27 Town and Country Planning Act 1990, s 210(3); Planning Act (Northern Ireland) 2011, s 126(2). The Proceeds of Crime Act 2002 may apply against any financial benefit, such as an increase in land values due to a created view, but must be subject to the effect of any replanting obligation. 28 Town and Country Planning Act 1990, s  210(4A), (4B). These provisions were inserted by the Localism Act 2011 and only apply to offences committed on or after 6 April 2012. 29 Town and Country Planning Act 1990, s 210(4C), (4D). 30 Burwell v Director of Public Prosecutions [2009]  EWHC  1069 (Admin). There is a degree of judgment involved in assessing what evidence justifies making the application: see RSPCA v Johnson [2009] EWHC 2702 (Admin). 31 Town and Country Planning Act 1990, s 210(4E). 25 26

305

17.12  Trees and Hedgerows Replacement of trees 17.12 The replacement of trees subject to TPOs is governed by ss 206 and 207, Town and Country Planning Act 1990 and s 125, Planning Act (Northern Ireland) 2011. This duty applies where a tree is unlawfully removed and in the case of certain lawful removals. A tree covered by a TPO must be replaced if: (a) it was removed, uprooted or destroyed in contravention of tree preservation regulations (or in Wales or Northern Ireland, contravention of the TPO);32 (b) (in England) the tree, ‘except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a prescribed time’.33 A prescribed time is when the tree is dead or if the works are done to remove an immediate risk of serious harm34; (c)

‘except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of the exception for trees which are dead, dying or dangerous; 35 or

(d) conditions under a TPO consent require it.36 Subject to any different requirement in a condition, the duty of the owner of the land is ‘to plant another tree of an appropriate size and species at the same place as soon as he reasonably can’.37 17.13 If the replacement requirements are not complied with, the local planning authority may serve a notice requiring the planting of specified trees in a specified time. Section 207(1), Town and Country Planning Act 1990 provides:38 ‘(1) If it appears to the local planning authority that— (a) the provisions of section 206, or (b) any conditions of a consent given under a tree preservation order which require the replacement of trees, are not complied with in the case of any tree or trees, that authority may serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such size and species as may be so specified.’

17.14 This tree replacement notice must be served within four years of the breach in England or Wales39 and within five years in Northern Ireland.40 Like enforcement notices, the notice only takes effect from a time specified in the notice, at least 28 days from the date of service.41 The tree replacement notice can be appealed to the

34 35 36 37 38

Town and Country Planning Act 1990, s 206(1)(a); Planning Act (Northern Ireland) 2011, s 125(1)(a). Town and Country Planning Act 1990, s 206(1)(b) (as amended by the Planning Act 2008). Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 25. Town and Country Planning Act 1990, s 206(1)(b); Planning Act (Northern Ireland) 2011, s 125(1)(b). See Town and Country Planning Act 1990, s 207(1). Town and Country Planning Act 1990, s 206(1); Planning Act (Northern Ireland) 2011, s 125(1). Planning Act (Northern Ireland) 2011, s 164(1) is in equivalent terms. Unnecessarily, s 164(3) also says that the compliance period has to be specified in the notice. 39 Town and Country Planning Act 1990, s 207(2). 40 Planning Act (Northern Ireland) 2011, s 164(2). 41 Town and Country Planning Act 1990, s 207(3), (4); Planning Act (Northern Ireland) 2011, s 164(4). 32 33

306

Trees 17.18 Secretary of State, Welsh Ministers or Planning Appeals Commission. The grounds of appeal in England and Wales are (s 208(1)):42 ‘(a) that the provisions of s  206 or, as the case may be, the conditions mentioned in s 207(1)(b) are not applicable or have been complied with; (aa) that in all the circumstances of the case the duty imposed by s  206(1) should be dispensed with in relation to any tree; (b) that the requirements of the notice are unreasonable in terms of period or the size or species of trees specified in it; (c) that the planting of a tree or trees in accordance with the notice is not required in the interests of amenity or would be contrary to the practice of good forestry; (d) that the place on which the tree or trees are required to be planted is unsuitable for that purpose.’

17.15 The procedure on appeal follows the procedure for enforcement notice appeals.43: see Chapter 7 above. The lawfulness of the Minister’s decision on a s 208 appeal can be challenged on a point of law by an appeal to the High Court under s 289(2),44 with Northern Irish challenges being by judicial review. 17.16 In a similar manner to direct action in respect of enforcement notices,45 the local planning authority can enter the land and plant the trees, recovering the cost from the owner, if a tree replacement notice is not complied with.46 It is an offence to obstruct a person exercising this power.47 The replacement provisions are unusually constrained. The replanting duty may only be enforced by a tree replacement notice.48 It is not an offence to fail to comply with the tree replacement notice. However, the notice may have been issued following a breach of the TPO creating an offence and so a prosecution may be brought or injunction sought in respect of the original breach. Trees in conservation areas 17.17 Trees in conservation areas receive interim protection by a requirement that notice is served by the person intending to do the works on the local planning authority before they are damaged or destroyed. The tree works may be carried out if the authority consent or six weeks have passed, unless a tree preservation order is made before they are carried out. 17.18 The structure of the offence is unduly complex. Section 211 Town and Country Planning Act 1990 creates an offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree in a conservation area subject to various exceptions. In England s 211(1) provides:

The Northern Irish provisions are identical but use the 2011 Act references: Planning Act (Northern Ireland) 2011, s 165(1). 43 Town and Country Planning Act 1990, s 208; Planning Act (Northern Ireland) 2011, s 165. 44 See Chapter 24 for discussion of these challenges. 45 See Chapter 8 above. 46 Town and Country Planning Act 1990, s 209. 47 Town and Country Planning Act 1990, s 209(6). 48 Town and Country Planning Act 1990, s 207(5); Planning Act (Northern Ireland) 2011, s 164(5). 42

307

17.19  Trees and Hedgerows ‘Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 202C be prohibited by tree preservation regulations shall be guilty of an offence.’

17.19 The acts which might be prohibited by s 202C are cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees and causing or permitting such acts. In Wales, s 211(1) refers to the identical list of acts in s 198(3)(a). The equivalent Northern Irish provisions in s 127 cover the same acts.49 Exceptions to the prohibition are: (a) the act is authorised by an order granting development consent under the Planning Act 2008;50 (b) the tree is subject to a TPO (when that regime applies); and51 (c) the tree or the act is exempted by the tree regulations.52 In England the exemptions are those in reg  14 and additional exemptions in reg  15.53 In particular these include the cutting down, uprooting, topping or lopping of a tree whose diameter (or the diameter of any stem) does not exceed 75 millimetres at a point 1.5 metres above the natural ground level.54 17.20

If the act falls within the conservation area provisions, it is then a defence:55

‘(a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and (b) that he did the act in question— (i) with the consent of the local planning authority in whose area the tree is or was situated, or (ii) after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date.’

17.21 This defence of six-week notice is the heart of the provision. The notice period gives the local planning authority time to decide whether to make a TPO to protect the tree or trees. Service of the notice on the authority ought to be in accordance with its procedures and in case of doubt, the statutory provisions on notice.56 The principal issue is whether the removal of the tree causes harm to the

Planning Act (Northern Ireland) 2011, s 127(1), referring to s 122(1)(a). Town and Country Planning Act 1990, s 211(1A). 51 Town and Country Planning Act 1990, s  211(2); Planning Act (Northern Ireland) 2011, s  127(2). Which of course means that the works can be done if excepted by the TPO or authorised by a TPO consent. 52 Town and Country Planning Act 1990, s 211(4) applying s 210; Planning Act (Northern Ireland) 2011, s 128 applying s 127. 53 Town and Country Planning (Tree Preservation) (England) Regulations 2012. 54 Town and Country Planning (Tree Preservation) (England) Regulations 2012, reg 15(1), (2); Town and Country Planning (Trees) Regulations 1999, reg 10. The diameter limit is increased to 100 mm if the cutting down or uprooting is solely to improve the growth of other trees. It is prudent for a landowner to take a photographic record of such diameters prior to works. 55 Town and Country Planning Act 1990, s 211(3); Planning Act (Northern Ireland) 2011, s 127(3), the Northern Irish provisions referred to the ‘person’ rather than ‘he’. 56 There is no prescribed form, but authorities will usually have one and a standard form is available on the Planning Portal website. 49 50

308

Trees 17.25 character and appearance of the conservation area.57 The expiry of the six-week period does not prevent the local planning authority from making a TPO to protect the trees before the works are carried out.58 17.22 Section 210 applies to the offence. As discussed above this creates two separate offences: one triable either way (from s  210(1)) and one summary (from s 210(4)). A summons alleging wilful damage, topping or lopping must say it was likely to destroy the tree if the more serious offence is brought. 17.23 If a tree is removed, uprooted or destroyed in contravention of the conservation area provisions or the act was only justified by the Regulations because the tree was dying, dead or dangerous or in compliance with statutory obligations or necessity for the prevention or abatement of a nuisance, the owner must replace it.59 The owner may apply to the local planning authority for this obligation to be dispensed with.60 If the obligation is not dispensed with and he fails to comply, the tree replacement notice procedure applies.61 Tree injunctions 17.24 A specific injunction power is provided for England and Wales in s 214A, Town and Country Planning Act 1990. Section 214A(1) provides: ‘Where a local planning authority consider it necessary or expedient for an actual or apprehended offence under section 210 or 211 to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Chapter.’

17.25 This follows the wording of s  187B(1), and the remaining provisions of that section are applied by reference. The principles applicable to injunctions to restrain breaches of planning control generally apply to tree injunctions. The main points of emphasis would be that the destruction of a mature tree is hard to remedy except in decades so the balance of convenience may be more in favour of an interim injunction. However in Kirklees Borough Council v Brook,62 the High Court held that removing branches, damaging bark, uprooting whole trees and depositing waste on the lower parts of trees was not in that case so serious as to justify an injunction. The general planning injunction power in Northern Ireland is applied to actual or apprehended offences under the TPO and trees in conservation area legislation.63

Sherwood and Sherwood v Secretary of State for the Environment [1996]  JPL  925, following the approach in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141. 58 R v North Hertfordshire District Council, ex p Hyde [1989] 3 PLR 89. 59 Town and Country Planning Act 1990, s 213(1), Planning Act (Northern Ireland) 2011, s 168(1). 60 Town and Country Planning Act 1990, s 213(2), Planning Act (Northern Ireland) 2011, s 168(2). 61 Town and Country Planning Act 1990, s 213(3), Planning Act (Northern Ireland) 2011, s 168(3). 62 [2004] EWHC 2841 (Ch), [2005] 2 P & CR 17. For a successful injunction application see Barnsley Metropolitan Borough Council v Hadfield [2018] EWHC 866 (QB), [2019] PTSR 111. 63 Planning Act (Northern Ireland) 2011, s 156(1)(b), referring to ss 126, 127. 57

309

17.26  Trees and Hedgerows Powers of entry in respect of trees 17.26 Persons authorised by the local planning authority are given powers of entry in connection with TPOs, TPO and conservation area offences and tree replacement notices. In England and Wales these provisions, in the Town and Country Planning Act 1990, ss  214B–214D, parallel the entry provisions in ss 196A–196C. In Northern Ireland the comprehensive powers of entry provisions in the Planning Act (Northern Ireland) 2011, ss 176–178 apply. HEDGEROWS IN ENGLAND AND WALES 17.27 The Environment Act 1995 empowered the Secretary of State to make regulations to protect important hedgerows.64 Applying to England and Wales, the Hedgerows Regulations 199765 require consent from the local planning authority for the removal of ‘important hedgerows’ over 20 metres in length (or, if shorter, meeting other hedgerows at each end) growing in, or adjacent to, any common land, designated nature reserve or site of special scientific interest, or land used for agriculture, forestry or the breeding or keeping of horses, ponies or donkeys, unless they are within or mark the boundary of the curtilage of a dwellinghouse.66 Important hedgerows are those over 30 years old which meet one of the criteria in Pt II of Sch 1 to the Regulations. These criteria cover archaeology and history and wildlife and landscape. 17.28 An important hedgerow may only be removed (subject to exceptions)67 if the owner has served a hedgerow removal notice on the local planning authority and either consent has been given or a period of 42 days has passed without the authority serving a hedgerow retention notice.68 Where a hedgerow retention notice has been given stating that work relating to a hedgerow may not be carried out, and that notice has not been withdrawn, removal of the hedgerow consisting of or including any such work is prohibited.69 17.29 The hedgerows regime is enforceable by criminal prosecution, notice and injunction. By reg 7(1): ‘A person who intentionally or recklessly removes, or causes or permits another person to remove, a hedgerow in contravention of regulation 5(1) or (9) is guilty of an offence.’

Regulation 5(1) is carrying out works without waiting for a consent or the time for a retention notice to pass. Regulation 5(9) is removal in contravention of a retention notice. The regulation 7(1) offence is triable either way, with an unlimited fine in the magistrates’ court or the Crown Court.70

Environment Act 1995, s 97. SI 1997/1160. 66 Hedgerows Regulations, reg 3. 67 The exceptions are in the Hedgerows Regulations, reg 6. 68 Hedgerows Regulations, reg 5(1). 69 Hedgerows Regulations, reg 5(9). 70 Hedgerows Regulations, reg 7(4). 64 65

310

Hedgerows in England and Wales 17.34 17.30 One of the exceptions to needing to give notice is if the removal is required ‘for making a new opening in substitution for an existing opening which gives access to land’.71 This exception is subject to the requirement in reg 6(2) that: ‘Where the removal of a hedgerow to which these Regulations apply is permitted by these Regulations only by paragraph (1)(a), the person removing it shall fill the existing opening by planting a hedge within 8 months of the making of the new opening.’

17.31

By reg 7(2):

‘A person who contravenes or fails to comply with regulation 6(2) is guilty of an offence.’

This offence is punishable by a fine not exceeding level 3 (£1,000) in the magistrates’ court.72 For both hedgerows offences, the court shall have regard to any financial benefit which has accrued or appears likely to accrue to the defendant when sentencing.73 Company directors may be liable if their companies are in breach.74 17.32 If a hedgerow has been removed in breach of reg  5, the local planning authority may serve a hedgerow replacement notice on the owner of the land (or if removed by a utility operator, on that operator) requiring another hedgerow to be planted.75 The notice shall state the species and position of the shrubs, or trees and shrubs, to be planted and the period within which the planting is to be carried out.76 The authority may carry out the works in default and recover the cost from the owner as under the tree preservation order regime.77 17.33 A  hedgerow retention notice or a hedgerow replacement notice may be appealed to the Secretary of State or Welsh Ministers within 28 days of the notice being given to the appellant, or any longer period allowed by the Minister.78 Grounds of appeal must be stated in the notice of appeal.79 Appeals may be determined by written representations, hearing or inquiry, with the appellant and local planning authority having a right to be heard.80 The usual powers on evidence and costs apply.81 The Minister or an inspector may allow or dismiss the appeal in whole or in part and give directions, including directing the quashing or modification of the notice.82 17.34 In similar terms to planning injunctions, the local planning authority may apply for an injunction to restrain an actual or apprehended breach of the Hedgerow Regulations:83

73 74 75 76 77 78 79 71 72

82 83 80 81

Hedgerows Regulations, reg 6(1). Hedgerows Regulations, reg 7(5). Hedgerows Regulations, reg 7(6). Hedgerows Regulations, reg 7(7), applying Town and Country Planning Act 1990, s 331. Hedgerows Regulations, reg 8(1). Hedgerows Regulations, reg 8(2). Hedgerows Regulations, reg 8(3). Hedgerows Regulations, reg 9(1). Hedgerows Regulations, reg 9(2). An appeal form is on the Planning Portal website, although its use is not obligatory. Hedgerows Regulations, reg 9(4). Hedgerows Regulations, reg 9(5). Hedgerows Regulations, reg 9(3). Hedgerows Regulations, reg 11.

311

17.34  Trees and Hedgerows ‘(1) Where a local planning authority consider it necessary or expedient for an actual or apprehended offence under these Regulations to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under these Regulations. (2) On an application under paragraph (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the offence.’

Rights of entry with and without warrants are also provided.84

Hedgerows Regulations, regs 12, 13.

84

312

Chapter 18

Advertising Control

18.01 Advertising control is subject to a special statutory regime. This provides a separate system of advertising consent, replacing planning permission, with its own enforcement mechanism, but if advertising consent is not obtained, conventional planning enforcement remedies apply in addition to advertising offences. The advertising regime is principally contained in the Town and Country Planning Act 1990, ss 220–225E and the Planning Act (Northern Ireland) 2011, ss 130, 175. The detail of this control is in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (‘the England Advertising Regulations’). These replaced, with amendments, the Town and Country Planning (Control of Advertisements) Regulations 1992 (‘the 1992 Advertising Regulations’). The relevant secondary legislation in Wales remains the 1992 Regulations and so these are referred to, for clarity, as the Wales Advertising Regulations. Finally provision is made by the Planning (Control of Advertisements) Regulations (Northern Ireland) 2015 (‘the Northern Ireland Regulations’). 18.02 Advertisement is comprehensively and exhaustively defined in the respective Acts as follows:1 ‘any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used, or designed, or adapted for use and anything else principally used, or designed or adapted principally for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly’.

18.03 The definition is somewhat circular as the advertisement must be ‘in the nature of, and employed wholly or partly for the purposes of advertisement, announcement or direction’, but announcement or direction gives it a very broad meaning. Whilst there may be debate whether a sign which merely contained a statement of political opinion would be an advertisement, one which included the website details of a political organisation would be.2 Similarly, faded advertisements for newspapers which had ceased publication in 1921 and which had not been maintained since were not ‘employed … for the purposes of advertisement’ in 2004.3 However advertisements include signage giving the name or number of a building.

Town and Country Planning Act 1990, s 336(1); Planning Act (Northern Ireland) 2011, s 250(1). See Butler v Derby City Council [2005] EWHC 2835 (Admin), [2006] 1 WLR 1346. 3 Wandsworth London Borough Council v South Western Magistrates’ Court [2007]  EWHC  1079 (Admin). 1 2

313

18.04  Advertising Control 18.04 An advertisement in the definition includes the advertisement displayed as well as any hoarding or similar structure or anything else used principally for the display of advertisements. Both consent and enforcement provisions need to be looked at on the basis that they encompass both elements. 18.05 The objectives of the advertising regime are set out by the power given to the Secretary of State, Welsh Ministers or the Department to make regulations regulating the display of advertisements ‘so far as appears … expedient in the interests of amenity or public safety’.4 The concern is with the presence of the advertisement on the site, rather than the tastefulness (or otherwise) of the individual advertisement. However, the purpose of an advertisement and its relationship with the use of the land is often critical to acceptability. Signage which gives the address of a building or explains its use may be seen as permissible when more general commercial advertising would not be. Consequently the categories of advertisements which do not need an express application for approval are closely related to their purposes. 18.06 The England Advertising Regulations require local planning authorities to exercise their powers under the Regulations ‘in the interests of amenity and public safety’ taking into account the development plan, so far as material, and any other relevant factors.5 Some relevant factors are set out:6 ‘(a) factors relevant to amenity include the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest; (b) factors relevant to public safety include— (i) the safety of persons using any highway, railway, waterway, dock, harbour or aerodrome (civil or military); (ii) whether the display of the advertisement in question is likely to obscure, or hinder the ready interpretation of, any traffic sign, railway signal or aid to navigation by water or air; (iii) whether the display of the advertisement in question is likely to hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle’.

18.07 The Wales Advertising Regulations refer to the interests of amenity and public safety but not to the development plan. The non-exclusive list of material factors for local planning authorities in Wales is:7 ‘(a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there; (b) in the case of public safety— (i) the safety of any person who may use any road, railway, waterway, dock, harbour or aerodrome;

6 7 4 5

Town and Country Planning Act 1990, s 220(1); Planning Act (Northern Ireland) 2011, s 130(1). England Advertising Regulations, reg 3(1). England Advertising Regulations, reg 3(2). Wales Advertising Regulations, reg 4(1).

314

The categories of advertisements 18.10 (ii) whether any display of advertisements is likely to obscure, or hinder the ready interpretation of, any road traffic sign, railway signal or aid to navigation by water or air’.

18.08 In Northern Ireland, councils are able to exercise their powers ‘only in the interests of amenity and public safety’, taking into account the local development plan and any other relevant factors.8 The relevant factors may include:9 “(a) factors relevant to amenity include the general characteristics of the locality, including the presence of any feature of historic, archaeological, architectural or cultural interest, disregarding, if it thinks fit, any advertisements being displayed there; (b) factors relevant to public safety include— (i) the safety of any person who may use any road, railway, waterway (including coastal waters), docks, harbour or airfield; (ii) whether any display of advertisements is likely to obscure, or hinder the ready interpretation of any road traffic sign, railway sign, or aid to navigation by water or air.”

The requirement in England and Northern Ireland to have regard to the development plan means that decisions should be taken in accordance with it, unless material considerations indicate otherwise.10 18.09 The National Planning Policy Framework’s policy on advertising is brief and is in the section ‘achieving well-designed places’:11 ‘The quality and character of places can suffer when advertisements are poorly sited and designed. A  separate consent process within the planning system controls the display of advertisements, which should be operated in a way which is simple, efficient and effective. Advertisements should be subject to control only in the interests of amenity and public safety, taking account of cumulative impacts’.

Further advice is contained in the Planning Practice Guidance.12 Welsh guidance is in Circular 14/92 and Technical Advice Note 7: Outdoor Advertisement Control. Advice in Planning Policy Statement 17 remains in force in Northern Ireland. THE CATEGORIES OF ADVERTISEMENTS 18.10

Advertisements fall under three categories under the England Regulations:

(1) advertisements which do not need consent, which are identified in Sch 1 to the England Advertising Regulations;13

Northern Ireland Advertising Regulations, reg 3(1). Northern Ireland Advertising Regulations, reg 3(2). 10 Planning and Compulsory Purchase Act 2004, s 38(6); Planning Act (Northern Ireland) 2011, s 6(4). 11 NPPF (2019), para 132. 12 ID-18b-001 to 18b-079. Communities and Local Government Circular 03/2007 Town and Country Planning (Control of Advertisements) (England) Regulations 2007 was cancelled on publication of the Planning Practice Guidance and Planning Policy Guidance Note 19 on advertising control was revoked by the NPPF. 13 England Advertising Regulations, regs 1(3), 4(2). Under the Wales Advertising Regulations this category is known as ‘exempt advertisements’ and is in Sch 2. 8 9

315

18.11  Advertising Control (2) advertisements with deemed consent under Sch 3 to the England Advertising Regulations;14 and (3) advertisements requiring express consent by the approval of an application by the local planning authority or the Secretary of State.15 18.11 In Wales, advertisements which do not need consent are identified in Sch 2 to the Wales Advertising Regulations as exempt advertisements. Categories of deemed consent are also set out in Sch 3 to those earlier regulations but they differ, as to detail, with the English deemed consent provisions. Similarly in Northern Ireland, Sch 2 contains the advertisements which do not need consent and Sch 3 those with deemed consent.16 18.12 Subject to limited exceptions, advertisements require express or deemed consent. Regulation 4(1) of the England Regulations provides: ‘Subject to paragraph  (2), no advertisement may be displayed unless consent for its display has been granted— (a) by the local planning authority or the Secretary of State on an application in that behalf (referred to in these Regulations as ‘express consent’); or (b) by regulation 6 (referred to in these Regulations as ‘deemed consent’)’.

18.13 The paragraph  (2) exception is for the Schedule  1 advertisements, with similar exceptions in Schedule 2 of the Welsh and Northern Irish regulations. These advertisements include advertisements on enclosed land,17 vehicles,18 items for sale, election posters, traffic signs, and the flags of nations, the European Union,19 the United Nations, international organisations (of which the UK is a member), St Patrick, St David, armed forces and administrative areas.20 A more general category is an exemption for non-illuminated advertisements inside buildings which may be visible externally, provided ‘[N]o part of the advertisement may be within 1 metre of any external door, window or other opening, through which it is visible from outside the building’.21 16 17 14 15



18



19 20



21

England Advertising Regulations, reg 6. England Advertising Regulations, reg 4(1). Northern Ireland Advertising Regulations. Including railway and bus stations but all subject to the requirement that ‘is not readily visible from outside the enclosed land or from any place to which the public have a right of access’: England Advertising Regulations, Sch 1, table, para 1. The vehicle must not be used principally for the display of advertisements. This relates to use at the time of the alleged advertising: see Tile Wise Ltd v South Somerset District Council [2010] EWHC 1618 (Admin), [2011] PTSR 381; Calderdale Metropolitan Borough Council v Windy Bank Dairy Farm Ltd [2010] EWHC 2929 (Admin), [2011] JPL 754. Despite Brexit. The extended list of flags came into force in England in 2012. Administrative areas whose flags may be flown are any island, county, district, borough, burgh, parish, city, town or village within the United Kingdom and the Black Country, East Anglia, Wessex, any part of Lincolnshire, any Riding of Yorkshire and any historic county. The flags of St George and St Andrew are national flags. In Wales and Northern Ireland the only exempt flags are national flags. The Secretary of State has published the Plain English guide to flying flags (November 2012). England Advertising Regulations, Sch 1, Class I. Sch 2, Class J of the Welsh legislation and Sch 2, Class I in Northern Ireland are in similar terms but the exemption does not apply to buildings used principally for the display of advertisements. The Northern Irish exemptions also include tethered balloons and advertisements incorporated into the fabric of a building: Northern Ireland Advertising Regulations, Schedule 2, Class A and D.

316

Standard conditions 18.16 18.14 In both regulations, reg 6 grants deemed consent for advertisements within classes in Sch  3. This deemed consent is subject to conditions and limitations in the particular class. Express consent is obtained by application to the local planning authority in a similar way to seeking planning permission. If the application is refused, granted subject to conditions or not determined, then an appeal may be brought to the Secretary of State, Welsh Ministers or the Planning Appeals Commission. Such appeals are normally determined by written representations or informal hearing. STANDARD CONDITIONS 18.15 Standard conditions must be complied with for all advertisements.22 In England these conditions are:23 ‘1. No advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission. 1

No advertisement shall be sited or displayed so as to— (a) endanger persons using any highway, railway, waterway, dock, harbour or aerodrome (civil or military); (b) obscure, or hinder the ready interpretation of, any traffic sign, railway signal or aid to navigation by water or air; or (c) hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle.

18.16

2

Any advertisement displayed, and any site used for the display of advertisements, shall be maintained in a condition that does not impair the visual amenity of the site.

3

Any structure or hoarding erected or used principally for the purpose of displaying advertisements shall be maintained in a condition that does not endanger the public.

4

Where an advertisement is required under these Regulations to be removed, the site shall be left in a condition that does not endanger the public or impair visual amenity’.

The Welsh standard conditions are:24

‘1. Any advertisements displayed, and any site used for the display of advertisements, shall be maintained in a clean and tidy condition to the reasonable satisfaction of the local planning authority. 2. Any structure or hoarding erected or used principally for the purpose of displaying advertisements shall be maintained in a safe condition.. 3. Where an advertisement is required under these Regulations to be removed, the removal shall be carried out to the reasonable satisfaction of the local planning authority. 4. No advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission.

Except that advertisements displayed pursuant to standing orders of the Houses of Parliament do not have to be maintained under standard condition 4: reg 1(3)(b), (c). 23 England Advertising Regulations, Sch 2. 24 Wales Advertising Regulations, Sch 1. 22

317

18.17  Advertising Control 5. No advertisement shall be sited or displayed so as to obscure, or hinder the ready interpretation of, any road traffic sign, railway signal or aid to navigation by water or air, or so as otherwise to render hazardous the use of any highway, railway, waterway or aerodrome (civil or military)’.

18.17 Standard conditions in Northern Ireland are:25 ‘1. Any advertisements displayed, and any site used for the display of advertisements, shall be maintained in a clean and tidy condition to the reasonable satisfaction of the council. 2. Any structure or hoarding erected or used principally for the purpose of displaying advertisements shall be maintained in a safe condition. 3. Where an advertisement is required to be removed under these Regulations the removal shall be carried out to the reasonable satisfaction of the council. 4. No advertisement may be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission. 5. No advertisement may be displayed on or so as to obscure, or hinder the ready interpretation of, any road traffic sign, railway signal or aid to navigation by water or air, or so as otherwise to render hazardous the use of any road, railway, waterway (including coastal waters) or aerodrome (civil or military)’.

DEEMED CONSENT 18.18 Almost every building carries an advertisement, even if it is only a house number or details of the owner of a piece of street furniture. There is a great deal of advertising that is treated as routine. For example, most businesses will want their premises to show what they do. There will also be a variety of temporary advertisements, for events or around construction sites, which most people would expect to see. For much of the smaller scale or routine advertising, the costs of applying for consent would be disproportionate to the value of the particular advertisement and consent would usually not be refused. Consequently wide categories of deemed consent are allowed, but subject to very technical conditions. These must be considered in detail and with care. The application of case law on different versions of the regulations also needs careful consideration. Local planning authorities are able to require the removal of individual deemed consent advertisements by serving a discontinuance notice. A lawful development certificate26 might indirectly resolve whether an advertisement which amounts to development is lawful but alternatively on an advertising consent application or subsequent appeal, the local planning authority or then the Minister or Inspector may decide that deemed consent applies.27

Northern Ireland Advertising Regulations, Sch 1. See Chapter 23 below. 27 Thomas (T/A RT Properties) v National Assembly for Wales [2009] EWHC 1734 (Admin) at para 36 per Wyn Williams J. 25 26

318

Deemed consent 18.19 18.19 Some deemed consent categories are capable of permitting lucrative advertisements and have resulted in extensive litigation, particularly involving sites in central and west London. The classes of deemed consent are:28 Class 1

Functional advertisements of government departments and their agencies, local authorities, public transport undertakers, statutory undertakers and Transport for London

Class 2 Miscellaneous advertisements relating to the premises on which they are displayed Class 3

Miscellaneous temporary advertisements

Class 4

Illuminated advertisements on business premises

Class 5

Other advertisements on business premises29

Class 6

An advertisement on a forecourt of business premises

Class 7

Flag advertisements

Class 8

Advertisements on hoardings [relating to building operations]30

Class 9

Advertisements on highway structures

Class 10 Advertisements for neighbourhood watch and similar schemes Class 11 Directional advertisement Class 12 Advertisements inside buildings Class 13 Advertisements on sites used for preceding 10 years for display of advertisements without express consent Class 14 Advertisements displayed after expiry of express consent Class 15 Advertisements on balloons Class 17 Advertisements on a charging point for electric vehicles Classes 15 and 17 apply only in England. Class 16 which authorised advertisements on telephone kiosks also only applied in England and was revoked from 25th May 201931 after kiosks were being installed for advertising purposes.32

England Advertising Regulations, Sch 3. The Welsh and Northern Irish regulations are structured the same way in Sch  3 but do not include Classes 15 to 17. Classes 1 to 8 cover the same matters in Northern Ireland, but the classes in Sch 3 are then ordered: Class 9 Directional advertisements; Class 10 Advertisements inside buildings; Class 11 Advertisements for neighbourhood watch schemes; Class 12 Advertisements on sites used for preceding 10 years for display of advertisements without express consent; Class 13 Advertisements relating to an election. 29 See in particular Addison Lee Ltd v Westminster City Council [2012]  EWHC  152 (Admin), [2012] JPL 969 and Berridge v Vision Posters Ltd (1995) 159 JPN 163. 30 See R  (Cal Brown Ltd (t/a CB  Advertising Ltd) v Hounslow London Borough Council [2001] EWHC Admin 864, [2002] JPL 867; Postermobile plc v Kensington and Chelsea Royal London Borough Council [2001] JPL 196; Brent London Borough Council v Maiden Outdoor Advertising Ltd [2002] EWHC 1240 (Admin), [2003] JPL 192. 31 By the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019, reg 17(2). 32 See Westminster City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 176 (Admin), [2019] JPL 764. 28

319

18.20  Advertising Control 18.20 Deemed consent after a period of time is provided by Class 13 (Class 12 in Northern Ireland). The English and Northern Irish provisions say ‘an advertisement displayed on a site that has been used continually33 for the preceding ten years for the display of advertisements without express consent’. This is subject to a variety of conditions and limitations including that there has been no material increase in the extent to which the site has been used for the display of advertisements or a material alteration in the manner in which it has been so used.34 If these restrictions are breached then Class 13 rights are lost and there is no right to revert.35 The 1992 Advertising Regulations in Wales give the equivalent deemed consent to sites used without express consent since 1 April 1974.36 18.21 If an express consent expires in England or Wales, the advertisement may be continued to be displayed unless a condition requires its removal or a renewal of consent has been refused (Class 14). The Minister is empowered to issue directions restricting deemed consent in any particular area or case upon application by the local planning authority.37 The local planning authority is expected to show that the direction would improve visual amenity and there is no other way of effectively controlling the display of that particular class of advertisement.38 18.22 In England and Wales the local planning authority can themselves issue a discontinuance notice against the display of a particular advertisement for which there is deemed consent or the use of a particular site for the display of advertisements for which there is deemed consent if they consider that it is ‘necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public’.39 Discontinuing the use of the site will be forward-looking in the sense that it will prevent other advertisements from being displayed in future under that deemed consent. A decision maker will therefore need to form some view generally about advertisements under that deemed consent at that site. It does not require the authority to imagine and exclude every possible form of advertising under that deemed consent. The authority just needs to find an inherent likelihood of substantial

‘Continually’ includes regularly occurring, and may include gaps of several months, but is a matter of fact and degree. It is not the same as continuous or uninterrupted: Westminster City Council v Moran (1999) 77 P & CR 294 at 298–299 per Simon Brown LJ. A removal of advertisements under the threat of enforcement would be a cessation of the display and therefore a break in the continuity: Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415, [2013] 1 WLR 948 at para 11 per Maurice Kay LJ and at para 25 per Elias LJ. Prior to Winfield an Inspector’s decision had held that removing an advertisement under a threat of proceedings whilst making a lawful development certificate application was not a cessation: JC Decaux UK Ltd v Brent London Borough Council [2005] PAD 34. 34 See for example, Wandsworth London Borough Council v Adrenalin Advertising [2011] EWHC 1040 (Admin), [2011] JPL 1308. 35 R (Clear Channel UK Ltd) v Hammersmith and Fulham LBC [2009] EWCA Civ 2142, [2010] JPL 751 at paras 21–25 per Moore-Bick LJ and at para  54 per Wall LJ, distinguishing the position under the previous regulations: R (Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2003] EWHC 1224 (Admin), [2004] JPL 820 at para 93 per Collins J. 36 Class 13 in its different versions has given rise to substantial litigation. In addition to the cases above, see for the 1992 and earlier regulations, R  (Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2003] EWHC 1224 (Admin), [2004] JPL 820; Arthur Maiden Ltd v Lanark County Council [1958] JPL 4217; Mills & Allen Ltd v City of Glasgow District Council [1980] JPL 409. 37 England Advertising Regulations and Wales Advertising Regulations, both reg  7; Northern Ireland Regulations, reg 6. 38 TAN 7, para 22 and in the revoked PPG 19, para 28. 39 England Advertising Regulations and Wales Advertising Regulations, reg 8. 33

320

Prosecution 18.25 injury to amenity being caused by advertisements on that site).40 There is a right of appeal to the Minister.41 The notice may be reversed, varied or corrected on appeal or express consent granted. In England and Wales, compensation is payable if the site has been used for the display of advertisements since 1 August 1948.42 A discontinuance notice cannot be used against an advertisement which falls within Sch 1 to the England Regulations (or the exempt category in Sch 2 to the Wales or Northern Ireland Regulations) as it does not need any consent at all. AREAS OF SPECIAL CONTROL ORDERS 18.23 Some areas require special protection against advertisements in the interests of amenity. In England and Wales the Minister can approve area of special control orders, after being made by the local planning authority.43 These not only restrict deemed consent but also the ability to grant express consent to certain advertisements such as hoardings not relating to local events or which are illuminated. These orders are normally granted in largely or wholly rural areas. They will be granted in other situations where additional protection beyond the planning authority’s normal powers is necessary. This may be because of conservation area status or important architectural, archaeological, historical or visual characteristics. 18.24 The Planning Practice Guidance advises that before making an order and applying for approval from the Secretary of State, local planning authorities are expected to consult local trade and amenity organisations about the proposal.44 Additionally, where an area of special control order is in force, the local planning authority is required to consider at least once in every five years whether it should be revoked or modified.45 PROSECUTION 18.25 Immediate criminal liability is imposed for breaches of the Advertising Regulations. It is a summary offence if ‘any person displays an advertisement in contravention of the regulations’.46 The person or company that sets up the advertising hoarding would be displaying it. A person is deemed to display an advertisement if:47 ‘(a) he is the owner or occupier of the land on which the advertisement is displayed; or (b) the advertisement gives publicity to his goods, trade, business or other concerns’. A person is not guilty by reason of these deemed display provisions if he proves: 48

Putney Bridge Approach Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 2268, [2019] JPL 264 at paras 18 and 19 per Coulson LJ. 41 England Advertising Regulations, reg 17; Wales Advertising Regulations, reg 15. 42 Town and Country Planning Act 1990, s 223. 43 England Advertising Regulations, regs 20, 21; Wales Advertising Regulations, regs 18, 19. 44 Reference ID: 18b-055-20140306. 45 England Advertising Regulations, reg  20(4); Wales Advertising Regulations, reg  18(4). See also Planning Practice Guidance, reference ID: 18b-056-20140306. 46 Town and Country Planning Act 1990, s 224(3); Planning Act (Northern Ireland) 2011, s 175(2). 47 Town and Country Planning Act 1990, s 224(4). Planning Act (Northern Ireland) 2011, s 175(2) is to the same effect. 48 Town and Country Planning Act 1990, s 224(5), (6); Planning Act (Northern Ireland) 2011, s 175(3), (4). 40

321

18.26  Advertising Control ‘(a) the advertisement was displayed without his knowledge; or (b) he took all reasonable steps to prevent the display or, after the advertisement had been displayed, to secure its removal’.

18.26 The offence is only triable before the magistrates’ court on a summary basis.49 The six-month period for bringing a prosecution50 may be extended (in England) as proceedings may also be brought within six months of sufficient evidence to justify the proceedings coming to the prosecutor’s knowledge.51 In such cases, the prosecution must still be brought within three years of the offence being committed.52 Since advertisements will be in plain sight, the circumstances in which an extended time period can be justified will be limited, perhaps relating to knowledge of the facts concerning deemed consent. The display of different advertisements on different dates on the same hoarding creates separate offences for each advertisement rather than a continuing offence.53 18.27 The normal contravention of the Advertising Regulations alleged is a breach of reg 4 in England or reg 5 in Wales: display of an advertisement without express or deemed consent. Additionally, reg 30 (England) and reg 27 (Wales) state that it is an offence under s 224(3) to display an advertisement contravening the regulations.54 If a condition in a deemed consent is not complied with then the deemed consent does not apply to the advertisement in question. SENTENCE 18.28 The sentence is a maximum fine at level 4 (£2,500).55 If the contravention continues a further offence carries a daily fine of one-tenth of the level 4 fine (£250) for each day in which the offence continues after the original conviction. POWER TO REMOVE OR OBLITERATE PLACARDS AND POSTERS 18.29 The local planning authority can remove or obliterate any placard or poster that, in their opinion, is displayed in contravention of the Advertising Regulations.56 If the person displaying or causing to be displayed the advertisement is identified on it then the local planning authority must give him notice if they know or can ascertain his address after reasonable enquiry.57 If they cannot identify or find the address of

Town and Country Planning Act 1990, s 224(3); Planning Act (Northern Ireland) 2011, s 175(2). Magistrates’ Courts Act 1980, s 127; Magistrates’ Courts (Northern Ireland) Order 1981, Art 19(1)(a). 51 Town and Country Planning Act 1990, s  224(7). The extension provision does not apply in Wales (Town and Country Planning Act 1990, s 224(11) and is absent from the Northern Irish legislation. 52 Town and Country Planning Act 1990, s 224(8). To rely on this additional period, the offence must also have been committed after the provision came into force (6 April 2012). The certification of this period is reviewable by the Magistrates’ Court on public law grounds, see Burwell v Director of Public Prosecutions [2009] EWHC 1069 (Admin). There is a degree of judgment involved in assessing what evidence justifies making the application: see RSPCA v Johnson [2009] EWHC 2702 (Admin). 53 Royal Borough of Kingston upon Thames v National Solus Sites Ltd [1994] JPL 251. 54 These provisions also exempt the Crown from committing the offence. 55 Town and Country Planning Act 1990, s 224(3); Planning Act (Northern Ireland) 2011, s 175(2). 56 Town and Country Planning Act 1990, s 225(1). The power does not allow the removal or obliteration of placards or posters displayed within a building to which there is no public right of way (s 225(2)). 57 Town and Country Planning Act 1990, s 225(3). 49 50

322

Power to remove structures used for unauthorised displays 18.32 this person, then the notice provisions apply to any identifiable person whose ‘goods, services or concerns’ are publicised by the placard or poster.58 The notice must state that in the authority’s opinion the advertisement is displayed in contravention of the Advertising Regulations and ‘that they intend to remove or obliterate it on the expiry of a period specified in the notice and recover from [the advertiser] the costs they may reasonably incur in doing so’.59 The period specified must not be less than two days from the date of service of the notice.60 18.30 Where any damage is caused to land or chattels by an authority removing or obliterating advertisements under this power, then compensation is payable by anyone suffering damage other than the person who displayed the advertisement or caused its display.61 This is to protect the owner of a building which is fly-posted. The local planning authority may enter land at a reasonable time to exercise this power if the land is unoccupied and it is impossible to exercise the power otherwise.62 Section 225 gives a power to obliterate or remove: it does not give a power to put another advertisement over the placard or poster. The practice of some local authorities of putting a sticker stating in large letters ‘CANCELLED’ (sometime with an explanation in very small print that the advertisement is cancelled by the local authority) with the effect of misleading casual readers that the event or product being advertised is cancelled is not authorised under s 225. 18.31 The powers to remove or obliterate advertisements are subject to judicial review. Whether an advertisement is displayed in contravention of the Advertising Regulations is a matter of law and fact to be determined by the court.63 An advertiser resisting a notice should challenge it by judicial review proceedings in the Planning Court, seeking an interim injunction under the urgency procedure, rather than by bringing civil proceedings for threatened trespass as the dispute is essentially a public rather than private law matter. POWER TO REMOVE STRUCTURES USED FOR UNAUTHORISED DISPLAYS 18.32 The London Local Authorities Act 1995 had included powers to remove unlawful advertising hoardings and the defacement of buildings. These provisions were used as the basis for nationwide provisions introduced by the Localism Act 2011. Sections 225A to 225E were inserted into the 1990 Act by the Localism Act and the London legislation repealed.64 Section 225A applies to display structures which are used for the display of advertisements in breach of the Advertising Regulations. A display structure is:65

60 61 58 59



62 63



64



65

Town and Country Planning Act 1990, s 225(7), (8). Town and Country Planning Act, s 225(3). Town and Country Planning Act, s 225(5). Town and Country Planning Act, s 225(9), (10). Disputed compensation claims would be referred to the Upper Tribunal (Lands Chamber): Town and Country Planning Act, s 225(11) applying s 118. Town and Country Planning Act 1990, s 324(3). R (Maiden Outdoor Advertising Ltd) v London Borough of Lambeth [2003] EWHC 1224 (Admin), [2004] JPL 820 at paras 35, 36 per Collins J. For the repeal see Localism Act 2011, Sch 25, Pt 19. The new provisions contain a great number of drafting difficulties and uncertainties and would be ripe for an early review and revision by an order under the Legislative and Regulatory Reform Act 2006. Town and Country Planning Act 1990, s 225A(13), (14). The definition includes moveable structures: s 225A(15).

323

18.33  Advertising Control (a) a hoarding or similar structure used, or designed or adapted for use, for the display of advertisements; (b) anything (other than a hoarding or similar structure) principally used, or designed or adapted principally for use, for the display of advertisements; (c)

a structure that is itself an advertisement; or

(d) fitments used to support anything within any of paragraphs (a) to (c) which is used for the display of advertisements which require, but do not have, consent under the Advertising Regulations. 18.33 The authority must first serve a removal notice upon ‘a person who appears to the local planning authority to be responsible for the erection or maintenance of the display structure’.66 This is the person who appears to the local planning authority to be responsible for the erection or maintenance of the display and whose name and address is known by the authority or could be found after reasonable enquiry.67 The name of the outdoor advertising company is usually displayed on hoardings, otherwise the authority should notify the owner or occupier of the land if they can be found. If no person responsible can be found then the authority must fix a removal notice to the display structure or in the vicinity of the structure and serve a copy on the occupier of the land if they can be identified.68 A removal notice will state that the display structure is used for advertising in breach of the Advertising Regulations, the authority intend ‘after a time specified in the notice to remove the display structure’ and that they may recover expenses from a person served with the removal notice unless they show that they were not responsible for the erection or maintenance of the display structure.69 The time given must be not less than 22 days beginning with the date of the notice70 (so if a notice is dated Tuesday then last day is Tuesday three weeks later). If the display structure is not removed within the period then the local planning authority may remove and then dispose of the display structure.71 Compensation is payable for damage caused to land or chattels from the removal, except for damage to the display structure itself and ‘damage reasonably caused in removing the display structure’.72 18.34 A right of appeal to the magistrates’ court is introduced by s 225B.73 This is a change from the London legislation which provided no right of appeal. A person who has been served with a removal notice may appeal on the grounds:74 ‘(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220; (b) that there has been some informality, defect or error in, or in connection with, the notice; 68 69 66 67



70 71



72



73 74

Town and Country Planning Act 1990, s 225A(3). Town and Country Planning Act 1990, s 225A(4). Town and Country Planning Act 1990, s 225A(5), (6). Town and Country Planning Act 1990, s 225A(11). The notice must state the effect of s 225A(7), (8) which deal with recovery of expenses. Town and Country Planning Act 1990, s 225A(12). Town and Country Planning Act 1990, s 225A(1). There is no power to remove a display structure ‘in a building to which there is no public right of access’: Town and Country Planning Act 1990, s 225A(2). Town and Country Planning Act 1990, s 225A(9). Compensation is determined by the Upper Tribunal (Lands Chamber): Town and Country Planning Act 1990, s 225A(10), applying s 118. An appeal would be by way of a complaint: Magistrates’ Courts Rules 1981, r 34. Town and Country Planning Act 1990, s 225B(1).

324

Power to remove structures used for unauthorised displays 18.37 (c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure; (d) that the notice should have been served on another person’.

18.35 In addition, the owner or occupier of the land may appeal, if the notice has been fixed to the structure or exhibited in its vicinity and they were not served with a removal notice, on the grounds that:75 ‘(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220; (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure’.

18.36 Section 225B does not state the court’s powers on an appeal. Implicitly if the appeal is allowed then the authority has no power to remove the display structure, but no power is given to vary the notice. Appeal grounds (a) ask the court to determine whether the structure is used for the display of advertisements and whether these are in breach of the Advertising Regulations. If the ‘informality, defect or error in, or in connection with’ the notice is not material then the court must dismiss the appeal on that ground.76 The absence of an express power to vary causes difficulties if there is a material error which could be corrected or the period for compliance is too short. An appellant who contends that the removal notice should have been served on another person must serve a copy of the notice of appeal on that other person.77 The court is not given a power to treat that other person as if they have been served, so presumably a successful appeal on this ground will simply identify the right person for the authority to serve notice upon in the future. 18.37 The power to remove a display structure is subject to the right of appeal.78 Whilst not expressed, the implication is that removal cannot take place whilst an appeal is underway, although unlike most powers, which are suspended in the event of an appeal, this is not on the face of the statute.79 No time for bringing an appeal is set out, leaving open the questions whether an appeal can be brought after the 22day period has expired and if so, whether such an appeal will suspend the power to remove the structure. If an appeal suspends the power to remove, another uncertainty is whether the power will remain suspended on a further appeal by case stated. If the local planning authority seek to recover the costs of removal from a person served with a removal notice, they may not resist the claim on any of the grounds on which they could have appealed.80

Town and Country Planning Act 1990, s 225B(3). Such persons are called ‘permitted appellants’. Town and Country Planning Act 1990, s 225B(4). Similar provision is made on other appeals, such as against Town and Country Planning Act 1990 section 215 notices to clear up land. 77 Town and Country Planning Act 1990, s 225B(5). 78 Town and Country Planning Act 1990, s 225A(1). 79 If the removal power is not suspended, then an appellant would need to seek an order under judicial review preventing enforcement whilst the appeal proceeds. 80 Town and Country Planning Act 1990, s 225B(6). 75 76

325

18.38  Advertising Control REMEDYING PERSISTENT PROBLEMS WITH UNAUTHORISED ADVERTISEMENTS 18.38 Section 225C allows steps to be taken to make it harder for unauthorised advertisements to be displayed on sites where there is a persistent problem. This is intended to be used against buildings and structures that are frequently flyposted. These measures might include the application of coatings to make it harder to affix advertisements or securing a site so it is harder to access. The powers apply:81 ‘if the local planning authority for an area in England have reason to believe that there is a persistent problem with the display of unauthorised advertisements on a surface of— (a) any building, wall, fence or other structure or erection; or (b) any apparatus or plant’.

18.39 ‘Persistent problem’ is not defined in the legislation. Persistent would have its normal meaning and would involve some degree of continuing or frequent activity. An issue is what ‘problem’ is intended to add. It might be said that persistent flyposting is not a problem for the public interest which the planning authority represents, if the advertisements are swiftly removed by the site owner or occupier. An unauthorised advertisement is one in breach of s 224(3) of the Town and Country Planning Act 1990 or s  132 of the Highways Act 1980.82 The breach must have occurred after the coming into force of this provision on 6 April 2012.83 The power is concerned with a surface on any building (and so on) so appears to relate to a particular building or structure rather than a type of buildings or structures. 18.40 The authority is empowered to serve an action notice ‘requiring the owner or occupier of the land in or on which the surface is situated to carry out the measures specified in the notice by a time specified in the notice’.84 The measures must be ‘reasonable measures to prevent or reduce the frequency of the display of unauthorised advertisements on the surface concerned’.85 A time period for taking the action must be specified of at least 28 days beginning with the date of the notice.86 This time may be ‘postponed’ by the local planning authority, which presumably means a later time for compliance being set. If compliance is to be postponed without setting a new period then the notice ought to be withdrawn. The notice must be served on the owner or occupier of the land or, if their name and address cannot be ascertained after reasonable enquiry, fixed to the surface.87 18.41 Section 225C has effect subject to the other provisions of town and country planning, historic buildings and ancient monuments legislation and Pt 2 of the Food and Environment Protection Act 1985.88 Consequently action cannot be taken unless and until it has any necessary planning, listed building or scheduled monument Town and Country Planning Act 1990, s 225C(1). Highways Act 1980, s  132(1) makes it an offence if a person ‘without either the consent of the highway authority for the highway in question or an authorisation given by or under an enactment or a reasonable excuse, paints or otherwise inscribes or affixes any picture, letter, sign or other mark upon the surface of a highway or upon any tree, structure or works on or in a highway’. 83 Town and Country Planning Act 1990, s 225C(16). 84 Town and Country Planning Act 1990, s 225C(4). 85 Town and Country Planning Act 1990, s 225C(6). 86 Town and Country Planning Act 1990, s 225C(4), (5). 87 Town and Country Planning Act 1990, s 225C(2), (3). 88 Town and Country Planning Act 1990, s 225C(8). 81 82

326

Remedying persistent problems with unauthorised advertisements 18.44 consent. The extent to which an action notice can interfere with rights under planning law which could normally only be removed by a discontinuance order is questionable.89 Part 2 of the Food and Environment Protection Act 1985 relates to the licensing of deposits at sea and it is not apparent how this might be relevant to an action notice. Since 2011, this regime has been replaced in England and Wales by the Marine and Coastal Access Act 2009. 18.42 If an action notice is served on a statutory undertaker in respect of its operational land, the undertaker may serve a counter-notice within 28 days, being within the date of service of the action notice, ‘specifying alternative measures which will in the statutory undertaker’s reasonable opinion have the effect of preventing or reducing the frequency of the display of unauthorised advertisements on the surface to at least the same extent as the measures specified in the notice’.90 A counter-notice has the effect of requiring those measures to be carried out.91 The council has no right of appeal if it does not accept the counter-notice, but can decline to take any action if the counter-notice is not complied with. If the measures are not carried out in the specified time then the local planning authority may carry out the measures92 subject to the right of appeal to the magistrates’ court. 18.43 Local planning authorities may recover the expense of carrying out the measures from the person who is subject to the action notice unless the surface is part of a flat or dwellinghouse or is within or part of the boundary of the curtilage of a dwellinghouse.93 Dwellinghouse does not include flats under this provision,94 so expenses can be recovered in respect of the boundary of a block of flats. The intention is to protect home owners or occupiers from bearing the cost of the authority’s works. Compensation is payable for damage caused to the land or chattels by the authority carrying out the measures, except for damage which is reasonably caused.95 18.44 A person served with an action notice has a right of appeal to the magistrates’ court on the grounds:96 ‘(a) that there is no problem with the display of unauthorised advertisements on the surface concerned or any such problem is not a persistent one; (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the time within which the measures specified in the notice are to be carried out is not reasonably sufficient for the purpose; (d) that the notice should have been served on another person’. See on s 215 derelict land notices, Allsop v Derbyshire Dales District Council [2012] EWHC 3562 (Admin), discussed in Chapter 15. 90 Town and Country Planning Act 1990, s 225E(2). 91 Town and Country Planning Act 1990, s 225E(3). 92 Town and Country Planning Act 1990, s 225C(10). 93 Town and Country Planning Act 1990, s 225C(10)(b), (14). The Public Health Act 1875, ss 275 and 291 provisions on recovery of expenses apply: Town and Country Planning Act 1990, s 225C(15). In proceedings for the recovery of expenses from a person served with an action notice, that person may not raise any question which could have been raised on appeal: Town and Country Planning Act 1990, s 225D(5). 94 Town and Country Planning Act 1990, s 225C(16). 95 Town and Country Planning Act 1990, s 225C(12). Compensation is determined by the Upper Tribunal (Lands Chamber): Town and Country Planning Act 1990, s 225C(13), applying s 118. 96 Town and Country Planning Act 1990, s 225D(1). 89

327

18.45  Advertising Control 18.45 The owner or occupier of premises including the surface on which an action notice has been fixed may appeal on these grounds:97 ‘(a) that there is no problem with the display of unauthorised advertisements on the surface concerned or any such problem is not a persistent one; (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the time within which the measures specified in the notice are to be carried out is not reasonably sufficient for the purpose’.

18.46 It is not a ground of appeal that no action should have been taken even though there was a persistent problem or that other steps should have been required, although the lawfulness of the notice can be challenged in the appeal.98 There are similarities with s  225B appeals, discussed above. An appeal would only succeed against a material informality, defect or error.99 On a ground (d) appeal, the appellant has to serve the person they consider ought to have been served with the notice.100 DEFACEMENT OF PREMISES 18.47 An advertisement has a purpose of advertising something, whether it is authorised by the owner of the site or is fly-posted without consent. Graffiti will only occasionally be an advertisement but is more harmful to visual amenity. Property owners will sometimes lack the energy to clean off graffiti. The Localism Act 2011 introduced new powers in England to require ‘signs’ to be removed from premises in ss 225F to 225I. ‘Signs’ are defined as:101 ‘(a) includes any writing, letter, picture, device or representation, but (b) does not include an advertisement’.

The definition is both non-exclusive (‘includes’) and exclusionary (not including an advertisement). Graffiti would be a sign, as would be a message which was not an advertisement. 18.48 Section 225F provides powers to local planning authorities where a sign is on a ‘surface that is readily visible from a place to which the public have access’ and they ‘consider the sign to be detrimental to the amenity of the area or offensive’.102 Offensive must be understood in a way which is compatible with the right to freedom of expression under Art 10 of the European Convention on Human Rights. The authority may then serve a notice on the occupier of the premises103 requiring the sign to be removed or obliterated within a period of not less than 15 days beginning with the date of service of the notice.104 If there appears to be no occupier, then a Town and Country Planning Act 1990, s 225D(2). As with section 215 derelict land notices: R v Oxford Crown Court, ex p Smith (1990) 154 JP 422. 99 Town and Country Planning Act 1990, s 225D(3). 100 Town and Country Planning Act 1990, s 225D(4). 101 Town and Country Planning Act 1990, s 225F(12). 102 Town and Country Planning Act 1990, s 225F(1). 103 Premises is defined widely as ‘building, wall, fence or other structure or erection, or apparatus or plan’: Town and Country Planning Act 1990, s 225F(12). 104 Town and Country Planning Act 1990, s 225F(2), (4). 97 98

328

Defacement of premises 18.50 notice can be fixed to the surface, requiring the owner or occupier to remove or obliterate the sign within the same period.105 There is no prescribed form for a notice, but it must identify the surface and the sign, the statutory powers relied upon, who has served or fixed the notice, who is required to remove or obliterate the sign and the period within which to do it. Whilst not a statutory requirement, contact details for the authority should be included, along with an explanation of the right of appeal. If the work is not done within the time specified then the authority may remove or obliterate the sign, subject to a right of appeal, and recover the cost from the person required by the notice to do the work.106 However the cost cannot be recovered where the surface forms part of a flat or dwellinghouse, is within the curtilage of or is part of the boundary of a dwellinghouse.107 18.49 Statutory undertakers have a considerable number of buildings and structures that are unoccupied and so particularly vulnerable to graffiti, such as sub-stations and telecommunications cabinet boxes in streets.108 Special provision is made to limit their responsibilities. First, s 225F only applies if the surface ‘abuts on, or is one to which access is given directly from, either (a) a street; or (b) any place, other than a street, to which the public have access as of right’.109 Specific protection is given to universal postal service providers (in practice, Royal Mail). They are treated as being the occupier of any universal postal service letter box or a universal postal service pouch box which belongs to them.110 Consequently notice must be served on the provider,111 rather than simply affixed to the surface. A letter box is what is ordinarily referred to as a post box, where people put letters to be sent through the post. A pouch box is a fixed box where post is left by Royal Mail for their staff to replenish their bags whilst delivering the post. A minimum 28-day period is given for universal postal service providers to remove or obliterate signs.112 18.50 Similarly, notice must be given to statutory undertakers in respect of their bus shelters or other street furniture that is not on their operational land (so usually on the highway).113 Again, they have a period of 28 days to remove or obliterate any identified sign.114 These notices may be appealed to the magistrates’ court: s 225(1). A person served with a notice, or the owner or occupier where the notice has been fixed to the surface may appeal on the following grounds:115 ‘(a) that the sign concerned is neither detrimental to the amenity of the area nor offensive; (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the time within which the sign concerned is to be removed or obliterated is not reasonably sufficient for the purpose;’

107 108 105 106

111 112 113 114 115 109 110

Town and Country Planning Act 1990, s 225F(3), (4). Town and Country Planning Act 1990, s 225F(6). Town and Country Planning Act 1990, s 225F(8). Statutory undertakers are defined as ‘enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power and a relevant airport operator’ and universal postal service providers for these purposes: Town and Country Planning Act 1990, s 262(1), (5B). Town and Country Planning Act 1990, s 225F(11). Town and Country Planning Act 1990, s 225F(10). Town and Country Planning Act 1990, s 225G(1). Town and Country Planning Act 1990, s 225G(1)(b). Town and Country Planning Act 1990, s 225H(1). Town and Country Planning Act 1990, s 225H(1)(c). Town and Country Planning Act 1990, s 225I(1) (for persons served), (2) (when the notice is fixed).

329

18.51  Advertising Control 18.51 Additionally a person served may appeal on ground (d) ‘that the notice should have been served on another person’. The appellant must serve a copy of the notice of appeal on that person.116 Appeals on the basis of an informality, defect or error will not succeed if the error was not material.117 In responding to a claim for the recovery of expenses, a person may not raise matters that could have been raised on an appeal.118 Removal of signs at the owner’s or occupier’s request 18.52 Local planning authorities are empowered to remove or obliterate signs at the request of the owner or occupier of the premises and recover the expense of doing so: s 225J. The power applies to signs that are readily visible from a place to which the public have access.119 Premises means building, wall, fence or other structure or erection, or apparatus or plant.120 The definition of ‘sign’ is wider than in s 225F. Sign includes ‘any writing, letter, picture, device or representation’ and any advertisement, except an advertisement which has express or deemed consent.121 Powers of entry onto operational land 18.53 The local authority powers to enter land to remove display structures (s 225A), take steps to discourage unlawful advertisements (s 225C) and remove or obliterate signs (s 225F) are restricted with respect to the operational land of statutory undertakers.122 These restrictions also apply to the right of entry to investigate the possible use of these powers.123 The powers of entry may only be exercised if:124 ‘(a) the authority has served on the statutory undertaker notice of the authority’s intention to do so; (b) the notice specified the display structure, surface or sign concerned and its location; and (c) the period of 28 days beginning with the date of service of the notice has ended’.

18.54 The statutory undertaker may serve a counternotice within that period prohibiting the entry or specifying conditions under which the entry may be carried out.125 Entry may be prohibited if:126 ‘the statutory undertaker has reasonable grounds to believe, for reasons connected with the operation of its undertaking, that the power cannot be exercised under the circumstances in question—

Town and Country Planning Act 1990, s 225I(4). Town and Country Planning Act 1990, s 225I(3). 118 Town and Country Planning Act 1990, s 225I(5). 119 Town and Country Planning Act 1990, s 225J(1). 120 Town and Country Planning Act 1990, s 225J(3). 121 Town and Country Planning Act 1990, s 225J(4). 122 This protection for statutory undertakers does not apply to airport operators: Town and Country Planning Act 1990, s 225K(7). 123 The right of entry will be under the Town and Country Planning Act 1990, s 324(3). 124 Town and Country Planning Act 1990, s 225K(2). 125 Town and Country Planning Act 1990, s 225K(5) and (3) respectively. 126 Town and Country Planning Act 1990, s 225K(6). 116 117

330

Enforcement remedies 18.58 (a) without risk to the safety of any person; or (b) without unreasonable risk to the efficient and economic operation of the statutory undertaker’s undertaking’.

18.55

The undertaker may impose conditions which are:127

‘(a) necessary or expedient in the interests of safety or the efficient and economic operation of the undertaking concerned; or (b) for the protection of any works, apparatus or other property not vested in the statutory undertaker which are lawfully present on, in, under or over the land upon which entry is proposed to be made’.

ADVERTISING CONTROL ENFORCEMENT 18.56 The Secretary of State is empowered to provide in the Advertising Regulations for the removal of advertisements, or the discontinuance of a use for advertisements, which are in breach of the regulations.128 This power can include applying the enforcement notice and stop notice provisions to advertising control. These powers have not been exercised, presumably because the enforcement powers in Pt VII of the Act are generally applicable in any event. ENFORCEMENT REMEDIES 18.57 The conventional planning enforcement remedies in Pt VII apply to most breaches of advertising control. The erection or fixing of an advertising hoarding or sign may amount to a building operation.129 Use of land for the display of advertisements may amount to a material change of use. It is specifically provided in the definitions of development that:130 ‘the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building’.

18.58 Where the display of advertisements is in accordance with the Advertising Regulations, planning permission is deemed to be granted.131 Consequentially, enforcement and stop notices can be served where advertising consent is not obtained and development has taken place. Once an advertisement contravenes the Advertising Regulations the question is whether there is a breach of planning control, which has not become lawful by passage of time. In this context it should be noted that the display of a different form of advertising (eg three-sided revolving displays rather than flat hoardings) can amount to a different activity for a stop notice.132

129 130

Town and Country Planning Act 1990, s 225K(4). Town and Country Planning Act 1990, s 224. Howell v Sunbury-on-Thames Urban District Council (1963) 62 LGR 119. Town and Country Planning Act 1990, s 55(5). Planning Act (Northern Ireland) 2011, s 23(6) is in the same terms, except for using ‘Act’ rather than ‘section’. 131 Town and Country Planning Act 1990, s 222; Planning Act (Northern Ireland) 2011, s 130(6). 132 Arora v Hackney London Borough Council (1991) 155 JP 808. 127 128

331

18.59  Advertising Control INJUNCTIONS 18.59 Injunctions are available under s 222 of the Local Government Act 1972 to restrain breaches of the Advertising Regulations. These are subject to the limitations in City of London Corpn v Bovis Constructions Ltd133 discussed in Chapter 14 above. If the advertising contravention is also a breach of planning control, as for example a material change of use, then injunctions can be obtained under s  187B of the 1990 Act.134 Due to the overlapping jurisdictions, it may be appropriate to seek an injunction under both sections.

[1992] 3 All ER 697, CA. Kensington and Chelsea RLBC v Harvey Nichols & Co Ltd [2001] EWCA Civ 702, [2002] JPL 175 at paras 29, 30 per Dyson LJ; Westminster City Council v Addbins Ltd [2012]  EWHC  3716 (QB), [2013] JPL 654.

133 134

332

Chapter 19

Planning Obligations and Planning Agreements

19.01 Planning obligations (in Northern Ireland, planning agreements) are made by persons to impose obligations on their interests in land for planning purposes. These are normally entered into by developers to resolve problems connected with a development and so get planning permission. For example, they may provide for the setting out of open space or the provision of affordable housing as part of a private housing development. Alternatively money could be paid to the local authority to subsidise a bus service to reduce car travel to a new shopping development. In England and Wales planning obligations are made by agreement or unilaterally under the Town and Country Planning Act 1990, s  106 and are also commonly referred to as section 106 obligations. These provisions were substantially recast by the Planning and Compensation Act 1991. In Northern Ireland they can only be made by agreement with the council or the Department under the Planning Act (Northern Ireland) 2011, s 76 and so are known as planning agreements. OLD PLANNING AGREEMENTS 19.02 The first form of planning obligation was by agreement made under the Town and Country Planning Act 1932, s 34. The effect of these agreements has been preserved1 and despite their considerable antiquity some remain in force. The Town and Country Planning Act 19472 introduced a form of planning agreement which remained largely unchanged until 1991. These agreements are most commonly s 52 agreements under the Town and Country Planning Act 1971. The Town and Country Planning Act 1971, s 52(1) provided: ‘A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement; and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.’

Section 106 agreements made prior to 25 October 1991 are under the original form of legislation and are changed and enforced in the same way as s 52 agreements.



Town and Country Planning Act 1971, Sch 24, para 88; Planning (Consequential Provisions) Act 1990, Sch 3, para 3. 2 Town and Country Planning Act 1947, s 25. 1

333

19.03  Planning Obligations and Planning Agreements 19.03 These agreements were capable of being enforced against subsequent owners in the same way as restrictive covenants, the local planning authority being treated as owning adjacent land for those purposes.3 However, whilst in land law negative covenants run with the land, positive obligations do not. The Housing Act 1974, s 126 applied where the council and a person interested in land became ‘parties to an instrument under seal executed for the purpose of securing the carrying out of works on that land or of facilitating the development of that land or of other land in which that person has an interest’.4 It was intended to enable the burden of positive covenants in such agreements to run with the land.5 Where the covenant is ‘a covenant to carry out any works or do any other thing on or in relation to that land’ and is subject to s 126 it ‘shall be enforceable (without any limit of time) against any person deriving title from the original covenantor’.6 The reference to ‘without any limit of time’ is to prevent the rule against perpetuities from arising. 19.04 These old planning agreements have always been capable of being enforced by normal contractual remedies.7 Normally the appropriate remedy is an injunction although specific performance or damages might be appropriate in some cases.8 The local planning authority need not use other planning enforcement powers (if any are available) before seeking to use contractual remedies.9 These earlier agreements do run with the land so can be enforced against successors in title. There are no statutory remedies available to the local planning authority. POST-1991 ACT PLANNING OBLIGATIONS 19.05 A  planning obligation can be entered into by persons interested in land unilaterally or by agreement with a local planning authority for the area. An obligation is made by deed and is:10 ‘(a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; or (d) requiring a sum or sums to be paid to the authority (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically.’ See, for example, Town and Country Planning Act 1947, s 25(2), Town and Country Planning Act 1971, s  52(2): ‘An agreement made under this section with any person interested in land may be enforced by the local planning authority against persons deriving title under that person in respect of that land, as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land’. 4 Housing Act 1974, s 126(1). The instrument would have to be registered as a local land charge. 5 See Newbury District Council v Secretary of State for the Environment [1978] 1 WLR 1241 at 1247 per Lord Denning MR. 6 Housing Act 1974, s 126(2). 7 Avon County Council v Millard (1985) 50 P & CR 275. 8 For example, Hertsmere Borough Council v Brent Walker Group plc [1994] 1 PLR 1. 9 Avon County Council v Millard (1985) 50 P & CR 275. 10 Town and Country Planning Act 1990, s  106(1). For the scope of planning obligations see R  (on the application of Khodari) v Kensington and Chelsea Royal London Borough Council [2017]  EWCA  Civ 333, [2018] 1  WLR  58, Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin) and R (Holder) v Gedling Borough Council [2013] EWHC 1611 (Admin) and the discussion in Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) at Chapter 12. 3

334

Limitation period 19.10 19.06

In Northern Ireland the purposes of a planning agreement are any of:11

‘(a) facilitating or restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; (d) requiring a sum or sums to be paid to the authority on a specified date or dates or periodically; or (e) requiring a sum or sums to be paid to a Northern Ireland department on a specified date or dates or periodically.’

19.07 The obligation is enforceable by the relevant local planning authority against the person entering into the obligation and any person deriving title from him.12 Enforcement can take place under statutory powers and by contractual rights. The obligation is subject to the normal legal remedies for enforcing contracts and deeds. Additionally, ‘a restriction or requirement imposed under a planning obligation is enforceable by injunction’.13 19.08 Proceedings would usually be brought by a Pt  8 claim form. However neither the Civil Procedure Rules nor the practice directions require the use of Pt 8, unlike s 187B injunctions,14 and practice varies. Significant factual disputes are rare in planning obligation enforcement as issues tend to concern the interpretation of the obligation and discretion. Factually they are much more straightforward than a planning injunction against development which has been undertaken without planning permission, and those have to proceed under Pt 8.15 LIMITATION PERIOD 19.09 Proceedings for breaches of a planning obligation or agreement are subject to the 12-year time limit for an action on a specialty,16 which includes a contract under seal or an obligation arising under statute.17 However, by the Limitation Act 1980, s 36(1) the time limit for actions on a specialty: ‘shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any such time limit may be applied by the court by analogy in like manner as the corresponding time limit under any enactment repealed by the Limitation Act 1939 was applied before 1st July 1940.’

19.10 Injunctive remedies have historically derived from the concept of equity rather than the common law. All of the remedies in s  36 are concerned with ‘equitable relief’, see the use of ‘or other equitable relief’. Where substantially 13 14 15

Planning Act (Northern Ireland) 2011, s 76(1). Town and Country Planning Act 1990, s 106(3); Planning Act (Northern Ireland) 2011, s 76(4). Town and Country Planning Act 1990, s 106(5); Planning Act (Northern Ireland) 2011, s 76(6). CPR 8.1(6); Practice Direction 8A, Alternative Procedure for Claims, paras 9.1, 9.4. Practice Direction 8A, para 9.4 could usefully be amended to add proceedings to enforce planning obligations and agreements to claims which have to be brought under Part 8. 16 Limitation Act 1980, s 8. 17 Collin v Duke of Westminster [1985] QB 581 at 601 per Oliver J; Rahman v Sterling Credit Ltd [2001] 1 WLR 496. 11 12

335

19.11  Planning Obligations and Planning Agreements identical relief is available, equity would follow the common law or statutory approach.18 A statutory injunction19 would be subject to the conventional section 8 time limit since it does not derive from equity. Consequently an equitable injunction or a claim for specific performance on a post-1991 planning obligation would be subject to the same time limits. Where that relief is not comparable or based on similar facts, equity would in general not have followed the common law.20 Under Town and Country Planning Act 1971, s 52 the injunctive remedy arises from the equitable jurisdiction of the Court, but has statutory underpinnings, in particular against successors in title. Even if the 12-year time limit did not apply, in equity a lengthy period of non-compliance with a restrictive covenant would give rise to a waiver or laches (undue delay). DIRECT ACTION 19.11 If any requirement in a planning obligation to carry out operations in, on, under or over the subject land is breached, the local planning authority may:21 ‘(a) enter the land and carry out the operations; and (b) recover from the person or persons against whom the obligation is enforceable any expenses reasonably incurred by them in doing so.’

The power to enter is exercisable on 21 days’ notice to any person against whom the obligation is enforceable.22 It is an offence, punishable by a level 3 (£1,000) fine on summary conviction to obstruct a person exercising this power.23 In England and Wales regulations may provide for charging on the land of sums required to be paid under a planning obligation or expenses recoverable under sub-s  (6)(b), but these have never been made.24 Northern Ireland is more robust. Any sum or sums required to be paid under a planning agreement and any expenses recoverable by the relevant authority under the direct action power shall, until recovered, be deemed to be charged on and payable out of the estate in the land in relation to which they have been incurred, of the person against whom the planning agreement is enforceable.25 The charge is enforceable as if it was a mortgage by deed in favour of the authority.26

See Know v Gye (1871-72)  LR  5  HL  656 per Lord Westbury ‘For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the common phrase, that a Court of Equity acts by analogy to the Statute of Limitations, the meaning being, that where the suit in Equity corresponds with an action at Law which is included in the words of the statute, a Court of Equity adopts the enactment of the statute as its own rule of procedure’; Cia de Seguros Imperio v Heath (REBX) Ltd (formerly CE Heath & Co (America) Ltd) [2001] 1 WLR 112. 19 Town and Country Planning Act 1990, s 106(5). 20 P&O Nedlloyd BV v Arab Metals Co (The UB Tiger) [2006] EWCA Civ 1717, [2007] 1 WLR 2288. 21 Town and Country Planning Act 1990, s 106(6); Planning Act (Northern Ireland) 2011, s 76(7). 22 Town and Country Planning Act 1990, s 106(7); Planning Act (Northern Ireland) 2011, s 76(8). 23 Town and Country Planning Act 1990, s 106(8); Planning Act (Northern Ireland) 2011, s 76(9). 24 Town and Country Planning Act 1990, s 106(12). 25 Planning Act (Northern Ireland) 2011, s 76(12). 26 Planning Act (Northern Ireland) 2011, s 76(13). 18

336

Third parties 19.13 THE LANDOWNER’S RESPONSE TO PLANNING OBLIGATION PROCEEDINGS 19.12 The landowner’s response to actual or threatened proceedings or direct action on a planning obligation or agreement may involve the following aspects: (a) consideration of whether the obligation has been breached. The timing or conditions for carrying out obligations may be complex. Some obligations provide that the payment of money is only required if there is a particular need – there may be a question whether such a need arises; (b) any dispute resolution procedure (such as arbitration or expert determination) and whether it can be insisted upon;27 (c) whether to bring civil proceedings to enforce obligations owing to the owner (such as the repayment of unspent sums) or to seek a declaration that there is no breach; (d) a challenge by judicial review to the exercise of the discretion to enforce the obligation, although the record of such challenges is not good;28 and (e) if the concern is that there is a breach but it is considered that the obligation ought not to apply or be changed, then the best route for a landowner is to try to have the obligation changed. A person subject to an obligation can apply to the local planning authority for the obligation’s modification or discharge subject to certain time limits before the application can be made.29 If refused, the application may be appealed to the Secretary of State, Welsh Ministers or the planning appeals commission.30 Where it is too early to make an application, the person may ask the local planning authority (and any other parties) to agree to change the obligation. A refusal by the authority to agree is subject to judicial review on the usual public law grounds.31 THIRD PARTIES 19.13 A planning obligation does not give any rights to persons who are not parties to it or against whom it is not enforceable. If such a person, such as a neighbouring landowner, considers that an obligation is not being enforced when it ought to be, their remedy is to seek judicial review of the local planning authority’s failure to act

Local planning authorities will often (quite reasonably) insist that alternative dispute resolution clauses are without prejudice to their powers to bring proceedings or take direct action under s 106. 28 R (Renaissance Habitat Ltd) v West Berkshire Council [2011] EWHC 242 (Admin), [2011] JPL 1209; R (Millgate Developments Ltd) v Wokingham Council [2011] EWCA Civ 1062, [2012] JPL 258. 29 Town and Country Planning Act 1990, s  106A; Planning Act (Northern Ireland) 2011, s  77. Applications can be made after five years from the making of the obligation (Town and Country Planning Act 1990, s 106A(4)(b); Planning Act (Northern Ireland) 2011, s 77(4),(5)) and applications in respect of pre-7 April 2010 obligations can be made at any time in England: Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, reg 2A. 30 Town and Country Planning Act 1990, s 106B; Planning Act (Northern Ireland) 2011, s 78. The appeal decision can be challenged in the High Court by judicial review. 31 R  (Batchelor Enterprises Ltd) v North Dorset District Council [2003]  EWHC  3006 (Admin), [2004] JPL 1222. 27

337

19.13  Planning Obligations and Planning Agreements rather than a declaration in ordinary civil proceedings.32 Planning obligations do not create public rights which can be enforced by the Attorney General at the instigation of a third party in relator proceedings.33 Whilst an authority has a discretion whether and how to enforce, there will often be an underlying disagreement about the meaning of the obligation or the approach to enforcement which can be determined by the Planning Court.

Milebush Properties Ltd v Tameside Metropolitan Borough Council [2010]  EWHC  1022 (Ch), [2010] JPL 1303. 33 Attorney-General (ex rel Scotland) v Barratt Manchester Ltd (1992) 63 P & CR 179 on agreements under the Town and Country Planning Act 1932, s 34. 32

338

Chapter 20

Hazardous Substances

20.01 The hazardous substances regime in the planning process is unusual and to a degree, anomalous. It requires consent for the presence of particular hazardous substances above the relevant controlled quantity. It is separate from planning control over the use of the land involving those substances or the construction of stores or manufacturing equipment to use the substances. It is also separate from the various environmental regimes, such as environmental permitting or the Control of Major Accident Hazards, which may also relate to the substance and its use. It is the presence of the hazardous substance on, over or under land that requires the consent of the hazardous substances authority (in Northern Ireland, the council).1 Various exceptions apply, such as the temporary presence of substances being transported. In 1990 the hazardous substances regime in England and Wales was put into its own separate Act: the Planning (Hazardous Substances) Act 1990 (‘the Hazardous Substances Act’). In Northern Ireland the regime is incorporated into the Planning Act (Northern Ireland) 2011.2 20.02 In England and Wales the hazardous substances authority is the relevant district or unitary council, except for land which is used for the winning or working of minerals or for waste disposal when any county council for the area is the hazardous substances authority. The Broads Authority, urban development corporations, Mayoral development corporations, housing action trusts and the Homes and Communities Agency are hazardous substances authorities for their areas subject to a country council having responsibility for a minerals or waste site.3 National park authorities are hazardous substances authorities for all matters within their areas.4 Hazardous substances are prescribed by the Planning (Hazardous Substances) Regulations 2015,5 the Planning (Hazardous Substances) (Wales) Regulations 20156 and the Planning (Hazardous Substances) (No  2) Regulations (Northern Ireland) 20157 and include ammonia, sulphur dioxide and hydrogen. For England, guidance is given by in the Planning Practice Guidance.

Planning (Hazardous Substances) Act 1990, s 4; Planning Act (Northern Ireland) 2011, s 108(1). Hazardous substances consent is in Part 4, chapter 2 of the 2011 Act (ss  108–120). Enforcement provisions are in ss 117, 156, 162, 163. 3 Hazardous Substances Act, s 3. 4 Environment Act 1995, Sch 9, para 14. 5 SI 2015/627. 6 SI 2015/1597. 7 SI 2015/344. 1 2

339

20.03  Hazardous Substances ENFORCEMENT OF THE HAZARDOUS SUBSTANCES REGIME 20.03 The hazardous substances regime can be enforced by prosecution, injunction or requiring steps to be taken under contravention notices. Prosecution 20.04 Breach of the hazardous substances regime gives rise to immediate criminal liability. The offence occurs when there is a ‘contravention of hazardous substances control’,8 which is defined as:9 ‘(a) if a quantity of a hazardous substances equal to or exceeding the controlled quantity is or has been present on, over or under land and either— (i) there is no hazardous substances consent for the presence of the substance; or (ii) there is hazardous substances consent for its presence but the quantity present exceeds the maximum quantity permitted by the consent; (b) if there is or has been a failure to comply with a condition subject to which a hazardous substances consent was granted.’

20.05 An offence would be committed by ‘the appropriate person’. If the contravention is having too much hazardous substance on the site (the para (a) contravention), then an offence is committed by any person ‘knowingly causing the substance to be present on, over or under the land’ or ‘allowing it to be so present’ as well as by the person in control of the land.10 The person in control of the land is also guilty of an offence if there is a failure to comply with a condition attached to a hazardous substances consent (para (b)). 20.06 There are several defences, which must be proved by the defendant on the balance of probabilities. Defences which are applicable to either contravention are:11 ‘(a) that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence, or (b) that commission of the offence could be avoided only by the taking of action amounting to a breach of a statutory duty’.

20.07 Where the allegation is that there was no hazardous substances consent it is a defence to prove: ‘that at the time of the alleged commission of the offence he did not know, and had no reason to believe … that the substance was present; or … that it was present in a quantity equal to or exceeding the controlled quantity’.12

20.08 If the quantity of the hazardous substance exceeded that allowed by a consent then it is a defence to show that the defendant had no knowledge or reason to believe that ‘the substance was present in a quantity exceeding the maximum Hazardous Substances Act, s 23(1); Planning Act (Northern Ireland) 2011, s 117(1). Hazardous Substances Act, s 23(2); Planning Act (Northern Ireland) 2011, s 117(2). 10 Hazardous Substances Act, s 23(3); Planning Act (Northern Ireland) 2011, s 117(3). 11 Hazardous Substances Act, s 23(5); Planning Act (Northern Ireland) 2011, s 117(5). 12 Hazardous Substances Act, s 23(6)(a); Planning Act (Northern Ireland) 2011, s 117(6)(a). 8 9

340

Enforcement of the hazardous substances regime 20.10 quantity permitted by the consent’.13 Where a failure to comply with a condition is alleged, then it is defence to: ‘prove that he did not know, and had no reason to believe, that there was a failure to comply with a condition subject to which hazardous substances consent had been granted’.14

20.09 In England and Wales the offence is punishable by an unlimited fine on summary conviction or on indictment.15 In Northern Ireland the maximum fine is £100,000 on summary conviction and unlimited on indictment.16 As with other planning offences, the court is required to have regard to any financial benefit from the offence.17 Hazardous substances contravention notices 20.10 The hazardous substances authority is provided with an equivalent mechanism to enforcement notices by issuing hazardous substances contravention notices. The notice will specify the alleged contravention of hazardous substance control and the steps required to remedy it in whole or part.18 These may include requiring that the hazardous substances be removed from the land or directing that a hazardous substances consent shall cease to have effect either generally or in respect of particular substances at the end of a specified period.19 The notice can, therefore, terminate a consent without compensation. As with enforcement notices, the contravention notice has to contain a period in which to take effect and a period from that point for compliance with each of its steps.20 Notices are required to identify the land to which they relate whether by reference to a plan or otherwise.21 A copy of a notice is required to be served on the owner of the land, any other person who appears to be in control of the land and, in England and Northern Ireland, any other person having an interest in the land that the authority considers to be materially affected by the notice.22 In Wales a copy of the notice must be served on all other persons with an interest in the land.23 A statement of the reasons for issuing the notice and the right of appeal must accompany any copy of the notice.24 Hazardous Substances Act, s 23(6)(b); Planning Act (Northern Ireland) 2011, s 117(6)(b). Hazardous Substances Act, s 23(7); Planning Act (Northern Ireland) 2011, s 117(7). 15 Hazardous Substances Act, s 23(4). The maximum sentence in the magistrates’ court was increased from £20,000 on 12 March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 20. 16 Planning Act (Northern Ireland) 2011, s 117(4). 17 Hazardous Substances Act, s 23(4A); Planning Act (Northern Ireland) 2011, s 117(4). 18 Hazardous Substances Act, s 24(1); Planning Act (Northern Ireland) 2011, s 162(3). 19 Hazardous Substances Act, s 24(6), (7); Planning Act (Northern Ireland) 2011, s 162(6), (7). 20 Hazardous Substances Act, s 24(5); Planning Act (Northern Ireland) 2011, s 162(5). 21 Planning (Hazardous Substances) Regulations 2015, reg  14(1); Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015, reg 20(1). 22 Hazardous Substances Act, s 24(4); Planning (Hazardous Substances) Regulations 2015, reg 14(2); Planning Act (Northern Ireland) 2011, s 162(4); Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015, reg 20(2). On this occasion the Northern Irish requirement relates to those with an interest in the land rather than an estate. The authority is also encouraged to send a copy to the Control of Major Accident Hazards (COMAH) competent authority: Planning Practice Guidance, ID: 39-064-20161209. The COMAH competent authority is usually the Health and Safety Executive and Environment Agency, acting jointly and for nuclear sites the Office of Nuclear Regulation and the Environment Agency, acting jointly: see Planning Practice Guidance, ID: 39-079-20161209. 23 Planning (Hazardous Substances) (Wales) Regulations 2015, reg 15(2). 24 Planning (Hazardous Substances) Regulations 2015, reg  14(3); Planning (Hazardous Substances) (Wales) Regulations 2015, reg 15(3); Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015, reg 20(3). 13 14

341

20.11  Hazardous Substances 20.11 An appeal may be made to the Minister or the Planning Appeals Commission under modified versions of the enforcement notice appeal provisions.25 In England and Wales the grounds of appeal are:26 (a)

that, in respect of any contravention of hazardous substances control specified in the notice, hazardous substances consent ought to be granted for the quantity of the hazardous substance present on, over or under the land or, as the case may be, the condition concerned ought to be discharged;

(b) that the matters alleged to constitute a contravention of hazardous substances control have not occurred; (c) that those matters (if they occurred) do not constitute a contravention of hazardous substances control; (d)

that copies of the hazardous substances contravention notice were not served as required by or under s 24(4) of the Planning (Hazardous Substances) Act 1990;

(e) that the steps required by the notice to be taken exceed what is necessary to remedy any contravention of hazardous substances control; (f)

that any period specified in the notice in accordance with s 24(5)(b) of that Act falls short of what should reasonably be allowed.

20.12 There is no recommended appeal form.27 The appellant has to send the notice of appeal with grounds and submissions to the Secretary of State or Welsh Ministers and copy this to the hazardous substances authority.28 The appeal notice should be sent to the Bristol or Cardiff office of the Planning Inspectorate, as appropriate. The authority have 28 days to respond with their submissions on each ground of appeal and say whether consent should be granted and any conditions which ought to be applied to any consent.29 Within that period the authority has to give notice of the appeal to occupiers of properties in the locality of the site.30 20.13 The provisions in the Town and Country Planning Act 1990 on direct action by authorities, prosecution for failure to comply with an enforcement notice and the effect of subsequent consents or breaches are applied with modifications to hazardous substances contravention notices.31

Modified by the Planning (Hazardous Substances) Regulations 2015, reg  15 and Sch  4; Planning (Hazardous Substances) (Wales) Regulations 2015, reg 16 and Sch 4; Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015, reg 22 and Sch 3. 26 Town and Country Planning Act 1990 as modified by Planning (Hazardous Substances) Regulations 2015, Sch 4; Planning (Hazardous Substances) (Wales) Regulations 2015, Sch 4. Planning (Hazardous Substances) (No 2) Regulations (Northern Ireland) 2015, Sch 3 substitute ‘by section 162(4)’ in para (d) and ‘section 162(5)(b)’ in para (f). 27 There is no specific guidance on hazardous substance contravention notice appeals. 28 Town and Country Planning Act 1990, s 174(3), (4) (as modified) and Planning (Hazardous Substances) Regulations 1992, reg 19(1). 29 Planning (Hazardous Substances) Regulations 1992, reg 19(2). 30 Planning (Hazardous Substances) Regulations 1992, reg 19(3). 31 Town and Country Planning Act 1990, ss  178–181, modified by Planning (Hazardous Substances) Regulations 1992, reg 20 and Sch 4, Pt 2. 25

342

Enforcement of the hazardous substances regime 20.15 Injunctions 20.14 An equivalent injunction power to s  187B of the Town and Country Planning Act 1990 is provided for actual or apprehended contraventions of hazardous substances control: s 26AA. An injunction may be sought:32 ‘Where a hazardous substances authority consider it necessary or expedient for any actual or apprehended contravention of hazardous substances control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Act.’

20.15 The court may grant such an injunction as it thinks appropriate for the purpose of restraining the contravention.33 An application would be considered on the same principles,34 although interim applications are more likely to be treated as urgent. In Northern Ireland the general planning injunction power applies to ‘any actual or apprehended contravention of hazardous substances control’.35

34 35 32 33

Hazardous Substances Act, s 26AA(1). Hazardous Substances Act, s 26AA(2). See Chapter 14 above. Planning Act (Northern Ireland) 2011, s 156(1)(c).

343

Chapter 21

Nationally Significant Infrastructure Projects

OUTLINE OF THE DEVELOPMENT CONSENT REGIME 21.01 The Planning Act 2008 introduced a new development consent regime for certain major infrastructure projects, such as large power stations, power lines, very substantial highways works, railways, harbours, airports and hazardous waste facilities in England and Wales. Nationally significant infrastructure projects are defined.1 These replaced, at least to a degree, approval by various specialist consent regimes and deemed planning permission, or the grant of planning permission on an express application. For schemes falling within the categories in the Planning Act 2008, ‘development consent’ is required ‘for development to the extent that the development is or forms part of a nationally significant infrastructure project’.2 Development has the same definition as in s 55 of the Town and Country Planning Act 1990 with several specific additions, in particular (to the extent that they would not be otherwise) the conversion of a power station, underground gas storage, increases in the permitted use of an airport and:3 ‘(a) works for the demolition of a listed building or its alteration or extension in a manner which would affect its character as a building of special architectural or historic interest; (b) demolition of a building in a conservation area; (c) works resulting in the demolition or destruction of or any damage to a scheduled monument; (d) works for the purpose of removing or repairing a scheduled monument or any part of it; (e) works for the purpose of making any alterations or additions to a scheduled monument; (f) flooding or tipping operations on land in, on or under which there is a scheduled monument.’

21.02 If development consent is required under the Planning Act 2008, then there is no requirement for planning permission, various specialist consents4 and (in England) listed building, conservation area or scheduled monument consent.5 Approval is given in the form of an ‘order granting development consent’,6 which is more usually referred to as a development consent order. 3 4 5 6 1 2

Planning Act 2008, Pt 3, as amended by the Growth and Infrastructure Act 2013, ss 26, 27. Planning Act 2008, s 31. Planning Act 2008, s 32(2), (3). Such as constructing generating stations under the Electricity Act 1989, s 36. Planning Act 2008, s 33(1). See Planning Act 2008, Pt 7.

344

Enforcement of the development consent regime 21.07 ENFORCEMENT OF THE DEVELOPMENT CONSENT REGIME 21.03 The development consent regime is enforced by mechanisms which are reasonably similar to those used in the rest of the planning system. The main changes are: (a)

immediate criminal liability applies to any breaches; and

(b) a notice requiring compliance may only be served after conviction, cannot be appealed but does not lead to fresh criminal liability. Enforcement is the responsibility of the district planning authority unless any of the relevant development is the construction or alteration of a hazardous waste facility within the development consent regime, in which case the county planning authority has enforcement powers.7 Criminal offences 21.04 It is an offence to carry out development without development consent. Section 160(1) provides: ‘A  person commits an offence if the person carries out, or causes to be carried out, development for which development consent is required at a time when no development consent is in force in respect of the development.’

21.05

Breach of a development consent order is dealt with by s 161(1):

‘A person commits an offence if without reasonable excuse the person— (a) carries out, or causes to be carried out, development in breach of the terms of an order granting development consent, or (b) otherwise fails to comply with the terms of an order granting development consent.’

21.06 This offence does not apply to conditions applied to deemed marine licences contained within a development consent order.8 A  reasonable excuse defence therefore applies. It is also a defence to a breach of a development consent order to prove that ‘the breach or failure to comply occurred only because of an error or omission in the order’ and that error or omission has been corrected by notice.9 The s 160 and 161 offences are triable either way, so in the magistrates’ court or the Crown Court.10 21.07 Time limits for taking action are imposed and these are derived from the approach in the Town and Country Planning Act 1990. However as control is imposed by the criminal law, offences operate in an unusual fashion. Ordinarily there is no time limit for bringing a prosecution for an either way offence. However for

Planning Act 2008, s 173. Planning Act 2008, ss 145(4), 161(2). 9 Planning Act 2008, s 161(3). Implicitly the defence arises where the correction will have been made after the offence is alleged to have been committed. There would be no breach of the order if the correction had taken place beforehand. 10 Planning Act 2008, ss 160(2) and 161(3) respectively. 7 8

345

21.08  Nationally Significant Infrastructure Projects these offences any charge must be brought within ‘the relevant 4-year period’ or any ‘extended period’ which applies.11 The relevant four-year period means:12 ‘(a) in the case of an offence under section 160, the period of 4 years beginning with the date on which the development was substantially completed; (b) in the case of an offence under section 161, the period of 4 years beginning with the later of— (i) the date on which the development was substantially completed, and (ii) the date on which the breach or failure to comply occurred.’

21.08 ‘Substantially completed’ echoes the four-year time limit from when ‘operations were substantially completed’ in the Town and Country Planning Act 1990, s 171B13 but the development consent time limit applies to substantial completion of the development rather than the operations. Where the development has a period between the completion of physical works and the full bringing into use of the facility then the paragraph (a) or (b)(i) time limit might expire four years from the later date. Paragraph (b)(ii) raises questions if there is a continuing breach: whether any prosecution has to be brought within four years of the start of the breach or merely relates to the elements of the breach within the four-year period. Depending upon the particular circumstances, a breach may be a single event that is then unremediated, a continuous breach or a series of individual breaches. 21.09

The extended period applies:14

‘if during the relevant 4-year period— (a) an information notice has been served under section 167, or (b) an injunction has been applied for under section 171.’

21.10 The extended period is a four-year period from the later of the service of the information notice or the application for the injunction.15 The section is silent as to what the information notice or injunction must relate. Logically it must relate to the particular development or development consent order. The question then is how precisely it must relate to the particular offence. Action in respect of an entirely separate breach of an order does not appear to be a sound basis for extending time, yet an information notice may be in broad terms. The maximum sentence for either offence is an unlimited fine.16

Planning Act 2008, s 162(1). Planning Act 2008, s 162(2). 13 See Chapter 3 and Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22, [2003] 1 WLR 983. 14 Planning Act 2008, s 162(3). 15 Planning Act 2008, s 162(4). 16 Planning Act 2008, ss 160(2) and 161(3) respectively. The magistrates’ court fine became unlimited when the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85 was brought into force. 11 12

346

Power to require information 21.13 OBTAINING INFORMATION Right to enter land 21.11 The local planning authority has a right to enter land without a warrant, at any reasonable hour, if it has reasonable grounds for suspecting that an offence under ss 160 or 161 is being, or has been, committed on the land.17 The breach must be suspected on the land that is being entered. The occupier has to be given 24 hours’ notice before entry into a building used as a dwellinghouse.18 A  warrant may be obtained from a justice of the peace if it is shown on a sworn information that there are reasonable grounds for suspecting an offence and admission to the land has been refused, or a refusal is reasonably apprehended, or the case is one of urgency.19 There is a statutory assumption that ‘admission to land is to be regarded as having been refused if no reply is received to a request for admission within a reasonable period’.20 21.12 A  warrant authorises entry on one occasion only, within a month of the issue of the warrant, and at a reasonable hour (except in an urgent case).21 A person authorised to enter (with or without a warrant) must be able to produce evidence of authority and must state the purpose of the entry if required. They may take onto the land such other persons as may be necessary. If no owner or occupier was present at the time, the land must be left as secure against trespassers as it was.22 It is an offence, punishable by a level 3 (£1,000) fine on summary conviction, if a person ‘wilfully obstructs a person acting in the exercise of a relevant right of entry’.23 The local planning authority is liable to pay compensation for any damage caused to land or chattels in the exercise of a right of entry.24 These rights of entry do not apply to Crown land.25 POWER TO REQUIRE INFORMATION 21.13 The local planning authority can serve ‘information notices’ to require answers to questions. These are similar to planning contravention notices.26 An information notice may be served ‘in relation to any land if it appears to the relevant local planning authority that an offence under section 160 or 161 may have been committed on or in respect of the land’: Planning Act 2008, s 167(1), (2). The notice may be served on the owner or occupier of the land or a person with any other interest in it or a person carrying out operations on the land or using it for any purpose.27 Required information will be specified in the notice within the categories of:28 Planning Act 2008, s 163(1), (2). There are separate powers of entry for surveying in connection with proposed orders: Planning Act 2008, s 53. 18 Planning Act 2008, s 163(3). 19 Planning Act 2008, s 164(1), (2). 20 Planning Act 2008, s 164(4). 21 Planning Act 2008, s 164(5). 22 Planning Act 2008, s 165(1). 23 Planning Act 2008, s 165(2), (3). 24 Planning Act 2008, s 165(4). Disputes about compensation are to be resolved by the Upper Tribunal (Lands Chamber): Planning Act 2008, s 165(5), (6). 25 Planning Act 2008, s 166. Crown land is defined in Planning Act 2008, s 227 in similar manner to the Town and Country Planning Act 1990 definition. 26 See Chapter 5 above. 27 Planning Act 2008, s 167(3). 28 Planning Act 2008, s 167(4). 17

347

21.14  Nationally Significant Infrastructure Projects ‘(a) information about any operations being carried out in, on, over or under the land, any use of the land and any other activities being carried out in, on, over or under the land, and (b) information about the provisions of any order granting development consent for development of the land.’

21.14 Compliance with the notice would be by giving the required information to the authority in writing.29 It is a summary offence ‘if without reasonable excuse the person fails to comply with any requirement of an information notice’ before ‘the end of the period of 21 days beginning with the day on which the information notice is served’.30 It is implicit that the person required to comply with the notice is the person on whom it was served.31 21.15 Section 167(4) says that an information notice ‘may’ require the information listed above. However it can hardly be an information notice if it does not require information. Since a notice will compel the provision of information under pain of criminal sanction, the powers are probably confined to seeking such information, although those categories are themselves broad. The purpose of an information notice must be in connection with enforcement of the development consent regime, as that is the trigger for the power arising. Notwithstanding the breadth of development or use, it would be acting for an improper purpose to use information notices to investigate breaches of other regimes. The relationship of information notices with the privilege against self-incrimination will need to be considered. Self-incrimination is not addressed in the legislation, although the reasonable excuse defence exists. In R v Hertfordshire County Council, ex p Green Environmental Industries Ltd,32 a company was required to provide answers under an Environmental Protection Act 1990 notice as they requested factual information rather than sought an admission of wrongdoing. Whether the information would have been admitted in a criminal prosecution for breach of the underlying regulatory control depended upon whether ‘the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’ under the Police and Criminal Evidence Act 1984, s 78. 21.16

As with planning contravention notices, it is an offence if a person:33

‘(a) makes any statement purporting to comply with a requirement of an information notice which he knows to be false or misleading in a material respect, or (b) recklessly makes such a statement which is false or misleading in a material respect.’

Such an offence is punishable summarily, by a fine not exceeding level 5 (£5,000).34 NOTICE OF UNAUTHORISED DEVELOPMENT AND DIRECT ACTION 21.17 The local planning authority may serve a ‘notice of unauthorised development’, but this is solely concerned with enabling it to take direct action 31 32 33 34 29 30

Planning Act 2008, s 167(6). Planning Act 2008, s 168(1), (2). See Planning Act 2008, s 167(4). [2000] 2 AC 412. Planning Act 2008, s 168(4). Planning Act 2008, s  168(5). This fine became unlimited when the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85 was brought into force.

348

Injunction 21.20 following a conviction.35 Unlike the enforcement notice regimes under the various Planning Acts, these notices are not freestanding enforcement mechanisms. A notice of unauthorised development may only be served on a person who has been convicted of an offence under ss 160 or 161: s 169(1), (3). If development has been carried out without a development consent order (in breach of s 160) then the notice will specify steps to remove the development and to restore the land on which the development has been carried out to its previous condition.36 If there has been a breach of a development consent order then the notice would require the person to remedy the breach or failure to comply.37 Unlike planning enforcement notices, the regime does not refer to notices requiring remediation of the harm caused. A period or periods for taking the steps must be specified in the notice.38 21.18 No offence is committed if a notice is not complied with. The sole effect of non-compliance is that the local planning authority is able to take direct action to carry out steps in a notice if they have not been taken before the end of the specified period: s 170(1). The authority would be empowered to enter the land on which the development has been carried out and to take those steps. Expenses can be recovered by the authority from the owner of the land, regardless of whether the owner was served with the notice. The notice would be served on a convicted defendant. Whilst the owner would have a statutory cause of action to recover the expenses paid to the authority (and the owner’s own expenses) from the person convicted,39 that might or might not protect their position.40 The costs recovery provisions in ss 276, 289 and 294 of the Public Health Act 1936 are applied to this direct action.41 It is an offence, punishable by a level 3 fine (£1,000) to obstruct a person exercising the direct action powers.42 INJUNCTION 21.19 The local planning authority may apply to the High Court or county court for an injunction ‘if it considers it necessary or expedient for any actual or apprehended prohibited activity to be restrained by injunction’: s 171(1). Prohibited activity means:43 ‘activity that constitutes an offence under section 160 or 161 in relation to land in the area of the local planning authority.’

21.20 The court ‘may grant such an injunction as the court thinks fit for the purpose of restraining the prohibited activity’.44 The language of this section is very closely modelled on the Town and Country Planning Act 1990, s 187B, which is discussed in Chapter 14 above.

37 38 35 36



39

42 43 44 40 41

For a discussion of direct action under the Town and Country Planning Act 1990, s 178, see Chapter 8. Planning Act 2008, s 169(2). Planning Act 2008, s 169(4). Planning Act 2008, s 169(5). Further requirements may be prescribed, but this power has not been exercised. Whilst not stated, it is implicit that the person found guilty of the offence has been served with the relevant notice of unauthorised development. The occupier can also recover his expenses from the person convicted: Planning Act 2008, s 170(2)(a). Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010, reg 5. Planning Act 2008, s 170(6), (7). Planning Act 2008, s 171(2). Planning Act 2008, s 171(3).

349

Chapter 22

Community Infrastructure Levy

22.01

The overall purpose of the Community Infrastructure Levy (CIL):1

‘is to ensure that costs incurred in supporting the development of an area can be funded (wholly or partly) by owners or developers of land in a way that does not make development of the area economically unviable.’

The framework powers for CIL are in the Planning Act 2008, Pt 11, with the detail set out in the Community Infrastructure Levy Regulations 2010.2 Section 218 of the Planning Act 2008 requires the regulations to deal with the enforcement of CIL. 22.02 Under CIL, charging authorities (which are local planning authorities and the Mayor of London3) in England and Wales are able to adopt a schedule of charges to be applied to new development in their area. This schedule will be devised having regard to infrastructure proposals in the area, the amount of development that is likely to take place and its ability to contribute to those infrastructure costs. Schedules have typically set the charge as an amount per square metre of floorspace for defined uses of land. Chargeable development is development for which planning permission has been granted,4 including development under a ‘general consent’ – the Town and Country Planning (General Permitted Development) (England) Order 2015 or the Town and Country Planning (General Permitted Development) Order 1995 – or a local consent such as a local development order or neighbourhood development order.5 Charging authorities are also collecting authorities, except that the Mayor of London’s CIL is collected by the London borough councils.6 Enforcement powers are given to collecting authorities, including a power to prosecute for offences under the CIL Regulations.7 22.03 Commonly, agreements between landowners and developers will identify who is liable to pay CIL and the paying party would then send an assumption of liability notice to the collecting authority.8 Otherwise liability is apportioned between those with material interests in the land (meaning a freehold estate or a leasehold estate with more than seven years remaining when planning permission first permits

Planning Act 2008, s  205(2). For a more detailed account of the operation of the CIL regime, see Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) Chapter 27. 2 SI 2010/948, which have been frequently amended. 3 Planning Act 2008, s 206. 4 Community Infrastructure Levy Regulations 2010, reg 9. 5 Community Infrastructure Levy Regulations 2010, reg 5(3). 6 Community Infrastructure Levy Regulations 2010, reg 10. 7 Community Infrastructure Levy Regulations 2010, reg 111. 8 Community Infrastructure Levy Regulations 2010, reg 31. 1

350

Enforcement of CIL 22.07 the chargeable development).9 CIL is payable at the end of the period of 60 days beginning with the intended date of commencement of the development, unless the charging authority has adopted an instalment policy.10 ENFORCEMENT OF CIL 22.04 The collecting authority must serve a demand notice, in an approved form, on each person who is liable to pay CIL.11 CIL may be enforced by CIL stop notices preventing activity on the site, liability orders (leading to the levying of distress, imprisonment and charging orders), local land charges and civil proceedings. Surcharges and interest can also be levied. CIL stop notices 22.05 CIL stop notices are a means of preventing the continuation of development until sums are paid under the Community Infrastructure Levy. They may be served by the collecting authority and it is a criminal offence to contravene a CIL stop notice. The use of CIL stop notices is discretionary. There is no guidance on their use and their purpose is different from temporary stop notices and stop notices served against breaches of planning control. If the proposed development has planning permission (which it usually will have), then the CIL stop notice is concerned with recovering revenue on an otherwise desirable development. That points towards its use when obtaining the payment proves difficult, rather than as an early response to non-payment. 22.06 The collecting authority must issue a warning notice before it issues a CIL stop notice. A warning notice would be served if an amount has become payable and the authority ‘considers it expedient that development should stop until the amount has been paid’.12 The warning notice must be served on the person liable for the unpaid amount, every owner and occupier of the land known to the authority and any other person that the authority considers will be materially affected by a CIL stop notice.13 The warning notice will be dated and will set out the authority’s reasons for issuing the notice, the unpaid amount and that it is due in full immediately, the period after which the CIL stop notice may be issued and the effect of, and possible consequences of a failure to comply with, a CIL stop notice.14 The period between the issue of a warning notice and issue of a CIL stop notice must be between 3 and 28 days.15 A copy of the notice must be displayed on the land by the authority.16 22.07 A CIL stop notice may be served if the collecting authority ‘has issued a warning notice’ and the amount specified in the notice is unpaid (in whole or in part)

Community Infrastructure Levy Regulations 2010, reg  4. Planning permission first permits development when the final pre-commencement condition is discharged or for a general consent when notice of chargeable development is given: reg 8. 10 Community Infrastructure Levy Regulations 2010, reg 70. 11 Community Infrastructure Levy Regulations 2010, reg 69. 12 Community Infrastructure Levy Regulations 2010, reg 89(1), (2). 13 Community Infrastructure Levy Regulations 2010, reg 89(3). 14 Community Infrastructure Levy Regulations 2010, reg 89(4). 15 Community Infrastructure Levy Regulations 2010, reg 89(4)(e). 16 Community Infrastructure Levy Regulations 2010, reg 89(5). 9

351

22.08  Community Infrastructure Levy at the end of the period specified.17 The regulations refer to the warning notice having been issued rather than served in accordance with reg  89. It would be difficult to see how a CIL stop notice might be lawful if the underlying warning notice was not served in breach of the regulations. There may though be a different outcome if the person complaining was served with the warning notice but wished to contend that someone else should also have been served. The notice is to be served on the person liable to pay, each person known to be an owner or occupier of the land and any other person the authority considers may be materially affected by the notice.18 22.08 A CIL stop notice must contain the date on which it takes effect, the reasons for issuing the notice, the unpaid amount and that is it due in full immediately, specify the relevant activity which must cease and the possible consequences of a failure to comply.19 Relevant activity means:20 ‘any activity connected with the chargeable development which is specified in the CIL stop notice as an activity which the collecting authority requires to cease, and any activity carried out as part of that activity or associated with that activity’.

The prohibition might therefore be in respect of particular aspects of the development or against the works in their entirety. The notice must be displayed by the authority on the relevant land.21 22.09 Regulation 90(8) says that a CIL stop notice has effect from the date in the notice, which might be immediate. However a person only commits an offence if he:22 ‘contravenes a CIL stop notice— (a) which has been served on that person; or (b) a copy of which has been displayed in accordance with regulation 90(6).’

In practical terms, therefore, a CIL stop notice will not have effect before it is served or displayed on the site. 22.10 The CIL stop notice offence is similar to other planning offences. Contravention includes causing or permitting the contravention,23 but is not further defined. It means the carrying out of the relevant activity which is required to cease after the notice has taken effect.24 For the avoidance of doubt, an offence may be charged for a day or over a longer period and a person may be convicted more than once on the same notice.25

19 20 17 18

23 24 25 21 22

Community Infrastructure Levy Regulations 2010, reg 90(1), (2). Community Infrastructure Levy Regulations 2010, reg 90(3). Community Infrastructure Levy Regulations 2010, reg 90(4). Community Infrastructure Levy Regulations 2010, reg 90(5). The notice cannot prohibit works which are necessary in the interests of health and safety: reg 90(7). Community Infrastructure Levy Regulations 2010, reg 90(6). Community Infrastructure Levy Regulations 2010, reg 93(1). Community Infrastructure Levy Regulations 2010, reg 93(2). Community Infrastructure Levy Regulations 2010, reg 90(5). Community Infrastructure Levy Regulations 2010, reg 93(3), (4).

352

Enforcement of CIL 22.15 22.11

It is a defence:26

‘to prove that— (a) the CIL stop notice was not served on the person; and (b) the person did not know, and could not reasonably have been expected to know, of its existence.’

The validity of the notice can also be challenged by judicial review or as a defence to a prosecution. 22.12 The offence is triable either way, with an unlimited fine on summary conviction or on indictment.27 Any financial benefit from the breach of the notice must be taken into account in sentencing.28 22.13 A CIL stop notice can be withdrawn by serving written notice on the persons served with the original notice.29 The notice must be withdrawn when the unpaid amount is paid in full.30 A notice ceases to have effect when notice of the withdrawal is served.31 There is no period set out in the regulations between the obligation to withdraw arising when payment is made and notice of the withdrawal being served. The obligation appears to be immediate and there is no reason why the development should be delayed any further once the liability has been discharged. An email from the collecting authority may suffice. Whilst all persons who received the CIL stop notice must be served with notice of the withdrawal, it is a reasonable interpretation that the stop notice ceases to have effect once the first person is served. Notice of withdrawal of the notice must also be displayed on the land.32 22.14 Regulation 94 provides an injunction power in respect of breaches of CIL stop notices, modelled on the planning injunction provisions in s 187B of the Town and Country Planning Act 1990:33 ‘(1) A  collecting authority may apply to the court for an injunction if it considers it necessary or expedient for any actual or apprehended breach of a CIL stop notice to be restrained by injunction. (2) On an application under this regulation the court may grant such an injunction as the court thinks fit for the purpose of restraining the breach.’

22.15 Such an injunction will restrain a breach of a CIL stop notice and so cannot be sought simply because there is non-payment – the notice needs to come first. The order will be concerned with restraining the breach – stopping the works on site – but if no liability order has been made then a civil claim for the recovery of

Community Infrastructure Levy Regulations 2010, reg 93(5). Community Infrastructure Levy Regulations 2010, reg 93(6). The maximum sentence in the magistrates’ court was increased from £20,000 on 12  March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 80. 28 Community Infrastructure Levy Regulations 2010, reg 93(7). 29 Community Infrastructure Levy Regulations 2010, reg 91(1). 30 Community Infrastructure Levy Regulations 2010, reg 91(2). 31 Community Infrastructure Levy Regulations 2010, reg 91(4). 32 Community Infrastructure Levy Regulations 2010, reg 91(3). 33 Community Infrastructure Levy Regulations 2010, reg 94. An application can be made in a county court or the High Court: reg 94(3). 26 27

353

22.16  Community Infrastructure Levy the sum can be made in those proceedings under reg 106. It is not apparent when an application for an injunction against an apprehended breach of a CIL stop notice would be justified. The CIL stop notice would set a date for compliance which could be immediate, so would be breached or not breached. 22.16 Details of CIL stop notices are to be contained on the enforcement and stop notices register kept by the local planning authority. The register must detail:34 ‘(a) the address of the land to which the notice relates or a plan by reference to which its location can be ascertained; (b) details of the relevant planning permission sufficient to enable it to be identified; (c) the name of the collecting authority; (d) the date of issue of the notice; (e) the date of service of the notice; (f) the date specified in the notice as the date on which it is to take effect; and (g) a statement or summary of the activity prohibited by the notice.’

The entries must be removed if the notice is withdrawn or quashed.35 Reminder notices and liability orders 22.17 Various civil enforcement powers are available to seek to recover CIL charges. The starting point is for the collecting authority to serve a reminder notice after a sum has become due.36 The notice must state the amount in respect of which the authority will seek a liability order.37 If the amount in the reminder notice is wholly or partly unpaid seven days after service of the notice, then the authority may apply to the magistrates’ court for a liability order.38 The application is made by a complaint to a justice of the peace leading to the issue of a summons.39 Applications can be made within six years of the amount becoming due,40 so following the Limitation Act 1980 time limit for civil actions. At least 14 days must elapse between the service of the summons and the making of a liability order.41 22.18 The regulations provide that a liability order must be made by the court if it is satisfied that the amount has become payable by the defendant and has not been paid.42 However this provision does not address the requirement for a reminder notice to be served and a week to pass before a liability order is applied for. A liability order will be for the amount outstanding and the reasonable costs of obtaining the order.43 If the outstanding amount is paid after the application is made, then the court must

36 37 38 39 40 41 42 43 34 35

Community Infrastructure Levy Regulations 2010, reg 92(1). Community Infrastructure Levy Regulations 2010, reg 92(2). Community Infrastructure Levy Regulations 2010, reg 96. Community Infrastructure Levy Regulations 2010, reg 96(1). Community Infrastructure Levy Regulations 2010, reg 97(1). Community Infrastructure Levy Regulations 2010, reg 97(2). Community Infrastructure Levy Regulations 2010, reg 97(3). Community Infrastructure Levy Regulations 2010, reg 97(9). Community Infrastructure Levy Regulations 2010, reg 97(5). Community Infrastructure Levy Regulations 2010, reg 97(6).

354

Enforcement of CIL 22.20 make a liability order for the collecting authority’s reasonable costs, if so requested.44 A single liability order may deal with more than one person or more than one amount due,45 but these must all have been subject to reminder notices before the application is made. A liability order may be enforced by distress and sale of goods, a charging order or imprisonment. It is also a debt for the purpose of a creditor’s petition or winding up order against a company.46 Distress 22.19 The levying of distress is having bailiffs seize a debtor’s goods and those goods can then be sold to pay the debt and the costs of distress. Under the CIL Regulations, distress and sale of goods may take place following the making of a liability order.47 The levying of distress, or at the later stage the sale of the goods, can be avoided by paying or tendering the sums due.48 The amount due will be whatever remains due under the liability order and a charge for distress.49 A person aggrieved by the levy of, or an attempt to levy, a distress may appeal to the magistrates’ court by complaint. The court may require seized goods to be released or compensation paid for goods sold.50 Charging orders 22.20 Where a liability order or orders have been made against a debtor and at least £2,000 remains outstanding then an application can be made to the county court.51 Written notification of the intention to seek the charging order must be given to the debtor and to any person the authority considers may be prejudiced by the making of the order. The notification will set out the reasons for seeking a charging order, its effect, the amount due and the steps the authority will take if it is not paid.52 If the charge is to be imposed on land then the notification must be displayed on that land.53 The application for the order may be made if payment is not received within 21 days of the notification.54 The court has a discretion whether to make a charge and must consider any evidence of the personal circumstances of the debtor and whether any other person would be likely to be unduly prejudiced by the order.55 An order will specify the interest charged and any conditions imposed by the court.56 Such a charge may be enforced as an equitable charge and may be protected by an entry on the Land Register or as a local land charge.

46 47 48 49 44 45



50 51

54 55 56 52 53

Community Infrastructure Levy Regulations 2010, reg 97(7). Community Infrastructure Levy Regulations 2010, reg 97(8). Community Infrastructure Levy Regulations 2010, reg 105. Community Infrastructure Levy Regulations 2010, reg 98. Community Infrastructure Levy Regulations 2010, reg 98(5), (6). The latter sum is calculated under the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, Sch 3: see Community Infrastructure Levy Regulations 2010, reg 98(3), (4). Community Infrastructure Levy Regulations 2010, reg 99. Community Infrastructure Levy Regulations 2010, reg 103. This is the appropriate court under the Charging Orders Act 1979, s 1. Community Infrastructure Levy Regulations 2010, reg 103(4). Community Infrastructure Levy Regulations 2010, reg 103(6). Community Infrastructure Levy Regulations 2010, reg 103(7). Community Infrastructure Levy Regulations 2010, reg 104(1). Community Infrastructure Levy Regulations 2010, reg 104(2).

355

22.21  Community Infrastructure Levy Imprisonment 22.21 A collecting authority may apply to the magistrates’ court for a warrant to commit an individual debtor to prison where it has sought to levy distress and the bailiff reports that they have been unable to find sufficient goods and the authority shows that it is unable to recover the sum under a charging order.57 If the court finds that the failure to pay was due to the debtor’s ‘wilful refusal or culpable neglect’ then it may issue a warrant of commitment or fix a term of imprisonment (up to three months) and postpone the issue of the warrant until such time and subject to any conditions it thinks just.58 The warrant will be for the sums outstanding under the liability order, attempted distress and the costs of the warrant.59 If the sums due (including any further costs incurred by the authority) are paid, then no further steps are taken and, if imprisoned, the debtor is released.60 Local land charges 22.22 The chargeable amount is a local land charge.61 If the collection authority wishes to enforce the charge (with the powers of a mortgagee)62 then it must give notice to the owners of the land, any other person who may be prejudiced by enforcement and display notice on the land.63 The notice must explain the reasons for seeking to enforce, set out the outstanding amounts due and explain what steps the authority will take.64 If the payment is not received within 21 days of notice being given, then the authority may apply to the county court for consent to enforce the charge.65 The court must consider all the circumstances of the case including any evidence that a person will be unduly prejudiced by enforcement of the charge.66 A local land charge can only be imposed if the sum outstanding is £2,000 or more. Similarly it can only be enforced if £2,000 or more remains outstanding.67 Civil liability 22.23 An amount that has become due under CIL may be recovered in civil proceedings provided that a liability order has not been made in respect of it.68 Interest 22.24 Interest is charged on amounts that are overdue at a rate of 2.5 per cent above the Bank of England base rate.69 This is charged as simple rather than compound interest.70 59 60 57 58



61 62

65 66 67 68 69 70 63 64

Community Infrastructure Levy Regulations 2010, reg 100(1). Community Infrastructure Levy Regulations 2010, reg 100(3), (8). Community Infrastructure Levy Regulations 2010, reg 100(4), (5). Community Infrastructure Levy Regulations 2010, reg 100(6). Partial payment gives rise to a pro rata reduction in length of imprisonment. Community Infrastructure Levy Regulations 2010, reg 66. With a mortgagee’s powers under the Law of Property Act 1925: Community Infrastructure Levy Regulations 2010, reg 107(7). Community Infrastructure Levy Regulations 2010, reg 107(2), (3). Community Infrastructure Levy Regulations 2010, reg 107(3). Community Infrastructure Levy Regulations 2010, reg 107(4). Community Infrastructure Levy Regulations 2010, reg 107(5). Community Infrastructure Levy Regulations 2010, reg 107(6). Community Infrastructure Levy Regulations 2010, reg 106. Community Infrastructure Levy Regulations 2010, reg 87(1). Community Infrastructure Levy Regulations 2010, reg 87(3).

356

Enforcement of CIL 22.25 Surcharges 22.25 Surcharges may be applied for various defaults under the CIL regime. These are essentially penalties, which are added to the liability.71 Collecting authorities have a discretion whether to impose a surcharge. The following surcharges may be payable: (a)

if nobody has assumed liability to pay CIL in respect of chargeable development and that development has commenced: £50;72

(b)

where the material interests require the authority to apportion liability between them (presumably when they have not agreed themselves): £500 for each interest;73

(c)

where chargeable development takes place under a general consent before the collecting authority has received a notice of chargeable development: 20 per cent of the chargeable amount or £2,500, whichever is lower.74 One surcharge would be payable for the development, to be apportioned between the interests pro rata to the apportionment of the liability;75

(d) where chargeable development takes place before the collecting authority has received a commencement notice: 20 per cent of the chargeable amount or £2,500, whichever is lower.76 Again there would be one surcharge for the development, to be apportioned between the interests pro rata to the apportionment of the liability;77 (e) if a person required to notify the collecting authority of a disqualifying event fails to do so within 14 days of the event: 20 per cent of the chargeable amount payable or £2500, whichever is the lower amount.78 Disqualifying events are the withdrawal of charitable, social housing or exceptional circumstances reliefs;79 (f)

where an amount due is not paid in full within 30 days beginning with the date on which it is due: 5 per cent of the amount due (not the amount outstanding) or £200, whichever is the greater. If the sum is not paid in full within six months then a further surcharge of 5 per cent of the unpaid amount or £200 (which is greater) may be imposed. The same surcharge can additionally be applied at the 12-month mark;80 and

(g) a failure to comply with any requirement of an information notice81 within 14 days, beginning with the date of service: 20 per cent of the amount of CIL the person is liable to pay or £1,000, whichever is the lower.82 Community Infrastructure Levy Regulations 2010, reg 88. Community Infrastructure Levy Regulations 2010, reg 80. 73 Community Infrastructure Levy Regulations 2010, reg 81. There is no surcharge for apportioning a surcharge: reg 81(3). 74 Community Infrastructure Levy Regulations 2010, reg 82(1). 75 Community Infrastructure Levy Regulations 2010, reg 82(2). 76 Community Infrastructure Levy Regulations 2010, reg 83(1). 77 Community Infrastructure Levy Regulations 2010, reg 83(2). 78 Community Infrastructure Levy Regulations 2010, reg 84. 79 Community Infrastructure Levy Regulations 2010, regs 2(1), 48, 53 and 57. 80 Community Infrastructure Levy Regulations 2010, reg 85. 81 An information notice would be served by the collecting authority seeking information to enable it to apportion liability (reg 35) or determine whether social housing relief applies (reg 54). 82 Community Infrastructure Levy Regulations 2010, reg 86. 71 72

357

22.26  Community Infrastructure Levy A  surcharge is part of the CIL that a person must pay.83 The demand notice sent to the payer must set out the surcharges levied and the right of appeal against the surcharges.84 Appeals against CIL stop notices and surcharges 22.26 There are limited rights of appeal in CIL matters. Some determinations of liability can be appealed to HM Revenue and Customs.85 In the enforcement context appeals may be made to the Secretary of State against surcharges86, determinations of deemed commencement dates87 and CIL stop notices88. 22.27 All CIL appeals are determined under a written representations procedure. An appeal form must be submitted and include the appellant’s representations89. Any interested parties, essentially the collecting or charging authorities and other landowners or persons liable90, must make representations within 14 days of the acknowledgment of receipt of the appeal or any longer period given by the appointed person91. There is then a further 14 days (which may be extended) for the parties to comment on each other’s representations92. The appointed person must give a written decision with reasons93. Parties’ costs may be awarded against each other94. Any appeal decision may be challenged in the High Court by judicial review. Information requirements for general consents 22.28 Where development might be carried out under a general consent, the collecting authority may require an owner to provide it with information, documents or materials that the authority considers relevant to ascertain whether a notice of chargeable development (so initiating the date for liability) must be submitted.95 If a notice of chargeable development has been submitted, the authority may request further information to enable it to calculate the chargeable amount.96 No timescale is provided for complying with the requirement nor is there any sanction for failing to do so, although a request is a prerequisite of exercising powers of entry under regulation 109(1)(e) or (f) below.97

Community Infrastructure Levy Regulations 2010, reg 88(1). London Borough of Hillingdon v Secretary of State for Housing, Communities and Local Government [2018] EWHC 845 (Admin) at paras 59, 60 per Martin Rodger QC. 85 See Planning Permission, Richard Harwood (Bloomsbury Professional, 2016) paras 27.37–27.41. 86 CIL Regulations 2010, reg 117. 87 CIL Regulations 2010, reg 118. 88 CIL Regulations 2010, reg 119. 89 CIL Regulations 2010, reg 120(1), (4). 90 These are defined in CIL Regulations 2010, reg 112(3). 91 CIL Regulations 2010, regs 112(1), 120(5). 92 CIL Regulations 2010, reg 120(7). 93 CIL Regulations 2010, reg 120(9). 94 CIL Regulations 2010, reg 121. 95 Community Infrastructure Levy Regulations 2010, reg 108A. 96 Community Infrastructure Levy Regulations 2010, reg 64(8). 97 Community Infrastructure Levy Regulations 2010, reg 109(3), (3A). 83 84

358

Enforcement of CIL 22.31 Power of entry 22.29

Powers of entry are provided to the collecting authority under reg 109:98

‘(a) to ascertain whether a chargeable development has been commenced; (b) to determine whether any of the powers conferred on a collecting authority by this Part should be exercised in relation to a chargeable development or the relevant land; (c) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to a chargeable development or the relevant land; (d) to display any notice required to be displayed on land in accordance with these Regulations; (e) where a person has submitted a notice of chargeable development, for the purposes of gathering information required by the collecting authority in order for it to calculate the chargeable amount payable in respect of the chargeable development; or (f) where no notice of chargeable development has been submitted, for the purposes of gathering information required by the collecting authority in order for it to ascertain whether a notice of chargeable development must be submitted under regulation 64(2).’

22.30 Entry to a private dwelling may only be required under a warrant issued by a justice of the peace.99 A warrant may only be issued if there is good reason to believe that the authority will not be able to enforce CIL without it.100 As with similar provisions elsewhere in planning law, it is an offence to wilfully obstruct a person exercising entry powers, punishable on summary conviction by a level 3 (£1,000) fine.101 False information 22.31

By reg 110(1):

‘It is an offence for a person, knowingly or recklessly, to supply information which is false or misleading in a material respect to a charging authority or a collecting authority in response to a requirement under these Regulations.’

The offence is triable either way and is punishable by an unlimited fine on summary conviction or on indictment or up to two years’ imprisonment on indictment.102

Community Infrastructure Levy Regulations 2010, reg 109(1). Community Infrastructure Levy Regulations 2010, reg 109(4). 100 Community Infrastructure Levy Regulations 2010, reg  109(5). A  warrant remains in force for one month or until its purpose has been fulfilled, whichever is sooner: reg 109(6). 101 Community Infrastructure Levy Regulations 2010, reg 109(7), (8). 102 Community Infrastructure Levy Regulations 2010, reg  110(2). The maximum sentence in the magistrates’ court was increased from £20,000 on 12  March 2015; Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, Sch 4, Part 1, para 80. 98 99

359

Chapter 23

Lawful Development Certificates

23.01 Existing uses, past development and time limits on enforcement action may create lawful planning uses of land that are not covered by an existing planning permission. Alternatively, a developer may not be certain whether a planning permission has been implemented and so whether further development can be carried out, what a permission means or whether a proposed development amounts to a material change of use. Those issues can be fought over in an enforcement notice appeal or as a defence to proceedings, but most people would prefer to avoid such battles. The local planning authority may be willing to give a view informally, but that should still be in writing. Such a written opinion has the advantage of speed and little cost. Where the issues are reasonably straightforward, an informal opinion may be easy to obtain. However, such an opinion is not binding on the authority: it will not give rise to an estoppel – see R (Reprotech (Pebsham) Ltd) v East Sussex County Council,1 which is discussed further in Chapter 1. 23.02 There may be very rare circumstances where it would be irrational or unfair for a local planning authority to resile from an informal expression of opinion. If a use is temporary, the court may be more willing to protect the landowner from some consequences as the planning impact would be more limited when set against the damage to the landowner. In Postermobile v London Borough of Brent,2 it was an abuse of process to prosecute an advertiser who had relied upon advice from planning officers that a temporary display was lawful. An informal opinion might be of more limited value (and positively dangerous) if relevant information is omitted from the request or there is dispute as to what proposal an officer was considering. For example, an officer might advise whether a proposed side extension to a house had permitted development rights, unaware that the side of the house faced onto a highway. 23.03 A  Lawful Development Certificate (referred to as a Certificate of Lawful Use or Development in Northern Ireland) is a mechanism for providing certainty. For convenience the acronym LDC will be used for all three nations. A  LDC is conclusive that what it says was or would have been lawful at the date of the application. Conversely, refusal of a certificate, or a grant in more limited terms, does not determine conclusively that those matters refused or omitted were unlawful. In all three nations there are two types of Certificates: Certificates of Lawfulness of Existing Use or Development (CLEUDs) and Certificates of Lawfulness of Proposed Use or Development (CLOPUDs). The planning merits of an actual or proposed development are irrelevant.

[2002] UKHL 8, [2003] 1 WLR 348. (1997) Times, 8 December.

1 2

360

CLEUD – Certificate of Lawfulness of Existing Use or Development 23.07 23.04 The present primary legislation is the Town and Country Planning Act 1990, ss  191–196 and the Planning Act (Northern Ireland) 2011, ss  169–174. Secondary legislation is contained in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (‘the DMPO’); Town and Country Planning (Development Management Procedure) (Wales) Order 2012; and Planning (General Development Procedure) Order (Northern Ireland) 2015. The most detailed guidance is provided by Annex 8 of Welsh Office Circular 24/97, although some of this advice is now dated. CLEUD – CERTIFICATE OF LAWFULNESS OF EXISTING USE OR DEVELOPMENT 23.05 The English and Welsh provisions relating to Certificates of Lawfulness of Existing Use or Developments (CLEUDs) in the Planning and Compensation Act 1991 reforms replaced Established Use Certificates. Established Use Certificates related solely to uses which had become ‘established’ either because of their continuance since 1963 or because they did not need planning permission.3 They did not make the use of the land lawful, but were expressed to be conclusive in enforcement notice appeals to the Secretary of State.4 On the contrary, CLEUDs establish the use as lawful. Under Town and Country Planning Act 1990, s 191(1) and Planning Act (Northern Ireland) 2011, s 169(1) they determine whether: ‘(a) any existing use of buildings or other land is lawful; (b) any operations which have been carried out in, on, over or under land are lawful; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful.’

23.06

Uses and operations are lawful if:5

‘(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.’

23.07

Failure to comply with any condition or limitation is lawful if:6

‘(a) the time for taking enforcement action in respect of the failure has then expired; and (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.’

Town and Country Planning Act 1990, s 191, (before amendment by the 1991 Act). The status of a use as established (and incapable of being subject to enforcement) but not lawful generated anomalies: see Enforcing Planning Control (Robert Carnwath QC), para 3.4(v), (vi). 5 Town and Country Planning Act 1990, s 191(2); Planning Act (Northern Ireland) 2011, s 169(2). 6 Town and Country Planning Act 1990, s 191(3); Planning Act (Northern Ireland) 2011, s 169(3). 3 4

361

23.08  Lawful Development Certificates 23.08 The time for taking enforcement action has not expired if the time limits have not passed.7 Additionally in England enforcement action could still be taken in an extended time period because a potential or actual planning enforcement order has not expired. Where there is or may be a planning enforcement order because a breach has been deliberately concealed, then time has not expired if: 8 ‘(a) the time for applying for an order under section 171BA(1) (a “planning enforcement order”) in relation to the matter has not expired, (b) an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or (c) a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired.’

23.09 A  CLEUD application will need to identify the use or operational development which is on the application site, or which part of it is the subject of the application, and then explain why it is lawful. The grounds advanced in a CLEUD application would usually be within the following categories: •

the operations or use were permitted development;

•

the operations or use were authorised by a planning permission (which may be granted on application or by an order);

•

the works did not amount to development;

•

the current use is not development (for example, as agriculture), or because it is within the same use class as, or not a material change of use from, the previous lawful use;

•

the use is in accordance with a condition on a planning permission (if there is potential dispute as to what the condition means or whether there is a breach);

•

the development or breach of condition has become lawful by passage of time;

•

the development is within the terms of an existing CLEUD or CLOPUD.

23.10 If the active use ceased after it became lawful, a CLEUD application should only be refused if the use was then abandoned or otherwise terminated.9 If the local planning authority ‘are provided with information’ satisfying them of the lawfulness of the use, operation of other matter, or that description as modified or substituted by the authority, they must issue a certificate to that effect. If not, they must refuse the application.10 Judgment is therefore involved in determining the application but once that judgment is formed, there is no discretion as to whether the development or use is acceptable. The authority is able to grant a certificate with a different use from that applied for, since it is able to describe the use which it considers is taking place and then to say it is lawful.11 See Town and Country Planning Act 1990, s 171B; Planning Act (Northern Ireland) 2011, s 132. For time limits generally, see Chapter 3. 8 The planning enforcement order periods are referred to by s 191(3A). 9 Smith v Secretary of State for the Environment [1994] JPL 640. The test of abandonment is contained in Jennings Motors Ltd v Secretary of State for the Environment [1982] QB 541. 10 Town and Country Planning Act 1990, s 191(4); Planning Act (Northern Ireland) 2011, s 169(4). 11 Town and Country Planning Act 1990, s 191(7); Planning Act (Northern Ireland) 2011, s 169(4). 7

362

Certificate of Lawfulness of Proposed Use or Development 23.14 CERTIFICATE OF LAWFULNESS OF PROPOSED USE OR DEVELOPMENT 23.11 A Certificate of Lawfulness of Proposed Use or Development (CLOPUD) addresses prospective development. These provisions replaced and extended determinations as to whether planning permission was required under the Town and Country Planning Act 1990, s 64. 23.12

CLOPUDs determine whether:12

‘(a) any proposed use of buildings or other land; or (b) any operations proposed to be carried out in, on, over or under land, would be lawful.’

23.13 If the local planning authority is provided with information satisfying them that the use or operations would be lawful if begun at the time of the application, they shall issue a certificate – if not, it shall refuse the application.13 There are, therefore, two practical differences from CLEUDs. CLOPUDs cover specific proposals: they do not purport to identify every development that would be lawful. A  CLOPUD can only be granted for the development applied for so the authority cannot issue a certificate to the effect that a scheme smaller than the proposal would be lawful. In some circumstances it might add a note to the decision that certain elements applied for would be lawful or mention this in correspondence. The factors to consider on a CLOPUD application include: (a)

whether the use or operations constitute development;

(b) whether it is permitted by any planning permission, including permitted development rights; (c) the lawfulness of existing uses or operational development, as the ability to rely on the Use Classes Order, an existing planning permission or to exercise permitted development rights may depend upon this;14 and (d) whether conditions or limitations in any existing permission would be contravened by the proposed development. A  CLOPUD application can be used to contend that a condition in an existing planning permission is invalid.15 23.14 One issue which can arise is as to whether a planning permission has been lawfully implemented. If the development has been largely carried out then a CLEUD may be appropriate. However if only limited works have been carried out to begin the development then what matters to the landowner is whether those works can continue, for example by having been sufficient to begin development under the planning permission before the period for implementation expired. The works may be sufficiently small scale or the time limit for enforcement may have passed so

Town and Country Planning Act 1990, s 192(1); Planning Act (Northern Ireland) 2011, s 170(1). Town and Country Planning Act 1990, s 192(2); Planning Act (Northern Ireland) 2011, s 192(2). 14 Consequently the determination of a CLOPUD application may involve consideration of the time limits for enforcement action against existing development and planning enforcement orders. 15 Earthline Ltd v Secretary of State for the Environment, Transport and the Regions and West Berkshire Council [2002] EWCA Civ 1599, [2003] 1 P & CR 24 at para 15 per Brooke LJ. 12 13

363

23.15  Lawful Development Certificates the appropriate course may be to apply for a CLOPUD to show that the permission remains capable of being built out.16 THE APPLICATION FOR A CLEUD OR CLOPUD 23.15 The applicant does not need to have an interest in the land to make an application. The application is made to the district planning authority or county council (if it is a county matter – such as minerals or waste).17 The application ‘shall be made on a form published by the Secretary of State (or a form substantially to the like effect)’: see Art 39 of the DMPO. A similar requirement for use of a Welsh Ministers’ form (or one substantially to the like effect) applies in Wales: see Art 28(1) of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (‘the DMPO (Wales)).18 Standard forms are now available on the Planning Portal website or an application may be submitted online via that website. The model application forms appended to Annex 8 of Welsh Office Circular 24/97 are now out of date and should not be used. There is no requirement to use a particular form in Northern Ireland. 23.16 The application must specify the land and describe the use, operations or other matter in question in accordance with ss 191 or 192. Specific information is also required under those sections for various applications: s 191(1)(a)

Any applicable Use Class

s 191(1)(c)

Sufficient details to identify the planning permission (ideally including the reference number)

s 192(1)(a)

Use at the date of application and any applicable Use Class

23.17 The particulars specified or referred to in the form must be provided.19 The development orders require the application to be accompanied by:20 ‘(a) a plan identifying the land to which the application relates drawn to an identified scale and showing the direction of North; (b) such evidence verifying the information included in the application as the applicant can provide; and (c) a statement setting out the applicant’s interest in the land, the name and address of any other person known to the applicant to have an interest in the land and whether any such other person has been notified of the application.’ R (France) v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429, [2017] 1 WLR 3206 at paras 44–54 per Hickinbottom LJ. There is no need to have a CLEUD that the works carried out are lawful before seeking a certificate that it would be lawful to continue the works and instead the application can simply be for a CLOPUD: see paras 51–54. 17 Town and Country Planning (Development Management Procedure) (England) Order 2015, Art 39(6) applying Art 11(1), although if the local planning authority is a development corporation, enterprise zone or housing action trust outside Greater London or the former metropolitan counties, the application is made to the district council. 18 Made under Town and Country Planning Act 1990, s 193(1) and Planning Act (Northern Ireland) 2011, s 171(1). 19 DMPO, Art 39(1), DMPO (Wales), Art 28(1). 20 DMPO, Art 39(2), DMPO (Wales), Art 28(2). 16

364

The application for a CLEUD or CLOPUD 23.21 23.18 Where the application is in respect of ‘two or more uses, operations or other matters’ the plan shall show where these are or will be.21 The evidence is often given in the form of statutory declarations,22 although statements can be given by affidavit or unsworn. Since witness statements in court proceedings no longer have to be sworn, it is not so apparent why greater formality would be required for LDC applications. Relevant documents, if available, should be provided. The applicant must also state his interest in the land, the name and address of any other person known to be interested in the land and whether that person has been notified of the application.23 23.19

A CLOPUD application in respect of Crown land shall include:24

‘(a) a statement that the application is made in respect of Crown land; and (b) where the application is made by a person authorised in writing by the appropriate authority, a copy of that authorisation.’

23.20 The local planning authority shall acknowledge the application, and if they later determine that the application was invalid, they shall notify the applicant as soon as practicable.25 The local planning authority may require further information in writing.26 They must determine the application within eight weeks unless the period is extended by agreement in writing,27 although the only consequence of a failure to do so is that the right of appeal arises. Practical points in applications 23.21 Applications usually turn on either factual matters (eg when the use began) or matters of law and judgment (eg  whether a proposed operation has permitted development rights). Evidence on factual issues can be obtained from persons involved in the land at the relevant time, available documents and the local planning authority’s records. Local planning authorities should co-operate with applicants by making records available.28 The burden of proof is on the applicant.29 The standard of proof is the balance of probabilities. The applicant’s evidence does not need to be corroborated by independent evidence,30 although that usually helps in cases where the passage of time is relied upon for the development or use to be lawful. Applications should state the precise use or operations which are sought to be covered. On CLOPUD applications there should be sufficient information for the local planning authority to understand exactly what is involved in the proposal.31 If the lawfulness of an existing use is relied upon in a CLOPUD application (for example for proposed permitted development which depends on the existing use being lawful), sufficient evidence (which may be a CLEUD) must be produced to DMPO, Art 39(4), DMPO (Wales), Art 28(4). Made under the Statutory Declarations Act 1835. 23 DMPO, Art 39(2)(c), DMPO (Wales), Art 28(2)(c). 24 DMPO, Art 39(3), DMPO (Wales), Art 28(3). 25 DMPO, Art 39(8), DMPO (Wales), Art 28(7). 26 DMPO, Art 39(9), DMPO (Wales), Art 28(9); GDPO NI, Art 11(4). 27 DMPO, Art 39(10), DMPO (Wales), Art 28(10); GDPO NI, Art 20(1), (2)(b). 28 Welsh Office Circular 24/97, Annex 8, para 8.12. 29 Welsh Office Circular 24/97, Annex 8, paras 8.12, 8.26. 30 See FW Gabbitas v Secretary of State for the Environment [1985] JPL 630 on enforcement appeals. 31 Welsh Office Circular 10/97, Annex 8, para 8.26. 21 22

365

23.22  Lawful Development Certificates show its lawfulness. Formally CLEUDs and CLOPUDs are separate documents and an applicant should be clear what is being applied for. There may in some cases be a choice: for example, if it is said that a planning permission has been implemented by the carrying out of works, but not yet completed, an application could be made for a CLEUD in respect of those works or for a CLOPUD for the ability to develop under the planning permission. Fees 23.22 Fees are payable to the local planning authority when making an LDC application. In England the fees for LDC applications are set out under reg  11 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (‘English Fees Regulations’). In Wales fees are payable under Regulation 11 of the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 (‘Welsh Fees Regulations’). Northern Irish fees are set out under the Planning (Fees) Regulations (Northern Ireland) 2015, reg 12. Applications for CLEUDs for the lawfulness of any existing use or operations pay the planning application fee for that development.32 Applications to determine the lawfulness of failures to comply with conditions or limitations are subject to a £234 fee in England, £190 in Wales or £252 in Northern Ireland. If a CLEUD application is made under subsection (a) or (b) (or both) for use and/or operations and also for compliance with conditions (c), then the use/operations fee is added to the conditions fee.33 Applications for CLOPUDs cost half the planning application fee.34 In England and Wales a ‘free go’ is allowed for a second application made within 12 months of (a) the receipt of an earlier application which was later withdrawn, (b) the expiry of the eight-week period for the determination of an application which was subsequently appealed or (c) the refusal of the earlier application.35 The application must be for the same site and relate to the same matter. Various exemptions and reductions are available to the disabled and parish councils. Consultation on applications 23.23 Whilst the applicant must state whether all persons interested in the land have been notified,36 there is no statutory obligation on the applicant or the local planning authority to inform them. However, they should be informed and given an opportunity to comment. Since certificates are conclusive of the matters they contain, they can directly affect the legal rights of owners and tenants, and to fail to consult would be unfair. The refusal of a certificate, whilst not conclusive, may be English Fees Regulations, reg 11(3)(a); 2015 Fees Regulations (NI), reg 12(3)(a). Subject to specific provision for the use of dwellinghouses, wherein the fee is £385 (£330 in Wales) per dwellinghouse if there are under 50 dwellinghouses or £19,049 plus £115 per additional dwellinghouse over 50 units (£16,464 and £84 per additional dwelling in Wales), up to a maximum of £250,000: English Fees Regulations, reg 11(6), Welsh Fees Regulations, reg 10A(6). In Northern Ireland the fee for use as a separate dwellinghouse is £252 per dwelling, up to a maximum of £12,582: 2015 Fees Regulations (NI), reg 12(4). 33 English Fees Regulations, reg  11(7), Welsh Fees Regulations, reg  10A(8); NI  Fees Regulations, reg 12(5). 34 English Fees Regulations, reg 11(3)(c), Welsh Fees Regulations, reg 10A(5)(c). 35 English Fees Regulations, reg 11(4), (5), Welsh Fees Regulations, reg 10A(3), (4). 36 DMPO England, Art 39(2)(c); DMPO Wales, Art 28(2)(c); GDPO (NI), Art 11(2)(c). 32

366

The application for a CLEUD or CLOPUD 23.25 highly prejudicial to existing interests. There is no statutory obligation on the local planning authority to consult the public or neighbours on an LDC application. There are however two good reasons to consult: (1) Persons in the locality may have factual information which can assist in determining the application. This will particularly be the case where the application relies on the duration and extent of a use. (2) People may be interested to know of the application. Even without being able to add to the factual material, they may have submissions to make on the law or the judgment that should be made on the material. If they find out after the certificate is granted they may simply judicially review the decision. If they were unaware of the application because of the absence of consultation or publicity then an extension of time for bringing proceedings beyond the usual promptly and within three months period is likely to be granted. An extension of time was readily granted by the High Court in R  (Sumption) v London Borough of Greenwich where a neighbour only became aware that a CLOPUD had been applied for or approved when investigating the start of works on the site.37 In that case Mr Justice Collins suggested that consideration be given to requiring publicity or notification of LDC applications, but that suggestion has not been pursued by government. LDC decision-making 23.24 Local planning authorities will need to consider the information in the application, any third party representations and the information in their own possession. Where an application relies on long user, the authority must be particularly careful when evaluating the strength and reliability of evidence. For example a person might assert in a statement that they had been using the site for a particular purpose for a certain number of years, but what does the statement actually say? Does it seem credible? Does it include or omit helpful detail? Should contemporaneous records be able to cast light on the matter? If so, have they been produced and what do they show? Should third parties have been aware of the activity and were they? It is a useful approach to ask how would the evidence stand up to cross-examination? The authority will need to identify the questions of fact and law which arise and work through those issues. 23.25 Since the planning merits of the proposal are not relevant, LDC decisions are generally taken by officers. However there will be LDC applications which raise important issues for the area or which would benefit from more open consideration. Local planning authority schemes of delegation can allow LDC applications to be considered by their planning committee, and it is prudent to have a constitutional mechanism for such applications to be taken to committee. Delegation arrangements vary as to whether an officer decision is taken by the authority’s legal or planning officers but it is important for both parts of the council to work in cooperation on LDC issues.

[2007] EWHC 2776 (Admin), [2008] 1 P & CR 336 at para 6, 7. It was the developing landowner’s misfortune that the neighbour (who appeared as a litigant in person in the proceedings) was Jonathan Sumption QC, later the first person to be appointed directly from the Bar to the Supreme Court.

37

367

23.26  Lawful Development Certificates FORM OF THE LDC DECISION 23.26 If the local planning authority decide to grant the application, in whole or part, they are required to issue a certificate. If the application is refused, then a decision notice will be issued. If the application is allowed in part, or as modified by the authority, then a certificate will be issued and the authority would also have to set out its decision not to accept the whole application and provide reasons. This might be on the certificate or in a separate decision notice. A Lawful Development Certificate shall:38 (a)

specify the land to which it relates;

(b) describe the use, operations or other matter in question (specifying any Use Class); (c) give the reasons for determining the use, operations or other matters to be lawful; and (d) specify the date of the application for the certificate. 23.27 The CLEUD or CLOPUD shall be in the form provided in the relevant development management procedure order, or a form substantially to the like effect.39 A  document which was not a certificate was the ‘Permission for Development’ issued in response to an LDC application in James Hay Pension Trustees Ltd v First Secretary of State.40 Ward LJ put the point emphatically: ‘the Council used the wrong piece of paper. That, in my judgment, is an end to the matter. … Looking at this certificate, one is totally at a loss to know whether it is a grant of permission or a Certificate of Lawfulness of proposed use. An interested party should not be expected to trawl through the file to discover what may have been intended. The Act specifies more precision. This certificate did not provide it.’41

23.28 The certificate may incorporate by reference the application description or plans. The date of the application is important, as the certificate is conclusive as to Town and Country Planning Act 1990, s 191(5) (for CLEUDs) and s 192(3) (for CLOPUDs). Planning Act (Northern Ireland) 2011, ss 169(5), 170(3) are to the same effect. 39 DMPO 2015, Art 39(14) and Sch 8; DMPO Wales, Art 28(14) and Sch 7; GDPO NI, Art 11(6) and Sch 2.  40 [2006] EWCA Civ 1387, [2007] 1 P & CR 23. The document read: ‘South Gloucestershire Council in pursuance of powers under the above-mentioned Act hereby PERMIT the details included in the first schedule on 13th July 2001 in accordance with the application and accompanying plans. Area Planning Manager On behalf of South Gloucestershire Council Date: 19th November 2001 First Schedule (1) That the 1964 planning permission (SG 7789) is not a personal consent to the Bristol Avon River Board; and (2) that the store and class X use referred to in the planning permission SG 7789 is now covered by the reference to storage in the Use Class B8. Second Schedule Land at Winterbourne Station Yard …’ 41 James Hay at paras 27 and 31. 38

368

The effect of a LDC 23.32 lawfulness on that date and changes in circumstances might mean that the matter would be unlawful at a later date. As examples, the LDC may rely on a planning permission which later expires through lack of implementation or on a temporary permission.42 A certification that actual or proposed development is lawful does not affect any failure to comply with a condition or limitation in a planning permission unless stated expressly in the certificate.43 23.29 Welsh Office Circular 24/97 emphasises that a CLEUD must be precise as to the area of land to which it relates and the use, operations or breach which is lawful at the time.44 For example, the number and type of caravans, the hours of works or height of stored materials can be specified. The circular explains this as providing a yardstick against which to judge any future intensification of use. This advice must be considered with caution. If an existing use is within a Use Class then any other use within that Use Class will also be lawful, subject to any planning conditions, so the use can be less precise. The Use Class, if relevant, should always be given.45 Uses are also reasonably general: a detailed description cannot be more precise than the use itself. In Westminster City Council v Secretary of State for Communities and Local Government,46 a CLEUD for the placing of tables and chairs as pavement furniture in connection with a restaurant was adequate, it was not required to try to spell out hours, days and times of year or numbers of chairs and tables. A certificate is not a way of imposing restrictions, which would have been in conditions if a planning permission had been granted. Circular 24/97 emphasises the need for clarity in describing a mixed or composite use a CLEUD.47 23.30 If the development is lawful because of a planning permission, then it is good practice to identify the permission in the certificate. That will indicate if there are any conditions applicable and may be relevant if the permission could expire. 23.31 In refusing, or refusing in part, including by modification or substitution of the description, an application the local planning authority must give clearly and precisely the full reasons for its decision and tell the applicant of his right to appeal.48 THE EFFECT OF A LDC 23.32 A LDC is conclusive as to what it describes as being lawful at the date of the application for the certificate. When a CLEUD is in force the lawfulness of the matters it covers is conclusively presumed.49 It is not permissible to go behind the certificate, for example to consider what the scale of activity on a site actually was

In the event that the proposal was lawful at the date of application but the authority were satisfied that it became unlawful before the certificate was issued, it might include a note to that effect on the decision. 43 Town and Country Planning Act 1990, s 193(5); Planning Act (Northern Ireland) 2011, s 171(5). 44 Welsh Office Circular 24/97, Annex 8, para 8.16. 45 Town and Country Planning Act 1990, ss 191(5)(b), 191(3)(b); Planning Act (Northern Ireland) 2011, ss 169(5)(b), 170(3)(b). 46 [2013] EWHC 23 (Admin) at para 76. 47 Welsh Office Circular 24/97, Annex 8, para  8.22, citing Wipperman v Barking LBC(1965) 17 P&CR 225. 48 DMPO 2010, Art 39(13); DMPO Wales, Art 28(13); GDPO (NI), Art 11(5). 49 Town and Country Planning Act 1990, s 191(6); Planning Act (Northern Ireland) 2011, s 169(6). 42

369

23.33  Lawful Development Certificates when the certificate was applied for. The words of the certificate are what matters. Considering an established use certificate, Robert Goff J said:50 ‘… the use was a matter stated in the certificate. Since no limit was placed upon either part of the site to be so used or the intensity of the use, the use so specified was without limit as to space within the site or intensity.’

23.33 A CLEUD also takes effect as if it was a grant of planning permission for the purposes of s 3(3) of the Caravan Sites and Control of Development Act 1960 which requires planning permission to have been granted for caravan site use before a site licence can be issued.51 The 1990 Act also treats it as a planning permission for certain, now redundant, waste consent provisions.52 A  CLEUD is treated as a planning permission for the purpose of the requirement to have planning permission for an environmental permit to be granted for certain waste operations.53 A CLEUD is determinative of the position at the time of the application and subsequent changes may mean that the use or development described in the certificate ceases to be lawful. For example, there may be a material change of use from that use, a new planning permission may be granted and implemented, the structure may be demolished, the relevant planning permission quashed54 or a discontinuance order made. An existing use described in a CLEUD can be abandoned where the use became lawful through passage of time.55 The lawfulness of the matters contained in the CLOPUD shall be conclusively presumed ‘unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness’.56 Material changes could include changes to permitted development rights, the revocation or expiry of a planning permission, or an abandonment of a current use which was required for the permitted development rights. THE PLANNING REGISTER 23.34 Applications for LDCs are included in the register of planning applications maintained by the local planning authority. In England and Wales the register will include the name and address of the applicant, the date of the application, the address or location of the application site, the description in the application, any decisions of the local planning authority or Minister and their date.57 Northern Irish registers must contain ‘brief details … including the date of issue, any variation and any revocation or expiry as the case may be’.58 Broxbourne Borough Council v Secretary of State for the Environment [1980] QB 1 at 10. Town and Country Planning Act 1990, s 191(7). A CLEUD is also treated as a planning permission for the purpose of the Northern Irish caravan legislation: Caravans Act (Northern Ireland) 1963, s 3(3), see Planning Act (Northern Ireland) 2011, s 169(7). 52 Town and Country Planning Act 1990, s 191(7) applying to the Control of Pollution Act 1974, s 5(2) and Environment Protection Act 1990, s  36(2)(a). In Northern Ireland, the certificate is treated as permission for the Waste and Contaminated Land (Northern Ireland) Order 1997, Art 8(3), see Planning Act (Northern Ireland) 2011, s 169(7). 53 Environmental Permitting (England and Wales) Regulations 2010, Sch 9, para 3(2). 54 If a permission is quashed in legal proceedings then the likelihood is that proceedings would be brought against a related LDC in any event. 55 M & M (Land) Ltd v Secretary of State for Communities and Local Government [2007] EWHC 489 (Admin), [2007] 2 P & CR 18. 56 Town and Country Planning Act 1990, s 192(4); Planning Act (Northern Ireland) 2011, s 170(4). 57 DMPO England, Art 40(7), DMPO Wales, Art 29(9). 58 Planning Act (Northern Ireland) 2011, s 242(1)(o); GDPO NI, Art 27. 50

51

370

Appeals 23.38 LAWFUL DEVELOPMENT CERTIFICATES AND PLANNING OBLIGATIONS 23.35 Lawful development certificates do not deal with whether there has been or would be compliance with planning obligations. They are solely concerned with whether the action or use is or would be without planning permission or a breach of a planning condition. An LDC application that seeks to demonstrate compliance with a planning obligation would be entirely misconceived. A  local planning authority may have to consider how to respond to an LDC application which intentionally or otherwise involves a planning obligation. It will have to consider whether the application falls within ss 191 or 192, and if so, determine those aspects. It might wish to add an informative explaining that the certificate does not cover planning obligations. Any view on compliance with an obligation should not be included in the operative part of the certificate.59 The authority might wish to give a view on the obligation in an informative. Such a view would not be statutorily binding, but would be a legal decision capable of being subject to judicial review. APPEALS 23.36 There is a right of appeal to the Secretary of State, the Welsh Ministers or the Planning Appeals Commission. If the application is refused, or refused in part, or the local planning authority fail to determine the application in eight weeks or any extended period agreed in writing with the applicant, the applicant may by notice appeal.60 A partial refusal includes a modification or substitution of the description in the application.61 As originally enacted in 1991, the legislation provided a right to appeal but no mechanism for imposing a time limit on when an appeal could be brought. The Planning Act 2008 allowed a time period to be prescribed by development order62 but that power has not been exercised. An appeal can therefore be brought many years after the decision was taken although appellants would usually wish to get on with the appeal. However in Northern Ireland, appeals must be brought within four months from the refusal or, in the event of a non-determination appeal, from the time within which the application should have been decided.63 23.37 Appeals are dealt with by Inspectors under transferred power,64 unless the Minister recovers jurisdiction. The rules and regulations governing written representations, hearings and inquiries in enforcement notice appeals apply to lawful development certificate appeals. These are discussed in Chapter 7. 23.38 The minister will issue or modify a CLEUD or CLOPUD, as appropriate, if he considers that the refusal or partial refusal is ‘not well-founded’, or in the event of

In R  (Prudential Assurance Co Ltd) v Sunderland City Council [2010]  EWHC  1771 (Admin), [2011]  JPL  322 LDCs were applied for and granted ruling whether a planning agreement applied. When challenged the Council accepted that an LDC could not deal with that issue, although the applicant for the certificates disagreed and the point was ultimately not resolved by the Court. 60 Town and Country Planning Act 1990, s 195(1); Planning Act (Northern Ireland) 2011, s 173(1). The time periods are in DMPO, Art 39(10), DMPO (Wales), Art 28(10). GDPO (NI), Art 20(1), (2)(b) 61 Town and Country Planning Act 1990, s 195(4); Planning Act (Northern Ireland) 2011, s 173(4). 62 Town and Country Planning Act 1990, s 195(1B) to (1F). 63 Planning Act (Northern Ireland) 2011, s 173(1). 64 Town and Country Planning Act 1990, Sch 6, para 1; Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, reg 3. 59

371

23.39  Lawful Development Certificates a failure to determine, a refusal would not have been well-founded.65 If he considers that a refusal was or would have been well-founded, he shall dismiss the appeal.66 ‘Not well-founded’ is not defined in the Act. The effect of a local planning authority decision not being well-founded is that the appellate body will issue a certificate. The local planning authority only issues a certificate if it is satisfied that the necessary matters are lawful. The Secretary of State should be similarly satisfied before issuing the certificate. A decision is not ‘not well-founded’ simply because of a flaw in the reasoning or other matter which would render it ultra vires, it must be shown to be the wrong result. Obviously the test for issuing a certificate should be the same for the Secretary of State and the local planning authority. The legislation refers to the appeal considering whether the refusal is well-founded and an appellant may submit further evidence which was not before the local planning authority.67 CHALLENGE TO APPEAL DECISIONS 23.39 The decision of the Secretary of State, Welsh Ministers or an Inspector on an appeal under s 195 in respect of a CLEUD or CLOPUD may only be challenged by an application to the High Court under s  288 of the Act.68 A  costs award in a lawful development certificate appeal can be challenged under s 288, as with a costs decision on a planning appeal.69 Decisions of the Planning Appeals Commission are subject to judicial review. These applications are discussed in Chapter 24. REVOCATION OF LAWFUL DEVELOPMENT CERTIFICATES 23.40 A  lawful development certificate may be revoked by the local planning authority if it transpires that:70 ‘on the application for the certificate: (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld’.

23.41 The false statement or withholding need not be by the applicant. Nor need the statement or document be provided with the application: the language of the statute is ‘on the application’ rather than with or in the application. The subsection applies to information provided later but in connection with the application. The default may even be by a person unconnected to the applicant who made a representation, although that is unlikely to justify the exercise of the discretion to revoke. ‘Material’

Town and Country Planning Act 1990, s 195(2); Planning Act (Northern Ireland) 2011, s 173(2). Town and Country Planning Act 1990, s 195(3); Planning Act (Northern Ireland) 2011, s 173(3). 67 Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 23 (Admin), [2013] JPL 842 at para 42(1) per Judge Anthony Thornton QC. 68 Town and Country Planning Act 1990, s  284(3)(g). Challenges to CLOPUD appeal decisions include Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317 and Swindon Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1677 (Admin) (appeal pending). 69 Town and Country Planning Act 1990, s 288(1A). 70 Town and Country Planning Act 1990, s 193(7); Planning Act (Northern Ireland) 2011, s 171(7). 65 66

372

Revocation of lawful development certificates 23.43 in ‘material particular’ and ‘material information’ must mean material to the decision on the application in a way which might have adversely affected the certificate granted.71 An entirely collateral or trivial point would not be material. However, the assessment of an LDC application involves judgments as to the credibility of evidence provided in the absence at the local planning authority stage of cross-examination. A  false statement which affects the credibility of information provided may be material for revocation purposes (for example, if a statement supporting a CLEUD application on the basis of long use asserted that the observer had lived at a nearby property throughout the 10-year period when the person had lived there for only part of the period but had remained in the local area). 23.42 The potential effect of the false statement or withholding must have been potentially adverse to the certificate which was granted. This will be affected by the terms of the certificate: if it identifies a use within a particular use class (unconstrained by planning conditions) then debates about the frequency, precise type or operating hours of the use would be irrelevant because the use merely needed to be carried on within the use class.72 Revocation would not be justified because the certificate ought to have been wider. If an LDC was granted on the basis that a business had operated from a site for 10 years, information would not have been withheld if the applicant had failed to put in all its business records which were confirmatory of that use. There is no obligation to deluge the authority with paper. However, a failure to produce records that indicated gaps in the operations or a scale or area of use less than that in the resulting certificate may be a material withholding. There may be an issue as to what is meant by ‘withheld’. In ordinary language, withholding requires a positive decision to refrain from providing something when there is an opportunity to provide it. In those terms a person would not ‘withhold’ information if they fail to appreciate its materiality. 23.43 Notice must be given when the local planning authority proposes to revoke a certificate. The owner and occupier of the land, any other person who would in the authority’s opinion be affected by the revocation and, in the case of a certificate issued on appeal, the Minister or the Planning Appeals Commission, should be informed.73 The persons notified have 14 days from the date they are served to make representations on the proposed revocation.74 The notice must enable proper consultation to take place. In particular it must identify the claimed false statement or material information withheld before beginning the consultation, as the consultees must know the case they are being asked to meet.75 The local planning authority must consider the representations before revoking the certificate. Once it has taken place, written notice of the revocation must be given to those notified of the proposal, 76 and whilst legislation does not require notice to be given of a decision, following consultation, not to revoke, that should be done. See R  (Russman) v Hounslow London Borough Council [2011]  EWHC  931 (Admin) (permission decision) at para 11 per Collins J: ‘False does not mean deliberately false in the sense of dishonestly so; it suffices if, as a matter of objective fact, information given is false and clearly false in a material particular, because if it could not have had any conceivable effect upon the grant of the certificate then it would not be right to revoke …’. 72 R (Russman) v Hounslow London Borough Council [2011] EWHC 931 (Admin) at paras 13, 14 per Collins J. 73 DMPO, Art 39(15); DMPO Wales, Art 28(15); GDPO NI, Art 11(7). 74 DMPO, Art 39(16); DMPO (Wales), Art 28(16); GDPO NI, Art 11(8). 75 R v Surrey County Council, ex p Bridge Court Holdings Ltd [2000] 4 PLR 30 at 45. 76 DMPO, Art 39(17), DMPO (Wales), Art 28(17); GDPO NI, Art 11(9). 71

373

23.44  Lawful Development Certificates 23.44 A  decision to begin to revoke a lawful development certificate requires the authority to conclude that a false statement was made or material information withheld; and that it should exercise its discretion to revoke. The first is a conclusion as to the facts in the correct legal context. The second is an exercise of discretion, which must be exercised reasonably. The crucial test would appear to be whether the decision on the certificate might have been different. There is no point in revoking a certificate if an identical certificate would be issued on a subsequent application. If the local planning authority knew of the false statement when making its decision, revocation would not be justified. The revocation can be challenged by judicial review and does not prevent the submission of a further LDC application. PROSECUTION FOR PROVIDING MISLEADING INFORMATION 23.45 The provision of false information about an LDC application is an offence. An offence is committed:77 ‘if any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for the issue of a certificate under section 191 or 192— (a) knowingly or recklessly makes a statement which is false or misleading in a material particular; (b) with intent to deceive, uses any document which is false or misleading in a material particular; or (c) with intent to deceive, withholds any material information’

23.46 The offence applies to all persons concerned, including third parties, council officers and members. It also applies to persons attempting to procure a refusal or partial refusal of the application. Since no positive obligation to supply information is provided and an intention to deceive is required, a person can only be guilty of withholding material information if that act was designed to lead the local planning authority to the wrong conclusion on an issue. 23.47 Such an allegation may be tried before the Crown Court or the magistrates’ court, with a maximum sentence of a fine and up to two years’ in jail in the Crown Court, or a fine to the statutory maximum on summary conviction.78 THIRD PARTY CHALLENGE TO THE VALIDITY OF A LAWFUL DEVELOPMENT CERTIFICATE 23.48 The decision of the local planning authority to issue a lawful development certificate may be challenged by third parties by judicial review. They are likely to have standing because a certificate wider than is correct effectively grants planning permission. If a planning application had been made third parties would have been entitled to object. Since the only way they could challenge the certificate is by judicial

Town and Country Planning Act 1990, s 194(1). The materially identical Northern Irish provision is in Planning Act (Northern Ireland) 2011, s 172(1). Fraud offences might also be committed. 78 Town and Country Planning Act 1990, s 194(2); Planning Act (Northern Ireland) 2011, s 172(2). 77

374

Third party challenge to the validity of a lawful development certificate 23.53 review, they have a sufficient interest.79 An applicant for a certificate has a right to appeal to the minister and would be expected to pursue that remedy before going to the court, except in an exceptional case. A third party challenge to a Secretary of State or Welsh Ministers decision on a lawful development certificate appeal would be by an application under s 288 of the Town and Country Planning Act 1990, or in Northern Ireland by judicial review. Previous means of determining lawfulness 23.49 The present systems of lawful development certificates were introduced in November 1991 in England and Wales and in November 2003 in Northern Ireland.80 They replaced two determination mechanisms: •

in England and Wales, established use certificates

•

applications to determine whether planning permission is required for proposed operations or uses

Decisions under these earlier provisions may still be relevant to current lawfulness issues, so they are worth summarising. 23.50 Established use certificates concerned whether the current use of the land had commenced or planning conditions governing the use had started to be breached before the cut-off date81 or the change of use did not require planning permission.82 23.51 A  person who proposed to carry out any operations or make any change in the use of land, could apply to the local planning authority for a determination whether these would be development and whether an application for planning permission was required.83 The application could be made as part of an application for planning permission or separately. An application for planning permission would implicitly contain an invitation to determine that permission was not required.84 23.52 A  positive statement from the local planning authority was required that a further planning consent was not needed, but a letter would be sufficient.85 Consequently, historic correspondence that a planning application which had been submitted was not necessary would be an effective decision. A decision, or failure to reach a decision, could be appealed to the Minister. 23.53 Similar provisions applied in Northern Ireland, with either a specific application being made to the Department for a determination or the Department R v Sheffield City Council, ex p Russell (1994) 68 P & CR 331. For other examples, see R v Kensington and Chelsea Royal London Borough Council, ex p Europa Foods Ltd [1996]  ECGS  5 (15  January 1996) and R (France) v Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429, [2017] 1 WLR 3206. 80 In the latter case by amendments to the Planning (Northern Ireland) Order 1991 by the Planning (Amendment) (Northern Ireland) Order 2003. 81 In England and Wales, this was the beginning of 1964. 82 Town and Country Planning Act 1968, s 17; Town and Country Planning Act 1971, s 94. 83 Town and Country Planning Act 1947, s 17; Town and Country Planning Act 1962, s 43; Town and Country Planning Act 1971, s 53; Planning (Northern Ireland) Order 1991, Art 41. 84 Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 at 1008 per Lord Denning MR and 1010 per Davies LJ; followed in Western Fish Products Ltd v Penwith District Council (1979) 38 P&CR 7 at 35. 85 Wells at 1007, 1008 per Lord Denning MR. 79

375

23.54  Lawful Development Certificates being able to determine on any planning application whether planning permission was required.86 DECLARATION BY THE HIGH COURT OF THE LAWFULNESS OF PROPOSED ACTIONS 23.54 In R (Reprotech (Pebsham) Ltd) v East Sussex County Council, the House of Lords rejected the previous practice of the High Court making declarations as to the lawfulness of proposed actions. The practice had been endorsed by the House of Lords in Pyx Granite Co Ltd v Ministry of Housing and Local Government,87 who considered that: ‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words’.88

23.55 In the past there have been a number of decisions where courts have considered applications for declaration.89 In Thames Heliport v London Borough of Tower Hamlets90 the Court of Appeal expressed concerns about the utility of such applications and the danger of setting the judge an examination paper rather than addressing the real points of concern (whilst considering that in certain respects those proceedings were justified). 23.56 In Reprotech, the court had been asked to rule whether the generation of electricity at a waste disposal site was a material change of use. Giving the leading speech Lord Hoffmann said:91 ‘37 … I doubt whether the judge would have had jurisdiction to give such a ruling. In Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 the House of Lords decided that, as an alternative to seeking a determination that no planning permission was required, a landowner could apply to the court for a declaration which would be binding upon the planning authority in enforcement proceedings. But the law was changed by section 33 of the Caravan Sites and Control of Development Act 1960, which made an appeal to the Secretary of State the sole method by which a landowner could challenge an enforcement notice on the ground that he does not need planning permission. So Lord Bridge of Harwich said in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, 292: “the effect of the changes made by section 33 of the 1960 Act was to substitute for the jurisdiction under section 23(4) of the Act of 1947 [an appeal against an enforcement notice to the justices on the ground that no permission was required] and for the jurisdiction of the High Court in proceedings for a declaration directed to the determination of legal rights in existing buildings or uses of land a new jurisdiction conferred exclusively on the minister.”

Planning (Northern Ireland) Order 1991, Art 41. [1960] AC 260. 88 At 286 per Viscount Simonds. 89 Eg St Hermans Estate Co Ltd v Havant and Waterloo Urban District Council (1970) 69 LGR 286, Pedgrift v Oxfordshire County Council (1992) 63 P & CR 246; Burroughs Day v Bristol City Council [1996] 1 EGLR 167; Tesco Stores Ltd v North Norfolk District Council (1999) 77 P & CR 359. 90 (1997) 74 P & CR 164. 91 At 358, 359. 86 87

376

Declaration by the High Court of the lawfulness of proposed actions 23.57 38 Mr Porten92 says that the exclusive procedure is concerned with challenges to enforcement notices. No enforcement notice has been issued and in seeking a declaration from Tucker J, Reprotech was not attempting to challenge one. It seems to me, however, that the only value of such a declaration would be to serve as an answer to enforcement proceedings if Reprotech proceed to generate electricity without planning permission. If, as the Thrasyvoulou case establishes, it cannot be used for this purpose, it has no point and should not be made.’

The practice of seeking declarations in support of the lawfulness of activities appears to have almost, and perhaps, entirely, died out since the Reprotech decision. 23.57 Declarations of the lawfulness or otherwise of activities may arise collaterally in court proceedings. If a planning injunction is sought then the court will have to decide whether there is a breach of planning control. As another example, judicial review of the failure to take enforcement action may consider the local planning authority’s approach to lawfulness. However, the Planning Court is concerned with whether the authority considered the matter lawfully in public law terms, and unless there could only be one correct conclusion on the facts, would not reach a conclusion whether the matters were lawful.93 These instances tend to involve a complaint by a claimant that various matters are unlawful. A developer or landowner who wishes to establish that something is or would be lawful would be expected to apply for a lawful development certificate.

Author’s note: leading counsel for Reprotech. See R  (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), [2013] Env LR 8 at para 65 per Lang J.

92 93

377

Chapter 24

High Court Challenges

24.01 As with any other public authority decision, the lawfulness of the actions (or lack of actions) by local planning authorities, Ministers, Inspectors or Commissioners in planning enforcement matters can be reviewed by the High Court. In general: •

these decisions are subject to judicial review unless statute in England and Wales requires a different form of High Court challenge: in particular a statutory appeal against an enforcement notice appeal decision or a statutory application against the grant of planning permission in an appeal;

•

where a right of appeal to the Minister or the Planning Appeals Commission exists then it will usually have to be pursued and any High Court proceedings be taken against the decision on the appeal;

•

some validity issues may be capable of being raised in resisting criminal or injunctive proceedings and in some circumstances may have to be taken in those forums;

•

in England and Wales, the ability to raise issues and when they can be taken may be restricted by statute.

24.02 In England and Wales enforcement notices can be challenged by statutory appeal to the High Court following an appeal to the minister. They can be challenged to a limited degree in judicial review and other civil and criminal proceedings. Challenges are tightly controlled, as enforcement notices are intended to be a certain and relatively quick means of enforcement. Competing with this is the need to keep public authorities under proper control and to protect the rights of the individual and the public at large. Other notices have to be challenged either by judicial review or when resisting criminal proceedings. 24.03 The approach in Northern Ireland is similar, except that all High Court challenges are by judicial review. Northern Irish judicial review procedures are addressed at the end of the chapter. Unless otherwise explained, the procedures considered here are those in England and Wales. 24.04 Three different mechanisms apply, in different situations, to bring challenges in the High Court to planning enforcement decisions under the 1990 Acts. These are: (a) appeal to the High Court under the Town and Country Planning Act 1990, s 289 against a decision in proceedings on an enforcement notice appeal. This appeal mechanism is applied, with modifications, to hazardous substances contravention notices1 and a similar provision applies to listed building

1

Planning (Hazardous Substances) Regulations 2015, reg 19; Planning (Hazardous Substances) (Wales) Regulations 2015, reg 20.

378

Challenges to costs decisions in enforcement and planning appeals 24.06 enforcement notices and conservation area consent enforcement notices under the Planning (Listed Buildings and Conservation Areas) Act 1990, s 65; (b) application to the High Court under the Town and Country Planning Act 1990, s 288 to quash a grant of planning permission in an enforcement notice appeal. Similar provisions apply to the grant of hazardous substances, listed building and conservation area consent;2 and (c)

judicial review if the action or decision cannot be challenged on those grounds by the statutory mechanisms above. These include: (i)

other notices such as planning contravention notices; breach of condition notices; temporary stop notices; and stop notices;

(ii) a limited category of challenges to enforcement notice which do not arise on the grounds of appeal, for example, whether it was expedient to issue the notice; (iii) challenges to enforcement notice appeal decisions by third parties who do not have the s 289 appeal right; (iv) challenges to a decision not to enforce. These challenges must be considered against the background that Parliament and the courts want to minimise delays and the opportunity for unmeritorious delaying tactics in enforcement proceedings. CHALLENGES TO COSTS DECISIONS IN ENFORCEMENT AND PLANNING APPEALS 24.05 The Ministers, Commissioners or a Planning Inspector may order a party to pay all or part of the costs incurred by another party in a planning or enforcement appeal.3 Those costs decisions may be challenged on public law grounds in the High Court. The procedure to be adopted depends on the nature of the appeal before the Inspector or Minister. A costs decision in an enforcement notice appeal may be challenged by way of appeal under s  289 as it arises ‘in proceedings on an appeal against an enforcement notice’.4 If a challenge is being brought to the enforcement notice appeal decision then the costs challenge can be brought in the same proceedings. Amendments made in 2015 now include a costs decision in an appeal (or call-in) on a planning application within s 288.5 In Northern Ireland costs decisions in appeals would be challenged by judicial review. 24.06 The merits of challenging a costs decision are affected by the wider context of the case. For example, a costs award may have been made against the local authority on the basis that it was unreasonable to issue the enforcement notice, which was quashed on appeal. If the local authority appeal the decision on the enforcement notice successfully, then the costs decision will almost certainly also be unlawful. The flaw in the Inspector’s substantive decision is likely to have infected the costs Planning (Hazardous Substances) Act 1990, s 22; Planning (Listed Buildings and Conservation Areas) Act 1990, s 63. 3 See Chapter 7. 4 See Botton v Secretary of State for the Environment [1992] 1 PLR 1 at 15 per Roch J. 5 Town and Country Planning Act 1990, s 288(1A), North Kesteven District Council v Secretary of State for the Environment [1989] JPL 445. 2

379

24.07  High Court Challenges decision and the costs grounds can include reliance on the substantive challenge.6 If a claimant’s substantive appeal to the Secretary of State had failed as did its application for costs, it might be that the costs decision ought to be remitted if the substantive section 289 succeeds. In that latter case a claimant will need to show why re-determination of the substantive appeal might affect the costs decision or identify separate legal errors in the costs decision. Consequently if the substantive appeal decision is being challenged in the High Court it will often be sensible and relatively straightforward to challenge the costs decision as well. 24.07 Different issues arise if the sole challenge is to the costs decision to award or not to award costs. Since costs decisions are an exercise of discretion and based primarily on the Inspector’s view of what was reasonable conduct, the court will give a fair degree of latitude to the decision maker if the substantive appeal decision was lawful. Additionally the courts have on occasion expressed concern at challenges being brought where the costs of the High Court proceedings will equal or exceed the likely quantum of the costs award. Sullivan J said in R v Secretary of State for the Environment, ex p Ealing London Borough Council:7 ‘The decision whether or not to make an award of costs is preeminently a discretionary matter, and the Inspector who actually heard the evidence is in the best position to judge, not merely whether or not the evidence is wellfounded in terms of the planning merits of the matter, but also whether or not a party has or has not acted unreasonably. Only very rarely will it be proper for this court to intervene and strike down such an exercise of discretion. Where one has the position that the costs of investigating the exercise of discretion are likely to be equal to if not more than the costs the subject of the award, parties should think long and hard before deciding to seek leave to move for judicial review.’

CHALLENGING THE SECRETARY OF STATE’S DECISION ON AN ENFORCEMENT NOTICE APPEAL IN THE HIGH COURT Appeal to the High Court under s 289 24.08 This challenge is against any decision of the Secretary of State in proceedings on an appeal against an enforcement notice.8 This includes a direction by the Minister recovering jurisdiction over an appeal9 and decision on a costs application,10 but not the Minister declining jurisdiction to consider the appeal, which is challengeable by judicial review.11 The decision of an inspector is considered to be the decision of the Secretary of State and an action would be brought against the Secretary of State or Welsh Ministers, as appropriate. An appeal may be brought by ‘the appellant or the local planning authority or any other person having an interest in the land to which the notice relates’.12 Any other challenger would have to bring judicial review For one of many examples, see Mid-Suffolk District Council v Secretary of State for Communities and Local Government [2009] EWHC 3649 (Admin). 7 22 April 1999 (unreported). 8 Town and Country Planning Act 1990, s 289(1). 9 Connors v Secretary of State for Communities and Local Government [2017]  EWCA  Civ 1850, [2018] JPL 516 at para 42 per Lindblom LJ. It would appear that time for challenging the recovery direction under s 289 would run from the date of the direction rather than the final determination of the enforcement notice appeal: see paras 40, 43, 44 per Lindblom LJ. 10 Botton v Secretary of State for the Environment [1992] 1 PLR 1. 11 Lenlyn v Secretary of State for the Environment (1983) 50 P & CR 129. 12 Town and Country Planning Act 1990, s 289(1). 6

380

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.11 proceedings. The challenge is normally by the appellant if the notice is upheld, and by the local planning authority if it is not. An appeal is in principle concerned with a challenge to the substantive decision rather than the reasoning. So as a general rule it is not possible to appeal against a decision where the formal decision is favourable but part of the reasons or other findings are objected to.13 There may be exceptions, particularly if the objectionable part of the decision has consequences for other decisions.14 The availability of this remedy satisfies the requirements of the European Convention of Human Rights that there be an ‘independent and impartial tribunal’15 in the enforcement notice process.16 24.09 (a)

Section 289(1) allows rules of the court to provide for a person to:

appeal on a point of law; or

(b) require the Secretary of State to state and sign a case for the opinion of the High Court. 24.10 The Civil Procedure Rules do not provide for a case stated under this section and so this option is not available.17 The only challenge provided for is an appeal on a point of law.18 A s 289 appeal would be against the decision on the enforcement notice appeal. Grounds of challenge 24.11 The appeal is confined to points of law only, meaning public law grounds. As it is an appeal against ‘a decision in proceedings on an appeal’ there is authority that the point must have arisen in the appeal, otherwise there is no decision to challenge in the High Court appeal.19 The court is not empowered to set the decision aside or vary it. If the decision is erroneous in law the court can remit the matter to the Secretary of State or Welsh Ministers with the opinion of the court for re-hearing and determination.20 The court cannot examine questions of fact, except where a factual error amounts to a public law error. Indeed, it has been said that the court should not receive evidence put before the inspector unless it is argued that the inspector has not properly summarised, or has disregarded, some material evidence.21 Since the Young v Secretary of State for the Environment (1990) 60 P & CR 560 (but note the minority view of Woolf LJ). The use of judicial review to challenge the reasoning in a favourable decision is confined to exceptional circumstances: R (Redditch Borough Council) v First Secretary of State [2003] EWHC 650 (Admin), [2004] JPL 21 and Tewkesbury Borough Council v Secretary of State for Communities, Housing and Local Government [2019] EWHC 1775 (Admin), [2019] PTSR 2144 at para 32 per Dove J. 14 One example would be if an enforcement notice appeal is allowed on ground (a) (granting planning permission) and dismissed on the legal grounds (grounds (b)–(d)) and the appellant wished to succeed on a legal ground so compensation could be obtained for losses caused by a stop notice. 15 Article 6.1. 16 Bryan v United Kingdom (1996) 21 EHRR 342. 17 Practice Direction 52E on appeals by way of case stated says that procedures for statements of case by ministers may be in the enactment or rules of procedure: para  3.1. However no rules of procedure provide for a case stated against an enforcement notice appeal decision. This continues the longstanding position under the planning legislation: see Hoser v Minister of Housing and Local Government [1963] Ch 428. 18 CPR 52.28(1). 19 Beach v Secretary of State for the Environment, Transport, and the Regions [2001] EWHC Admin 381, [2002] JPL 185 at paras 37–44 per Ouseley J. 20 Practice Direction 52D, para 26.1(15). 21 Clarke v Secretary of State for the Environment (1993) 65 P &CR 85 at 90 per Glidewell LJ. 13

381

24.12  High Court Challenges decision must be understood in the context of the evidence, that is unrealistic, but factual conclusions will be left to the Minister or Inspector. Standing 24.12 The High Court appeal may be brought by ‘the appellant or the local planning authority or any other person with an interest in the land to which the notice relates’.22 Relevant occupiers who did not exercise their right to appeal, persons who were served but without a right of appeal to the Secretary of State, other public authorities entitled to appear at the inquiry and third parties are not entitled to proceed under s 289. Such persons may be able to challenge the decision by judicial review.23 Bringing proceedings 24.13 The appeal must be brought by an Appellant’s Notice under Pt 52 of the Civil Procedure Rules, with further procedures set out in Practice Direction 52D – statutory appeals and appeals subject to special provision, section II and section III, para 26.1.24 The Practice Direction says that the application must be in writing, with the reasons why permission should be granted and include any necessary application for an extension of time.25 It must be accompanied by:26 ‘(a) a copy of the decision being appealed; (b) a draft appellant’s notice; (c) a witness statement or affidavit verifying any facts relied on; and (d) a witness statement or affidavit giving the name and address of, and the place and date of service on, each person who has been served with the application. If any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason why the person was not served.’

24.14 Since an appellant’s notice includes space for requesting permission to appeal, as well as the grounds of appeal, it is common practice for the application for permission to appeal to be in the draft appellant’s notice rather than in a separate application document (such as a conventional application notice form or another document). Whilst the Practice Direction appears to be anticipating some separate document, it is logistically easier to put all matters on the draft appellant’s notice and no problems appear to have arisen with the court. 24.15 The Secretary of State or Welsh Ministers, as appropriate, will be named as the first respondent. The appellant or the local planning authority, if they are not appealing, will be the second respondent. It is unusual to join other persons interested in the land in the proceedings, although the application, draft appellant’s notice and witness statement must be served upon them.27 Town and Country Planning Act 1990, s 289(1). See below. 24 Practice Direction 52A – Appeals is also applicable. However, Practice Direction 52B does not apply, as it is only applicable to appeals from the County Court to the High Court or from one part of the High Court to a High Court judge: PD 52B, para 1.1. 25 Practice Direction 52D, para 26.1(2). 26 Practice Direction 52D, para 26.1(4). 27 Practice Direction 52D, para 26.1(3), (12). 22 23

382

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.17 Obtaining permission to appeal 24.16 Permission from the High Court must be obtained for an appeal to be brought.28 The application for permission must be brought ‘within 28 days after notice of the decision is given to the applicant’.29 The prudent view is to take notice as being given on the date the notice is sent (taken as the date on the decision letter): Ringroad Investments and Courtburn v Secretary of State for the Environment.30 This was a majority decision of the Divisional Court on the former requirement of the Rules of the Supreme Court Order 55, r 4(4) that the period ‘shall be calculated from the date on which notice of the decision was given to the appellant’. The majority considered itself bound, with reluctance, by the Divisional Court’s decision in an industrial tribunal appeal, Minister of Labour v Genner Iron & Steel Co (Wollescote) Ltd.31 However the Genner decision was described by the Court of Appeal in Griffiths v Secretary of State for the Environment as obiter and the Court disagreed with Ringroad considering that ‘given’ means ‘received’.32 Griffiths however concerned an application from a planning appeal (what is now under s 288) and so the point was itself obiter. In Smith v Secretary of State for the Environment,33 the Court of Appeal considered it to be correct that time ran from the date on which the notice of the decision was received. The Griffiths and Smith approach was followed by the High Court in Ynys Mon Borough Council v Secretary of State for Wales34 and R v East Sussex County Council, ex p ARC Ltd.35 There is therefore ample basis for saying that time ran from receipt of the decision rather than it being sent out. That said, in the absence of Ringroad being explicitly overruled, it is cautious to work from the earlier date. There may be uncertainty or dispute as to when a decision was received. Since the Planning Inspectorate will often email decisions to appellants, the question of a difference between the sending and receipt of a decision would not apply in many cases. 24.17 The proceedings must be brought ‘within 28 days after’ notice was given. This date does not include the date on which notice was given, as it refers to a number of days after the dates of the decision.36 So if notice was given on a Tuesday then the last date for filing is the Tuesday four weeks later. This time may be extended with the leave of the court.37 The application, the draft appellant’s notice, the decision and witness statement (or affidavit) verifying any facts relied upon must be filed in the Administrative Court Office38 in the 28-day period along with a witness statement or affidavit:39

30 31 32 33 34 35 36

Town and Country Planning Act 1990, s 289(6). Practice Direction 52D, para 26.1(1). (1980) 40 P &CR 99. [1987] 1 WLR 1386. [1983] 2 AC 51 per Templeman LJ at 56. The Times (6 July 1987). [1992] 3 PLR 1. [2000] Env LR D8. Following the reasoning in Pritam Kaur v S  Russell & Sons Ltd [1973]  QB  336. Without giving any analysis, this was also the view of the Court of Appeal in Smith v Secretary of State for the Environment The Times (6 July 1987). 37 CPR 3.1(2). 38 Either at the Royal Courts of Justice in London or at the District Registry of the High Court at Birmingham, Cardiff, Leeds, or Manchester: Practice Direction 54D, para 2.1. 39 Practice Direction 52D, para 26.1(4). It is easier and conventional to use witness statements rather than affidavits as these do not have to be sworn before an independent solicitor. 28 29

383

24.18  High Court Challenges ‘giving the name and address of, and the place and date of service on, each person who has been served with the application. If any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason why the person was not served.’

The form of the application, as distinct from the draft appellant’s notice, is unclear. Since the appellant’s notice includes room for applying for permission to appeal, the Planning Court’s practice is to accept an appellant’s notice without a separate application form. The application is required to set out the reasons why permission should be granted.40 There is no requirement to provide a skeleton argument, although the case should be persuasively argued on paper and a permission hearing is required. For those reasons it is commonplace to submit a skeleton with the appellant’s notice (or within 14 days of filing)41 or a combined grounds and skeleton.42 24.18 The permission application is heard by a single judge sitting in open court. Unfortunately there is no procedure for a judge to consider the permission application on the papers (as happens in judicial review). The consequence is that permission hearings may last a matter of seconds if the judge has decided on reading the papers that the case is arguable and no respondent attends to resist permission. Respondents may appear at the hearing to challenge the application for permission.43 If they wish to produce evidence at this hearing, it must be filed with the Planning Court and served on the applicant as soon as practicable and in any event, at least two days before the hearing.44 The court may allow the applicant for permission to use a further witness statement or affidavit.45 24.19

The application is subject to the conventional CPR test that:46

‘permission to appeal may be given only where— (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.’

24.20 In practice this is little different to the previous approach of considering whether the appeal is arguable,47 although the ‘compelling reason’ test can encompass a point of wider importance. There may be other circumstances in which it can be refused. It was suggested by Henry J, in PG Vallance Ltd v Secretary of State for the Environment48 that leave could be refused if it was plain that no substantial wrong or miscarriage of justice had been occasioned by any misdirection in relation to the law. If permission to appeal to the High Court is refused by the High Court the challenge ends. The Court of Appeal cannot consider

42 43

Practice Direction 52D, para 26.1(2). As indicated in the appellant’s notice form, but not in the CPR. Any skeleton argument must comply with Practice Direction 52A, para 5.1. Practice Direction 52D, para 26.1(7): ‘Any person served with the application is entitled to appear and be heard’. 44 Practice Direction 52D, para 26.1(8). 45 Practice Direction 52D, para 26.1(9). 46 CPR 52.6. 47 For an old example see Kensington & Chelsea Royal London Borough Council v Secretary of State for the Environment [1992] 2 PLR 116, [1993] JPL 139. 48 [1993] 1 PLR 74, [1994] JPL 50. 40 41

384

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.23 an appeal against that refusal.49 There is also an interim power in the court to require the Minister to provide further information,50 although that will rarely be needed. 24.21 If permission is granted, the appellant’s notice must be served and filed in the court within seven days.51 The appellant’s notice must be served on the Minister, the local planning authority or appellant (whoever is not appealing) and any other person having an interest in the land.52 On granting permission, the court may impose terms as to costs and giving security,53 and may give directions.54 The High Court, or at a later stage the Court of Appeal, may order that the enforcement notice shall have effect in whole or to a specified extent, pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State.55 This effect may be on such terms including an undertaking as to damages by the local planning authority. The substantive hearing 24.22 CPR 52 and the relevant practice directions say little about the procedure following the filing of the appellant’s notice.56 Directions to be made as to any further evidence and the filing of a hearing bundle, skeletons and authorities bundle. A conventional timescale for skeletons is for the appellant’s skeleton to be filed and served not less than 21 days before the hearing (along with the hearing bundle), with the respondents following 14 days before the hearing. Unless it orders otherwise, the High Court will not receive oral evidence or evidence which was not in front of the Inspector or Minister prior to the decision.57 The respondents may wish to add in other documents from the appeal and that is straightforward. If an issue arises as to what happened in the conduct of the appeal (such as events on the site visit) it would be usual for all parties to be able to put in evidence. 24.23 The court’s power is to remit the enforcement notice appeal back to the Minister for redetermination in accordance with the judgment of the court.58 The enforcement notice remains in being, but its taking of effect is suspended until the appeal is redetermined (unless the suspension is lifted by the court). The court is able to give directions as to the service of stop notices and breach of condition notices, or the institution of proceedings relating to those notices, prior to the final determination of the appeal.59 Wendy Fair Markets Ltd v Secretary of State for the Environment [1996] JPL 649. This has been re-affirmed by the Court of Appeal in Prashar v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1231, [2001] 3 PLR 116, Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370, [2013] JPL 1183 and Binning Property Corpn Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 250, [2019] JPL 844. There is a residual discretion in the Court of Appeal to allow an appeal to proceed if there was misconduct or unfairness in the High Court process: Walsall at para 15 per Sullivan LJ. 50 Practice Direction 52D, para 26.1(15). 51 Practice Direction 52D, para 26.1(11)(c). 52 Practice Direction 52D, para 26.1(12). 53 Practice Direction 52D, para 26.1(11)(a), although this is rare, perhaps because appellants are usually local authorities or landowners. 54 Practice Direction 52D, para 26.1(11)(b). 55 Town and Country Planning Act 1990, s 289(4A). 56 In part because Practice Direction 52B which governs most appeals to the High Court, does not apply. 57 CPR 52.11(2). 58 Practice Direction 52D, para 26.1(14). 59 Practice Direction 52D, para 26.1(16). 49

385

24.24  High Court Challenges 24.24 On remission of an enforcement notice appeal the Minister is required to remedy the error identified and that does not necessarily require the appeal to be considered entirely afresh: R  (Perrett) v Secretary of State for Communities and Local Government.60 For example, if the decision is remitted because of a legal error on the ground (a) appeal (as to whether planning permission should be granted), the Minister is not obliged to reconsider whether there is a breach of planning control which can be enforced against (grounds (b)–(d)). Whether the steps required are excessive and extensions of time might arise regardless of the grounds of the remission. An error as to whether planning permission should be granted might affect the balance of the planning considerations so the planning merits would have to be reopened in their entirety, subject perhaps to the parties agreeing that the issues can be narrowed. Consequently if the Minister offers to submit to judgment it is necessary to consider what issues would be capable of being reopened in the remitted appeal. The result may be that the High Court proceedings have to continue to resolve the basis of the remission.61 Costs 24.25 The general rule is that ‘the unsuccessful party will be ordered to pay the costs of the successful party’.62 Consequently, the winner of the final hearing will usually recover its costs. Costs do though remain in the discretion of the court. A  party who has been ultimately successful but failed on a significant number of its arguments might not recover its full costs. However, the losing party will not normally be expected to pay more than one set of costs, for example to the Secretary of State and the respondent developer, unless this is justified by the case.63 24.26 There is a little more debate about the costs of permission hearings. There are four possible situations: (1) permission to appeal is granted and the appeal is ultimately successful; (2) permission to appeal is refused; (3) permission to appeal is granted but the appeal ultimately fails; and (4) permission to appeal is granted on a limited number of the grounds advanced. The position of an ultimately successful appellant is straightforward: the appellant will recover its costs of the permission hearing on the same basis as the costs of the overall proceedings. 24.27 In 1993 the Court of Appeal held in R v Secretary of State for Wales, ex p Rozhon64 that, as respondents are entitled to attend the s 289 permission hearing, they should receive their costs if permission is refused. However, that decision pre-dates

[2009] EWCA Civ 1365, [2010] LGR 336. As happened, for example, in Elvington Park Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3041 (Admin), [2012] JPL 556. 62 Civil Procedure Rules, Part 44.2(2)(a). 63 See Bolton Metropolitan Borough Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 (on s 288 applications). 64 [1994] JPL 801. 60 61

386

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.31 the changes introduced by Civil Procedure Rules. The Practice Direction does not refer to costs of planning appeal permission hearings.65 24.28 Respondents are still entitled to appear at the permission hearing66 but (unless a direction is made) their attendance is neither ordered nor requested. It is also notable by analogy that whilst defendants are entitled to attend permission hearings for statutory planning applications (such as s 288 below) or judicial review, they will not normally receive their costs.67 The issue has not been fully considered in the courts.68 24.29 Where the High Court proceedings are a judicial review or an appeal by case stated against a decision in criminal proceedings then a successful accused will usually have to seek to recover High Court costs by an award from central funds. It will only exceptionally be that costs would be awarded against the prosecutor on a civil basis.69 Appealing to the Court of Appeal 24.30 If permission to appeal to the High Court has been granted, then its decision on the substantive appeal may be appealed to the Court of Appeal. Section 289(6) provides that any appeal to the Court of Appeal may only be brought with the leave of the High Court or Court of Appeal. This provision is not limited by more general legislation or the CPR which confines the power to make permission decisions on second appeals to the Court of Appeal.70 Application to the High Court under s 288 to quash a grant of planning permission 24.31 The grant of planning permission in an enforcement notice appeal is treated in the same way as the grant of permission under a s  77 call-in or s  78 planning appeal. A grant of planning permission or the discharge of a condition or limitation on an enforcement notice appeal can be challenged by an application to the High Court under s 288.71 Refusal of planning permission in an enforcement appeal is not covered by these provisions and can only be challenged under s 289.72 A distinction

The Practice Directions which do deals with costs of the permission stage (setting a general rule that respondents will not recover their costs of attending a permission hearing) do not apply to appeals to the High Court from Inspectors or Ministers: Practice Direction 52B, paras 1.1, 8.1; 52C, para 20. 66 Practice Direction 52D, para 26.1(7). 67 Practice Direction 8C, para 8.2, Practice Direction 54A, para 8.6. 68 Rozhon was noted as the approach to enforcement notices by the Court of Appeal when it considered judicial review permission hearing costs in R (Mount Cook) v Westminster City Council [2003] EWCA Civ 1346, [2004] 2 P &CR 22 at para 70. There was limited consideration following a substantive appeal hearing in Williams v Secretary of State for Communities and Local Government [2009] EWHC 475 (Admin). Hickinbottom J followed Rozhon in awarding the Secretary of State the minor costs of a skeleton (with the Minister not having been represented at the hearing). However, he declined to express a view on the principle as the issue had not been fully argued (paras 93–100). 69 R (on the application of Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin), [2019] 3 WLR 901 at paras 100–102 per Holroyde LJ and Dove J. 70 Miaris v Secretary of State for Communities and Local Government [2015] EWHC 2094 (Admin), [2015] 1 WLR 4333 at para 25 per John Howell QC, rejecting the assumption in court practice and earlier publications, including this one, that only the Court of Appeal could grant permission to appeal. 71 Town and Country Planning Act 1990, ss 284(3), 288(4). 72 De Souza v Secretary of State for Communities and Local Government [2015] EWHC 2245 (Admin). 65

387

24.32  High Court Challenges is drawn between the need for speed in enforcement proceedings and treating the local planning authority and third parties as if the Secretary of State had granted permission in a planning appeal. There will also need to be an appeal under s 289 to the decision to allow the enforcement notice appeal.73 The s 288 proceedings are able to quash the planning permission, but the s 289 proceedings are required to remit the enforcement notice appeal decision back to the minister. Separate proceedings therefore have to be filed, but it is conventional to have identical grounds and a common bundle of evidence. The proceedings would be dealt with together, except that there will have to be a permission to appeal hearing in the s 289 proceedings. There is no good reason why two sets of proceedings should have to be brought against a single decision. It merely increases costs and encourages procedural error. Grounds of challenge 24.32

The s 288 challenge is on the grounds:74

‘(i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action.’

The relevant requirements are those under the Act and the Tribunals and Inquiries Act 1992 and of orders, regulations and rules made under those Acts, or in respect of costs orders, also under the Local Government Act 1972.75 24.33 The High Court may quash the grant of planning permission if it is satisfied that it:76 ‘is not within the powers of this Act, or that the interests of the applicant [to the Court] have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it.’

The tests are essentially those in judicial review. These include errors of law going to jurisdiction, unreasonableness in acting without evidence, taking into account irrelevant considerations or failing to take into account relevant considerations, or failure to comply with the statutory procedures or the principles of natural justice (see Seddon Properties Ltd v Secretary of State for the Environment77 and Ashbridge Investments Ltd v Minister of Housing and Local Government).78 Standing 24.34 The challenge may be brought by a ‘person aggrieved’.79 The local planning authority is entitled to apply under this section. A person is aggrieved in the ordinary R (Wandsworth London Borough Council) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 622 (Admin), [2004] P &CR 32. 74 Town and Country Planning Act 1990, s  288(1). S  288 applications are considered in more detail in Richard Harwood, Planning Permission (Bloomsbury Professional, 2016) Chapter 25 and the equivalent applications against local plans are addressed in Harwood and Hutton, Planning Policy (Bloomsbury Professional, 2018) Chapter 22. 75 Town and Country Planning Act 1990, s 288(9). 76 Town and Country Planning Act 1990, s 288(5). 77 (1981) 42 P &CR 26. 78 [1965] 1 WLR 1320. 79 Town and Country Planning Act 1990, s 288(1). 73

388

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.37 sense of the word for a s 288 application.80 Third party pressure groups have been allowed to challenge planning permissions.81 Broadly speaking, a claimant must show that they took part in the appeal proceedings, were not told about the appeal and would have taken part if they had known, or are directly affected by the proposal.82 For example, in Bannister v Secretary of State for the Environment,83 a neighbouring landowner was allowed to apply under s 288 against a planning permission granted in an enforcement appeal. Bringing proceedings 24.35 The procedure is set out in Pt 8 of the Civil Procedure Rules and Practice Direction 8C. The Pt 8 claim form, tailored for the Planning Court,84 will identify the decision to be challenged and set out the grounds of challenge. Conventionally, the Secretary of State or Welsh Ministers will be the first defendant. The appellant and the local planning authority will be added as defendants if they are not a claimant. 24.36

With or on the claim form the claimant must give:85

‘(a) the name and address of any person that the claimant considers must be served in accordance with paragraph 4.1; (b) that the claimant is requesting permission to proceed with a claim for planning statutory review; (c) a detailed statement of the claimant’s grounds for bringing the claim for planning statutory review; (d) a statement of the facts relied on; (e) any application for directions; and (f) the remedy being claimed (including any interim remedy).’

24.37 Usually the claim form will be accompanied by details of claim which set out the facts and grounds of the application. A claim which lacks any grounds capable of being within the statutory grounds of challenge and complying with the CPR will not be valid86 and is incapable of correction by amendment outside the time limit. Also, and more formally, the details should say that the application is brought under the Town and Country Planning Act 1990, s 288 and CPR Part 8.87

Times Investment Ltd v Secretary of State for the Environment (1991) 61 P & CR 98. Eg Save Britain’s Heritage v Secretary of State for the Environment [1991] 2 All ER 10. 82 See Walton v Scottish Ministers [2012]  UKSC  44, [2013]  JPL  323; Ashton v Secretary of State for Communities and Local Government [2010] EWCA Civ 600, [2010] JPL 1645 and the Aarhus Convention on Access to Environmental Justice, Art 9. 83 [1995] JPL B13. 84 Form N208PC. 85 Practice Direction 8C, para 2.2. 86 See R  (on the application of A) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1253, [2012] JPL 579, at paras 64–66 per Sir Mark Potter. As discussed in that case, such failures have sometimes been characterised as concerning the statute authorising the application or of the Court’s procedural rules. Whilst more detail is required under the Practice Direction, CPR 8.2(b)(ii) requires the claim to state ‘the legal basis for the claim to that remedy’. 87 CPR 8.2. 80 81

389

24.38  High Court Challenges 24.38 The permission of the Court is required to bring an application. The application must be brought within six weeks from the date of the decision,88 so if a decision is dated on a Tuesday then the claim must be made on or before the Tuesday six weeks later.89 Subject potentially to human rights or European law issues, this time limit cannot be extended.90 The proceedings should be served within the sixweek period but the court may extend time for service.91 24.39 A person served with the claim form who wishes to take part in the proceedings must file an acknowledgment of service and summary grounds by 21 days after service of the claim.92 No provision is made for any reply by the claimant, but that may be done. Any reply should be short and confined to making new and essential points arising from the summary grounds. The permission application will then be considered by the judge on the papers93. If permission is refused then the application may be renewed (with short grounds) to an oral hearing unless the judge records it to be totally without merit. In this latter case the claimant may only appeal to the Court of Appeal. Any request for reconsideration by the High Court or appeal to the Court of Appeal must be filed within seven days after service of the order and its reasons94. 24.40 If permission is granted then the defendant and anyone else served with the claim form who wishes to defend the claim or support it on additional grounds must file and serve detailed grounds and any written evidence within 35 days after service of the order95. 24.41 Evidence is by witness statement, although witnesses are occasionally called where events at the hearing or inquiry are disputed. Directions usually require skeletons to be produced sequentially, 21 days (the claimant) and 14 days (other parties) before the hearing. 24.42 The High Court may suspend the challenged planning permission by interim order until the final determination of proceedings,96 although this is rarely if ever done. The case is heard by a single judge, either a High Court or Deputy High Court Judge. Costs of High Court appeals and applications 24.43 As in other court proceedings the costs of the action will follow the event. Where there is multiple representation in a s 288 application the losing party will not normally be required to pay more than one set of costs unless the recovery of further Town and Country Planning Act 1990, s 288(3). There is authority that the claim form needs to be with the court office rather than delivered to the court building after the office has closed: Barker v Hambleton District Council [2011] EWHC 1707 (Admin). 90 There may be some debate whether Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54, [2019] PTSR 1406 leaves open any possibility of the Human Rights Act 1998 requiring an extension of time in planning cases: see R (Bellamile Ltd) v Ashford Borough Council [2019] EWHC 3627 (Admin). 91 For the principles on extending time for service see Corus UK  Ltd v Erewash Borough Council [2006] EWCA Civ 1175, [2007] 1 P & CR 22. 92 Practice Direction 8C, paras 5.2, 5.3, 5.5. 93 Planning reviews: Practice Direction 8C, para 7.1. 94 Planning reviews: Practice Direction 8C, para 7.5 (reconsideration), CPR 52.15B(3) (appeal). 95 Planning reviews: Practice Direction 8C, para 12.1. 96 Town and Country Planning Act 1990, s 288(5). 88 89

390

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.45 costs is justified by the circumstances of the particular case. Following conflicting case law, the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note)97 set out the general approach: ‘(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. …. (2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case. (3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified.’

Appealing to the Court of Appeal on s 288 24.44 An appeal may be brought from the High Court to the Court of Appeal. Permission may be sought from the High Court or the Court of Appeal and the usual tests that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard are applied.98 SECTIONS 288 AND 289 AND PLANNING JUDICIAL REVIEW COMPARED

24.45 Section 288 Application

Section 289 Appeal

Planning judicial review

Subject of challenge in enforcement

grant of planning permission on enforcement appeal, or decision on an appeal or call-in on a planning application

Decision in proceedings on an enforcement notice appeal

Any act or omission not capable of being challenged by a statutory application or appeal

Relevant statute

Town and Country Planning Act 1990, ss 2 284, 288

Town and Country Planning Act 1990, s 289

Senior Courts Act 1981, s 31

CPR rules and practice directions

CPR Part 8, Practice Direction 8C

CPR 52, Practice Direction 52A, 52C

CPR 54, Practice Direction

Time allowed for challenge

42 days

28 days

6 weeks

Extension of time for proceedings possible

No

Yes

Yes

[1995] 1 WLR 1176. Followed in Belfast City Council v Planning Appeals Commission [2018] NIQB 17 at para 111 per McCloskey J. 98 Civil Procedure Rules, Pt 52.3(6). 97

391

24.46  High Court Challenges Section 288 Application

Section 289 Appeal

Planning judicial review

Leave to challenge Yes required

Yes

Yes

Leave to appeal to Court of Appeal required

Yes

Yes

Yes

Validity of enforcement notices 24.46 The general intention is that enforcement notices should only be challenged by appeal to the Secretary of State and by a limited appeal from that decision under s 289 except in rare circumstances. It is helpful, therefore, to consider the general prohibition on challenge before addressing other means of questioning the validity of an enforcement notice. Section 285(1) provides: ‘The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal can be brought.’

24.47 The Northern Irish legislation is to the same effect.99 If the challenge is on any of the grounds on which an appeal could be brought,100 then it can only be brought by appeal under those provisions. For example, an argument that the use had become lawful by passage of time before the issuance of the enforcement notice cannot be raised as a defence in criminal proceedings.101 The section does not directly prevent the notice’s validity being raised on other grounds. However, in R v Wicks the House of Lords considered that the enforcement notice regime, including s 285(1), meant that in criminal proceedings ‘“enforcement notice” means a notice issued by the planning authority which is formally valid and has not been quashed’.102 In this context, formally valid meant valid on its face. Other public law grounds (outside the s 174 grounds of appeal and any validity issues which arise on appeal) could be raised in judicial review.103 Wicks was followed by the Divisional Court in Palacegate Properties Ltd v Camden London Borough Council104 in holding that it could not be argued in criminal proceedings that there had been no authority to issue the enforcement notice. 24.48 Section 285 applies to prevent judicial review proceedings being brought to quash an enforcement notice even if those same proceedings seek the quashing of related stop notices.105 Section 285 does not prevent a challenge to a decision to issue an enforcement notice if the notice is not issued, even if the grounds could arise on appeal.106 Inspector’s decisions in England and Wales may only be challenged

Planning Act (Northern Ireland) 2011, s 143(8). In Town and Country Planning Act 1990, s 174(2), Planning Act (Northern Ireland) 2011, s 143(3). 101 Vale of White Horse v Treble-Parker [1997] JPL 660. 102 R v Wicks [1998] AC 92 at 119C per Lord Hoffmann. 103 Wicks at 122E per Lord Hoffmann. 104 (2001) 82 P &CR 17. 105 R  (JRP  Holdings Ltd) v Spelthorne Borough Council [2007]  EWCA  Civ 1122, [2008]  JPL  696 (permission decision). 106 R v Basildon District Council, ex p Martin Grant Homes Ltd (1987) 53 P & CR 397. 99

100

392

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.51 under the section 288 or 289 procedures.107 An Inspector’s decision may only be challenged under those provisions on the ground that the appeal ought to have been determined by the Minister rather than the Inspector if ‘the appellant or the local planning authority challenge the appointed person’s power to determine the appeal before his decision on the appeal is given’.108 24.49 The validity of an enforcement notice cannot be challenged on the grounds that: (a)

if it was issued by the district planning authority, they failed to comply with a requirement to consult the county planning authority; or

(b) if it was issued by the county planning authority, that it did not relate to a county matter.109 A challenge to an enforcement notice that should have been brought in an appeal or by judicial review cannot be advanced by alleging an abuse of process and so seeking a stay of criminal proceedings.110 Judicial review 24.50 Decisions of public bodies are generally subject to judicial review. The main exceptions are if a statutory right of application or appeal is exclusive or the court considers that an alternative remedy is effective and convenient.111 For example, a person who can appeal to the Minister or the Planning Appeals Commission will usually be expected to do so, rather than proceeding straight to judicial review. If a statutory power to apply or appeal to the Court from an appeal decision arises, that should be pursued rather than judicial review. Provided that the High Court challenge is not on any of the grounds on which the enforcement notice could have been appealed or is to the Secretary of State’s decision on an appeal, judicial review can be brought. Because of the bars in s 285, such judicial review challenges would normally be on public law grounds related to expediency. It is appropriate to challenge the lawfulness of the decision that it was expedient to issue an enforcement notice by judicial review.112 24.51 An alternative ground of judicial review challenge is that the notice is a nullity: it fails to comply with the legal requirements of an enforcement notice and is therefore of no effect. For example, it may not provide reasons for its issuance or the date on which it takes effect. The steps specified may be so vague as to be unenforceable and the notice thereby a nullity.113 Judicial review could be brought to rule that enforcement notices which did not specify a period for compliance were nullities,114 or the point raised on appeal to the Minister. 109 110 111 112

Town and Country Planning Act 1990, Sch 6, para 2(7). Town and Country Planning Act 1990, Sch 6, para 2(8). Town and Country Planning Act 1990, s 286(2). R v Clayton [2014] EWCA Crim 1030. R v Chief Constable of the Merseyside Police, ex p Calveley [1986] QB 424. For example, in R (Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin), [2011]  JPL  702 where amongst other points it was irrational not to negotiate; Britannia Assets (UK) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 1908 (Admin). 113 Metallic Protectives Ltd v Secretary of State for the Environment [1976] JPL 166. 114 R (Lynes) v West Berkshire Council [2002] EWHC 1828, [2003] JPL 1137. 107 108

393

24.52  High Court Challenges 24.52 The failure of a local planning authority to bring enforcement action can be challenged by third parties in judicial review. Since the decision to take enforcement action is discretionary, proceedings tend to concern one or more of the following types of issues: (a) error of law in considering that the activities were not a breach of planning control: for example, errors in concluding that poultry units were not development (R (SWVAG) v Bath and North East Somerset Council115) or that the development was permitted development (R v Sevenoaks District Council, ex p Palley116); (b) failure to consider taking enforcement action: in R v Stroud District Council, ex p Goodenough117 the Divisional Court agreed with a local action group’s challenge that a local planning authority should consider taking action to prevent the demolition of listed buildings; (c) unlawful exercise of the discretion not to take enforcement action: since the discretionary power is in broad terms, an error is difficult to establish; and (d) taking action to address a breach of European Union law: in Ardagh Glass118 the High Court directed a council to issue an enforcement notice. 24.53 Judicial review is the appropriate mechanism for challenging a refusal of the Secretary of State to hear an enforcement notice appeal.119 It is also the only way in which someone who is not an appellant, local planning authority or person interested in the land can challenge an enforcement notice appeal decision.120 This does raise potential conflicts with the s 285(1) prohibition on challenging enforcement notices on appeal grounds other than under the Town and Country Planning Act 1990 and the approach in R v Wicks to treat other public law grounds as within the prohibition on collateral challenge. However public law dislikes persons being prevented from challenging decisions which they have an interest in and some enforcement notice appeals will be subject to the rights of access to the justice in the Environmental Impact Assessment Directive, Art 11, the Human Rights Act 1998 and the Aarhus Convention on Access to Justice, Art 9. Judicial review procedures in England and Wales 24.54 Judicial review is governed by the Senior Courts Act 1981, s 31, CPR 54121 and the Part 54 practice directions, in particular PD  54A. The procedure is now similar to that for section 288 applications, although a separate series of forms are used.122

[2012] EWHC 2161 (Admin), [2013] Env LR 8. [1995] JPL 915. 117 (1980) 43 P & CR 59. 118 R (Ardagh Glass Ltd) v Chester City Council [2009] EWHC 745 (Admin), [2009] Env LR 34. 119 Lenlyn v Secretary of State for the Environment (1985) 50 P & CR 129. 120 For example, R (Samuel Smith Old Brewery (Tadcaster)) v Secretary of State for Communities and Local Government [2009] EWHC 3238 (Admin). 121 A judicial review application is a form of CPR Part 8 proceedings, but Part 8 has little practical effect on judicial review proceedings. 122 Planning judicial reviews are discussed in more detail in Harwood, Planning Permission (2016), Chapter 25 with some updates in Planning Policy (Harwood and Hutton, 2018). 115 116

394

Challenging the Secretary of State’s decision on an enforcement notice appeal 24.58 24.55

The principal differences to have in mind are:

•

parties are usually expected to engage in pre-action correspondence pursuant to the Judicial Review Pre-Action Protocol;123

•

judicial review proceedings against decisions under the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990 or the Planning (Hazardous Substances) Act 1990 should be brought within six weeks of the decision.124 Time to bring proceedings may be extended, but this will usually be exceptional;125

•

the Court has a wide range of potential remedies available to it (quashing, mandatory, prohibitory orders, declarations, injunctions and (rarely) damages) with a greater flexibility as to the target of the order than in a statutory application or appeal;

•

however if ‘it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’.126 In those circumstances the court must refuse permission or substantive relief unless there are reasons of exceptional public interest.127

Judicial review in Northern Ireland 24.56 Procedures in Northern Ireland are refreshingly straightforward compared to the multitude of different, and often mutually exclusive provisions in England and Wales. All challenges to planning decisions and appeals in the High Court are brought by judicial review. 24.57 Proceedings are governed by Order 53 of the Rules of the Court of Judicature and guidance is given by the Judicial Review Practice Direction 3/2018.128 Pre-action protocol letters are expected, with standard formats being set out in the Practice Direction.129 The letter before claim should generally be sent by seven weeks after the decision and responded to within three weeks.130 24.58 A  claim should be brought within three months from the date when the grounds for the application first arose.131 This time limit has been introduced for proceedings commenced on or after 8 January 2018, replacing the previous ‘promptly and within three months’ rule. Extensions of time can be granted but would need a very considerable justification. Conversely, pre-action letters are not expected in statutory applications or appeals to the High Court. CPR 54.5(5). 125 See R (Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737, [2020] PTSR 1794, [2019] JPL 1100. 126 Senior Courts Act 1981, s 31(3D) (at the permission stage) and s 31(2A) (at the substantive hearing). This applies only to proceedings brought from 13 April 2015: see Criminal Justice and Courts Act 2015 (Commencement No  1, Saving and Transitional Provisions) Order 2015, SI  2015/778, Art 4, Sch 2, para 6. 127 Senior Courts Act 1981, s 31(3E) and s 31(2B) respectively. 128 The process is discussed in A  Deb et al, Judicial Review in Planning and Environmental Cases in Northern Ireland – A Guide for Litigants in Person (2019). 129 PD 03/18, Appendix I, Annex A. 130 PD 03/18, Part A, para (4). 131 Rules of the Court of Judicature (Northern Ireland) 1980, Ord 53, r 4(1) as amended by Rules of the Court of Judicature (Northern Ireland) (Amendment) 2017, SI 2017/213, r 2. 123 124

395

24.59  High Court Challenges 24.59 Applications are made by lodging an ex parte docket, an Order 53 statement132 and affidavit evidence. The expectation has been that the Order 53 statement will set out the grounds but neither evidence nor arguments. In practice though such statements are becoming fuller and should enable the judge to decide whether the case is arguable. There is automatic procedure for grounds of resistance to be filed before leave is determined but the Court ‘may, at its discretion, invite the proposed respondent and/or any non-party on whom the application has been served to set forth their response to the applicant’s case in writing, either generally or in such specific respects as may be directed’.133 The pre-action protocol responses should be put before the Court in any event. Whilst leave applications can be decided on the papers, they have often been referred to oral hearings. Where leave has been granted an originating motion must be issued in 14 days or leave lapses.134 24.60 The remedies available to the Court are the same as those in England and Wales, albeit expressed in the traditional language: mandamus (mandatory); certiorari (quashing), prohibition, declaration, injunction and damages. This does give greater flexibility than in statutory reviews in England and Wales but the Court will still refrain from rewriting the decision.135 The costs of re-determining an appeal 24.61 The effect of a successful challenge under ss 288 or 289 is that the appeal returns to the Minister for re-determination whether by quashing or remission. In either event there will be a need to re-determine the appeal unless the appeal or enforcement notice is withdrawn. Where the redetermination arises because of an error by an inspector, the Planning Inspectorate or a Minister, then the Inspectorate practice has been that the reasonable costs of redetermination will be paid as ex gratia compensation.136 It was dealt with in internal Inspectorate guidance before being set out in the 2009 Good Practice Advice Note 15 Challenges and complaints. This scheme was scrapped (without announcement) in April 2011. Compensation was resurrected in 2012 following two judicial reviews, which the Secretary of State conceded, and severe criticism by the Parliamentary Ombudsman137. Compensation arrangements are set out in the Planning Inspectorate’s Claims for Repayment of Additional Costs (Ex Gratia Scheme),138 saying that requests should normally be made within six months of the error or of the redetermination of the appeal.

A model statement is contained in the Practice Direction and must be used: PD 03/18, Part B, para (2) and Appendix II. 133 PD 03/18, Part B, para (8). 134 RCC Order 53, R5(5). 135 See the Belfast Metropolitan Area Plan litigation Belfast City Council v Minister of Enterprise, Trade & Investment [2017] NICA 28. 136 Compensation does not extend to any loss of profits or earnings due to the delay in receiving a positive and lawful decision: R (D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin), [2018] PTSR 1125. 137 R (on the application of Koumis) v Secretary of State for Communities and Local Government; R (on the application of Payne) v Secretary of State for Communities and Local Government CO/8053/2011. The Parliamentary Ombudsman published A false economy? in October 2012. 138 2016. 132

396

Criminal proceedings 24.65 NULLITY ISSUES ON AN APPEAL TO THE SECRETARY OF STATE 24.62 If an enforcement notice is so defective as to be a nullity, then the Secretary of State will make this finding on an enforcement notice appeal. This may be decided as a preliminary point or during the determination of the appeal. The Secretary of State will not take further steps on the appeal on the basis that the notice is of no legal effect. He will not, for example, grant planning permission on a ground (a) appeal.139 If the notice is merely invalid then the Secretary of State cannot quash the notice, only the High Court is able to. Any determination on nullity by the Secretary of State may be challenged by judicial review.140 COLLATERAL CHALLENGE 24.63 Challenging the enforcement notice in other proceedings is constrained by the statutory bar in s  285(1) (or s  143(8) in Northern Ireland) and by general principles of public law. CIVIL PROCEEDINGS 24.64 In principle, direct challenges to public law decisions should be brought by judicial review (or any statutory appeal) rather than by ordinary civil proceedings.141 This is because the public interest in good administration requires the use of the quick and safeguarded judicial review procedure: O’Reilly v Mackman.142 In civil proceedings which are not directly concerned with validity, the validity of a public law decision may be raised ‘collaterally’ by way of a defence to the proceedings: Wandsworth London Borough Council v Winder.143 However, with respect to enforcement notices, there is a statutory bar on challenging on enforcement notice appeal grounds. The extent to which other public law grounds may be raised is debatable. In the planning injunction case of Broadland District Council v Trott144 the Court of Appeal considered, obiter, that a notice which is formally valid on its face and has not been quashed has to be complied with, following the criminal decision of R  v Wicks. There is authority that the reasonableness of a decision to institute injunctive proceedings should be challenged by separate judicial review proceedings rather than raised as a defence.145 CRIMINAL PROCEEDINGS 24.65 The most important difference in criminal proceedings is that s  285(2) provides that the bar on questioning the validity of an enforcement notice in s 285(1)

141 142 143 144 145 139 140

Dennard and Dennard v Secretary of State for the Environment [1996] JPL B26. Rhymney Valley District Council v Secretary of State for Wales [1985] JPL 27. Trim v North Dorset District Council [2010] EWCA Civ 1446, [2011] 1 WLR 1901. [1983] 2 AC 237. [1985] AC 461. [2011] EWCA Civ 301 at para 40 per Sullivan LJ. Waverley Borough Council v Hilden [1988] 1 WLR 246. A stay of the injunction proceedings should be sought.

397

24.66  High Court Challenges does not apply in a criminal prosecution for failing to comply with the notice against any person who: ‘(a) has held an interest in the land since before the enforcement notice was issued under that Part [of the Act]; (b) did not have a copy of the enforcement notice served on him under that Part; and (c) satisfies the court – (i) that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and (ii) that his interests have been substantially prejudiced by the failure to serve him with a copy of it.’

24.66 This subsection does not itself create a defence or mean that the notice is invalid in those proceedings because the subsection is satisfied. However, it does have that effect. An enforcement notice can be challenged on appeal because copies have not been served (ground (e)). The Secretary of State is obliged to quash the notice if the failure to serve has caused substantial prejudice to the appellant or the person not served (s 176(5)). So establishing that s 285(2) applies also establishes that the notice should have been quashed. 24.67 Interest in land in (a) applies to owners and those with a proprietary interest, such as lessees. Licensees and trespassers cannot rely on s 285(2). The interest must be held when the notice is issued and on the date of the alleged offence. 24.68 The date at which knowledge is tested in (c)(i) is not clear. The probable position is that it is when the substantial prejudice could not have been cured. If no person appealed the notice, this would be the last day for appealing (when the notice took effect). If an appeal was brought, it would be when the person charged was unable to play an effective part in any inquiry. This could include having insufficient time to obtain evidence. 24.69 Other public law grounds cannot be raised to challenge an enforcement notice in criminal proceedings unless the notice is a nullity. Lord Hoffmann held in Wicks ‘that “enforcement notice” in s 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review’.146

[1998] AC 92 at 122F.

146

398

Appendix 1

Town and Country Planning Act 1990

PART III CONTROL OVER DEVELOPMENT Meaning of development 55  Meaning of ‘development’ and ‘new development’ (1)

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, ‘development,’ means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A) For the purposes of this Act ‘building operations’ includes— (a)

demolition of buildings;

(b) rebuilding; (c)

structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder. (2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land— (a)

the carrying out for the maintenance, improvement or other alteration of any building of works which— (i)

affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building, and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground; (b) the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment; (c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose; 399

Appendix 1 (d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such; (e)

the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;

(f)

in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.

(g) the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities generally or to a particular local planning authority. (2A) The Secretary of State may in a development order specify any circumstances or description of circumstances in which subsection (2) does not apply to operations mentioned in paragraph (a) of that subsection which have the effect of increasing the gross floor space of the building by such amount or percentage amount as is so specified. (2B) The development order may make different provision for different purposes. (3) For the avoidance of doubt it is hereby declared that for the purposes of this section— (a)

the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used;

(b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if— (i)

the superficial area of the deposit is extended, or

(ii) the height of the deposit is extended and exceeds the level of the land adjoining the site. (4) For the purposes of this Act mining operations include— (a)

the removal of material of any description— (i)

from a mineral-working deposit;

(ii) from a deposit of pulverised fuel ash or other furnace ash or clinker; or (iii) from a deposit of iron, steel or other metallic slags; and (b) the extraction of minerals from a disused railway embankment. (4A) Where the placing or assembly of any tank in any part of any inland waters for the purpose of fish farming there would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the tank resulted from carrying out engineering operations over that land; and in this subsection— 400

Town and Country Planning Act 1990 ‘fish farming’ means the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean and mollusc); ‘inland waters’ means waters which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows; and ‘tank’ includes any cage and any other structure for use in fish farming. (5) Without prejudice to any regulations made under the provisions of this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building. […] Requirement for planning permission 57  Planning permission required for development (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land. (1A) Subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for planning permission etc. for development for which development consent required). (2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted. (3) Where by a development order, a local development order, a Mayoral development order or a neighbourhood development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use. (4)

Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out.

(5) In determining for the purposes of subsections (2) and (3) what is or was the normal use of land, no account shall be taken of any use begun in contravention of this Part or of previous planning control. (6)

For the purposes of this section a use of land shall be taken to have been begun in contravention of previous planning control if it was begun in contravention of Part III of the 1947 Act, Part III of the 1962 Act or Part III of the 1971 Act.

(7)

Subsection (1) has effect subject to Schedule 4 (which makes special provision about use of land on 1st July 1948).

[…] 401

Appendix 1 Other controls over development 106  Planning obligations (1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A to 106C as ‘a planning obligation’), enforceable to the extent mentioned in subsection (3)— (a)

restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land; (c)

requiring the land to be used in any specified way; or

(d) requiring a sum or sums to be paid to the authority (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically. (1A) In the case of a development consent obligation, the reference to development in subsection (1)(a) includes anything that constitutes development for the purposes of the Planning Act 2008. (2) A planning obligation may— (a)

be unconditional or subject to conditions;

(b) impose any restriction or requirement mentioned in subsection (1)(a) to (c) either indefinitely or for such period or periods as may be specified; and (c)

if it requires a sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the obligation is entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.

(3) Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d)— (a)

against the person entering into the obligation; and

(b) against any person deriving title from that person. (4)

The instrument by which a planning obligation is entered into may provide that a person shall not be bound by the obligation in respect of any period during which he no longer has an interest in the land.

(5)

A restriction or requirement imposed under a planning obligation is enforceable by injunction.

(6) Without prejudice to subsection (5), if there is a breach of a requirement in a planning obligation to carry out any operations in, on, under or over the land to which the obligation relates, the authority by whom the obligation is enforceable may— (a)

enter the land and carry out the operations; and

(b) recover from the person or persons against whom the obligation is enforceable any expenses reasonably incurred by them in doing so. 402

Town and Country Planning Act 1990 (7)

Before an authority exercise their power under subsection (6)(a) they shall give not less than twenty-one days’ notice of their intention to do so to any person against whom the planning obligation is enforceable.

(8) Any person who wilfully obstructs a person acting in the exercise of a power under subsection (6)(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (9)

A planning obligation may not be entered into except by an instrument executed as a deed which— (a)

states that the obligation is a planning obligation for the purposes of this section;

(aa) if the obligation is a development consent obligation, contains a statement to that effect; (b) identifies the land in which the person entering into the obligation is interested; (c) identifies the person entering into the obligation and states what his interest in the land is; and (d) identifies the local planning authority by whom the obligation is enforceable, and, in a case where section 2E applies, identifies the Mayor of London as an authority by whom the obligation is also enforceable (10) A copy of any such instrument shall be given to the local planning authority so identified and, in a case where section 2E applies, to the Mayor of London. (11) A  planning obligation shall be a local land charge and for the purposes of the Local Land Charges Act 1975 the authority by whom the obligation is enforceable shall be treated as the originating authority as respects such a charge. (12) Regulations may provide for the charging on the land of— (a)

any sum or sums required to be paid under a planning obligation; and

(b) any expenses recoverable by a local planning authority or the Mayor of London under subsection (6)(b), and this section and sections 106A to 106BC shall have effect subject to any such regulations. (13) In this section ‘specified’ means specified in the instrument by which the planning obligation is entered into and in this section and section 106A ‘land’ has the same meaning as in the Local Land Charges Act 1975. (14) In this section and section 106A ‘development consent obligation’ means a planning obligation entered into in connection with an application (or a proposed application) for an order granting development consent.

PART VII ENFORCEMENT 171A  Expressions used in connection with enforcement (1) For the purposes of this Act— 403

Appendix 1 (a)

carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control. (2) For the purposes of this Act— (a)

the issue of an enforcement notice (defined in section 172);

(aa) the issue of an enforcement warning notice (defined in section 173ZA); or (b) the service of a breach of condition notice (defined in section 187A), constitutes taking enforcement action. (3) In this Part ‘planning permission’ includes permission under Part III of the 1947 Act, of the 1962 Act or of the 1971 Act. 171B  Time limits (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. (2) 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 the breach. (2A) There is no restriction on when enforcement action may be taken in relation to a breach of planning control in respect of relevant demolition (within the meaning of section 196D). (3)

In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.

(4) The preceding subsections do not prevent— (a) the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice in respect of the breach is in effect; or (b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach. 171BA  Time limits in cases involving concealment (1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land in England, the authority may apply to a magistrates’ court for an order under this subsection (a ‘planning enforcement order’) in relation to that apparent breach of planning control.

404

Town and Country Planning Act 1990 (2) If a magistrates’ court makes a planning enforcement order in relation to an apparent breach of planning control, the local planning authority may take enforcement action in respect of— (a) the apparent breach, or (b) any of the matters constituting the apparent breach, at any time in the enforcement year. (3)

‘The enforcement year’ for a planning enforcement order is the year that begins at the end of 22 days beginning with the day on which the court’s decision to make the order is given, but this is subject to subsection (4).

(4) If an application under section 111(1) of the Magistrates’ Courts Act 1980 (statement of case for opinion of High Court) is made in respect of a planning enforcement order, the enforcement year for the order is the year beginning with the day on which the proceedings arising from that application are finally determined or withdrawn. (5) Subsection (2)— (a)

applies whether or not the time limits under section 171B have expired, and

(b) does not prevent the taking of enforcement action after the end of the enforcement year but within those time limits. 171BB  Planning enforcement orders: procedure (1) An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority’s knowledge. (2) For the purposes of subsection (1), a certificate— (a) signed on behalf of the local planning authority, and (b) stating the date on which evidence sufficient in the authority’s opinion to justify the application came to the authority’s knowledge, is conclusive evidence of that fact. (3) A certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved. (4) Where the local planning authority apply to a magistrates’ court for a planning enforcement order in relation to an apparent breach of planning control in respect of any land, the authority must serve a copy of the application— (a)

on the owner and on the occupier of the land, and

(b) on any other person having an interest in the land that is an interest which, in the opinion of the authority, would be materially affected by the taking of enforcement action in respect of the apparent breach. (5) The persons entitled to appear before, and be heard by, the court hearing an application for a planning enforcement order in relation to an apparent breach of planning control in respect of any land include— 405

Appendix 1 (a)

the applicant,

(b) any person on whom a copy of the application was served under subsection (4), and (c)

any other person having an interest in the land that is an interest which, in the opinion of the court, would be materially affected by the taking of enforcement action in respect of the apparent breach.

(6) In this section ‘planning enforcement order’ means an order under section 171BA(1). 171BC  Making a planning enforcement order (1) A magistrates’ court may make a planning enforcement order in relation to an apparent breach of planning control only if— (a) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and (b) the court considers it just to make the order having regard to all the circumstances. (2) A planning enforcement order must— (a)

identify the apparent breach of planning control to which it relates, and

(b) state the date on which the court’s decision to make the order was given. (3) In this section ‘planning enforcement order’ means an order under section 171BA(1). Planning contravention notices 171C  Power to require information about activities on land (1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land, they may serve notice to that effect (referred to in this Act as a ‘planning contravention notice’) on any person who— (a)

is the owner or occupier of the land or has any other interest in it; or

(b) is carrying out operations on the land or is using it for any purpose. (2) A planning contravention notice may require the person on whom it is served to give such information as to— (a)

any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and

(b) any matter relating to the conditions or limitations subject to which any planning permission in respect of the land has been granted, as may be specified in the notice. (3) Without prejudice to the generality of subsection (2), the notice may require the person on whom it is served, so far as he is able— 406

Town and Country Planning Act 1990 (a)

to state whether or not the land is being used for any purpose specified in the notice or any operations or activities specified in the notice are being or have been carried out on the land;

(b) to state when any use, operations or activities began; (c)

to give the name and postal address of any person known to him to use or have used the land for any purpose or to be carrying out, or have carried out, any operations or activities on the land;

(d) to give any information he holds as to any planning permission for any use or operations or any reason for planning permission not being required for any use or operations; (e) to state the nature of his interest (if any) in the land and the name and postal address of any other person known to him to have an interest in the land. (4)

A planning contravention notice may give notice of a time and place at which— (a) any offer which the person on whom the notice is served may wish to make to apply for planning permission, to refrain from carrying out any operations or activities or to undertake remedial works; and (b) any representations which he may wish to make about the notice, will be considered by the authority, and the authority shall give him an opportunity to make in person any such offer or representations at that time and place.

(5)

A planning contravention notice must inform the person on whom it is served— (a)

of the likely consequences of his failing to respond to the notice and, in particular, that enforcement action may be taken; and

(b) of the effect of section 186(5)(b). (6) Any requirement of a planning contravention notice shall be complied with by giving information in writing to the local planning authority. (7) The service of a planning contravention notice does not affect any other power exercisable in respect of any breach of planning control. (8) In this section references to operations or activities on land include operations or activities in, under or over the land. 171D  Penalties for non-compliance with planning contravention notice (1)

If, at any time after the end of the period of twenty-one days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.

(2) An offence under subsection (1) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence. (3) It shall be a defence for a person charged with an offence under subsection (1) to prove that he had a reasonable excuse for failing to comply with the requirement. 407

Appendix 1 (4) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (5) If any person— (a) makes any statement purporting to comply with a requirement of a planning contravention notice which he knows to be false or misleading in a material particular; or (b) recklessly makes such a statement which is false or misleading in a material particular, he shall be guilty of an offence. (6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. 171E  Temporary stop notice (1) This section applies if the local planning authority think— (a) that there has been a breach of planning control in relation to any land, and (b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately. (2) The authority may issue a temporary stop notice. (3) The notice must be in writing and must— (a)

specify the activity which the authority think amounts to the breach;

(b)

prohibit the carrying on of the activity (or of so much of the activity as is specified in the notice);

(c)

set out the authority’s reasons for issuing the notice.

(4) A temporary stop notice may be served on any of the following— (a)

the person who the authority think is carrying on the activity;

(b) a person who the authority think is an occupier of the land; (c)

a person who the authority think has an interest in the land.

(5) The authority must display on the land— (a)

a copy of the notice;

(b) a statement of the effect of the notice and of section 171G. (6) A temporary stop notice has effect from the time a copy of it is first displayed in pursuance of subsection (5). (7) A temporary stop notice ceases to have effect— (a)

at the end of the period of 28 days starting on the day the copy notice is so displayed,

(b)

at the end of such shorter period starting on that day as is specified in the notice, or

(c)

if it is withdrawn by the local planning authority. 408

Town and Country Planning Act 1990 171F  Temporary stop notice: restrictions (1) A temporary stop notice does not prohibit— (a)

the use of a building as a dwelling house;

(b)

the carrying out of an activity of such description or in such circumstances as is prescribed.

(2) A  temporary stop notice does not prohibit the carrying out of any activity which has been carried out (whether or not continuously) for a period of four years ending with the day on which the copy of the notice is first displayed as mentioned in section 171E(6). (3) Subsection (2) does not prevent a temporary stop notice prohibiting— (a) activity consisting of or incidental to building, engineering, mining or other operations, or (b) the deposit of refuse or waste materials. (4) For the purposes of subsection (2) any period during which the activity is authorised by planning permission must be ignored. (5) A second or subsequent temporary stop notice must not be issued in respect of the same activity unless the local planning authority has first taken some other enforcement action in relation to the breach of planning control which is constituted by the activity. (6) In subsection (5) enforcement action includes obtaining the grant of an injunction under section 187B. 171G  Temporary stop notice: offences (1) A person commits an offence if he contravenes a temporary stop notice— (a)

which has been served on him, or

(b) a copy of which has been displayed in accordance with section 171E(5). (2) Contravention of a temporary stop notice includes causing or permitting the contravention of the notice. (3)

An offence under this section may be charged by reference to a day or a longer period of time.

(4) A person may be convicted of more than one such offence in relation to the same temporary stop notice by reference to different days or periods of time. (5) A person does not commit an offence under this section if he proves— (a)

that the temporary stop notice was not served on him, and

(b) that he did not know, and could not reasonably have been expected to know, of its existence. (6) A  person convicted of an offence under this section is liable on summary conviction, or on conviction on indictment, to a fine. (7) In determining the amount of the fine the court must have regard in particular to any financial benefit which has accrued or has appeared to accrue to the person convicted in consequence of the offence. 409

Appendix 1 171H  Temporary stop notice: compensation (1) This section applies if and only if a temporary stop notice is issued and at least one of the following paragraphs applies— (a) the activity which is specified in the notice is authorised by planning permission or by a development order, a local development order, a Mayoral development order or a neighbourhood development order; (b) a certificate in respect of the activity is issued under section 191 or granted under that section by virtue of section 195; (c)

the authority withdraws the notice.

(2) Subsection (1)(a) does not apply if the planning permission is granted on or after the date on which a copy of the notice is first displayed as mentioned in section 171E(6). (3) Subsection (1)(c) does not apply if the notice is withdrawn following the grant of planning permission as mentioned in subsection (2). (4)

A person who at the time the notice is served has an interest in the land to which the notice relates is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice.

(5)

Subsections (3) to (7) of section 186 apply to compensation payable under this section as they apply to compensation payable under that section; and for that purpose references in those subsections to a stop notice must be taken to be references to a temporary stop notice.

Enforcement notices 172  Issue of enforcement notice (1) 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; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. (2) A copy of an enforcement notice shall be served— (a)

on the owner and on the occupier of the land to which it relates; and

(b) on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice. (3) The service of the notice shall take place— (a)

not more than twenty-eight days after its date of issue; and

(b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect. 172A  Assurance as regards prosecution for person served with notice (1) When, or at any time after, an enforcement notice is served on a person, the local planning authority may give the person a letter— 410

Town and Country Planning Act 1990 (a) explaining that, once the enforcement notice had been issued, the authority was required to serve the notice on the person, (b) giving the person one of the following assurances— (i)

that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the enforcement notice, or

(ii) that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the matters relating to the enforcement notice that are specified in the letter, (c)

explaining, where the person is given the assurance under paragraph (b) (ii), the respects in which the person is at risk of being prosecuted under section 179 in connection with the enforcement notice, and

(d) stating that, if the authority subsequently wishes to withdraw the assurance in full or part, the authority will first give the person a letter specifying a future time for the withdrawal that will allow the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance. (2) At any time after a person has under subsection (1) been given a letter containing an assurance, the local planning authority may give the person a letter withdrawing the assurance (so far as not previously withdrawn) in full or part from a time specified in the letter. (3)

The time specified in a letter given under subsection (2) to a person must be such as will give the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance.

(4) Withdrawal under subsection (2) of an assurance given under subsection (1) does not withdraw the assurance so far as relating to prosecution on account of there being a time before the withdrawal when steps had not been taken or an activity had not ceased. (5) An assurance given under subsection (1) (so far as not withdrawn under subsection (2)) is binding on any person with power to prosecute an offence under section 179. 173  Contents and effect of notice (1) An enforcement notice shall state— (a)

the matters which appear to the local planning authority to constitute the breach of planning control; and

(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls. (2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are. (3)

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes. 411

Appendix 1 (4) Those purposes are— (a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or (b) remedying any injury to amenity which has been caused by the breach. (5) An enforcement notice may, for example, require— (a)

the alteration or removal of any buildings or works;

(b) the carrying out of any building or other operations; (c)

any activity on the land not to be carried on except to the extent specified in the notice; or

(d) the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides. (6)

Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of a building, the notice may require the construction of a building (in this section referred to as a ‘replacement building’) which, subject to subsection (7), is as similar as possible to the demolished building.

(7) A replacement building— (a)

must comply with any requirement imposed by any enactment applicable to the construction of buildings;

(b) may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control; (c) must comply with any regulations made for the purposes of this subsection (including regulations modifying paragraphs (a) and (b)). (8) An enforcement notice shall specify the date on which it is to take effect and, subject to sections 175(4) and 289(4A), shall take effect on that date. (9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased. (10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under section 172 to be accompanied by an explanatory note giving prescribed information as to the right of appeal under section 174. (11) Where— (a)

an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and 412

Town and Country Planning Act 1990 (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities. (12) Where— (a) an enforcement notice requires the construction of a replacement building; and (b) all the requirements of the notice with respect to that construction have been complied with, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of that construction. 173ZA  Enforcement warning notice: Wales (1) This section applies where it appears to the local planning authority that— (a) there has been a breach of planning control in respect of any land in Wales, and (b) there is a reasonable prospect that, if an application for planning permission in respect of the development concerned were made, planning permission would be granted. (2) The authority may issue a notice under this section (an ‘enforcement warning notice’). (3) A copy of an enforcement warning notice is to be served— (a)

on the owner and the occupier of the land to which the notice relates, and

(b) on any other person having an interest in the land, being an interest that, in the opinion of the authority, would be materially affected by the taking of any further enforcement action. (4) The notice must— (a) state the matters that appear to the authority to constitute the breach of planning control, and (b)

state that, unless an application for planning permission is made within a period specified in the notice, further enforcement action may be taken.

(5) The issue of an enforcement warning notice does not affect any other power exercisable in respect of any breach of planning control. 173A  Variation and withdrawal of enforcement notices (1) The local planning authority may— (a)

withdraw an enforcement notice issued by them; or

(b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 173(9). (2) The powers conferred by subsection (1) may be exercised whether or not the notice has taken effect. 413

Appendix 1 (3) The local planning authority shall, immediately after exercising the powers conferred by subsection (1), give notice of the exercise to every person who has been served with a copy of the enforcement notice or would, if the notice were re-issued, be served with a copy of it. (4)

The withdrawal of an enforcement notice does not affect the power of the local planning authority to issue a further enforcement notice.

174  Appeal against enforcement notice (1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. (2) An appeal may be brought on any of the following grounds— (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c)

that those matters (if they occurred) do not constitute a breach of planning control;

(d)

that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172; (f)

that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed. (2A) An appeal may not be brought on the ground specified in subsection (2)(a) if— (a)

the land to which the enforcement notice relates is in England, and

(b) the enforcement notice was issued at a time— (i)

after the making of a related application for planning permission, but

(ii) before the end of the period applicable under section 78(2) in the case of that application. (2B) An application for planning permission for the development of any land is, for the purposes of subsection (2A), related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control. 414

Town and Country Planning Act 1990 (2C) Where any breach of planning control constituted by the matters stated in the notice relates to relevant demolition (within the meaning of section 196D), an appeal may also be brought on the grounds that— (a)

the relevant demolition was urgently necessary in the interests of safety or health;

(b) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; and (c)

the relevant demolition was the minimum measure necessary.

(2D) An appeal against an enforcement notice may not be brought on the ground that planning permission ought to be granted in respect of a breach of planning control constituted by a matter stated in the notice, as specified in subsection (2)(a), if— (a)

the land to which the enforcement notice relates is in Wales, and

(b) the enforcement notice was issued after a decision to refuse planning permission for a related development was upheld on an appeal under section 78 (and for this purpose development is ‘related’ if granting planning permission for it would involve granting planning permission in respect of the matter concerned). (2E) An appeal may not be brought on the ground that a condition or limitation ought to be discharged, as specified in subsection (2)(a), if— (a)

the land to which the enforcement notice relates is in Wales, and

(b) the enforcement notice was issued after a decision to grant planning permission subject to the condition or limitation was upheld on an appeal under section 78. (2F) For the purposes of subsections (2D) and (2E), references to a decision that has been upheld on an appeal include references to a decision in respect of which— (a)

the Welsh Ministers have, under section 79(6), declined to determine an appeal or to proceed with the determination of an appeal;

(b) an appeal has been dismissed under section 79(6A). (3) An appeal under this section shall be made—

(4)

(a)

by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or

(b)

by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date; or

(c)

by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date.

A person who gives notice under subsection (3) shall submit to the Secretary of State, either when giving the notice or within the prescribed time, a statement in writing— 415

Appendix 1 (a)

specifying the grounds on which he is appealing against the enforcement notice; and

(b) giving such further information as may be prescribed. (5)

If, where more than one ground is specified in that statement, the appellant does not give information required under subsection (4)(b) in relation to each of those grounds within the prescribed time, the Secretary of State may determine the appeal without considering any ground as to which the appellant has failed to give such information within that time.

(6) In this section ‘relevant occupier’ means a person who— (a)

on the date on which the enforcement notice is issued occupies the land to which the notice relates by virtue of a licence; and

(b) continues so to occupy the land when the appeal is brought.

175  Appeals: supplementary provisions (1) The Secretary of State may by regulations prescribe the procedure which is to be followed on appeals under section 174 and, in particular, but without prejudice to the generality of this subsection, may— (a) require the local planning authority to submit, within such time as may be prescribed, a statement indicating the submissions which they propose to put forward on the appeal; (b) specify the matters to be included in such a statement; (c) require the authority or the appellant to give such notice of such an appeal as may be prescribed; (d)

require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be prescribed, a copy of the enforcement notice and a list of the persons served with copies of it.

(2) The notice to be prescribed under subsection (1)(c) shall be such notice as in the opinion of the Secretary of State is likely to bring the appeal to the attention of persons in the locality in which the land to which the enforcement notice relates is situated. (3) Subject to section 176(4), the Secretary of State shall, if either the appellant or the local planning authority so desire, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.(3A) Subsection (3) does not apply to an appeal against an enforcement notice issued by a local planning authority in England. (3A) Subsection (3) does not apply to an appeal against an enforcement notice issued by a local planning authority in England. (3B) Subsection (3) does not apply to an appeal against an enforcement notice issued by a local planning authority in Wales. (4) Where an appeal is brought under section 174 the enforcement notice shall subject to any order under section 289(4A) be of no effect pending the final determination or the withdrawal of the appeal. 416

Town and Country Planning Act 1990 (5)

Where any person has appealed to the Secretary of State against an enforcement notice, no person shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed.

(6) Schedule 6 applies to appeals under section 174, including appeals under that section as applied by regulations under any other provisions of this Act. (7) Subsection (5) of section 250 of the Local Government Act 1972 (which authorises a Minister holding an inquiry under that section to make orders with respect to the costs of the parties) shall apply in relation to any proceedings in England before the Secretary of State on an appeal under section 174 as if those proceedings were an inquiry held by the Secretary of State under section 250. 176  General provisions relating to determination of appeals (1) On an appeal under section 174 the Secretary of State may— (a)

correct any defect, error or misdescription in the enforcement notice; or

(b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority. (2) Where the Secretary of State determines to allow the appeal, he may quash the notice. (2A) The Secretary of State shall give any directions necessary to give effect to his determination on the appeal. (3) The Secretary of State— (a)

may dismiss an appeal if the appellant fails to comply with section 174(4) within the prescribed time; and

(b) may allow an appeal and quash the enforcement notice if the local planning authority fail to comply with any requirement of regulations made by virtue of paragraph (a), (b), or (d) of section 175(1) within the prescribed period. (4) If section 175(3) would otherwise apply and the Secretary of State proposes to dismiss an appeal under paragraph (a) of subsection (3) of this section or to allow an appeal and quash the enforcement notice under paragraph (b) of that subsection, he need not comply with section 175(3). (5)

Where it would otherwise be a ground for determining an appeal under section 174 in favour of the appellant that a person required to be served with a copy of the enforcement notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.

177 Grant or modification of planning permission on appeals against enforcement notices (1) On the determination of an appeal under section 174, the Secretary of State may— (a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether 417

Appendix 1 in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates; (b) discharge any condition or limitation subject to which planning permission was granted; (c) determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under section 191. (1A) The provisions of sections 191 to 194 mentioned in subsection (1B) shall apply for the purposes of subsection (1)(c) as they apply for the purposes of section 191, but as if— (a) any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and (b)

references to the local planning authority were references to the Secretary of State.

(1B) Those provisions are: sections 191(5) to (7), 193(4) (so far as it relates to the form of the certificate), (6) and (7) and 194. (1C) Subsection (1)(a) applies only if the statement under section 174(4) specifies the ground mentioned in section 174(2)(a). (2) In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations. (3) The planning permission that may be granted under subsection (1) is any planning permission that might be granted on an application under Part III. (4) Where under subsection (1) the Secretary of State discharges a condition or limitation, he may substitute another condition or limitation for it, whether more or less onerous. (4A) Section 100ZA (which makes provision about restrictions on the power to impose conditions or limitations on a grant of planning permission in relation to land in England) applies in relation to conditions substituted under subsection (4) as it applies in relation to conditions imposed on a grant of planning permission to develop land which is granted on an application made under Part 3. (5) Where— (a) an appeal against an enforcement notice is brought under section 174, and (b) the statement under section 174(4) specifies the ground mentioned in section 174(2)(a), the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control. 418

Town and Country Planning Act 1990 (5A) Where— (a) the statement under subsection (4) of section 174 specifies the ground mentioned in subsection (2)(a) of that section; (b) any fee is payable under regulations made by virtue of section 303 in respect of the application deemed to be made by virtue of the appeal; and (c)

the Secretary of State gives notice in writing to the appellant specifying the period within which the fee must be paid,

then, if that fee is not paid within that period, the appeal, so far as brought on that ground, and the application shall lapse at the end of that period. (6) Any planning permission granted under subsection (1) on an appeal shall be treated as granted on the application deemed to have been made by the appellant. (7)

In relation to a grant of planning permission or a determination under subsection (1) the Secretary of State’s decision shall be final.

(8)

For the purposes of section 69 the Secretary of State’s decision shall be treated as having been given by him in dealing with an application for planning permission made to the local planning authority.

178  Execution and cost of works required by enforcement notice (1) Where any steps required by an enforcement notice to taken are not taken within the period for compliance with the notice, the local planning authority may— (a)

enter the land and take the steps; and

(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so. (2) Where a copy of an enforcement notice has been served in respect of any breach of planning control— (a) any expenses incurred by the owner or occupier of any land for the purpose of complying with the notice, and (b)

any sums paid by the owner of any land under subsection (1) in respect of expenses incurred by the local planning authority in taking steps required by such a notice to be taken,

shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed. (3) Regulations made under this Act may provide that— (a) section 276 of the Public Health Act 1936, (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale); (b) section 289 of that Act (power to require the occupier of any premises to permit works to be executed by the owner of the premises); and (c)

section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act), 419

Appendix 1 shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any steps required to be taken by an enforcement notice. (4) Regulations under subsection (3) applying section 289 of the Public Health Act 1936 may include adaptations and modifications for the purpose of giving the owner of land to which an enforcement notice relates the right, as against all other persons interested in the land, to comply with the requirements of the enforcement notice. (5)

Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local planning authority under subsection (1).

(6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. 179  Offence where enforcement notice not complied with (1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice. (2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence. (3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice. (4)

A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence. (6) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence. (7) Where— (a)

a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under section 188, it shall be a defence for him to show that he was not aware of the existence of the notice. (8) A person guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine. 420

Town and Country Planning Act 1990 (9) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence. 180  Effect of planning permission, etc, on enforcement or breach of condition notice (1) Where, after the service of— (a)

a copy of an enforcement notice; or

(b) a breach of condition notice, planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission. (2) Where after a breach of condition notice has been served any condition to which the notice relates is discharged, the notice shall cease to have effect so far as it requires any person to secure compliance with the condition in question. (3)

The fact that an enforcement notice or breach of condition notice has wholly or partly ceased to have effect by virtue of this section shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance, with the notice.

181  Enforcement notice to have effect against subsequent development (1) Compliance with an enforcement notice, whether in respect of— (a)

the completion, removal or alteration of any buildings or works;

(b) the discontinuance of any use of land; or (c)

any other requirements contained in the notice,

shall not discharge the notice. (2) Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice. (3) Without prejudice to subsection (1), if any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply in relation to the buildings or works as reinstated or restored as it applied in relation to the buildings or works before they were removed or altered; and, subject to subsection (4), the provisions of section 178(1) and (2) shall apply accordingly. (4) Where, at any time after an enforcement notice takes effect— (a)

any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with the notice; and 421

Appendix 1 (b) the local planning authority propose, under section 178(1), to take any steps required by the enforcement notice for the removal or alteration of the buildings or works in consequence of the reinstatement or restoration, the local planning authority shall, not less than 28 days before taking any such steps, serve on the owner and occupier of the land a notice of their intention to do so. (5) Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice— (a)

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

(b) no person shall be liable under section 179(2) for failure to take any steps required to be taken by an enforcement notice by way of removal or alteration of what has been so reinstated or restored. 182  Enforcement by the Secretary of State (1)

If it appears to the Secretary of State to be expedient that an enforcement notice should be issued in respect of any land, he may issue such a notice.

(2)

The Secretary of State shall not issue such a notice without consulting the local planning authority.

(3) An enforcement notice issued by the Secretary of State shall have the same effect as a notice issued by the local planning authority. (4) In relation to an enforcement notice issued by the Secretary of State, sections 178 and 181 shall apply as if for any reference in those sections to the local planning authority there were substituted a reference to the Secretary of State.

Stop notices 183  Stop notices (1) Where the local planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a ‘stop notice’) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice. (2) In this section and sections 184 and 186 ‘relevant activity’ means any activity specified in the enforcement notice as an activity which the local planning authority require to cease and any activity carried out as part of that activity or associated with that activity. (3)

A stop notice may not be served where the enforcement notice has taken effect.

(4) A stop notice shall not prohibit the use of any building as a dwellinghouse. (5) A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the notice; and for the purposes of this 422

Town and Country Planning Act 1990 subsection no account is to be taken of any period during which the activity was authorised by planning permission. (5A) Subsection (5) does not prevent a stop notice prohibiting any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials. (6)

A stop notice may be served by the local planning authority on any person who appears to them to have an interest in the land or to be engaged in any activity prohibited by the notice.

(7) The local planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by serving notice to that effect on persons served with the stop notice. 184  Stop notices: supplementary provisions (1) A stop notice must refer to the enforcement notice to which it relates and have a copy of that notice annexed to it. (2) A stop notice must specify the date on which it will take effect (and it cannot be contravened until that date). (3) That date— (a) must not be earlier than three days after the date when the notice is served, unless the local planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and (b)

must not be later than twenty-eight days from the date when the notice is first served on any person.

(4) A stop notice shall cease to have effect when— (a)

the enforcement notice to which it relates is withdrawn or quashed; or

(b) the period for compliance with the enforcement notice expires; or (c) notice of the withdrawal of the stop notice is first served under section 183(7). (5)

A stop notice shall also cease to have effect if or to the extent that the activities prohibited by it cease, on a variation of the enforcement notice, to be relevant activities.

(6) Where a stop notice has been served in respect of any land, the local planning authority may display there a notice (in this section and section 187 referred to as a ‘site notice’)— (a)

stating that a stop notice has been served and that any person contravening it may be prosecuted for an offence under section 187,

(b) giving the date when the stop notice takes effect, and (c)

indicating its requirements.

(7) If under section 183(7) the local planning authority withdraw a stop notice in respect of which a site notice was displayed, they must display a notice of the withdrawal in place of the site notice. 423

Appendix 1 (8) A  stop notice shall not be invalid by reason that a copy of the enforcement notice to which it relates was not served as required by section 172 if it is shown that the local planning authority took all such steps as were reasonably practicable to effect proper service. 185  Service of stop notices by Secretary of State (1) If it appears to the Secretary of State to be expedient that a stop notice should be served in respect of any land, he may himself serve such a notice. (2) A notice served by the Secretary of State under subsection (1) shall have the same effect as if it had been served by the local planning authority. (3)

The Secretary of State shall not serve such a notice without consulting the local planning authority.

186  Compensation for loss due to stop notice (1)

Where a stop notice is served under section 183 compensation may be payable under this section in respect of a prohibition contained in the notice only if— (a)

the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 174(2);

(b) the enforcement notice is varied (otherwise than on the grounds mentioned in that paragraph) so that any activity the carrying out of which is prohibited by the stop notice ceases to be a relevant activity; (c) the enforcement notice is withdrawn by the local planning authority otherwise than in consequence of the grant by them of planning permission for the development to which the notice relates; or (d) the stop notice is withdrawn. (2)

A person who, when the stop notice is first served, has an interest in or occupies the land to which the notice relates shall be entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice or, in a case within subsection (1)(b), the prohibition of such of the activities prohibited by the stop notice as cease to be relevant activities.

(3)

A claim for compensation under this section shall be made to the local planning authority within the prescribed time and in the prescribed manner.

(4) The loss or damage in respect of which compensation is payable under this section in respect of a prohibition shall include any sum payable in respect of a breach of contract caused by the taking of action necessary to comply with the prohibition. (5) No compensation is payable under this section— (a)

in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control; or

(b) in the case of a claimant who was required to provide information under section 171C or 330 or section 16 of the Local Government (Miscellaneous Provisions) Act 1976, in respect of any loss or damage suffered by him which could have been avoided if he had provided 424

Town and Country Planning Act 1990 the information or had otherwise co-operated with the local planning authority when responding to the notice. (6) Except in so far as may be otherwise provided by any regulations made under this Act, any question of disputed compensation under this Part shall be referred to and determined by the Upper Tribunal. (7) In relation to the determination of any such question, the provisions of section 4 of the Land Compensation Act 1961 shall apply subject to any necessary modifications and to the provisions of any regulations made under this Act. 187  Penalties for contravention of stop notice (1)

If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.

(1A) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence. (1B) References in this section to contravening a stop notice include causing or permitting its contravention. (2) A person guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine. (2A) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence. (3) In proceedings for an offence under this section it shall be a defence for the accused to prove— (a)

that the stop notice was not served on him, and

(b) that he did not know, and could not reasonably have been expected to know, of its existence. 187A  Enforcement of conditions (1) This section applies where planning permission for carrying out any development of land has been granted subject to conditions. (2)

The local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a ‘breach of condition notice’) on— (a)

any person who is carrying out or has carried out the development; or

(b) any person having control of the land, requiring him to secure compliance with such of the conditions as are specified in the notice. (3) References in this section to the person responsible are to the person on whom the breach of condition notice has been served. (4)

The conditions which may be specified in a notice served by virtue of subsection (2)(b) are any of the conditions regulating the use of the land. 425

Appendix 1 (5)

A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.

(6) The authority may by notice served on the person responsible withdraw the breach of condition notice, but its withdrawal shall not affect the power to serve on him a further breach of condition notice in respect of the conditions specified in the earlier notice or any other conditions. (7) The period allowed for compliance with the notice is— (a)

such period of not less than twenty-eight days beginning with the date of service of the notice as may be specified in the notice; or

(b) that period as extended by a further notice served by the local planning authority on the person responsible. (8) If, at any time after the end of the period allowed for compliance with the notice— (a)

any of the conditions specified in the notice is not complied with; and

(b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased, the person responsible is in breach of the notice. (9) If the person responsible is in breach of the notice he shall be guilty of an offence. (10) An offence under subsection (9) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence. (11) It shall be a defence for a person charged with an offence under subsection (9) to prove— (a) that he took all reasonable measures to secure compliance with the conditions specified in the notice; or (b) where the notice was served on him by virtue of subsection (2)(b), that he no longer had control of the land. (12) A person who is guilty of an offence under subsection (9) shall be liable on summary conviction to a fine— (a)

not exceeding level 4 on the standard scale if the land is in England;

(b) not exceeding level 3 on the standard scale if the land is in Wales. (13) In this section— (a)

‘conditions’ includes limitations; and

(b)

references to carrying out any development include causing or permitting another to do so. 426

Town and Country Planning Act 1990 Injunctions 187B  Injunctions restraining breaches of planning control (1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part. (2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. (3)

Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section ‘the court’ means the High Court or the county court. Registers 188  Register of enforcement and stop notices and other enforcement action (1) Every district planning authority, every local planning authority for an area in Wales and the council of every metropolitan district or London borough shall keep, in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect— (za) to planning enforcement orders, (a)

to enforcement notices;

(aa) to enforcement warning notices, (b) to stop notices, and (c)

to breach of condition notices

which relate to land in their area. (2) A development order may make provision— (a) for the entry relating to any planning enforcement order, enforcement notice, enforcement warning notice, stop notice or breach of condition notice, and everything relating to any planning enforcement order or any such notice, to be removed from the register in such circumstances as may be specified in the development order; and (b) for requiring a county planning authority to supply to a district planning authority such information as may be so specified with regard to enforcement notices issued and stop notices and breach of condition notices served by, and planning enforcement orders made on applications made by, the county planning authority. (3) Every register kept under this section shall be available for inspection by the public at all reasonable hours. (4) In this section ‘planning enforcement order’ means an order under section 171BA(1). 427

Appendix 1 Enforcement of orders for discontinuance of use, etc 189  Penalties for contravention of orders under s 102 and Schedule 9 (1) Any person who without planning permission— (a)

uses land, or causes or permits land to be used— (i)

for any purpose for which an order under section 102 or paragraph 1 of Schedule 9 has required that its use shall be discontinued; or

(ii) in contravention of any condition imposed by such an order by virtue of subsection (1) of that section or, as the case may be, subparagraph (1) of that paragraph; or (b) resumes, or causes or permits to be resumed, development consisting of the winning and working of minerals or involving the depositing of mineral waste the the resumption of which an order under paragraph 3 of that Schedule has prohibited; or (c)

contravenes, or causes or permits to be contravened, any such requirement as is specified in sub-paragraph (3) or (4) of that paragraph,

shall be guilty of an offence. (2)

Any person who contravenes any requirement of an order under paragraph 5 or 6 of that Schedule or who causes or permits any requirement of such an order to be contravened shall be guilty of an offence.

(3) Any person guilty of an offence under this section shall be liable— (a)

on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine. (4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable measures and exercised all due diligence to avoid commission of the offence by himself or by any person under his control. (5) If in any case the defence provided by subsection (4) involves an allegation that the commission of the offence was due to the act or default of another person or due to reliance on information supplied by another person, the person charged shall not, without the leave of the court, be entitled to rely on the defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of the other person as was then in his possession. 190  Enforcement of orders under s 102 and Schedule 9 (1) This section applies where— (a) any step required by an order under section 102 or paragraph  1 of Schedule 9 to be taken for the alteration or removal of any buildings or works or any plant or machinery; (b) any step required by an order under paragraph 3 of that Schedule to be taken— 428

Town and Country Planning Act 1990 (i)

for the alteration or removal of plant or machinery; or

(ii) for the removal or alleviation of any injury to amenity; or (c)

any step for the protection of the environment required to be taken by an order under paragraph 5 or 6 of that Schedule,

has not been taken within the period specified in the order or within such extended period as the local planning authority or, as the case may be, the mineral planning authority may allow. (2) Where this section applies the local planning authority or, as the case may be, the mineral planning authority may enter the land and take the required step. (3)

Where the local planning authority or, as the case may be, the mineral planning authority have exercised their power under subsection (2) they may recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.

(4) … (5) Section 276 of the Public Health Act 1936 shall apply in relation to any works executed by an authority under subsection (2) as it applies in relation to works executed by a local authority under that Act.

Certificate of lawful use or development 191  Certificate of lawfulness of existing use or development (1) If any person wishes to ascertain whether— (a)

any existing use of buildings or other land is lawful;

(b)

any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter. (2) For the purposes of this Act uses and operations are lawful at any time if— (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. (3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if— (a)

the time for taking enforcement action in respect of the failure has then expired; and 429

Appendix 1 (b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force. (3A) In determining for the purposes of this section whether the time for taking enforcement action in respect of a matter has expired, that time is to be taken not to have expired if— (a)

the time for applying for an order under section 171BA(1) (a ‘planning enforcement order’) in relation to the matter has not expired,

(b) an application has been made for a planning enforcement order in relation to the matter and the application has neither been decided nor been withdrawn, or (c) a planning enforcement order has been made in relation to the matter, the order has not been rescinded and the enforcement year for the order (whether or not it has begun) has not expired. (4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (5) A certificate under this section shall— (a)

specify the land to which it relates;

(b)

describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

(c)

give the reasons for determining the use, operations or other matter to be lawful; and

(d) specify the date of the application for the certificate. (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed. (7) A  certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission— (a)

section 3(3) of the Caravan Sites and Control of Development Act 1960 or section 7(1) of the Mobile Homes (Wales) Act 2013;

(b) section 5(2) of the Control of Pollution Act 1974; and (c)

section 36(2)(a) of the Environmental Protection Act 1990.

192  Certificate of lawfulness of proposed use or development (1) If any person wishes to ascertain whether— (a)

any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land, 430

Town and Country Planning Act 1990 would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question. (2)

If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(3) A certificate under this section shall— (a)

specify the land to which it relates;

(b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c)

give the reasons for determining the use or operations to be lawful; and

(d) specify the date of the application for the certificate. (4)

The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.

193  Certificates under sections 191 and 192: supplementary provisions (1) An application for a certificate under section 191 or 192 shall be made in such manner as may be prescribed by a development order and shall include such particulars, and be verified by such evidence, as may be required by such an order or by any directions given under such an order or by the local planning authority. (2) Provision may be made by a development order for regulating the manner in which applications for certificates under those sections are to be dealt with by local planning authorities. (3) In particular, such an order may provide for requiring the authority— (a) to give to any applicant within such time as may be prescribed by the order such notice as may be so prescribed as to the manner in which his application has been dealt with; and (b) to give to the Secretary of State and to such other persons as may be prescribed by or under the order, such information as may be so prescribed with respect to such applications made to the authority, including information as to the manner in which any application has been dealt with. (4) A certificate under either of those sections may be issued— (a)

for the whole or part of the land specified in the application; and

(b) where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them; and shall be in such form as may be prescribed by a development order. 431

Appendix 1 (5) A certificate under section 191 or 192 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate. (6) In section 69 references to applications for planning permission shall include references to applications for certificates under section 191 or 192. (7) A  local planning authority may revoke a certificate under either of those sections if, on the application for the certificate— (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld. (8) Provision may be made by a development order for regulating the manner in which certificates may be revoked and the notice to be given of such revocation. 194 Offences (1) If any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for the issue of a certificate under section 191 or 192— (a)

knowingly or recklessly makes a statement which is false or misleading in a material particular;

(b)

with intent to deceive, uses any document which is false or misleading in a material particular; or

(c)

with intent to deceive, withholds any material information,

he shall be guilty of an offence. (2) A person guilty of an offence under subsection (1) shall be liable— (a)

on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both. (3)

Notwithstanding section 127 of the Magistrates’ Courts Act 1980, a magistrates’ court may try an information in respect of an offence under subsection (1) whenever laid

195  Appeals against refusal or failure to give decision on application (1) Where an application is made to a local planning authority for a certificate under section 191 or 192 and— (a)

the application is refused or is refused in part, or

(b) the authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the applicant may by notice appeal to the Secretary of State. (1B) A notice of appeal under this section must be— 432

Town and Country Planning Act 1990 (a) served within such time and in such manner as may be prescribed by a development order; (b)

accompanied by such information as may be prescribed by such an order.

(1C) The time prescribed for the service of a notice of appeal under this section must not be less than— (a)

28 days from the date of notification of the decision on the application; or

(b) in the case of an appeal under subsection (1)(b), 28 days from— (i)

the end of the period prescribed as mentioned in subsection (1)(b), or

(ii) as the case may be, the extended period mentioned in subsection (1)(b). (1DA) Once notice of an appeal under this section to the Welsh Ministers has been served, the application to which it relates may not be varied, except in such circumstances as may be prescribed by a development order. (1DB) A  development order which makes provision under subsection (1DA) must provide for an application which is varied to be subject to such further consultation as the Welsh Ministers consider appropriate. (2) On any such appeal, if and so far as the Secretary of State is satisfied— (a) in the case of an appeal under subsection (1)(a), that the authority’s refusal is not well-founded, or (b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded, he shall grant the appellant a certificate under section 191 or, as the case may be, 192 accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application. (3) If and so far as the Secretary of State is satisfied that the authority’s refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal. (4) References in this section to a refusal of an application in part include a modification or substitution of the description in the application of the use, operations or other matter in question. (5) For the purposes of the application in relation to England of sections 196(1A), 288(10)(b) and 319A(7)(d) in relation to an appeal in a case within subsection (1)(b) it shall be assumed that the authority decided to refuse the application in question. (5A) For the purposes of the application in relation to Wales of sections 288(10) (b) and 319B(7)(d) in relation to an appeal in a case within subsection (1) (b) it shall be assumed that the authority decided to refuse the application in question. (6) Schedule 6 applies to appeals under this section. 433

Appendix 1 196  Further provisions as to references and appeals to the Secretary of State (1) Before determining an appeal to him under section 195(1), the Secretary of State shall, if either the appellant or the local planning authority so wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose. (1B) Subsection (1) does not apply to an appeal to the Welsh Ministers. (2) Where the Secretary of State grants a certificate under section 191 or 192 on such a reference or such an appeal, he shall give notice to the local planning authority of that fact. (3) The decision of the Secretary of State on such appeal shall be final. (4) The information which may be prescribed as being required to be contained in a register kept under section 69 shall include information with respect to certificates under section 191 or 192 granted by the Secretary of State. (5) […] (6) […] (7) […] (8) Subsection (5) of section 250 of the Local Government Act 1972 (which authorises a Minister holding an inquiry under that section to make orders with respect to the costs of the parties) shall apply in relation to any proceedings in England before the Secretary of State on an appeal under section 195 as if those proceedings were an inquiry held by the Secretary of State under section 250. Rights of entry for enforcement purposes 196A  Rights to enter without warrant (1)

Any person duly authorised in writing by a local planning authority may at any reasonable hour enter any land— (a)

to ascertain whether there is or has been any breach of planning control on the land or any other land;

(b) to determine whether any of the powers conferred on a local planning authority by this Part should be exercised in relation to the land or any other land; (c)

to determine how any such power should be exercised in relation to the land or any other land;

(d) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to the land or any other land, if there are reasonable grounds for entering for the purpose in question. (2) Any person duly authorised in writing by the Secretary of State may at any reasonable hour enter any land to determine whether an enforcement notice should be issued in relation to the land or any other land, if there are reasonable grounds for entering for that purpose. 434

Town and Country Planning Act 1990 (3)

The Secretary of State shall not so authorise any person without consulting the local planning authority.

(4) Admission to any building used as a dwellinghouse shall not be demanded as of right by virtue of subsection (1) or (2) unless twenty-four hours’ notice of the intended entry has been given to the occupier of the building. 196B  Right to enter under warrant (1) If it is shown to the satisfaction of a justice of the peace on sworn information in writing— (a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 196A(1) or (2); and (b) that— (i)

admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii) the case is one of urgency, the justice may issue a warrant authorising any person duly authorised in writing by a local planning authority or, as the case may be, the Secretary of State to enter the land. (2) For the purposes of subsection (1)(b)(i) admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period. (3) A warrant authorises entry on one occasion only and that entry must be— (a)

within one month from the date of the issue of the warrant; and

(b) at a reasonable hour, unless the case is one of urgency. 196C  Rights of entry: supplementary provisions (1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 196A or 196B (referred to in this section as ‘a right of entry’)— (a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering; (b) may take with him such other persons as may be necessary; and (c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it. (2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (3) If any damage is caused to land or chattels in the exercise of a right of entry, compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry or, as the case may be, the Secretary of State. (4) The provisions of section 118 shall apply in relation to compensation under subsection (3) as they apply in relation to compensation under Part IV. 435

Appendix 1 (5) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence. (6) Subsection (5) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land. (7) A person who is guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both. (8) In sections 196A and 196B and this section references to a local planning authority include, in relation to a building situated in Greater London, a reference to the Historic Buildings and Monuments Commission for England. 196D  Offence of failing to obtain planning permission for demolition of unlisted etc buildings in conservation areas in England (1) It is an offence for a person to carry out or cause or permit to be carried out relevant demolition without the required planning permission. (2)

It is also an offence for a person to fail to comply with any condition or limitation subject to which planning permission for relevant demolition is granted.

(3) In this section ‘relevant demolition’ means the demolition of a building that— (a)

is situated in a conservation area in England; and

(b) is not a building to which section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 does not apply by virtue of section 75 of that Act (listed buildings, certain ecclesiastical buildings, scheduled monuments and buildings described in a direction of the Secretary of State under that section). (4)

It is a defence for a person accused of an offence under this section to prove the following matters— (a) that the relevant demolition was urgently necessary in the interests of safety or health; (b)

that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter;

(c)

that the relevant demolition was the minimum measure necessary; and

(d) that notice in writing of the relevant demolition was given to the local planning authority as soon as reasonably practicable. (5) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both; (b)

on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

436

Town and Country Planning Act 1990 (6) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003, subsection (5)(a) has effect as if the reference to 12 months were to 6 months. (7) In relation to an offence committed before the coming into force of section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, subsection (5)(a) has effect as if the reference to a fine were a reference to a fine not exceeding £20,000. (8) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence. (9) Where, after a person commits an offence under this section, planning permission is granted for any development carried out before the grant of the permission, that grant does not affect the person’s liability for the offence.

PART VIII SPECIAL CONTROLS CHAPTER I TREES General duty of planning authorities as respects trees 197  Planning permission to include appropriate provision for preservation and planting of trees It shall be the duty of the local planning authority— (a)

to ensure, whenever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees; and

(b) to make such orders under section 198 as appear to the authority to be necessary in connection with the grant of such permission, whether for giving effect to such conditions or otherwise. Nothing in this section applies in relation to neighbourhood development orders. Tree preservation orders 198  Power to make tree preservation orders [England] (1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order. (2) An order under subsection (1) is in this Act referred to as a ‘tree preservation order’. (5) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in section 197(a), as from the time when those trees are planted. (7) Tree preservation regulations shall have effect subject to— 437

Appendix 1 (a) section 39(2) of the Housing and Planning Act 1986 (saving for effect of section 2(4) of the Opencast Coal Act 1958 on land affected by a tree preservation order despite its repeal); and (b) section 15 of the Forestry Act 1967 (licences under that Act to fell trees comprised in a tree preservation order). 198  Power to make tree preservation orders [Wales] (1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order. (2) An order under subsection (1) is in this Act referred to as a ‘tree preservation order’. (3) A tree preservation order may, in particular, make provision— (a) for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions; (b) for securing the replanting, in such manner as may be prescribed by or under the order, of any part of a woodland area which is felled in the course of forestry operations permitted by or under the order; (c)

for applying, in relation to any consent under the order, and to applications for such consent, any of the provisions of this Act mentioned in subsection (4), subject to such adaptations and modifications as may be specified in the order.

(4) The provisions referred to in subsection (3)(c) are— (a) the provisions of Part III relating to planning permission and to applications for planning permission, except sections 56, 62, 65, 69(3) and (4), 71 91 to 96, 100 and 101 and Schedule 8; and (b)

sections 137 to 141, 143 and 144 (except so far as they relate to purchase notices served in consequence of such orders as are mentioned in section 137(1)(b) or (c));

(c) section 316. (5) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in section 197(a), as from the time when those trees are planted. (6) Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply— (a) to the cutting down, uprooting, topping or lopping of trees which are dying or dead or have become dangerous, or (b)

to the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance. 438

Town and Country Planning Act 1990 (7) This section shall have effect subject to— (a) section 39(2) of the Housing and Planning Act 1986 (saving for effect of section 2(4) of the Opencast Coal Act 1958 on land affected by a tree preservation order despite its repeal); and (b) section 15 of the Forestry Act 1967 (licences under that Act to fell trees comprised in a tree preservation order). (8) In relation to an application for consent under a tree preservation order the appropriate authority may by regulations make provision as to— (a)

the form and manner in which the application must be made;

(b) particulars of such matters as are to be included in the application; (c)

the documents or other materials as are to accompany the application.

(9) The appropriate authority is— (a)

the Secretary of State in relation to England;

(b) the National Assembly for Wales in relation to Wales, and in the case of regulations made by the National Assembly for Wales section 333(3) must be ignored. 199  Form of and procedure applicable to orders [England] […] 199  Form of and procedure applicable to orders [Wales] (1) A tree preservation order shall not take effect until it is confirmed by the local planning authority and the local planning authority may confirm any such order either without modification or subject to such modifications as they consider expedient. (2) Provision may be made by regulations under this Act with respect— (a)

to the form of tree preservation orders, and

(b) to the procedure to be followed in connection with the making and confirmation of such orders. (3)

Without prejudice to the generality of subsection (2), the regulations may make provision— (a)

that, before a tree preservation order is confirmed by the local planning authority, notice of the making of the order shall be given to the owners and occupiers of land affected by the order and to such other persons, if any, as may be specified in the regulations;

(b)

that objections and representations with respect to the order, if duly made in accordance with the regulations, shall be considered before the order is confirmed by the local planning authority; and

(c)

that copies of the order, when confirmed by the authority, shall be served on such persons as may be specified in the regulations. 439

Appendix 1 200  Tree preservation orders: Forestry Commissioners and Natural Resources Body for Wales [England] (1) A tree preservation order does not have effect in respect of anything done— (a)

by or on behalf of the Forestry Commissioners or the Natural Resources Body for Wales on land placed at their disposal in pursuance of the Forestry Act 1967 or otherwise under their management or supervision; (b) by or on behalf of any other person in accordance with a relevant plan which is for the time being in force.

(2) A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners or the Natural Resources Body for Wales under— (a) a forestry dedication covenant within the meaning of section 5 of the Forestry Act 1967, or (b)

conditions of a grant or loan made by the Forestry Commissioners under section 1 of the Forestry Act 1979 or made by the Natural Resources Body for Wales under article  10b of the Natural Resources Body for Wales (Establishment) Order 2012 (SI 2012/1903) for or in connection with the use or management of land for forestry purposes.

(3) A reference to a provision of the Forestry Act 1967 or the Forestry Act 1979 includes a reference to a corresponding provision replaced by that provision or any earlier corresponding provision. 200  Tree preservation orders: Forestry Commissioners and Natural Resources Body for Wales [Wales] (1) A tree preservation order does not have effect in respect of anything done— (a)

by or on behalf of the Forestry Commissioners or the Natural Resources Body for Wales on land placed at their disposal in pursuance of the Forestry Act 1967 or otherwise under their management or supervision;

(b) by or on behalf of any other person in accordance with a relevant plan which is for the time being in force. (2) A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners under— (a) a forestry dedication covenant within the meaning of section 5 of the Forestry Act 1967, or (b)

conditions of a grant or loan made by the Forestry Commissioners under section 1 of the Forestry Act 1979 or made by the Natural Resources Body for Wales under article  10b of the Natural Resources Body for Wales (Establishment) Order 2012 (SI 2012/1903) for or in connection with the use or management of land for forestry purposes.

(3) A reference to a provision of the Forestry Act 1967 or the Forestry Act 1979 includes a reference to a corresponding provision replaced by that provision or any earlier corresponding provision. 201  Provisional tree preservation orders [England] […] 440

Town and Country Planning Act 1990 201  Provisional tree preservation orders [Wales] (1)

If it appears to a local planning authority that a tree preservation order proposed to be made by that authority should take effect immediately without previous confirmation, they may include in the order as made by them a direction that this section shall apply to the order.

(2) Notwithstanding section 199(1), an order which contains such a direction— (a)

shall take effect provisionally on such date as may be specified in it, and

(b) shall continue in force by virtue of this section until— (i)

the expiration of a period of six months beginning with the date on which the order was made; or

(ii) the date on which the order is confirmed, whichever first occurs. 202  Power for Secretary of State to make tree preservation orders [England] (1)

If it appears to the Secretary of State, after consultation with the local planning authority, to be expedient that a tree preservation order or an order amending or revoking such an order should be made, he may himself make such an order.

(2) Any order so made by the Secretary of State shall have the same effect as if it had been made by the local planning authority and confirmed by them under this Chapter. (3) […] 202  Power for Secretary of State to make tree preservation orders [Wales] (1)

If it appears to the Secretary of State, after consultation with the local planning authority, to be expedient that a tree preservation order or an order amending or revoking such an order should be made, he may himself make such an order.

(2) Any order so made by the Secretary of State shall have the same effect as if it had been made by the local planning authority and confirmed by them under this Chapter. (3)

The provisions of this Chapter and of any regulations made under it with respect to the procedure to be followed in connection with the making and confirmation of any order to which subsection (1) applies and the service of copies of it as confirmed shall have effect, subject to any necessary modifications— (a) in relation to any proposal by the Secretary of State to make such an order, (b) in relation to the making of it by the Secretary of State, and (c)

in relation to the service of copies of it as so made.

202A  Tree preservation regulations: general [England and Wales]1 (1) The appropriate national authority may by regulations make provision in connection with tree preservation orders. Not yet in force in Wales as of 31 January 2020.

1

441

Appendix 1 (2) Sections 202B to 202G make further provision about what may, in particular, be contained in regulations under subsection (1). (3) In this section and those sections ‘tree preservation order’ includes an order under section 202(1). (4) In this Act ‘tree preservation regulations’ means regulations under subsection (1). (5) In subsection (1) ‘the appropriate national authority’— (a)

in relation to England means the Secretary of State, and

(b) in relation to Wales means the Welsh Ministers. 202B Tree preservation regulations: making of tree preservation orders [England and Wales]2 (1) Tree preservation regulations may make provision about— (a)

the form of tree preservation orders;

(b) the procedure to be followed in connection with the making of tree preservation orders; (c)

when a tree preservation order takes effect.

(2) If tree preservation regulations make provision for tree preservation orders not to take effect until confirmed, tree preservation regulations may— (a) make provision for tree preservation orders to take effect provisionally until confirmed; (b) make provision about who is to confirm a tree preservation order; (c) make provision about the procedure to be followed in connection with confirmation of tree preservation orders. 202C  Tree preservation regulations: prohibited activities [England and Wales]3 (1) Tree preservation regulations may make provision for prohibiting all or any of the following— (a)

cutting down of trees;

(b) topping of trees; (c)

lopping of trees;

(d) uprooting of trees; (e)

wilful damage of trees;

(f)

wilful destruction of trees.

(2) A prohibition imposed on a person may (in particular) relate to things whose doing the person causes or permits (as well as to things the person does). (3) A prohibition may be imposed subject to exceptions.

Not yet in force in Wales as of 31 January 2020. Not yet in force in Wales as of 31 January 2020.

2 3

442

Town and Country Planning Act 1990 (4) In particular, provision may be made for a prohibition not to apply to things done with consent. (5) In this section ‘tree’ means a tree in respect of which a tree preservation order is in force. 202D  Tree preservation regulations: consent for prohibited activities [England and Wales]4 (1) This section applies if tree preservation regulations make provision under section 202C(4). (2) Tree preservation regulations may make provision— (a)

about who may give consent;

(b) for the giving of consent subject to conditions; (c)

about the procedure to be followed in connection with obtaining consent.

(3) The conditions for which provision may be made under subsection (2)(b) include— (a)

conditions as to planting of trees;

(b) conditions requiring approvals to be obtained from the person giving the consent; (c)

conditions limiting the duration of the consent.

(4) The conditions mentioned in subsection (3)(a) include— (a)

conditions requiring trees to be planted;

(b) conditions about the planting of any trees required to be planted by conditions within paragraph (a), including conditions about how, where or when planting is to be done; (c) (5)

conditions requiring things to be done, or installed, for the protection of any trees planted in pursuance of conditions within paragraph (a).

In relation to any tree planted in pursuance of a condition within subsection (4) (a), tree preservation regulations may make provision— (a)

for the tree preservation order concerned to apply to the tree;

(b) authorising the person imposing the condition to specify that the tree preservation order concerned is not to apply to the tree. (6) ‘The tree preservation order concerned’ is the order in force in relation to the tree in respect of which consent is given under tree preservation regulations. (7) The provision that may be made under subsection (2)(c) includes provision about applications for consent, including provision as to— (a)

the form or manner in which an application is to be made;

(b) what is to be in, or is to accompany, an application. (8) Tree preservation regulations may make provision for appeals— Not yet in force in Wales as of 31 January 2020.

4

443

Appendix 1 (a)

against refusal of consent;

(b) where there is a failure to decide an application for consent; (c)

against conditions subject to which consent is given;

(d) against refusal of an approval required by a condition; (e)

where there is a failure to decide an application for such an approval.

(9) Tree preservation regulations may make provision in connection with appeals under provision made under subsection (8), including— (a)

provision imposing time limits;

(b) provision for further appeals; (c)

provision in connection with the procedure to be followed on an appeal (or further appeal);

(d) provision about who is to decide an appeal (or further appeal); (e)

provision imposing duties, or conferring powers, on a person deciding an appeal (or further appeal).

202E  Tree preservation regulations: compensation [England and Wales]5 (1) Tree preservation regulations may make provision for the payment of compensation— (a) where any consent required under tree preservation regulations is refused; (b) where any such consent is given subject to conditions; (c)

where any approval required under such a condition is refused.

(2) Tree preservation regulations may provide for entitlement conferred under subsection (1) to apply only in, or to apply except in, cases specified in tree preservation regulations. (3) Tree preservation regulations may provide for entitlement conferred by provision under subsection (1) to be subject to conditions, including conditions as to time limits. (4)

Tree preservation regulations may, in relation to compensation under provision under subsection (1), make provision about— (a)

who is to pay the compensation;

(b) who is entitled to the compensation; (c)

what the compensation is to be paid in respect of;

(d) the amount, or calculation of, the compensation. (5) Tree preservation regulations may make provision about the procedure to be followed in connection with claiming any entitlement conferred by provision under subsection (1).

Not yet in force in Wales as of 31 January 2020.

5

444

Town and Country Planning Act 1990 (6) Tree preservation regulations may make provision for the determination of disputes about entitlement conferred by provision under subsection (1), including provision for and in connection with the referral of any such disputes to, and their determination by the First-tier Tribunal or the Upper Tribunal. 202F  Tree preservation regulations: registers [England and Wales]6 Tree preservation regulations may make provision for the keeping of, and public access to, registers containing information related to tree preservation orders. 202G  Tree preservation regulations: supplementary [England and Wales] (1)

Tree preservation regulations may provide for the application (with or without7 modifications) of, or make provision comparable to, any provision of this Act mentioned in subsection (2).

(2) The provisions are any provision of Part 3 relating to planning permission or applications for planning permission, except sections 56, 62, 65, 69(3) and (4), 71, 91 to 96, 100 and 101 and Schedule 8. (3) Tree preservation regulations may make provision comparable to— (a)

any provision made by the Town and Country Planning (Tree Preservation Order) Regulations 1969 or the Town and Country Planning (Trees) Regulations 1999;

(b) any provision that could have been made under section 199(2) and (3). (4) Tree preservation regulations may contain incidental, supplementary, consequential, transitional and transitory provision and savings. Compensation for loss or damage caused by orders, etc 203  Compensation in respect of tree preservation orders [England] […] 203  Compensation in respect of tree preservation orders [Wales] A tree preservation order may make provision for the payment by the local planning authority, subject to such exceptions and conditions as may be specified in the order, of compensation in respect of loss or damage caused or incurred in consequence— (a)

of the refusal of any consent required under the order, or

(b) of the grant of any such consent subject to conditions. 204  Compensation in respect of requirement as to replanting of trees [England] […] 204  Compensation in respect of requirement as to replanting of trees [Wales] (1) This section applies where—

Not yet in force in Wales as of 31 January 2020. Not yet in force in Wales as of 31 January 2020.

6 7

445

Appendix 1 (a)

in pursuance of provision made by a tree preservation order, a direction is given by the local planning authority or the Secretary of State for securing the replanting of all or any part of a woodland area which is felled in the course of forestry operations permitted by or under the order; and

(b) the Forestry Commissioners decide not to make any grant or loan under section 1 of the Forestry Act 1979 in respect of the replanting by reason that the direction frustrates the use of the woodland area for the growing of timber or other forest products for commercial purposes and in accordance with the rules or practice of good forestry. (2)

Where this section applies, the local planning authority exercising functions under the tree preservation order shall be liable, on the making of a claim in accordance with this section, to pay compensation in respect of such loss or damage, if any, as is caused or incurred in consequence of compliance with the direction.

(3) The Forestry Commissioners shall, at the request of the person under a duty to comply with such a direction as is mentioned in subsection (1)(a), give a certificate stating— (a) whether they have decided not to make such a grant or loan as is mentioned in subsection (1)(b), and (b) if so, the grounds for their decision. (4) A  claim for compensation under this section must be served on the local planning authority— (a)

within 12 months from the date on which the direction was given, or

(b) where an appeal has been made to the Secretary of State against the decision of the local planning authority, within 12 months from the date of the decision of the Secretary of State on the appeal, but subject in either case to such extension of that period as the local planning authority may allow. 205  Determination of compensation claims [England] […] 205  Determination of compensation claims [Wales] (1) Except in so far as may be otherwise provided by any tree preservation order or any regulations made under this Act, any question of disputed compensation under section 203 or 204 shall be referred to and determined by the Upper Tribunal. (2) In relation to the determination of any such question, the provisions of section 4 of the Land Compensation Act 1961 shall apply subject to any necessary modifications and to the provisions of any regulations made under this Act. Consequences of tree removal, etc 206  Replacement of trees [England] (1) If any tree in respect of which a tree preservation order is for the time being in force— 446

Town and Country Planning Act 1990 (a)

is removed, uprooted or destroyed in contravention of the order, or

(b) except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a prescribed time, it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. (2)

The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it.

(3) In respect of trees in a woodland it shall be sufficient for the purposes of this section to replace the trees removed, uprooted or destroyed by planting the same number of trees— (a) on or near the land on which the trees removed, uprooted or destroyed stood, or (b)

on such other land as may be agreed between the local planning authority and the owner of the land,

and in such places as may be designated by the local planning authority. (4) In relation to any tree planted pursuant to this section, the relevant tree preservation order shall apply as it applied to the original tree. (5)

The duty imposed by subsection (1) on the owner of any land shall attach to the person who is from time to time the owner of the land.

206  Replacement of trees [Wales] (1) If any tree in respect of which a tree preservation order is for the time being in force— (a)

is removed, uprooted or destroyed in contravention of the order, or

(b)

except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of section 198(6)(a),

it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. (2)

The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it.

(3) In respect of trees in a woodland it shall be sufficient for the purposes of this section to replace the trees removed, uprooted or destroyed by planting the same number of trees— (a) on or near the land on which the trees removed, uprooted or destroyed stood, or (b)

on such other land as may be agreed between the local planning authority and the owner of the land,

and in such places as may be designated by the local planning authority. (4) In relation to any tree planted pursuant to this section, the relevant tree preservation order shall apply as it applied to the original tree. 447

Appendix 1 (5)

The duty imposed by subsection (1) on the owner of any land shall attach to the person who is from time to time the owner of the land.

207  Enforcement of duties as to replacement of trees [England and Wales] (1) If it appears to the local planning authority that— (a)

the provisions of section 206, or

(b) any conditions of a consent given under tree preservation regulations which require the replacement of trees, are not complied with in the case of any tree or trees, that authority may serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such size and species as may be so specified. (2) A notice under subsection (1) may only be served within four years from the date of the alleged failure to comply with those provisions or conditions. (3) A notice under subsection (1) shall specify a period at the end of which it is to take effect. (4) The specified period shall be a period of not less than twenty-eight days beginning with the date of service of the notice. (5) The duty imposed by section 206(1) may only be enforced as provided by this section and not otherwise. 208  Appeals against s 207 notices (1) A person on whom a notice under section 207(1) is served may appeal to the Secretary of State against the notice on any of the following grounds— (a)

that the provisions of section 206 or, as the case may be, the conditions mentioned in section 207(1)(b) are not applicable or have been complied with;

(aa) that in all the circumstances of the case the duty imposed by section 206(1) should be dispensed with in relation to any tree; (b) that the requirements of the notice are unreasonable in respect of the period or the size or species of trees specified in it; (c) that the planting of a tree or trees in accordance with the notice is not required in the interests of amenity or would be contrary to the practice of good forestry; (d) that the place on which the tree is or trees are required to be planted is unsuitable for that purpose. (2) An appeal under subsection (1) shall be made either— (a)

by giving written notice of the appeal to the Secretary of State before the end of the period specified in accordance with section 207(3); or

(b)

by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before the end of that period.

(4) The notice shall— 448

Town and Country Planning Act 1990 (a)

indicate the grounds of the appeal,

(b) state the facts on which the appeal is based, and (c)

be accompanied by such information as may be prescribed.

(4A) The power to make regulations under subsection (4)(c) is exercisable by— (a)

the Secretary of State, in relation to England;

(b) the Welsh Ministers, in relation to Wales. (4B) Section 333(3) does not apply in relation to regulations under subsection (4)(c) made by the Welsh Ministers. (4C) Regulations under subsection (4)(c) made by the Welsh Ministers are subject to annulment in pursuance of a resolution of the National Assembly for Wales. (5) On an appeal under subsection (1) the Secretary of State shall, if either the appellant or the local planning authority so desire, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose. (5B) Subsection (5) does not apply to an appeal to the Welsh Ministers. (6)

Where such an appeal is brought, the notice under section 207(1) shall be of no effect pending the final determination or the withdrawal of the appeal.

(7) On such an appeal the Secretary of State may— (a)

correct any defect, error or misdescription in the notice; or

(b) vary any of its requirements, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority. (8)

Where the Secretary of State determines to allow the appeal, he may quash the notice.

(8A) The Secretary of State shall give any directions necessary to give effect to his determination on the appeal. (9) Schedule 6 applies to appeals under this section. (10) Where any person has appealed to the Secretary of State under this section against a notice, neither that person nor any other shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed. 209  Execution and cost of works required by s 207 notice (1) If, within the period specified in a notice under section 207(1) for compliance with it, or within such extended period as the local planning authority may allow, any trees which are required to be planted by a notice under that section have not been planted, the local planning authority may— (a)

enter the land and plant those trees, and

(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so. (2) Where such a notice has been served— 449

Appendix 1 (a) any expenses incurred by the owner of any land for the purpose of complying with the notice, and (b) any sums paid by the owner of any land under subsection (1) in respect of expenses incurred by the local planning authority in planting trees required by such a notice to be planted, shall be deemed to be incurred or paid for the use and at the request of any person, other than the owner, responsible for the cutting down, destruction or removal of the original tree or trees. (3) Regulations made under this Act may provide that— (a) section 276 of the Public Health Act 1936 (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale); (b) section 289 of that Act (power to require the occupier of any premises to permit works to be executed by the owner of the premises); or (c)

section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act),

shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any steps required to be taken by a notice under section 207(1). (4) Regulations under subsection (3) applying section 289 of the Public Health Act 1936 may include adaptations and modifications for the purpose of giving the owner of land to which such a notice relates the right, as against all other persons interested in the land, to comply with the requirements of the notice. (5)

Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local authority or National Park authority under subsection (1).

(6)

Any person who wilfully obstructs a person acting in the exercise of the power under subsection (1)(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

210  Penalties for non-compliance with tree preservation regulations [England] (1) If any person, in contravention of tree preservation regulations— (a)

cuts down, uproots or wilfully destroys a tree,

(b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, or (c)

causes or permits the carrying out of any of the activities in paragraph (a) or (b),

he shall be guilty of an offence. (2) A person guilty of an offence under subsection (1) shall be liable on summary conviction, or on conviction on indictment, to a fine. (3) In determining the amount of any fine to be imposed on a person convicted of an offence under subsection (1), the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence. 450

Town and Country Planning Act 1990 (4) If any person contravenes the provisions of tree preservation regulations otherwise than as mentioned in subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale. (4A) Proceedings for an offence under subsection (4) may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge. (4B) Subsection (4A) does not authorise the commencement of proceedings for an offence more than 3 years after the date on which the offence was committed. (4C) For the purposes of subsection (4A), a certificate— (a)

signed by or on behalf of the prosecutor, and

(b) stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’s knowledge, is conclusive evidence of that fact. (4D) A certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved. (4E) Subsection (4A) does not apply in relation to an offence in respect of a tree in Wales. 210  Penalties for non-compliance with tree preservation order [Wales] (1) If any person, in contravention of a tree preservation order— (a)

cuts down, uproots or wilfully destroys a tree, or

(b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, he shall be guilty of an offence. (2) A person guilty of an offence under subsection (1) shall be liable on summary conviction, or on conviction on indictment, to a fine. (3) In determining the amount of any fine to be imposed on a person convicted of an offence under subsection (1), the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence. (4) If any person contravenes the provisions of a tree preservation order otherwise than as mentioned in subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale. (4A) Proceedings for an offence under subsection (4) may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge. (4B) Subsection (4A) does not authorise the commencement of proceedings for an offence more than 3 years after the date on which the offence was committed. (4C) For the purposes of subsection (4A), a certificate— 451

Appendix 1 (a)

signed by or on behalf of the prosecutor, and

(b) stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’s knowledge, is conclusive evidence of that fact. (4D) A certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved. (4E) Subsection (4A) does not apply in relation to an offence in respect of a tree in Wales. Trees in conservation areas 211  Preservation of trees in conservation areas [England] (1) Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 202C be prohibited by tree preservation regulations shall be guilty of an offence. (1A) Subsection (1) does not apply so far as the act in question is authorised by an order granting development consent. (2) Subject to section 212, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force. (3) It shall be a defence for a person charged with an offence under subsection (1) to prove— (a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and (b) that he did the act in question— (i)

with the consent of the local planning authority in whose area the tree is or was situated, or

(ii) after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date. (4) Section 210 shall apply to an offence under this section as it applies to a contravention of tree preservation regulations. (5) An emanation of the Crown must not, in relation to a tree to which this section applies, do an act mentioned in subsection (1) above unless— (a)

the first condition is satisfied, and

(b) either the second or third condition is satisfied. (5A) Subsection (5) does not apply so far as the act in question is authorised by an order granting development consent. (6) The first condition is that the emanation serves notice of an intention to do the act (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is situated. 452

Town and Country Planning Act 1990 (7) The second condition is that the act is done with the consent of the authority. (8) The third condition is that the act is done— (a) after the end of the period of six weeks starting with the date of the notice, and (b) before the end of the period of two years starting with that date. 211  Preservation of trees in conservation areas [Wales] (1) Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 198(3)(a) be prohibited by a tree preservation order shall be guilty of an offence. (1A) Subsection (1) does not apply so far as the act in question is authorised by an order granting development consent. (2) Subject to section 212, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force. (3) It shall be a defence for a person charged with an offence under subsection (1) to prove— (a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and (b) that he did the act in question— (i)

with the consent of the local planning authority in whose area the tree is or was situated, or

(ii) after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date. (4) Section 210 shall apply to an offence under this section as it applies to a contravention of a tree preservation order. (5) An emanation of the Crown must not, in relation to a tree to which this section applies, do an act mentioned in subsection (1) above unless— (a)

the first condition is satisfied, and

(b) either the second or third condition is satisfied. (5A) Subsection (5) does not apply so far as the act in question is authorised by an order granting development consent. (6) The first condition is that the emanation serves notice of an intention to do the act (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is situated. (7) The second condition is that the act is done with the consent of the authority. (8) The third condition is that the act is done— (a)

after the end of the period of six weeks starting with the date of the notice, and

(b) before the end of the period of two years starting with that date. 453

Appendix 1 212  Power to disapply s 211 [England] (1) The Secretary of State may by regulations direct that section 211 shall not apply in such cases as may be specified in the regulations. (2) Without prejudice to the generality of subsection (1), the regulations may be framed so as to exempt from the application of that section cases defined by reference to all or any of the following matters— (a)

acts of such descriptions or done in such circumstances or subject to such conditions as may be specified in the regulations;

(b) trees in such conservation areas as may be so specified; (c)

trees of a size or species so specified; or

(d) trees belonging to persons or bodies of a description so specified. (3) The regulations may, in relation to any matter by reference to which an exemption is conferred by them, make different provision for different circumstances. 212  Power to disapply s 211 [Wales] (1) The Secretary of State may by regulations direct that section 211 shall not apply in such cases as may be specified in the regulations. (2) Without prejudice to the generality of subsection (1), the regulations may be framed so as to exempt from the application of that section cases defined by reference to all or any of the following matters— (a)

acts of such descriptions or done in such circumstances or subject to such conditions as may be specified in the regulations;

(b) trees in such conservation areas as may be so specified; (c)

trees of a size or species so specified; or

(d) trees belonging to persons or bodies of a description so specified. (3) The regulations may, in relation to any matter by reference to which an exemption is conferred by them, make different provision for different circumstances. (4)

Regulations under subsection (1) may in particular, but without prejudice to the generality of that subsection, exempt from the application of section 211 cases exempted from section 198 by subsection (6) of that section.

213  Enforcement of controls as respects trees in conservation areas [England] (1) If any tree to which section 211 applies— (a)

is removed, uprooted or destroyed in contravention of that section; or

(b) is removed, uprooted or destroyed or dies at a prescribed time, it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. (2)

The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it. 454

Town and Country Planning Act 1990 (3) The duty imposed by subsection (1) on the owner of any land attaches to the person who is from time to time the owner of the land and may be enforced as provided by section 207 and not otherwise. 213  Enforcement of controls as respects trees in conservation areas [Wales] (1) If any tree to which section 211 applies— (a)

is removed, uprooted or destroyed in contravention of that section; or

(b) is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of the provisions of such regulations under subsection (1) of section 212 as are mentioned in subsection (4) of that section, it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. (2)

The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it.

(3) The duty imposed by subsection (1) on the owner of any land attaches to the person who is from time to time the owner of the land and may be enforced as provided by section 207 and not otherwise. 214  Registers of s 211 notices. It shall be the duty of a local planning authority to compile and keep available for public inspection free of charge at all reasonable hours and at a convenient place a register containing such particulars as the Secretary of State may determine of notices under section 211 affecting trees in their area. Injunctions 214A Injunctions (1) Where a local planning authority consider it necessary or expedient for an actual or apprehended offence under section 210 or 211 to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Chapter. (2)

Subsections (2) to (4) of section 187B apply to an application under this section as they apply to an application under that section.

Rights of entry 214B  Rights to enter without warrant (1) Any person duly authorised in writing by a local planning authority may enter any land for the purpose of— (a)

surveying it in connection with making or confirming a tree preservation order with respect to the land;

(b) ascertaining whether an offence under section 210 or 211 has been committed on the land; or 455

Appendix 1 (c)

determining whether a notice under section 207 should be served on the owner of the land,

if there are reasonable grounds for entering for the purpose in question. (2) Any person duly authorised in writing by the Secretary of State may enter any land for the purpose of surveying it in connection with making, amending or revoking a tree preservation order with respect to the land, if there are reasonable grounds for entering for that purpose. (3)

Any person who is duly authorised in writing by a local planning authority may enter any land in connection with the exercise of any functions conferred on the authority by or under this Chapter.

(4) Any person who is an officer of the Valuation Office may enter any land for the purpose of surveying it, or estimating its value, in connection with a claim for compensation in respect of any land which is payable by the local planning authority under this Chapter (other than section 204). (5) Any person who is duly authorised in writing by the Secretary of State may enter any land in connection with the exercise of any functions conferred on the Secretary of State by or under this Chapter. (6)

The Secretary of State shall not authorise any person as mentioned in subsection (2) without consulting the local planning authority.

(7) Admission shall not be demanded as of right— (a)

by virtue of subsection (1) or (2) to any building used as a dwellinghouse; or

(b) by virtue of subsection (3), (4) or (5) to any land which is occupied, unless twenty-four hours’ notice of the intended entry has been given to the occupier. (8)

Any right to enter by virtue of this section shall be exercised at a reasonable hour.

214C  Right to enter under warrant (1) If it is shown to the satisfaction of a justice of the peace on sworn information in writing— (a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 214B(1) or (2); and (b) that— (i)

admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii) the case is one of urgency, the justice may issue a warrant authorising any person duly authorised in writing by a local planning authority or, as the case may be, the Secretary of State to enter the land. (2) For the purposes of subsection (1)(b)(i) admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period. 456

Town and Country Planning Act 1990 (3) A warrant authorises entry on one occasion only and that entry must be— (a)

within one month from the date of the issue of the warrant; and

(b) at a reasonable hour, unless the case is one of urgency. 214D  Rights of entry: supplementary provisions (1) Any power conferred under or by virtue of section 214B or 214C to enter land (referred to in this section as ‘a right of entry’) shall be construed as including power to take samples from any tree and samples of the soil. (2) A person authorised to enter land in the exercise of a right of entry— (a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering; (b) may take with him such other persons as may be necessary; and (c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it. (3) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (4) If any damage is caused to land or chattels in the exercise of a right of entry, compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry or, as the case may be, the Secretary of State. (5) The provisions of section 118 shall apply in relation to compensation under subsection (4) as they apply in relation to compensation under Part IV.

CHAPTER II LAND ADVERSELY AFFECTING AMENITY OF NEIGHBOURHOOD 215  Power to require proper maintenance of land (1) If it appears to the local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section. (2) The notice shall require such steps for remedying the condition of the land as may be specified in the notice to be taken within such period as may be so specified. (3) Subject to the following provisions of this Chapter, the notice shall take effect at the end of such period as may be specified in the notice. (4) That period shall not be less than 28 days after the service of the notice. 216  Penalty for non-compliance with s 215 notice (1) The provisions of this section shall have effect where a notice has been served under section 215. 457

Appendix 1 (2) If any owner or occupier of the land on whom the notice was served fails to take steps required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (3)

Where proceedings have been brought under subsection (2) against a person as the owner of the land and he has, at some time before the end of the compliance period, ceased to be the owner of the land, if he— (a)

duly lays information to that effect, and

(b)

gives the prosecution not less than three clear days’ notice of his intention,

he shall be entitled to have the person who then became the owner of the land brought before the court in the proceedings. (4) Where proceedings have been brought under subsection (2) against a person as the occupier of the land and he has, at some time before the end of the compliance period, ceased to be the occupier of the land, if he— (a)

duly lays information to that effect, and

(b)

gives the prosecution not less than three clear days’ notice of his intention,

he shall be entitled to have brought before the court in the proceedings the person who then became the occupier of the land or, if nobody then became the occupier, the person who is the owner at the date of the notice. (5) Where in such proceedings— (a)

it has been proved that any steps required by the notice under section 215 have not been taken within the compliance period, and

(b) the original defendant proves that the failure to take those steps was attributable, in whole or in part, to the default of a person specified in a notice under subsection (3) or (4), then— (i)

that person may be convicted of the offence; and

(ii) if the original defendant also proves that he took all reasonable steps to ensure compliance with the notice, he shall be acquitted of the offence. (6) If, after a person has been convicted under the previous provisions of this section, he does not as soon as practicable do everything in his power to secure compliance with the notice, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding one-tenth of level 3 on the standard scale for each day following his first conviction on which any of the requirements of the notice remain unfulfilled. (7)

Any reference in this section to the compliance period, in relation to a notice, is a reference to the period specified in the notice for compliance with it or such extended period as the local planning authority who served the notice may allow for compliance.

217  Appeal against a section 215 notice (1) A person on whom a notice under section 215 is served, or any other person having an interest in the land to which the notice relates, may, at any time 458

Town and Country Planning Act 1990 within the period specified in the notice as the period at the end of which it is to take effect, appeal against the notice on any of the following grounds— (a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area; (b)

that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III;

(c)

that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed. (2) Any appeal under this section shall be made— (a)

in the case of a notice relating to land in Wales, to the Welsh Ministers;

(b)

in the case of a notice relating to land in England, to a magistrates’ court.

(3) Where such an appeal is brought, the notice to which it relates shall be of no effect pending the final determination or withdrawal of the appeal. (4)

On such an appeal the Welsh Ministers or (as the case may be) the magistrates’ court may correct any informality, defect or error in the notice if satisfied that the informality, defect or error is not material.

(5) On the determination of such an appeal the Welsh Ministers or (as the case may be) the magistrates’ court shall give directions for giving effect to their determination, including, where appropriate, directions for quashing the notice or for varying the terms of the notice in favour of the appellant. (6)

Where any person has appealed under this section against a notice, neither that person nor any other shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed.

(7) The Welsh Ministers may by regulations make provision, in respect of appeals made to them under this section— (a)

as to steps to be taken in connection with bringing an appeal (including as to the form and content of any notice required to be given, and persons to whom copies of it are to be provided);

(b) about information to be provided to the Welsh Ministers in connection with an appeal; (c) as to the procedure by which an appeal under this section is to be considered (including provision about circumstances in which the appellant or the local planning authority must be given the opportunity of appearing before and being heard by a person appointed by the Welsh Ministers for the purpose). 459

Appendix 1 218  Further appeal to the Crown Court: England Where an appeal has been brought to a magistrates’ court under section 217, an appeal against the decision of the magistrates’ court on that appeal may be brought to the Crown Court by the appellant or by the local planning authority who served the notice in question under section 215. 219  Execution and cost of works required by s 215 notice (1) If, within the period specified in a notice under section 215 in accordance with subsection (2) of that section, or within such extended period as the local planning authority who served the notice may allow, any steps required by the notice to be taken have not been taken, the local planning authority who served the notice may— (a)

enter the land and take those steps, and

(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so. (2) Where a notice has been served under section 215— (a) any expenses incurred by the owner or occupier of any land for the purpose of complying with the notice, and (b)

any sums paid by the owner of any land under subsection (1) in respect of expenses incurred by the local planning authority in taking steps required by such a notice,

shall be deemed to be incurred or paid for the use and at the request of the person who caused or permitted the land to come to be in the condition in which it was when the notice was served. (3) Regulations made under this Act may provide that— (a) section 276 of the Public Health Act 1936 (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale); (b) section 289 of that Act (power to require the occupier of any premises to permit works to be executed by the owner of the premises); or (c)

section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act),

shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any steps required to be taken by a notice under section 215. (4)

Regulations under subsection (3) applying section 289 of the Public Health Act 1936 may include adaptations and modifications for the purpose of giving the owner of land to which a notice under section 215 relates the right, as against all other persons interested in the land, to comply with the requirements of the enforcement notice.

(5)

Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local authority under subsection (1). 460

Town and Country Planning Act 1990 CHAPTER III ADVERTISEMENTS Advertisement regulations 220  Regulations controlling display of advertisements (1) Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety. (2)

Without prejudice to the generality of subsection (1), any such regulations may provide— (a)

for regulating the dimensions, appearance and position of advertisements which may be displayed, the sites on which advertisements may be displayed and the manner in which they are to be affixed to the land;

(b) for requiring the consent of the local planning authority to be obtained for the display of advertisements, or of advertisements of any class specified in the regulations; (c)

for applying, in relation to any such consent and to applications for such consent, any of the provisions mentioned in subsection (3), subject to such adaptations and modifications as may be specified in the regulations;

(d) for the constitution, for the purposes of the regulations, of such advisory committees as may be prescribed by the regulations, and for determining the manner in which the expenses of any such committee are to be defrayed. (2A) The regulations may also make provision as to— (a)

the form and manner in which an application for consent must be made;

(b) particulars of such matters as are to be included in the application; (c)

any documents or other materials which must accompany the application.

(3) The provisions referred to in subsection (2)(c) are— (a) the provisions of Part III relating to planning permission and to applications for planning permission, except sections 56, 62 , 65, 69(3) and (4), 71, 91 to 96, 100 and 101 and Schedule 8; (b)

sections 137 to 141, 143 and 144 (except so far as they relate to purchase notices served in consequence of such orders as are mentioned in section 137(1)(b) or (c));

(c) section 316. (4) Without prejudice to the generality of the powers conferred by this section, regulations made for the purposes of this section may provide that any appeal from the decision of the local planning authority, on an application for their consent under the regulations, shall be to an independent tribunal constituted in accordance with the regulations, instead of being an appeal to the Secretary of State. (5)

If any tribunal is so constituted, the Secretary of State may pay to the chairman and members of the tribunal such remuneration, whether by way of salaries or by way of fees, and such reasonable allowances in respect of expenses properly 461

Appendix 1 incurred in the performance of their duties, as he may with the consent of the Treasury determine. 221  Power to make different advertisement regulations for different areas (1)

Regulations made for the purposes of section 220 may make different provision with respect to different areas, and in particular may make special provision— (a)

with respect to conservation areas;

(b) with respect to areas defined for the purposes of the regulations as experimental areas, and (c)

with respect to areas defined for the purposes of the regulations as areas of special control.

(2) An area may be defined as an experimental area for a prescribed period for the purpose of assessing the effect on amenity or public safety of advertisements of a prescribed description. (3) An area may be defined as an area of special control if it is— (a)

a rural area, or

(b) an area which appears to the Secretary of State to require special protection on grounds of amenity. (4) Without prejudice to the generality of subsection (1), the regulations may prohibit the display in an area of special control of all advertisements except advertisements of such classes (if any) as may be prescribed. (5) Areas of special control for the purposes of regulations under this section may be defined by means of orders made or approved by the Secretary of State in accordance with the provisions of the regulations. (6) Where the Secretary of State is authorised by the regulations to make or approve any such order as is mentioned in subsection (5), the regulations shall provide— (a)

for the publication of notice of the proposed order in such manner as may be prescribed,

(b) for the consideration of objections duly made to it, and (c)

for the holding of such inquiries or other hearings as may be prescribed,

before the order is made or approved. (7) Subject to subsection (8), regulations made under section 220 may be made so as to apply— (a) to advertisements which are being displayed on the date on which the regulations come into force, or (b) to the use for the display of the advertisements of any site which was being used for that purpose on that date. (8) Any regulations made in accordance with subsection (7) shall provide for exempting from them— (a) the continued display of any such advertisements as there mentioned; and 462

Town and Country Planning Act 1990 (b) the continued use for the display of advertisements of any such site as there mentioned, during such period as may be prescribed. (9) Different periods may be prescribed under subsection (8) for the purposes of different provisions of the regulations. 222 Planning permission not needed for advertisements complying with regulations Where the display of advertisements in accordance with regulations made under section 220 involves development of land— (a)

planning permission for that development shall be deemed to be granted by virtue of this section, and

(b) no application shall be necessary for that development under Part III. 223  Repayment of expense of removing prohibited advertisements (1) Where, for the purpose of complying with any regulations made under section 220, works are carried out by any person— (a)

for removing an advertisement which was being displayed on 1st August 1948; or

(b) for discontinuing the use for the display of advertisements of a site used for that purpose on that date, that person shall, on a claim made to the local planning authority within such time and in such manner as may be prescribed, be entitled to recover from that authority compensation in respect of any expenses reasonably incurred by him in carrying out those works. (2) Except in so far as may be otherwise provided by any regulations made under this Act, any question of disputed compensation under this section shall be referred to and determined by the Upper Tribunal. (3)

In relation to the determination of any such question, the provisions of section 4 of the Land Compensation Act 1961 shall apply subject to any necessary modifications and to the provisions of any regulations made under this Act.

Enforcement of control over advertisements 224  Enforcement of control as to advertisements (1) Regulations under section 220 may make provision for enabling the local planning authority to require— (a)

the removal of any advertisement which is displayed in contravention of the regulations, or

(b)

the discontinuance of the use for the display of advertisements of any site which is being so used in contravention of the regulations.

(2) For that purpose the regulations may apply any of the provisions of Part VII with respect to enforcement notices or the provisions of section 186, subject to such adaptations and modifications as may be specified in the regulations. 463

Appendix 1 (3) Without prejudice to any provisions included in such regulations by virtue of subsection (1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding level 4 on the standard scale and, in the case of a continuing offence, one-tenth of level 4 on the standard scale for each day during which the offence continues after conviction. (4)

Without prejudice to the generality of subsection (3), a person shall be deemed to display an advertisement for the purposes of that subsection if— (a) he is the owner or occupier of the land on which the advertisement is displayed; or (b) the advertisement gives publicity to his goods, trade, business or other concerns.

(5) A  person shall not be guilty of an offence under subsection (3) by reason only— (a)

of his being the owner or occupier of the land on which an advertisement is displayed, or

(b) of his goods, trade, business or other concerns being given publicity by the advertisement, if he proves either of the matters specified in subsection (6). (6) The matters are that— (a)

the advertisement was displayed without his knowledge; or

(b) he took all reasonable steps to prevent the display or, after the advertisement had been displayed, to secure its removal. (7) Proceedings for an offence under subsection (3) may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge. (8) Subsection (7) does not authorise the commencement of proceedings for an offence more than 3 years after the date on which the offence was committed. (9) For the purposes of subsection (7), a certificate— (a)

signed by or on behalf of the prosecutor, and

(b) stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’s knowledge, is conclusive evidence of that fact. (10) A certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved. (11) Subsection (7) does not apply in relation to an offence in respect of an advertisement in Wales. 464

Town and Country Planning Act 1990 225  Power to remove or obliterate placards and posters (1) Subject to subsections (2) and (3), the local planning authority may remove or obliterate any placard or poster— (a)

which is displayed in their area; and

(b) which in their opinion is so displayed in contravention of regulations made under section 220. (2) Subsection (1) does not authorise the removal or obliteration of a placard or poster displayed within a building to which there is no public right of access. (3) Subject to subsection (4), where a placard or poster identifies the person who displayed it or caused it to be displayed, the local planning authority shall not exercise any power conferred by subsection (1) unless they have first given him notice in writing— (a)

that in their opinion it is displayed in contravention of regulations made under section 220; and

(b) that they intend to remove or obliterate it on the expiry of a period specified in the notice and recover from him the costs they may reasonably incur in doing so. (4) Subsection (3) does not apply if— (a)

the placard or poster does not give his address, and

(b)

the authority do not know it and are unable to ascertain it after reasonable inquiry.

(5) The period specified in a notice under subsection (3) must be not less than two days from the date of service of the notice. (6) Where— (a)

a local planning authority serve a notice on a person under subsection (3) in relation to a placard or poster, and

(b) the person fails to remove or obliterate it within the period specified in the notice, the authority may recover from that person the costs they may reasonably incur in exercising their power under subsection (1). (7) This subsection applies in relation to a placard or poster where— (a) the placard or poster does not identify the person who displayed it or caused it to be displayed, or (b) it does do so, but subsection (3) does not apply by reason of subsection (4), and the placard or poster publicises the goods, services or concerns of an identifiable person. (8) Where subsection (7) applies, subsections (3) to (6) have effect as if the reference in subsection (3) to the person who displayed the placard or poster or caused it to be displayed were a reference to the person whose goods, services or concerns are publicised. 465

Appendix 1 (9) Where any damage is caused to land or chattels in the exercise of the power under subsection (1) in relation to a placard or poster, compensation may be recovered by any person suffering the damage from the local planning authority exercising the power. (10) Subsection (9) does not permit the recovery of compensation by the person who displayed the placard or poster or caused it to be displayed. (11) The provisions of section 118 apply in relation to compensation under subsection (9) as they apply in relation to compensation under Part 4. 225A  Power to remove structures used for unauthorised display (1) Subject to subsections (2), (3) and (5) and the right of appeal under section 225B, the local planning authority for an area in England may remove, and then dispose of, any display structure— (a)

which is in their area; and

(b)

which, in the local planning authority’s opinion, is used for the display of advertisements in contravention of regulations under section 220.

(2) Subsection (1) does not authorise the removal of a display structure in a building to which there is no public right of access. (3) The local planning authority may not under subsection (1) remove a display structure unless the local planning authority have first served a removal notice on a person who appears to the local planning authority to be responsible for the erection or maintenance of the display structure. (4) Subsection (3) applies only if there is a person— (a) who appears to the local planning authority to be responsible for the erection or maintenance of the display structure; and (b)

whose name and address are either known by the local planning authority or could be ascertained by the local planning authority after reasonable enquiry.

(5) If subsection (3) does not apply, the local planning authority may not under subsection (1) remove a display structure unless the local planning authority have first— (a) fixed a removal notice to the display structure or exhibited a removal notice in the vicinity of the display structure; and (b) served a copy of that notice on the occupier of the land on which the display structure is situated. (6) Subsection (5)(b) applies only if the local planning authority know who the occupier is or could identify the occupier after reasonable enquiry. (7) Where— (a) the local planning authority has served a removal notice in accordance with subsection (3) or (5)(b), and (b)

the display structure is not removed by the time specified in the removal notice,

the local planning authority may recover, from any person on whom the removal notice has been served under subsection (3) or (5)(b), expenses 466

Town and Country Planning Act 1990 reasonably incurred by the local planning authority in exercising the local planning authority’s power under subsection (1). (8) Expenses are not recoverable under subsection (7) from a person if the person satisfies the local planning authority that the person was not responsible for the erection of the display structure and is not responsible for its maintenance. (9) Where in the exercise of power under subsection (1) any damage is caused to land or chattels, compensation may be recovered by any person suffering the damage from the local planning authority exercising the power, but compensation is not recoverable under this subsection or section 325(6)— (a)

for damage caused to the display structure; or

(b) for damage reasonably caused in removing the display structure. (10) The provisions of section 118 apply in relation to compensation under subsection (9) as they apply in relation to compensation under Part 4. (11) In this section ‘removal notice’, in relation to a display structure, means notice— (a)

stating that in the local planning authority’s opinion the display structure is used for the display of advertisements in contravention of regulations under section 220;

(b) stating that the local planning authority intend after a time specified in the notice to remove the display structure; and (c)

stating the effect of subsections (7) and (8).

(12) A time specified under subsection (11)(b) may not be earlier than the end of 22 days beginning with the date of the notice. (13) In this section ‘display structure’ means (subject to subsection (14))— (a)

a hoarding or similar structure used, or designed or adapted for use, for the display of advertisements;

(b) anything (other than a hoarding or similar structure) principally used, or designed or adapted principally for use, for the display of advertisements; (c)

a structure that is itself an advertisement; or

(d) fitments used to support anything within any of paragraphs (a) to (c). (14) Something is a ‘display structure’ for the purpose of this section only if— (a) its use for the display of advertisement requires consent under this Chapter, and (b)

that consent has not been granted and is not deemed to have been granted.

(15) In subsection (13) ‘structure’ includes movable structure. 225B  Appeal against notice under section 225A (1)

A person on whom a removal notice has been served in accordance with section 225A(3) or (5)(b) may appeal to a magistrates’ court on any of the following grounds— (a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220; 467

Appendix 1 (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure; (d) that the notice should have been served on another person. (2)

For the purposes of subsection (3), a person is a ‘permitted appellant’in relation to a removal notice if— (a)

the removal notice has been fixed or exhibited in accordance with section 225A(5)(a);

(b) the person is an owner or occupier of the land on which the display structure concerned is situated; and (c)

no copy of the removal notice has been served on the person in accordance with section 225A(5)(b).

(3) A  person who is a permitted appellant in relation to a removal notice may appeal to a magistrates’ court on any of the following grounds— (a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220; (b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure. (4) So far as an appeal under this section is based on the ground mentioned in subsection (1)(b) or (3)(b), the court must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one. (5)

If an appeal under subsection (1) is based on the ground mentioned in subsection (1)(d), the appellant must serve a copy of the notice of appeal on each person who the appellant considers is a person on whom the removal notice should have been served in accordance with section 225A(3) or (5)(b).

(6) If— (a) a removal notice is served on a person in accordance with section 225A(3) or (5)(b), and (b) the local planning authority bring proceedings against the person for the recovery under section 225A(7) of any expenses, it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1). (7) In this section ‘removal notice’ and ‘display structure’ have the same meaning as in section 225A. 225C  Remedying persistent problems with unauthorised advertisements (1) Subsections (2) and (3) apply if the local planning authority for an area in England have reason to believe that there is a persistent problem with the display of unauthorised advertisements on a surface of— 468

Town and Country Planning Act 1990 (a)

any building, wall, fence or other structure or erection; or

(b) any apparatus or plant. (2) The local planning authority may serve an action notice on the owner or occupier of the land in or on which the surface is situated. (3) If after reasonable enquiry the local planning authority— (a)

are unable to ascertain the name and address of the owner, and

(b) are unable to ascertain the name and address of the occupier, the local planning authority may fix an action notice to the surface. (4) For the purposes of this section ‘an action notice’, in relation to a surface, is a notice requiring the owner or occupier of the land in or on which the surface is situated to carry out the measures specified in the notice by a time specified in the notice. (5) A time may be specified in an action notice if it is a reasonable time not earlier than the end of 28 days beginning with the date of the notice. (6)

Measures may be specified in an action notice if they are reasonable measures to prevent or reduce the frequency of the display of unauthorised advertisements on the surface concerned.

(7) The time by which an owner or occupier must comply with an action notice may be postponed by the local planning authority. (8) This section has effect subject to— (a)

the other provisions of the enactments relating to town and country planning;

(b) the provisions of the enactments relating to historic buildings and ancient monuments; and (c) Part 2 of the Food and Environmental Protection Act 1985 (which relates to deposits in the sea). (9) Subsection (10) applies if— (a)

an action notice is served under subsection (2) or fixed under subsection (3); and

(b) the measures specified in the notice are not carried out by the time specified in the notice. (10) The local planning authority may— (a)

carry out the measures; and

(b) recover expenses reasonably incurred by the local planning authority in doing that from the person required by the action notice to do it. (11) Power under subsection (10)(a) is subject to the right of appeal under section 225D. (12) Where in the exercise of power under subsection (10)(a) any damage is caused to land or chattels, compensation may be recovered by any person suffering the damage from the local planning authority exercising the power, but compensation is not recoverable under this subsection for damage reasonably caused in carrying out the measures. 469

Appendix 1 (13) The provisions of section 118 apply in relation to compensation under subsection (12) as they apply in relation to compensation under Part 4. (14) The local planning authority may not recover expenses under subsection (10) (b) in respect of a surface that— (a)

forms part of a flat or a dwellinghouse;

(b) is within the curtilage of a dwellinghouse; or (c)

forms part of the boundary of the curtilage of a dwellinghouse.

(15) Each of sections 275 and 291 of the Public Health Act 1936 (provision for authority to agree to take the required measures at expense of owner or occupier, and provision for expenses to be recoverable also from owner’s successor or from occupier and to be charged on premises concerned) applies as if the reference in that section to that Act included a reference to this section. (16) In this section— ‘dwellinghouse’ does not include a building containing one or more flats, or a flat contained within such a building; ‘flat’ means a separate and self-contained set of premises constructed or adapted for use as a dwelling and forming part of a building from some other part of which it is divided horizontally; ‘unauthorised advertisement’ means an advertisement in respect of which an offence— (a)

under section 224(3), or

(b) under section 132 of the Highways Act 1980 (unauthorised marks on highway), is committed after the coming into force of this section. 225D  Right to appeal against notice under section 225C (1) A person on whom notice has been served under section 225C(2) may appeal to a magistrates’ court on any of the following grounds— (a)

that there is no problem with the display of unauthorised advertisements on the surface concerned or any such problem is not a persistent one;

(b) that there has been some informality, defect or error in, or in connection with, the notice; (c)

that the time within which the measures specified in the notice are to be carried out is not reasonably sufficient for the purpose;

(d) that the notice should have been served on another person. (2) The occupier or owner of premises which include a surface to which a notice has been fixed under section 225C(3) may appeal to a magistrates’ court on any of the following grounds— (a)

that there is no problem with the display of unauthorised advertisements on the surface concerned or any such problem is not a persistent one;

(b) that there has been some informality, defect or error in, or in connection with, the notice; 470

Town and Country Planning Act 1990 (c)

that the time within which the measures specified in the notice are to be carried out is not reasonably sufficient for the purpose.

(3) So far as an appeal under this section is based on the ground mentioned in subsection (1)(b) or (2)(b), the court must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one. (4) If an appeal under subsection (1) is based on the ground mentioned in subsection (1)(d), the appellant must serve a copy of the notice of appeal on each person who the appellant considers is a person on whom the notice under section 225C(2) should have been served. (5) If— (a)

notice under section 225C(2) is served on a person, and

(b) the local planning authority bring proceedings against the person for the recovery under section 225C(10)(b) of any expenses, it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1). 225E  Applying section 225C to statutory undertakers’ operational land (1)

Subsection (2) and (3) apply where the local planning authority serves a notice under section 225C(2) requiring a statutory undertaker to carry out measures in respect of the display of unauthorised advertisements on a surface on its operational land.

(2)

The statutory undertaker may, within 28 days beginning with the date of service of the notice, serve a counter-notice on the local planning authority specifying alternative measures which will in the statutory undertaker’s reasonable opinion have the effect of preventing or reducing the frequency of the display of unauthorised advertisements on the surface to at least the same extent as the measures specified in the notice.

(3)

Where a counter-notice is served under subsection (2), the notice under section 225C(2) is to be treated— (a)

as requiring the alternative measures specified in the counternotice to be carried out (instead of the measures actually required by the notice under section 225C(2)); and

(b) as having been served on the date on which the counter-notice is served. (4)

The time by which a statutory undertaker must carry out the measures specified in a counter-notice served under subsection (2) may be postponed by the local planning authority.

CHAPTER IV REMEDYING DEFACEMENT OF PREMISES 225F  Power to remedy defacement of premises (1) Subsections (2) and (3) apply if— (a)

premises in England include a surface that is readily visible from a place to which the public have access; 471

Appendix 1 (b) either— (i)

the surface does not form part of the operational land of a statutory undertaker, or

(ii) the surface forms part of the operational land of a statutory undertaker and subsection (11) applies to the surface; (c)

there is a sign on the surface; and

(d) the local planning authority consider the sign to be detrimental to the amenity of the area or offensive. (2) The local planning authority may serve on the occupier of the premises a notice requiring the occupier to remove or obliterate the sign by a time specified in the notice. (3) If it appears to the local planning authority that there is no occupier of the premises, the local planning authority may fix to the surface a notice requiring the owner or occupier of the premises to remove or obliterate the sign by a time specified in the notice. (4) A time specified under subsection (2) or (3) may not be earlier than the end of 15 days beginning the date of service or fixing of the notice. (5) Subsection (6) applies if— (a)

a notice is served under subsection (2) or fixed under subsection (3); and

(b) the sign is neither removed nor obliterated by the time specified in the notice. (6) The local planning authority may— (a)

remove or obliterate the sign; and

(b) recover expenses reasonably incurred by the local planning authority in doing that from the person required by the notice to do it. (7) Power under subsection (6)(a) is subject to the right of appeal under section 225I. (8) Expenses may not be recovered under subsection (6)(b) if the surface— (a)

forms part of a flat or a dwellinghouse;

(b) is within the curtilage of a dwellinghouse; or (c)

forms part of the boundary of the curtilage of a dwellinghouse.

(9) Section 291 of the Public Health Act 1936 (provision for expenses to be recoverable also from owner’s successor or from occupier and to be charged on premises concerned) applies as if the reference in that section to that Act included a reference to this section. (10) For the purposes of this section, a universal postal service provider is treated as being the occupier of any plant or apparatus that consists of a universal postal service letter box or a universal postal service pouchbox belonging to it. (11) This subsection applies to a surface if the surface abuts on, or is one to which access is given directly from, either— (a)

a street; or

(b)

any place, other than a street, to which the public have access as of right. 472

Town and Country Planning Act 1990 (12) In this section— ‘dwellinghouse’ does not include a building containing one or more flats, or a flat contained within such a building; ‘flat’ means a separate and self-contained set of premises constructed or adapted for use as a dwelling and forming part of a building from some other part of which it is divided horizontally; ‘premises’ means building, wall, fence or other structure or erection, or apparatus or plant; ‘sign’— (a)

includes any writing, letter, picture, device or representation, but

(b) does not include an advertisement; ‘statutory undertaker’ does not include a relevant airport operator (within the meaning of Part 5 of the Airports Act 1986); ‘street’ includes any highway, any bridge carrying a highway and any road, lane, mews, footway, square, court, alley or passage, whether a thoroughfare or not; ‘universal postal service letter box’ has the meaning given in section 86(4) of the Postal Services Act 2000; ‘universal postal service pouch-box’ has the meaning given in paragraph 1(10) of Schedule 6 to that Act. 225G  Notices under section 225F in respect of post boxes (1) The local planning authority may serve a notice under section 225F(2) on a universal postal service provider in respect of a universal postal service letter box, or universal postal service pouch-box, belonging to the provider only if— (a)

the authority has served on the provider written notice of the authority’s intention to do so; and

(b)

the period of 28 days beginning with the date of service of that notice has ended.

(2) In this section— ‘universal postal service letter box’ has the meaning given in section 86(4) of the Postal Services Act 2000; ‘universal postal service pouch-box’ has the meaning given in paragraph 1(10) of Schedule 6 to that Act. 225H  Section 225F powers as respects bus shelters and other street furniture (1) The local planning authority may exercise the power conferred by section 225F(6)(a) to remove or obliterate a sign from any surface on a bus shelter, or other street furniture, of a statutory undertaker that is not situated on operational land of the statutory undertaker only if— (a) the authority has served on the statutory undertaker notice of the authority’s intention to do so; 473

Appendix 1 (b) the notice specified the bus shelter, or other street furniture, concerned; and (c)

the period of 28 days beginning with the date of service of the notice has ended.

(2) In this section ‘statutory undertaker’ does not include an airport operator (within the meaning of Part 5 of the Airports Act 1986). 225I  Right to appeal against notice under section 225F (1) A person on whom notice has been served under section 225F(2) may appeal to a magistrates’ court on any of the following grounds— (a)

that the sign concerned is neither detrimental to the amenity of the area nor offensive;

(b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the time within which the sign concerned is to be removed or obliterated is not reasonably sufficient for the purpose; (d) that the notice should have been served on another person. (2) The occupier or owner of premises which include a surface to which a notice has been fixed under section 225F(3) may appeal to a magistrates’ court on any of the following grounds— (a)

that the sign concerned is neither detrimental to the amenity of the area nor offensive;

(b) that there has been some informality, defect or error in, or in connection with, the notice; (c) that the time within which the sign concerned is to be removed or obliterated is not reasonably sufficient for the purpose. (3) So far as an appeal under this section is based on the ground mentioned in subsection (1)(b) or (2)(b), the court must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one. (4) If an appeal under subsection (1) is based on the ground mentioned in subsection (1)(d), the appellant must serve a copy of the notice of appeal on each person who the appellant considers is a person on whom the notice under section 225F(2) should have been served. (5) If— (a)

notice under section 225F(2) is served on a person, and

(b) the local planning authority bring proceedings against the person for the recovery under section 225F(6)(b) of any expenses, it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1). 225J  Remedying defacement at owner or occupier’s request (1) Subsection (2) applies if— 474

Town and Country Planning Act 1990 (a)

premises in England include a surface that is readily visible from a place to which the public have access;

(b) there is a sign on the surface; and (c) the owner or occupier of the premises asks the local planning authority to remove or obliterate the sign. (2) The local planning authority may— (a)

remove or obliterate the sign; and

(b) recover expenses reasonably incurred by the local planning authority in doing that from the person who asked the local planning authority to do it. (3) In this section ‘premises’ means building, wall, fence or other structure or erection, or apparatus or plant. (4) In this section ‘sign’— (a) includes— (i)

any writing, letter, picture, device or representation, and

(ii) any advertisement, but (b) does not include an advertisement for the display of which deemed or express consent has been granted under Chapter 3. CHAPTER V APPLICATION OF PROVISIONS OF CHAPTERS 3 AND 4 TO STATUTORY UNDERTAKERS 225K  Action under sections 225A, 225C and 225F: operational land (1) This section applies in relation to the exercise by the local planning authority of— (a)

power conferred by section 225A(1), or section 324(3) so far as applying for the purposes of section 225A(1), to— (i)

enter on any operational land of a statutory undertaker, or

(ii) remove a display structure situated on operational land of a statutory undertaker; (b) power conferred by section 225C(10)(a), or section 324(3) so far as applying for the purposes of section 225C(10)(a), to— (i)

enter on any operational land of a statutory undertaker, or

(ii) carry out any measures to prevent or reduce the frequency of the display of unauthorised advertisements on a surface on operational land of a statutory undertaker; or (c) power conferred by section 225F(6)(a), or section 324(3) so far as applying for the purposes of section 225F(6)(a), to— (i)

enter on any operational land of a statutory undertaker, or

(ii) remove or obliterate a sign on a surface of premises that are, or are on, operational land of a statutory undertaker. 475

Appendix 1 (2) The authority may exercise the power only if— (a) the authority has served on the statutory undertaker notice of the authority’s intention to do so; (b) the notice specified the display structure, surface or sign concerned and its location; and (c)

the period of 28 days beginning with the date of service of the notice has ended.

(3) If— (a)

a notice under subsection (2) is served on a statutory undertaker, and

(b) within 28 days beginning with the date the notice is served, the statutory undertaker serves a counter-notice on the local planning authority specifying conditions subject to which the power is to be exercised, the power may only be exercised subject to, and in accordance with, the conditions specified in the counter-notice. (4) The conditions which may be specified in a counter-notice under subsection (3) are conditions which are— (a) necessary or expedient in the interests of safety or the efficient and economic operation of the undertaking concerned; or (b)

for the protection of any works, apparatus or other property not vested in the statutory undertaker which are lawfully present on, in, under or over the land upon which entry is proposed to be made.

(5) If— (a)

a notice under subsection (2) is served on a statutory undertaker, and

(b) within 28 days beginning with the date the notice is served, the statutory undertaker serves a counter-notice on the local planning authority requiring the local planning authority to refrain from exercising the power, the power may not be exercised. (6) A  counter-notice under subsection (5) may be served only if the statutory undertaker has reasonable grounds to believe, for reasons connected with the operation of its undertaking, that the power cannot be exercised under the circumstances in question— (a)

without risk to the safety of any person; or

(b) without unreasonable risk to the efficient and economic operation of the statutory undertaker’s undertaking. (7) In this section ‘statutory undertaker’ does not include an airport operator (within the meaning of Part 5 of the Airports Act 1986). PART XII VALIDITY 284  Validity of development plans and certain orders, decisions and directions [England] (1) Except in so far as may be provided by this Part, the validity of— 476

Town and Country Planning Act 1990 (a) […] (b) a simplified planning zone scheme or an alteration of such a scheme, whether before or after the adoption or approval of the scheme or alteration; or (c) an order under any provision of Part X except section 251(1), whether before or after the order has been made; or (d) an order under section 277, whether before or after the order has been made; or (e)

any such order as is mentioned in subsection (2), whether before or after it has been confirmed; or

(f) any such action on the part of the Secretary of State or the Welsh Ministers as is mentioned in subsection (3), shall not be questioned in any legal proceedings whatsoever. (2) The orders referred to in subsection (1)(e) are— (a) any order under section 97 or under the provisions of that section as applied by or under any other provision of this Act; (b) any order under section 102; (c)

any tree preservation order;

(d) any order made in pursuance of section 221(5); (e)

any order under paragraph 1, 3, 5 or 6 of Schedule 9.

(3) The action referred to in subsection (1)(f) is action on the part of the Secretary of State or the Welsh Ministers of any of the following descriptions— (ya) any decision on an application made to the Secretary of State under section 62A; (za) any decision on an application referred to the Secretary of State under section 76A; (a) any decision on an application for planning permission referred to the Secretary of State or the Welsh Ministers under section 77; (aa) any decision on an application made to the Welsh Ministers under section 62D; (ab) any decision on a secondary consent dealt with by the Welsh Ministers under section 62F, unless, by virtue of an enactment not contained in this Act— (i)

an appeal against that decision may be made to a person other than the Welsh Ministers, or

(ii) the validity of the decision may otherwise be questioned by way of application to a person other than the Welsh Ministers; (ac) any decision on an application made to the Welsh Ministers under section 62M or section 62O (not including a decision to refer an application under section 62O(5)); (b) any decision on an appeal under section 78; 477

Appendix 1 (c) […] (d) any decision to confirm a completion notice under section 95; (e)

any decision to grant planning permission under paragraph (a) of section 177(1) or to discharge a condition or limitation under paragraph (b) of that section;

(f)

any decision to confirm or not to confirm a purchase notice including— (i)

any decision not to confirm such a notice in respect of part of the land to which it relates, or

(ii) any decision to grant any permission, or give any direction, instead of confirming such a notice, either wholly or in part; (g) any decision on an appeal under section 195(1); (h) any decision relating— (i)

to an application for consent under tree preservation regulations,

(ii) to an application for consent under any regulations made in accordance with section 220 or 221, or (iii) to any certificate or direction under any such order or regulations, whether it is a decision on appeal or a decision on an application referred to the Secretary of State or the Welsh Ministers for determination in the first instance. (i)

any decision on an application for planning permission or permission in principle under section 293A.

(3A) In this section, ‘relevant costs order’ means an order made under section 250(5) of the Local Government Act 1972 (orders as to costs of parties), as applied by virtue of any provision of this Act. (4) Nothing in this section shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State or the Welsh Ministers to take any such action as is mentioned in subsection (3). 284  Validity of development plans and certain orders, decisions and directions [Wales] (1) Except in so far as may be provided by this Part, the validity of— (a) […] (b) a simplified planning zone scheme or an alteration of such a scheme, whether before or after the adoption or approval of the scheme or alteration; or (c) an order under any provision of Part X except section 251(1), whether before or after the order has been made; or (d) an order under section 277, whether before or after the order has been made; or (e)

any such order as is mentioned in subsection (2), whether before or after it has been confirmed; or 478

Town and Country Planning Act 1990 (f) any such action on the part of the Secretary of State or the Welsh Ministers as is mentioned in subsection (3), shall not be questioned in any legal proceedings whatsoever. (2) The orders referred to in subsection (1)(e) are— (a) any order under section 97 or under the provisions of that section as applied by or under any other provision of this Act; (b) any order under section 102; (c)

any tree preservation order;

(d) any order made in pursuance of section 221(5); (e)

any order under paragraph 1, 3, 5 or 6 of Schedule 9.

(3) The action referred to in subsection (1)(f) is action on the part of the Secretary of State or the Welsh Ministers of any of the following descriptions— (ya) any decision on an application made to the Secretary of State under section 62A; (za) any decision on an application referred to the Secretary of State under section 76A; (a) any decision on an application referred to the Secretary of State or the Welsh Ministers under section 77; (aa) any decision on an application made to the Welsh Ministers under section 62D; (ab) any decision on a secondary consent dealt with by the Welsh Ministers under section 62F, unless, by virtue of an enactment not contained in this Act— (i)

an appeal against that decision may be made to a person other than the Welsh Ministers, or

(ii) the validity of the decision may otherwise be questioned by way of application to a person other than the Welsh Ministers; (ac) any decision on an application made to the Welsh Ministers under section 62M or section 62O (not including a decision to refer an application under section 62O(5)); (b) any decision on an appeal under section 78; (c) […] (d) any decision to confirm a completion notice under section 95; (e)

any decision to grant planning permission under paragraph (a) of section 177(1) or to discharge a condition or limitation under paragraph (b) of that section;

(f)

any decision to confirm or not to confirm a purchase notice including— (i)

any decision not to confirm such a notice in respect of part of the land to which it relates, or

(ii) any decision to grant any permission, or give any direction, instead of confirming such a notice, either wholly or in part; 479

Appendix 1 (g) any decision on an appeal under section 195(1); (h) any decision relating— (i)

to an application for consent under a tree preservation order,

(ii) to an application for consent under any regulations made in accordance with section 220 or 221, or (iii) to any certificate or direction under any such order or regulations, whether it is a decision on appeal or a decision on an application referred to the Secretary of State or the Welsh Ministers for determination in the first instance. (i)

any decision on an application for planning permission or permission in principle under section 293A.

(3A) In this section, ‘relevant costs order’ means an order made under section 250(5) of the Local Government Act 1972 (orders as to costs of parties), as applied by virtue of any provision of this Act. (4) Nothing in this section shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State or the Welsh Ministers to take any such action as is mentioned in subsection (3). 285  Validity of enforcement notices and similar notices (1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought. (2)

Subsection (1) shall not apply to proceedings brought under section 179 against a person who— (a)

has held an interest in the land since before the enforcement notice was issued under that Part;

(b) did not have a copy of the enforcement notice served on him under that Part; and (c)

satisfies the court— (i)

that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and

(ii) that his interests have been substantially prejudiced by the failure to serve him with a copy of it. (3) Subject to subsection (4), the validity of a notice which has been served under section 215 on the owner and occupier of the land shall not, except by way of an appeal under Chapter II of Part VIII, be questioned in any proceedings whatsoever on either of the grounds specified in section 217(1)(a) or (b). (4) Subsection (3) shall not prevent the validity of such a notice being questioned on either of those grounds in proceedings brought under section 216 against a person on whom the notice was not served, but who has held an interest in the land since before the notice was served on the owner and occupier of the land, if he did not appeal against the notice under that Chapter. (5) […] (6) […] 480

Town and Country Planning Act 1990 286  Challenges to validity on ground of authority’s powers (1) The validity of any permission, determination or certificate granted, made or issued or purporting to have been granted, made or issued by a local planning authority in respect of— (a)

an application for planning permission or permission in principle;

(aa) an application for non-material changes to planning permission under section 96A; (b) […] (c)

an application for a certificate under section 191 or 192;

(d) an application for consent to the display of advertisements under section 220; or (e)

a determination under section 302 or Schedule 15,

shall not be called in question in any legal proceedings, or in any proceedings under this Act which are not legal proceedings, on the ground that the permission, determination or certificate should have been granted, made or given by some other local planning authority. (2) The validity of any order under section 97 revoking or modifying planning permission or permission in principle, any order under section 102 or paragraph  1 of Schedule  9 requiring discontinuance of use, or imposing conditions on continuance of use, or requiring the alteration or removal of buildings or works, or any enforcement notice under section 172 or stop notice under section 183 or a breach of condition notice under section 187A, being an order or notice purporting to have been made, issued or served by a local planning authority, shall not be called in question in any such proceedings on the ground— (a)

in the case of an order or notice purporting to have been made, issued or served by a district planning authority, that they failed to comply with paragraph 11(2) of Schedule 1;

(b) in the case of an order or notice purporting to have been made, issued or served by a county planning authority, that they had no power to make, issue or serve it because it did not relate to a county matter within the meaning of that Schedule. 288 Proceedings for questioning the validity of other orders, decisions and directions (1) If any person— (a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds— (i)

that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order; or (b) is aggrieved by any action on the part of the Secretary of State or the Welsh Ministers to which this section applies and wishes to question the validity of that action on the grounds— 481

Appendix 1 (i)

that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section. (1A) If a person is aggrieved by a relevant costs order made in connection with an order or action to which this section applies and wishes to question its validity, the person may make an application to the High Court under this section (whether or not as part of an application made by virtue of subsection (1)) on the grounds— (a)

that the relevant costs order is not within the powers of this Act, or

(b) that any of the relevant requirements have not been complied with in relation to the order. (2)

Without prejudice to subsection (1) or (1A), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State or the Welsh Ministers to which this section applies, or with any relevant costs order, wish to question the validity of that order or action on any of the grounds mentioned in subsection (1) or (1A) (as the case may be), the authority may make an application to the High Court under this section.

(3) … (4) This section applies to any such order as is mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State or the Welsh Ministers as is mentioned in subsection (3) of that section. (4A) An application under this section may not be made without the leave of the High Court. (4B) An application for leave for the purposes of subsection (4A) must be made before the end of the period of six weeks beginning with the day after— (a) in the case of an application relating to an order under section 97 that takes effect under section 99 without confirmation, the date on which the order takes effect; (b) in the case of an application relating to any other order to which this section applies, the date on which the order is confirmed; (c) in the case of an application relating to an action to which this section applies, the date on which the action is taken; (d)

in the case of an application relating to a relevant costs order, the date on which the order is made.

(4C) When considering whether to grant leave for the purposes of subsection (4A), the High Court may, subject to subsection (6), make an interim order suspending the operation of any order or action the validity of which the person or authority concerned wishes to question, until the final determination of— (a)

the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application under this section made with such leave. 482

Town and Country Planning Act 1990 (5) On any application under this section the High Court— (a)

may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action. (6) The High Court may not suspend a tree preservation order under subsection (4C) or (5)(a). (7) In relation to a tree preservation order, or to an order made in pursuance of section 221(5), the powers conferred on the High Court by subsection (4C) or (5) shall be exercisable by way of quashing or (where applicable) suspending the operation of the order either in whole or in part, as the court may determine. (8) References in this section to the confirmation of an order include the confirmation of an order subject to modifications as well as the confirmation of an order in the form in which it was made. (9) In this section— ‘relevant costs order’ has the same meaning as in section 284; ‘the relevant requirements’— (a)

in relation to any order or action to which this section applies, means any requirements of this Act or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under either of those Acts, which are applicable to that order or action;

(b) in relation to a relevant costs order, means any requirements of this Act, of the Local Government Act 1972 or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under any of those Acts, which are applicable to the relevant costs order. (10) Any reference in this section to the authority directly concerned with any order or action to which this section applies— (a) in relation to any such decision as is mentioned in section 284(3)(f), is a reference to the council on whom the notice in question was served and, in a case where the Secretary of State or the Welsh Ministers have modified such a notice, wholly or in part, by substituting another local authority or statutory undertakers for that council, includes a reference to that local authority or those statutory undertakers; (b) in any other case, is a reference to the authority who made the order in question or made the decision or served the notice to which the proceedings in question relate, or who referred the matter to the Secretary of State or the Welsh Ministers, or, where the order or notice in question was made or served by the Secretary of State or the Welsh Ministers, the authority named in the order or notice. (11) References in this Act to an application under this section do not include an application for leave for the purposes of subsection (4A). 483

Appendix 1 289  Appeals to High Court relating to enforcement notices and notices under sections 207 and 215 (1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court. (2) Where the Secretary of State gives a decision in proceedings on an appeal under Part VIII against a notice under section 207, the appellant or the local planning authority or any person (other than the appellant) on whom the notice was served may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court. (2A) Where the Welsh Ministers give a decision in proceedings on an appeal under Part 8 against a notice under section 215, the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Welsh Ministers to sign and state a case for the opinion of the High Court. (3) At any stage of the proceedings on any such appeal as is mentioned in subsection (1), the Secretary of State may state any question of law arising in the course of the proceedings in the form of a special case for the decision of the High Court. (4) A decision of the High Court on a case stated by virtue of subsection (3) shall be deemed to be a judgment of the court within the meaning of section 16 of the Senior Courts Act 1981 (jurisdiction of the Court of Appeal to hear and determine appeals from any judgment of the High Court). (4A) In proceedings brought by virtue of this section in respect of an enforcement notice, the High Court or, as the case may be, the Court of Appeal may, on such terms if any as the Court thinks fit (which may include terms requiring the local planning authority to give an undertaking as to damages or any other matter), order that the notice shall have effect, or have effect to such extent as may be specified in the order, pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State. (4B) Where proceedings are brought by virtue of this section in respect of any notice under section 207 or 215, the notice shall be of no effect pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State. (5)

In relation to any proceedings in the High Court or the Court of Appeal brought by virtue of this section the power to make rules of court shall include power to make rules— (a) prescribing the powers of the High Court or the Court of Appeal with respect to the remitting of the matter with the opinion or direction of the court for re-hearing and determination by the Secretary of State or the Welsh Ministers; and 484

Town and Country Planning Act 1990 (b) providing for the Secretary of State or the Welsh Ministers, either generally or in such circumstances as may be prescribed by the rules, to be treated as a party to any such proceedings and to be entitled to appear and to be heard accordingly. (5A) Rules of court may also provide for the High Court or, as the case may be, the Court of Appeal to give directions as to the exercise, until such proceedings in respect of an enforcement notice are finally concluded and any re-hearing and determination by the Secretary of State has taken place, of any other powers in respect of the matters to which such a notice relates. (6) No proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court. (7) In this section ‘decision’ includes a direction or order, and references to the giving of a decision shall be construed accordingly.

485

Appendix 2

The Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 (SI 2002/2682)

PART 1 CITATION, COMMENCEMENT, INTERPRETATION AND EXTENT Citation, commencement and extent 1.  These Regulations may be cited as the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002, and shall come into force on 23rd December 2002. 2.  These Regulations shall extend to England only. Interpretation 3.  In these Regulations— ‘electronic communication’ has the meaning given in section 15(1) of the Electronic Communications Act 2000; ‘enforcement notice’ means a notice issued under section 172(1) of the Planning Act or section 38(1) of the Listed Buildings Act; ‘the Hearings Rules’ means the Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002; ‘the Inquiries Rules’ means the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002; ‘the Inspectors Inquiries Rules’ means the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules; ‘the Listed Buildings Act’ means the Planning (Listed Buildings and Conservation Areas) Act 1990; ‘local planning authority’ means the body who issue the relevant enforcement notice; ‘the Planning Act’ means the Town and Country Planning Act 1990. 486

TCP (Enforcement Notices and Appeals (England) Regulations 2002 PART 2 ENFORCEMENT NOTICES UNDER SECTION 172 Additional matters to be specified in enforcement notice 4. An enforcement notice issued under section 172 of the Planning Act shall specify— (a)

the reasons why the local planning authority consider it expedient to issue the notice;

(b) all policies and proposals in the development plan which are relevant to the decision to issue an enforcement notice; and (c) the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise. Explanatory note to accompany copy of enforcement notice 5.  Every copy of an enforcement notice served by a local planning authority under section 172(2) of the Planning Act shall be accompanied by an explanatory note which shall include the following— (a) a copy of sections 171A, 171B and 172 to 177 of the Planning Act, or a summary of those sections including the following information— (i) that there is a right of appeal to the Secretary of State against the enforcement notice; (ii) that an appeal must be made by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect or by sending such notice to him in a properly addressed, pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date, or (where electronic communications are used to send such notice to the Secretary of State) by sending the notice to him at such time that, in the ordinary course of transmission, it would be delivered to him before that date; (iii) the grounds on which an appeal may be brought under section 174 of the Planning Act; (iv) the fee payable under regulation 10 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 for the deemed application for planning permission for the development alleged to be in breach of planning control in the enforcement notice; (b) notification that an appellant must submit to the Secretary of State, either when giving notice of appeal or within 14 days from the date on which the Secretary of State sends him a notice so requiring him, a statement in writing specifying the grounds on which he is appealing against the enforcement notice and stating briefly the facts on which he proposes to rely in support of each of those grounds. (c) a list of the names and addresses of the persons on whom a copy of the enforcement notice has been served. 487

Appendix 2 PART 3 APPEALS Statement of appeal 6.  A person who makes an appeal to the Secretary of State under section 174(3) of the Planning Act or section 39(2) of the Listed Buildings Act against an enforcement notice shall submit to the Secretary of State, a statement in writing— (i)

specifying the grounds on which he is appealing against the notice; and

(ii) setting out briefly the facts on which he proposes to rely in support of each of those grounds, and if such a statement is not included with the appeal he shall deliver it to the Secretary of State not later than 14 days from the date on which the Secretary of State sends him a notice requiring him to do so. Notification of appeal to the local planning authority 7.—(1)  On receipt of the statement under regulation 6 the Secretary of State shall notify the local planning authority in writing that an appeal has been made and copy to them the appeal and, subject to paragraph (2), the statement made under regulation 6. (2) Nothing in paragraph  (1) shall require the Secretary of State to disclose information as to national security or the measures taken or to be taken to ensure the security of any premises or property where, in the Secretary of State’s opinion, public disclosure of that information would be contrary to the national interest. Local planning authority to send a copy of notice to Secretary of State 8.  Where the local planning authority receives notification under regulation 7 that an appeal has been made to the Secretary of State, the local planning authority shall send to the Secretary of State, not later than 14 days from the date of that notification, a certified copy of the enforcement notice and a list of names and addresses of the persons on whom a copy of the notice has been served under section 172(2) of the Planning Act or section 38(4) of the Listed Buildings Act, as the case may be. Statement by local planning authority 9.—(1) Where an appeal has been made to the Secretary of State against an enforcement notice issued by a local planning authority, the authority shall submit to the Secretary of State and any person on whom a copy of the enforcement notice has been served, a statement indicating the submissions which they propose to put forward on the appeal, including— (a) a summary of the authority’s response to each of the grounds on which the appeal is brought by the appellant; (b) a statement whether the authority would be prepared to grant planning permission for the matters alleged in the enforcement notice to constitute the breach of planning control, or grant listed building consent for the works to which the listed building enforcement notice relates, as the case may be, and, if so, particulars of the conditions, if any, which they would wish to impose on the permission or consent. 488

TCP (Enforcement Notices and Appeals (England) Regulations 2002 (2)  Any statement which is required to be submitted under paragraph (1) shall be submitted within 6 weeks of the starting date. (3)  In paragraph (2) ‘starting date’ means the date of— (a)

the Secretary of State’s written notice under regulation 10; or

(b) the Secretary of State’s written notice under rule 4 of the Hearings Rules, rule 4 of the Inspectors Inquiries Rules or rule 4 of the Inquiries Rules, informing the appellant and the local planning authority that an inquiry or hearing, as the case may be, is to be held, whichever is the later. Notice of receipt of all required documents 10.  When the Secretary of State considers that he has received all the documents required to enable him to entertain the appeal he shall send a notice to this effect to the appellant and the local planning authority. Use of electronic communications 10A. (1) Paragraphs (2) to (7) of this regulation apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in Part 3 of these Regulations to give or send any statement, notice or other document to any other person (‘the recipient’). (2)  The requirement shall be taken to be fulfilled where the document transmitted by means of the electronic communication is— (a)

capable of being accessed by the recipient,

(b) legible in all material respects, and (c)

sufficiently permanent to be used for subsequent reference.

(3)  In paragraph  (2), ‘legible in all material respects’ means that the information contained in the notice or document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form. (4) Where the electronic communication is received by the recipient outside the recipient’s business hours, it shall be taken to have been received on the next working day; and for this purpose ‘working day’ means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday. (5)  A requirement that any notice or other document should be in writing is fulfilled where that document meets the criteria in paragraph (2), and ‘written’ and cognate expressions are to be construed accordingly. (6)  Where a person makes an appeal to the Secretary of State under regulation 6 using electronic communications, the person shall be taken to have agreed— (7)  Where a person is no longer willing to accept the use of electronic communications for the purposes of an appeal under these Regulations, he shall give notice in writing— (a)

withdrawing any address notified to the Secretary of State or to a local planning authority for that purpose, or 489

Appendix 2 (b)

revoking any agreement entered into with the Secretary of State or with a local planning authority for that purpose,

and such withdrawal or revocation shall be final and shall take effect on a date specified by the person in the notice but not less than seven days after the date on which the notice is given. PART 4 NOTICES ISSUED BY THE SECRETARY OF STATE Application of Regulations 11. These Regulations, except regulations 7 and 8, apply to enforcement notices issued by the Secretary of State under section 182 of the Planning Act, to appeals made to the Secretary of State against such notices and to appeals against notices issued by him under section 46 of the Listed Buildings Act as they apply to such notices issued by local planning authorities and to appeals made against them as if— (a)

for references to a local planning authority there were substituted references to the Secretary of State;

(b) in regulation 4, for ‘section 172’ there were substituted ‘section 182’; (c)

in regulation 5— (i)

for ‘section 172(2)’ there was substituted ‘section 182(1)’; and

(ii) in paragraph (a), after ‘sections 171A, 171B and 172 to 177’ there were inserted ‘and section 182’; and (d) for regulation 9 the following were substituted— ‘9.—(1) Where an appeal has been made to the Secretary of State against an enforcement notice which he has issued, the Secretary of State shall serve on the appellant a statement indicating the submissions which he proposes to put forward on the appeal including a summary of his response to each ground of appeal pleaded by the appellant within 6 weeks of the starting date’. (2)  In paragraph (1) ‘starting date’ means the date of— (a)

the Secretary of State’s written notice under regulation 10; or

(b) the Secretary of State’s written notice under rule 4 of the Hearings Rules, rule 4 of the Inspectors Inquiries Rules or rule 4 of the Inquiries Rules, informing the appellant and the local planning authority that a hearing or inquiry, as the case may be, is to be held, whichever is the later. PART 5 REVOCATION Revocation and transitional provisions 12.—(1) Subject to paragraph  (3), the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991 (‘the 1991 Regulations’) are hereby revoked in so far as they extend to England, except regulation 10(2) of those Regulations so far as it amends regulation 11 of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. 490

TCP (Enforcement Notices and Appeals (England) Regulations 2002 (2)  Subject to paragraph (3), the Town and Country Planning (Enforcement Notices and Appeals)(Amendment) Regulations 1992 are hereby revoked in so far as they extend to England. (3) Subject to paragraph  (4), any appeal to which the 1991 Regulations applied which has not been determined on the date when these Regulations come into force, shall be continued under the 1991 Regulations. (4)  Where an appeal to which the 1991 Regulations applied is subsequently remitted to the Secretary of State for redetermination in proceedings before any court, the decision shall be redetermined in accordance with these Regulations.

491

Appendix 3

The Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 (SI 2002/2683)

The First Secretary of State, in exercise of the powers conferred on him by sections 175 and 323 of the Town and Country Planning Act 1990, and of all other powers enabling him in that behalf, hereby makes the following Regulations: Citation, commencement, and extent 1.—(1) These Regulations may be cited as the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 and shall come into force on 23rd December 2002. (2)  These Regulations extend to England only. Interpretation 2.—(1) In these Regulations— ‘the appellant’ means a person giving notice of appeal to the Secretary of State; ‘document’ includes a photograph, map or plan; ‘electronic communication’ has the meaning given in section 15(1) of the Electronic Communications Act 2000; ‘enforcement notice’ means a notice issued under section 172(1) of the Planning Act or section 38(1) of the Listed Buildings Act; ‘the Enforcement Notices and Appeals Regulations’ means the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002; ‘the Listed Buildings Act’ means the Planning (Listed Buildings and Conservation Areas) Act 1990; ‘local planning authority’ means the body who issued the relevant enforcement notice; ‘notice of appeal’ means a notice of appeal under section 174(3) of the Planning Act or section 39(2) of the Listed Buildings Act; ‘the Planning Act’ means the Town and Country Planning Act 1990; 492

TCP (Enforcement) (Written Representations Procedure) Regulations 2002 ‘questionnaire’ means a document in the form supplied by the Secretary of State to local planning authorities for the purpose of proceedings under these Regulations and for this purpose a form is taken to be supplied where the Secretary of State has published it on a website and has notified a local planning authority of— (i)

publication of the form on the website,

(ii) the address of the website, and (iii) the place on the website where the form may be accessed, and how it may be accessed; ‘starting date’ means the date of the Secretary of State’s written notice to the appellant and the local planning authority under regulation 4; ‘written representations’ includes supporting documents. (2)  In these Regulations, and in relation to the use of electronic communications for any purpose of these Regulations which is capable of being carried out electronically— (a)

the expression ‘address’ includes any number or address used for the purposes of such communications, except that where these Regulations impose an obligation on any person to provide a name and address to any other person, the obligation shall not be fulfilled unless the person on whom it is imposed provides a postal address;

(b) references to notices, representations, or other documents, or to copies of such documents, include references to such documents or copies of them in electronic form. (3)  Paragraphs (4) to (7) apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in regulations 4 to 8 of these Regulations that representations or other documents should be sent or submitted to any other person (‘the recipient’). (4)  The requirement shall be taken to be fulfilled where the document transmitted by means of the electronic communication is— (a)

capable of being accessed by the recipient,

(b) legible in all material respects, and (c)

sufficiently permanent to be used for subsequent reference.

(5)  In paragraph  (5), ‘legible in all material respects’ means that the information contained in the document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form. (6) Where the electronic communication is received by the recipient outside the recipient’s business hours, it shall be taken to have been received on the next working day; and for this purpose ‘working day’ means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday. (7) A  requirement in these Regulations that any notice or document should be in writing is fulfilled where that document meets the criteria in paragraph (4), and (except in regulation 5) ‘written’ and cognate expressions are to be construed accordingly. 493

Appendix 3 Application 3.—(1) These Regulations apply where, after they come into force, an appellant informs the Secretary of State in the notice of appeal that he wishes the appeal to be disposed of on the basis of written representations. (2)  Where an appeal under section 174 of the Planning Act or section 39 of the Listed Buildings Act is not being disposed of on the basis of written representations and the appellant and the local planning authority inform the Secretary of State that they wish it to be disposed of on that basis, these Regulations apply to the proceedings to such extent as the Secretary of State may specify having regard to any steps already taken in relation to those proceedings. (2A) Where an appellant (or, as the case may be, the appellant and the local planning authority) so informs the Secretary of State using electronic communications, the appellant shall be taken to have agreed— (a)

to the use of such communications for all purposes of these Regulations relating to his appeal which are capable of being carried out electronically;

(b) that his address for the purpose of such communications is the address incorporated into, or otherwise logically associated with, his communication so informing the Secretary of State; and (c) that his deemed agreement under this paragraph shall subsist until he gives notice in accordance with regulation 10A that he wishes to revoke the agreement; and the references in paragraphs (1) and (2) of this regulation to an appeal being disposed of on the basis of written representations shall not be taken to preclude the use of electronic communications in accordance with this paragraph and regulation 2. (3)  These Regulations cease to apply to proceedings if the Secretary of State informs the appellant and the local planning authority that he will give them an opportunity of appearing before and being heard by a person appointed by him for the purpose. Notification of receipt of appeal 4.  The Secretary of State shall, as soon as practicable after receipt of the written notice of appeal, advise the appellant and the local planning authority in writing of— (a)

the starting date;

(b) the reference number allocated to the appeal; (c) the address to which written communications to the Secretary of State about the appeal are to be sent; and (d) the ground, or grounds, under section 174(2) of the Planning Act or section 39(1) of the Listed Buildings Act, as the case may be, on which the appeal has been brought. Notice to interested parties 5.—(1)  The local planning authority shall, within 2 weeks of the starting date, give written notice of the appeal to any— (a)

person on whom a copy of the enforcement notice has been served; 494

TCP (Enforcement) (Written Representations Procedure) Regulations 2002 (b)

occupier of property in the locality in which the land to which the enforcement notice relates is situated; and

(c)

other person who in the opinion of the local planning authority is affected by the breach of planning control or contravention of listed building or conservation area control which is alleged in the enforcement notice.

(2)  The notice given under paragraph (1) shall include— (a) the name of the appellant and the address of the land to which the appeal relates; (b) the starting date; (c)

the reference number allocated to the appeal;

(d) a description of the alleged breach of control; (e) in the case of an appeal against an enforcement notice under section 172 of the Planning Act, a statement setting out the additional matters specified in regulation 4 of the Enforcement Notices and Appeals Regulations; (f)

the ground, or grounds, under section 174(2) of the Planning Act or section 39(1) of the Listed Buildings Act, as the case may be, on which the appeal is made;

(g) a statement that representations may be submitted to the Secretary of State within 6 weeks of the starting date and the address to which such representations should be sent; (h) a statement that any representations made by any person mentioned in paragraph (1) will be sent to the appellant and the local planning authority; and (i)

a statement that any such representations will be considered by the Secretary of State when determining the appeal unless any person mentioned in paragraph (1) withdraws them within 6 weeks of the starting date.

Questionnaire 6.—(1)  The local planning authority shall within 2 weeks of the starting date submit to the Secretary of State, and copy to the appellant— (a)

a completed questionnaire; and

(b) a copy of each of the documents referred to in it. (2)  The questionnaire shall state the date on which it is submitted to the Secretary of State. Representations 7.—(1) The notice of appeal, the documents accompanying it and any statement submitted under regulation 6 of the Enforcement Notices and Appeals Regulations shall comprise the appellant’s representations in relation to the appeal. (2)  The local planning authority may elect to treat the questionnaire, the documents submitted with it and the statement submitted under regulation 9 of the Enforcement Notices and Appeals Regulations as their representations in relation to the appeal; and, where they do so, they shall notify the Secretary of State and the appellant 495

Appendix 3 accordingly when submitting the questionnaire or sending the copy in accordance with regulation 6. (3) If the appellant wishes to make any further representations to those in paragraph  (1), he shall submit 2 copies of those further representations to the Secretary of State within 6 weeks of the starting date. (4)  Where the local planning authority does not elect as described in paragraph (2), they shall submit 2 copies of their written representations to the Secretary of State within 6 weeks of the starting date and these shall include— (a)

a summary of the local planning authority’s response to each of the grounds on which the appeal is brought; and

(b)

a statement as to whether they would be prepared to grant planning permission for the matters alleged in the enforcement notice to constitute a breach of planning control, or to grant listed building consent for the works to which the listed building enforcement notice relates, as the case may be, and, if so, particulars of the conditions, if any, which they would wish to impose on the permission or consent.

(5)  Any representations made to the Secretary of State under paragraphs (3) or (4) should be dated and submitted to the Secretary of State on the date they bear. (6)  The Secretary of State shall, as soon as practicable after receipt, send a copy of any representations made to him by the local planning authority to the appellant and shall, subject to paragraph (7A), send a copy of any representations made to him by the appellant to the local planning authority. (7)  The appellant and the local planning authority shall submit 2 copies of any comments they have on each other’s representations to the Secretary of State within 9 weeks of the starting date; and the Secretary of State shall, as soon as practicable after receipt and subject to paragraph (7A), send a copy of these further comments to the other party. (7A) Nothing in paragraph  (6) or (7) shall require the Secretary of State to disclose information as to national security or the measures taken or to be taken to ensure the security of any premises or property where, in the Secretary of State’s opinion, public disclosure of that information would be contrary to the national interest. (8)  The Secretary of State may disregard further information from the appellant and the local planning authority which was not submitted within 9 weeks of the starting date unless that further information has been requested by him. (9) Where a party to which this regulation applies elects to use electronic communications for submitting, sending, copying, or sending a copy of any representations, questionnaire or other document, this regulation shall have effect subject to the following modifications— (a)

where the party so electing is the appellant, in paragraphs (3) and (7) omit the words ‘2 copies of’;

(b) where the party so electing is the local planning authority, in paragraphs (4) and (7) omit the words ‘2 copies of’. 496

TCP (Enforcement) (Written Representations Procedure) Regulations 2002 Third party representations 8.—(1) If an interested person notified under regulation 5(1) wishes to submit representations to the Secretary of State, he shall do so within 6 weeks of the starting date. (2)  The Secretary of State shall— (a)

subject to paragraph (2A), send to the appellant and the local planning authority, as soon as practicable after receipt, a copy each of all of the representations received from interested persons; and

(b) specify a period of not less than 2 weeks within which any comments on the representations must be submitted. (2A)  Nothing in paragraph  (2)(a) shall require the Secretary of State to disclose information as to national security or the measures taken or to be taken to ensure the security of any premises or property where, in the Secretary of State’s opinion, public disclosure of that information would be contrary to the national interest. (3) The Secretary of State may disregard comments made by the local planning authority under paragraph  2(b), where they failed to notify interested persons in accordance with regulation 5. Allowing further time 9.  The Secretary of State may in a particular case give directions setting later time limits than those prescribed by the Regulations. Decision on Appeal 10.—(1) The Secretary of State may proceed to a decision on an appeal taking into account only such written representations as have been submitted within the relevant time limits. (2)  The Secretary of State may, after giving the appellant and the local planning authority written notice of his intention to do so, proceed to a decision on an appeal notwithstanding that no written representations have been made within the relevant time limits if it appears to him that he has sufficient material before him to enable him to reach a decision on the merits of the case. (3)  In this regulation ‘relevant time limits’ means the time limits prescribed by these Regulations or, where the Secretary of State has exercised his power under regulation 9, any later time limits. Withdrawal of consent to use of electronic communications 10A. Where a person is no longer willing to accept the use of electronic communications for any purpose under these Regulations which is capable of being carried out electronically, the person shall give notice in writing— (a)

withdrawing any address notified to the Secretary of State or to a local planning authority for that purpose, or

(b)

revoking any agreement entered into with the Secretary of State or with a local planning authority for that purpose, 497

Appendix 3 and such withdrawal or revocation shall be final and shall take effect on a date specified by the person in the notice but not less than seven days after the date on which the notice is given. Transitional provisions 11.—(1)  Subject to paragraph (2), any appeal to which the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991 (‘the 1991 Regulations’) applied which has not been determined on the date when these Regulations come into force, shall be continued under the 1991 Regulations. (2)  Where an appeal to which the 1991 Regulations applied is subsequently remitted to the Secretary of State for redetermination in proceedings before any court, and is to be disposed of on the basis of written representations, the decision shall be redetermined in accordance with these Regulations.

498

Appendix 4

The Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002 (SI 2002/2684)

The Lord Chancellor, in exercise of the powers conferred on him by section 9 of the Tribunals and Inquiries Act 1992 and of all other powers enabling him in that behalf, and after consultation with the Council on Tribunals, hereby makes the following Rules: Citation, commencement, and extent 1.—(1)  These Rules may be cited as the Town and Country Planning (Enforcement) (Hearings Procedure) (England) Rules 2002. (2)  These Rules shall come into force on 23rd December 2002. (3)  These Rules extend to England only. Interpretation 2.—(1)  In these Rules— ‘certificate of lawful use or development’ means a certificate under section 191 or 192 of the Planning Act; ‘document’ includes a photograph, map or plan; ‘electronic communication’ has the meaning given in section 15(1) of the Electronic Communications Act 2000; ‘enforcement appeal’ means an appeal against an enforcement notice; ‘enforcement notice’ means a notice under section 172 of the Planning Act or under section 38 of the Listed Buildings Act; ‘hearing’ means a hearing to which these Rules apply; ‘hearing statement’ means, and consists of, a written statement which contains full particulars of the case which a person proposes to put forward at a hearing and copies of any documents which that person intends to refer to or put in evidence; ‘inquiry’ means a local inquiry to which the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 or the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 apply; 499

Appendix 4 ‘inspector’ means— (a)

in relation to a transferred appeal, a person appointed by the Secretary of State to determine an appeal;

(b) in relation to a non-transferred appeal, a person appointed by the Secretary of State to hold a hearing or a re-opened hearing; ‘land’ means the land or building to which the hearing relates; ‘the Listed Buildings Act’ means the Planning (Listed Buildings and Conservation Areas) Act 1990; ‘Listed Buildings Act certificate of lawfulness’ means a certificate under section 26H of the Listed Buildings Act; ‘local planning authority’ means in relation to— (a) an enforcement appeal, the body who issued the relevant enforcement notice; (b) an appeal against the refusal or non-determination of an application for a certificate of lawful use or development, the body to whom that application was made; (c)

an appeal against the refusal or non-determination of an application for a Listed Buildings Act certificate of lawfulness, the body to whom that application was made;

‘non-transferred appeal’ means an appeal which falls to be determined by the Secretary of State, including an appeal which falls to be so determined by virtue of a direction under paragraph 3(1) of Schedule 6 to the Planning Act or paragraph 3(1) of Schedule 3 to the Listed Buildings Act; ‘Planning Act’ means the Town and Country Planning Act 1990; ‘questionnaire’ means a document in the form supplied by the Secretary of State to local planning authorities for the purpose of proceedings under these Rules, and for this purpose a form is taken to be supplied where the Secretary of State has published it on a website and has notified the local planning authority, in a manner for the time being agreed between the Secretary of State and the authority for that purpose, of— (i)

publication of the form on the website,

(ii) the address of the website, and (iii) the place on the website where the form may be accessed, and how it may be accessed; ‘the relevant notice’ means the Secretary of State’s written notice under rule 4(1) informing the appellant and the local planning authority that a hearing is to be held; ‘starting date’ means the date of the— (a)

Secretary of State’s written notice to the appellant and the local planning authority that he has received all the documents required to enable him to entertain the appeal pursuant to regulation 10 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002; or 500

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (b) relevant notice, whichever is later; ‘transferred appeal’ means an appeal which falls to be determined by a person appointed by the Secretary of State under Schedule 6 to the Planning Act or Schedule 3 to the Listed Buildings Act. (2)  In these Rules, and in relation to the use of electronic communications for any purpose of these Rules which is capable of being carried out electronically— (a)

the expression ‘address’ includes any number or address used for the purposes of such communications, except that where these Rules impose an obligation on any person to provide a name and address to any other person, the obligation shall not be fulfilled unless the person on whom it is imposed provides a postal address;

(b)

references to statements, notices, applications, or other documents or to copies of such documents, include references to such documents or copies of them in electronic form.

(3)  Paragraphs (4) to (8) apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in these Rules that a statement or other document should be sent or given to any other person (‘the recipient’). (4)  The requirement shall be taken to be fulfilled where the document transmitted by means of the electronic communication is— (a)

capable of being accessed by the recipient,

(b) legible in all material respects, and (c)

sufficiently permanent to be used for subsequent reference.

(5)  In paragraph  (4), ‘legible in all material respects’ means that the information contained in the notice or document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form. (6) Where the electronic communication is received by the recipient outside the recipient’s business hours, it shall be taken to have been received on the next working day; and for this purpose ‘working day’ means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday. (7)  A requirement in these Rules that any notice or document should be in writing is fulfilled where that document meets the criteria in paragraph (4), and ‘written’ and cognate expressions are to be construed accordingly. (8) A  requirement in these Rules to send more than one copy of a statement or other document may be complied with by sending one copy only of the statement or document in question. Application of the Rules 3.—(1)  These Rules apply in relation to any hearing held in England for the purposes of a non-transferred or a transferred appeal made on or after 23rd December 2002 under— (a)

section 174 of the Planning Act (appeal against enforcement notice);

(b)

section 195 of the Planning Act (appeal against refusal or non-determination of an application for a certificate of lawful use or development); 501

Appendix 4 (ba) section 26K of the Listed Buildings Act (appeal against a refusal or failure to give a decision on an application for a Listed Buildings Act certificate of lawfulness); (c) section 39 of the Listed Buildings Act (appeal against listed building enforcement notice); but do not apply to any hearing by reason of the application of any provision mentioned in this paragraph by or under any other enactment. (2) Where these Rules apply in relation to an appeal which at some time fell to be disposed of in accordance with the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 or the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, any step taken or thing done under those Rules which could have been done under any corresponding provision of these Rules shall have effect as if it had been taken or done under that corresponding provision. Preliminary information to be supplied by local planning authority 4.—(1)  The Secretary of State shall, as soon as practicable after it is determined to hold a hearing under these rules, inform the appellant and the local planning authority in writing that a hearing is to be held. (2)  The local planning authority shall within 2 weeks of the starting date— (a)

send to the Secretary of State and the appellant a completed questionnaire and a copy of each of the documents referred to in it;

(b) in the case of an enforcement appeal, notify any— (i)

person on whom a copy of the enforcement notice has been served;

(ii) occupier of property in the locality in which the land to which the enforcement notice relates is situated; and (iii) other person who in the opinion of the local planning authority is affected by the breach of planning control or contravention of listed building control which is alleged in the enforcement notice, that an appeal has been made and of the address to which and of the period within which they may make representations to the Secretary of State. Hearing statements 5.—(1)  The appellant and the local planning authority shall send 2 copies of their hearing statement to the Secretary of State within 6 weeks of the starting date. (2)  The Secretary of State may in writing require the appellant and the local planning authority to provide such further information about the matters contained in their hearing statement as he may specify; such information shall be provided in writing and the appellant or the local planning authority, as the case may be, shall send 2 copies to the Secretary of State within such period as the Secretary of State may reasonably require. (3)  Any person who was notified about the appeal under rule 4(2)(b), shall send to the Secretary of State 3 copies of any written comments they wish to make concerning the appeal within 6 weeks of the starting date. 502

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (4) The appellant and the local planning authority shall send to the Secretary of State 2 copies of any comments the local planning authority and the appellant wish to make on— (a)

each other’s hearing statement;

(b) comments made pursuant to paragraph (3); and (c)

comments made to them by any other person,

within 9 weeks of the starting date. (5)  Subject to paragraph 5(A), the Secretary of State shall send, as soon as practicable after receipt, a copy of any— (a) hearing statement received by him pursuant to paragraph  (1), further information provided pursuant to paragraph  (2) and any comments received pursuant to paragraph (4) from, in each case, the appellant or the local planning authority to the other of those two parties; and (b) written comments made by persons pursuant to paragraph  (3), to the local planning authority and the appellant. (5A) Nothing in paragraph  (5) shall require the Secretary of State to disclose information as to national security or the measures taken or to be taken to ensure the security of any premises or property where, in the Secretary of State’s view, public disclosure of that information would be contrary to the national interest. (6)  The local planning authority shall give any person who so requests a reasonable opportunity to inspect, and where practicable, take copies of— (a)

the local planning authority’s completed questionnaire, hearing statement and any document copied to the authority under paragraph (5); and

(b) further information provided by the authority under paragraph  (2) and comments made by the authority under paragraph (4), and shall specify in their hearing statement the time and place where such documents may be inspected. (6A)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where the person is notified of— (a) publication on a website of any document mentioned in sub-paragraph (a) or (b) of the previous paragraph; (b) the address of the website; (c)

the place on the website where the document may be accessed, and how it may be accessed.

(7)  The Secretary of State shall send to the inspector, as soon as practicable after receipt, any hearing statement, document, part of any document or written comments sent to the Secretary of State within the relevant period specified for sending such documents pursuant to paragraphs (1) to (4). (8)  In the case of a non-transferred appeal, the Secretary of State, and in the case of a transferred appeal, the inspector, may in determining the appeal disregard any comments made pursuant to paragraphs (3) and (4) which are sent after the relevant specified period. 503

Appendix 4 Date and notification of hearing 6.—(1)  The date fixed by the Secretary of State for the holding of a hearing shall be— (a)

not later than 12 weeks after the starting date, unless he considers such a date impracticable; or

(b) the earliest date after that period which he considers to be practicable. (2)  Unless the Secretary of State agrees a lesser period of notice with the appellant and the local planning authority, he shall give not less than 4 weeks written notice of the date, time and place fixed by him for the holding of a hearing to every person entitled to appear at the hearing. (2A)  A written notice shall be taken to have been given by the Secretary of State for the purposes of paragraph  (2) where he and any person entitled to appear at the hearing have agreed that notice of the matters mentioned in that paragraph may instead be accessed by that person on a website and— (a)

the notice is a notice to which that agreement applies;

(b) the Secretary of State has published the notice on a website; (c) not less than 4 weeks before the date fixed by the Secretary of State for the holding of the inquiry, the person is notified of— (i)

the publication of the notice on a website,

(ii) the address of the website, and (iii) the place on the website where the notice may be accessed, and how it may be accessed (3) The Secretary of State may vary the date fixed for the holding of a hearing, whether or not the date as varied is within the period of 12 weeks mentioned in paragraph (1); and paragraphs (2) and (2A) shall apply to a variation of a date as it applied to the date originally fixed. (4)  The Secretary of State may vary the time or place for the holding of a hearing and shall give notice of any such variation as appears to him to be reasonable. (5)  The Secretary of State may in writing require the local planning authority to take one or both of the following steps— (a) not less than 2 weeks before the date fixed for the holding of a hearing, to publish a notice of the hearing in one or more newspapers circulating in the locality in which the land is situated; (b) to send a notice of the hearing to such persons or classes of persons as he may specify, within such period as he may specify. (6) Every notice of hearing published or sent pursuant to paragraph  (5) shall contain— (a)

a clear statement of the date, time and place of the hearing and of the powers enabling the Secretary of State or inspector to determine the appeal in question;

(b)

a written description of the land sufficient to identify approximately its location;

(c)

a brief description of the subject matter of the appeal; and 504

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (d) details of where and when copies of the local planning authority’s completed questionnaire and documents sent by and copied to the authority pursuant to rule 5 may be inspected. Notification of name of inspector 7.—(1)  Subject to paragraph (2), the Secretary of State shall notify the name of the inspector to every person entitled to appear at the hearing. (2)  Where the Secretary of State appoints another inspector instead of the person previously appointed and it is not practicable to notify the new appointment before the hearing is held, the inspector holding the hearing shall, at its commencement, announce his name and the fact of his appointment. Method of procedure 8.—(1)  If either the appellant or the local planning authority at any time before or during the hearing is of the opinion that the hearings procedure is inappropriate in determining the appeal and that the appeal should not proceed in this way then they may inform the Secretary of State, before the hearing, or the inspector, during the hearing, of their opinion and the reasons for it and— (a) the Secretary of State, before the hearing, shall, after consulting the other party who may inform the Secretary of State of his opinion pursuant to this paragraph, decide whether an inquiry should be arranged instead; or (b) the inspector, during the hearing, shall, after consulting the other party who may inform the inspector of his opinion pursuant to this paragraph, decide whether the hearing should be closed and an inquiry held instead. (2) If at any time during a hearing it appears to the inspector that the hearings procedure is inappropriate, he may, after consulting the appellant and the local planning authority, decide to close the proceedings and arrange for an inquiry to be held instead. Appearances at hearing 9.—(1)  The persons entitled to appear at the hearing are— (a)

the appellant;

(b) the local planning authority; (c) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served; and (d) in the case of an enforcement appeal or an appeal under section 195 of the Planning Act or an appeal under section 26K of the Listed Buildings Act, any person having an interest in the land. (2)  Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at a hearing, and such permission shall not be unreasonably withheld. (3)  Any person entitled or permitted to appear may do so on his own behalf or be represented by any other person. 505

Appendix 4 Inspector may act in place of Secretary of State in respect of transferred appeals 10.—(1)  This rule applies where a hearing is to be held or has been held for the purposes of a transferred appeal. (2)  An inspector may take such steps as the Secretary of State is required or enabled to take under or by virtue of rules 5(2), 5(5), 6 and 18, in place of the Secretary of State. (3)  Where an inspector requires further information or copies pursuant to rules 5(2) or 18(2) that information or copies shall be sent to him. Procedure at hearing 11.—(1)  Except as otherwise provided in these Rules, the inspector shall determine the procedure at a hearing. (2) A  hearing shall take the form of a discussion led by the inspector and crossexamination shall not be permitted unless the inspector considers that crossexamination is required to ensure a thorough examination of the main issues. (3) Where the inspector considers that cross-examination is required under paragraph (2) he shall consider, after consulting the appellant and the local planning authority, whether the hearing should be closed and an inquiry held instead. (4)  At the start of the hearing the inspector shall identify what are, in his opinion, the main issues to be considered at the hearing and any matters on which he requires further explanation from any person entitled or permitted to appear. (5) Nothing in paragraph  (4) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph. (6) A person entitled to appear at a hearing shall be entitled to call evidence but, subject to the foregoing and paragraphs (7) and (8), the calling of evidence shall otherwise be at the inspector’s discretion. (7)  The inspector may refuse to permit the— (a)

giving or production of evidence; or

(b) presentation of any other matter, which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the hearing. (8)  The inspector may— (a) require any person appearing or present at a hearing who, in his opinion, is behaving in a disruptive matter to leave; and (b) refuse to permit that person to return; or (c)

permit him to return only on such conditions as he may specify,

but any such person may submit to him any evidence or other matter in writing before the close of the hearing. 506

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (9) The inspector may allow any person to alter or add to a hearing statement received under rule 5 so far as may be necessary for the purposes of the hearing; but he shall (if necessary by adjourning the hearing) give every other person entitled to appear who is appearing at the hearing an adequate opportunity of considering any fresh matter or document. (10)  The inspector may proceed with a hearing in the absence of any person entitled to appear at it. (11) The inspector may take into account any written representation or evidence or any other document received by him from any person before a hearing opens or during the hearing provided that he discloses it at the hearing. (12)  The inspector may from time to time adjourn a hearing and, if the date, time and place of the adjourned hearing are announced at the hearing before the adjournment, no further notice shall be required. Site inspections 12.—(1)  Where it appears to the inspector that one or more matters would be more satisfactorily resolved by adjourning the hearing to the appeal site he may adjourn the hearing to that site and conclude the hearing there provided he is satisfied that— (a)

the hearing would proceed satisfactorily and that no party would be placed at a disadvantage;

(b) all parties present at the hearing would have the opportunity to attend the adjourned hearing; (c) the local planning authority and the appellant have not raised reasonable objections to it being continued at the appeal site. (2)  Unless the hearing is to be adjourned to the appeal site pursuant to paragraph (1), the inspector— (a)

may inspect the land during the hearing or after its close; and

(b)

shall inspect the land if requested to do so by the appellant or the local planning authority before or during the hearing.

(3)  Where the inspector intends to make an inspection under paragraph (2), he shall ask the appellant and the local planning authority whether they wish to be present. (4)  Where the appellant or the local planning authority have indicated that they wish to be present the inspector shall announce the date and time at which he proposes to make the inspection during the hearing and shall make the inspection in the company of— (a) the appellant, the local planning authority and any other person who has an interest in the land; and (b)

at the inspector’s discretion, any other person entitled or permitted to appear at the hearing who is appearing or did appear at it.

(5)  The inspector shall not be bound to defer an inspection of the kind referred to in paragraph (2) where any person mentioned in paragraph (4) is not present at the time appointed. 507

Appendix 4 Procedure after hearing—non-transferred appeals 13.—(1)  This rule applies where a hearing has been held for the purposes of a nontransferred appeal. (2)  After the close of the hearing, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations. (3)  When making his determination the Secretary of State may disregard any written representations, evidence or other document received after the hearing has closed. (4)  If, after the close of the hearing, the Secretary of State— (a)

differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector, or

(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the hearing who appeared at it of his disagreement and the reasons for it. (5)  Where persons entitled to appear at the hearing who appeared are notified pursuant to paragraph (4), the Secretary of State shall give them an opportunity to make written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) to ask for the re-opening of the hearing. (6)  Those making written representations or requesting the hearing to be re-opened pursuant to paragraph (5), shall send such representations or requests to the Secretary of State within 3 weeks of the date of the Secretary of State’s notification under that paragraph. (7)  The Secretary of State may, as he thinks fit, cause a hearing to be re-opened, and he shall do so if asked by the appellant or the local planning authority in the circumstances mentioned in paragraph  (5) and within the period mentioned in paragraph (6). (8)  Where a hearing is re-opened pursuant to rule (7) (whether by the same or a different inspector)— (a)

the Secretary of State shall send to the persons entitled to appear at the hearing who appeared at it a written statement of the matters on which further evidence is invited; and

(b) paragraphs (2) to (6) of rule 6 shall apply as if the reference to a hearing were references to a re-opened hearing. Procedure after hearing—transferred appeals 14.—(1) This rule applies where a hearing has been held for the purposes of a transferred appeal. (2)  When making his decision the inspector may disregard any written representations, or evidence or any other document received after the hearing has closed. 508

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (3)  If, after the close of the hearing, an inspector proposes to take into consideration any new evidence or any new matter of fact (not being a matter of government policy) which was not raised at the hearing and which he considers to be material to his decision, he shall not come to a decision without first— (a) notifying persons entitled to appear at the hearing who appeared at it of the matter in question; and (b)

giving them an opportunity to make written representations to him or to ask for the re-opening of the hearing,

and they shall send such written representations or requests to re-open the hearing to the Secretary of State within 3 weeks of the date of the notification. (4)  An inspector may, as he thinks fit, cause a hearing to be re-opened and he shall do so if asked by the appellant or the local planning authority in the circumstances and within the period mentioned in paragraph (3). (5)  Where a hearing is re-opened pursuant to paragraph (4)— (a) the inspector shall send to the persons entitled to appear at the hearing who appeared at it a written statement of the matters on which further evidence is invited; and (b) paragraphs (2) to (6) of rule 6 shall apply as if the references to a hearing were references to a re-opened hearing. Notification of decision—non-transferred appeals 15.—(1)  This rule applies where a hearing has been held for the purposes of a nontransferred appeal. (2)  The Secretary of State shall notify his decision on an appeal, and his reasons for it, in writing to— (a)

the appellant and the local planning authority;

(b) all persons entitled to appear at the hearing who did appear; and (c)

any other person who, having appeared at the hearing, has asked to be notified of the decision.

(2A)  Notification in writing of a decision and reasons shall be taken to have been given to a person for the purposes of this rule where— (a)

the Secretary of State and the person have agreed that decisions, reasons, and copies of reports required under this rule to be given in writing may instead be accessed by that person on a website;

(b) the decision and reasons are a decision and reasons to which that agreement applies; (c)

the Secretary of State has published the decision and reasons on a website;

(d) the person is notified of— (i)

the publication of the decision and reasons on a website;

(ii) the address of the website; (iii) the place on the website where the decision and reasons may be accessed, and how they may be accessed. 509

Appendix 4 (3)  Where a copy of the inspector’s report is not sent with the notification of the decision or published on a website in accordance with paragraph (2A), the notification shall be accompanied by a statement of his conclusions and of any recommendations made by him; and if a person entitled to be notified of the decision has not received a copy of that report, he shall be supplied with a copy of it on written application to the Secretary of State. (4)  In this rule ‘report’ does not include any documents appended to the inspector’s report; but any person who has received a copy of the report may apply to the Secretary of State in writing for an opportunity to inspect any such documents and the Secretary of State shall give him that opportunity. (4A)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where that person is notified of— (a)

publication of the relevant documents on a website;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed.

(5)  A person applying to the Secretary of State under— (a) paragraph  (3) shall send his application to the Secretary of State within 4 weeks; (b) paragraph  (4) shall send his application to the Secretary of State within 6 weeks, of the date of the Secretary of State’s decision. Notification of decision—transferred appeals 16.—(1) This rule applies where a hearing has been held for the purposes of a transferred appeal. (2) An inspector shall notify his decision on an appeal, and his reasons for it, in writing to— (a)

the appellant and the local planning authority;

(b) all persons entitled to appear at the hearing who did appear; and (c)

any other person who, having appeared at the hearing, has asked to be notified of the decision.

(3)  Any person entitled to be notified of the inspector’s decision under paragraph (2) may apply to the Secretary of State in writing, for an opportunity to inspect any documents listed in the notification and the Secretary of State shall give him that opportunity. (3A)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where that person is notified of— (a)

publication of the relevant documents on a website;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed. 510

TCP (Enforcement) (Hearings Procedure) (England) Rules 2002 (4)  A person applying to the Secretary of State under paragraph (3) shall send his application to the Secretary of State within 6 weeks of the date of the inspector’s decision. Procedure following remitting of appeal 17.—(1)  Where an appeal, for which a hearing has been held, is remitted by any court to the Secretary of State for rehearing and redetermination, the Secretary of State— (a)

shall send to the persons entitled to appear at the hearing who appeared at it a written statement of the matters on which further representations are invited in order for him to consider the appeal further;

(b)

shall give those persons the opportunity to make written representations to him on those matters or to ask for the re-opening of the hearing; and

(c) may, as he thinks fit, cause the hearing to be re-opened or an inquiry held instead (whether by the same or a different inspector) and if he re-opens the hearing paragraphs (2) to (6) of rule 6 shall apply as if the reference to a hearing were to a re-opened hearing. (2)  Those persons making representations or asking for the hearing to be re-opened under paragraph (1)(b) shall send such representations or requests to the Secretary of State within 3 weeks of the date of the written statement sent under paragraph (1)(a). Further time and additional copies 18.—(1)  The Secretary of State may at any time in any particular case allow further time for the taking of any step which is required or enabled to be taken pursuant to these Rules, and references in these Rules to a day by which, or a period within which, any step is required or enabled to be taken shall be construed accordingly. (2)  The Secretary of State may at any time before the close of a hearing request from any person entitled to appear additional copies of the following— (a)

a hearing statement or comments sent in accordance with rule 5; or

(b) any other document or information sent to the Secretary of State before or during a hearing, and may specify the time within which such copies should be sent to him and any person so requested shall ensure that the copies are sent within the specified period. Sending of notices, etc 19. Notices or documents required or authorised to be sent or supplied under these Rules may be sent or supplied— (a)

by post; or

(b) by using electronic communications to send or supply the notice or document (as the case may be) to a person at such address as may for the time being be specified by the person for that purpose. 511

Appendix 4 Withdrawal of consent to use of electronic communications 20. Where a person is no longer willing to accept the use of electronic communications for any purpose which under these Rules is capable of being carried out electronically, the person shall give notice in writing— (a)

withdrawing any address notified to the Secretary of State or to a local planning authority for that purpose, or

(b)

revoking any agreement entered into with the Secretary of State or with a local planning authority for that purpose,

and such withdrawal or revocation shall be final and shall take effect on a date specified by the person in the notice but not less than seven days after the date on which the notice is given.

512

Appendix 5

The Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 (SI 2002/2685)

The Lord Chancellor, in exercise of the powers conferred upon him by section 9 of the Tribunals and Inquiries Act 1992 and of all other powers enabling him in that behalf, and after consultation with the Council on Tribunals, hereby makes the following Rules: Citation, commencement and extent 1.—(1)  These Rules may be cited as the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 and shall come into force on 23rd December 2002. (2)  These Rules extend to England only. Interpretation 2. In these Rules— ‘assessor’ means a person appointed by the Secretary of State to sit with an inspector at an inquiry or re-opened inquiry to advise the inspector on such matters arising as the Secretary of State may specify; ‘certificate of lawful use or development’ means a certificate under section 191 or 192 of the Planning Act; ‘document’ includes a photograph, map or plan; ‘electronic communication’ has the meaning given in section 15(1) of the Electronic Communications Act 2000; ‘enforcement appeal’ means an appeal against an enforcement notice; ‘enforcement notice’ means a notice under section 172 of the Planning Act or under section 38 of the Listed Buildings Act; ‘inquiry’ means a local inquiry to which these Rules apply; ‘inspector’ means a person appointed by the Secretary of State under Schedule 6 to the Planning Act or, as the case may be, Schedule 3 to the Listed Buildings Act to determine an appeal; ‘land’ means the land or building to which an inquiry relates; 513

Appendix 5 ‘Listed Buildings Act’ means the Planning (Listed Buildings and Conservation Areas) Act 1990; ‘Listed Buildings Act certificate of lawfulness’ means a certificate under section 26H of the Listed Buildings Act; ‘local planning authority’ means in relation to— (a) an enforcement appeal, the body who issued the relevant enforcement notice; (b) an appeal against the refusal or non-determination of an application for a certificate of lawful use or development, the body to whom the application was made; (c)

an appeal against the refusal or non-determination of an application for a Listed Buildings Act certificate of lawfulness, the body to whom that application was made;

‘outline statement’ means a written statement of the principal submissions which a person proposes to put forward at an inquiry; ‘Planning Act’ means the Town and Country Planning Act 1990; ‘pre-inquiry meeting’ means a meeting held before an inquiry to consider what may be done with a view to securing that the inquiry is conducted efficiently and expeditiously, and where two or more such meetings are held references to the conclusion of a pre-inquiry meeting are references to the conclusion of the final meeting; ‘questionnaire’ means a document in the form supplied by the Secretary of State to local planning authorities for the purpose of proceedings under these Rules, and for this purpose a form is taken to be supplied where the Secretary of State has published it on a website and has notified the local planning authority, in a manner for the time being agreed between the Secretary of State and the authority for that purpose, of— (i)

publication of the form on the website,

(ii) the address of the website, and (iii) the place on the website where the form may be accessed, and how it may be accessed ‘relevant notice’ means the Secretary of State’s written notice under rule 4(1), informing the appellant and the local planning authority that an inquiry is to be held; ‘starting date’ means the date of the— (a)

Secretary of State’s written notice to the appellant and the local planning authority that he has received all the documents required to enable him to entertain the appeal pursuant to regulation 10 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002; or

(b) relevant notice, whichever is the later; 514

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 ‘statement of case’ means, and is comprised of, a written statement which contains full particulars of the case which a person proposes to put forward at an inquiry, and a list of any documents which that person intends to refer to or put in evidence; ‘statement of common ground’ means a written statement prepared jointly by the local planning authority and the appellant, which contains agreed factual information about the development, breach of condition or works which are the subject of the appeal. (2)  In these Rules, and in relation to the use of electronic communications for any purpose of these Rules which is capable of being carried out electronically— (a)

the expression ‘address’ includes any number or address used for the purposes of such communications, except that where these Rules impose an obligation on any person to provide a name and address to any other person, the obligation shall not be fulfilled unless the person on whom it is imposed provides a postal address;

(b)

references to statements, notices, applications, or other documents, or to copies of such documents include references to such documents or copies of them in electronic form.

(3)  Paragraphs (4) to (8) apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in these Rules that a statement or other document should be sent or given to any other person (‘the recipient’). (4) The requirement shall be taken to be fulfilled where the statement or other document which is transmitted by means of the electronic communication is— (a)

capable of being accessed by the recipient,

(b) legible in all material respects, and (c)

sufficiently permanent to be used for subsequent reference.

(5)  In paragraph  (4), ‘legible in all material respects’ means that the information contained in the notice or document is available to the recipient to no lesser extent than it would be if sent or given by means of a notice or document in printed form. (6) Where the electronic communication is received by the recipient outside the recipient’s business hours, it shall be taken to have been received on the next working day; and for this purpose ‘working day’ means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday. (7)  A requirement in these Rules that any notice or document should be in writing is fulfilled where that document meets the criteria in paragraph (4), and ‘written’ and cognate expressions are to be construed accordingly. (8) A  requirement in these Rules to send more than one copy of a statement or other document may be complied with by sending one copy only of the statement or document in question. Application of the Rules 3.—(1)  These Rules apply in relation to any local inquiry held in England by an inspector before he determines an appeal made on or after 23rd December 2002 under— 515

Appendix 5 (a)

section 174 of the Planning Act (appeal against enforcement notice);

(b)

section 195 of the Planning Act (appeal against refusal or non-determination of an application for a certificate of lawful use or development);

(ba) section 26K of the Listed Buildings Act (appeal against a refusal or failure to give a decision on an application for a Listed Buildings Act certificate of lawfulness); (c) section 39 of the Listed Buildings Act (appeal against listed building enforcement notice), but do not apply to any local inquiry by reason of the application of any provision mentioned in this rule by or under any other enactment. (2)  Where these Rules apply in relation to an appeal which at some time fell to be disposed of in accordance with— (a)

the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002; or

(b) the Town and Country Planning (Enforcement)(Inquiries Procedure) Rules 1992, any step taken or thing done under those Rules which could have been done under any corresponding provision of these Rules shall have effect as if it had been taken or done under that corresponding provision. Preliminary information to be supplied by local planning authority 4.—(1)  The Secretary of State shall, as soon as practicable after it is determined to hold an inquiry under these Rules, inform the appellant and the local planning authority in writing that an inquiry is to be held. (2)  The local planning authority shall within 2 weeks of the starting date— (a)

send to the Secretary of State and the appellant a completed questionnaire and a copy of each of the documents referred to in it;

(b) in the case of an enforcement appeal, notify any— (i)

person on whom a copy of the enforcement notice has been served;

(ii) occupier of property in the locality in which the land to which the enforcement notice relates is situated; and (iii) other person who in the opinion of the local planning authority is affected by the breach of planning control or contravention of listed building control which is alleged in the enforcement notice, that an appeal has been made and of the address to which and of the period within which they may make representations to the Secretary of State. Notification of name of inspector 5.—(1)  The Secretary of State shall, subject to paragraph (2), notify the name of the inspector to every person entitled to appear at the inquiry. (2)  Where the Secretary of State appoints another inspector instead of the person previously appointed and it is not practicable to notify the new appointment before 516

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 the inquiry is held, the inspector holding the inquiry shall, at its commencement, announce his name and the fact of his appointment. Service of statements of case, etc 6.—(1)  The local planning authority shall, within 6 weeks of the starting date, serve 2 copies of their statement of case on the Secretary of State and, in the case of an enforcement appeal, a copy on any person on whom a copy of the enforcement notice has been served. (2)  The local planning authority shall include in their statement of case details of the time and place where the opportunity will be given to inspect and take copies described in paragraph (13) (and including, in any case in which the local planning authority rely on paragraph (13A), the details mentioned in that paragraph). (3)  The appellant shall, within 6 weeks of the starting date, serve 2 copies of his statement of case on the Secretary of State and, in the case of an enforcement appeal, a copy on any person on whom a copy of the enforcement notice has been served. (4)  The Secretary of State shall, as soon as practicable after receipt, send a copy of the local planning authority’s statement of case to the appellant and a copy of the appellant’s statement of case to the local planning authority. (5)  The appellant and the local planning authority may in writing each require the other to send them a copy of any document, or the relevant part of any document, referred to in the list of documents comprised in that party’s statement of case; and any such document, or relevant part, shall be sent, as soon as practicable, to the party who required it. (6)  The Secretary of State may in writing require any other person who has notified him of an intention or a wish to appear at the inquiry, to serve— (a)

3 copies of their statement of case on him within 4 weeks of being so required; and

(b)

in the case of an enforcement appeal, simultaneously, a copy of their statement of case on any person specified by the Secretary of State,

and the Secretary of State shall, as soon as practicable after receipt, send a copy of each such statement of case to the local planning authority and to the appellant. (7)  The Secretary of State shall, as soon as practicable— (a) send to any person from whom he requires a statement of case in accordance with paragraph (6)  a copy of the statements of case of the appellant and the local planning authority; and (b) inform that person of the name and address of every person to whom his statement of case is required to be sent. (8)  The Secretary of State may in writing require any person, who has served on him a statement of case in accordance with this rule, to provide such further information about the matters contained in the statement of case as he may specify and may specify the time within which the information shall be sent to him. (9)  A local planning authority or appellant required to provide further information, shall send within the time specified— (a)

2 copies of that information in writing to the Secretary of State; and 517

Appendix 5 (b) in the case of an enforcement appeal, a copy to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the further information received from the local planning authority to the appellant and a copy of the further information received from the appellant to the local planning authority. (10)  Any other person required to provide further information shall send within the time specified— (a)

3 copies of that information in writing to the Secretary of State; and

(b) in the case of an enforcement appeal, a copy to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the further information to the local planning authority and the appellant. (11) Any person other than the appellant who serves a statement of case on the Secretary of State shall send with it a copy of— (a)

any document; or

(b) the relevant part of any document, referred to in the list comprised in that statement, unless a copy of the document or part of the document in question is already available for inspection pursuant to paragraph (13). (12)  The Secretary of State shall, as soon as practicable after receipt, send to the inspector any statement of case, document, further information and written comments sent to him in accordance with this rule and received by him within the relevant period, if any, specified in this rule. (13)  The local planning authority shall give any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of— (a)

any statement of case, written comments, further information or other document a copy of which has been sent to the local planning authority in accordance with this rule; and

(b) the local planning authority’s completed questionnaire and statement of case together with a copy of any document, or of the relevant part of any document, referred to in the list comprised in that statement, and any written comments, information or other document sent by the local planning authority pursuant to this rule. (13A)  For the purposes of the previous paragraph an opportunity is to be taken to have been given to a person where the person is notified of— (a)

publication on a website of the documents mentioned in that paragraph;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed.

(14)  If the local planning authority or the appellant wish to comment on another person’s statement of case, they shall send within 9 weeks of the starting date— 518

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 (a)

2 copies of their written comments to the Secretary of State; and

(b) in the case of an enforcement appeal, a copy of their written comments to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the written comments received from the appellant to the local planning authority and a copy of the written comments received from the local planning authority to the appellant. (15)  Any person, other than the local planning authority or the appellant, who serves a statement of case on the Secretary of State under this rule and who wishes to comment on another person’s statement of case, shall send, not less than 4 weeks before the date fixed for the holding of the inquiry— (a)

3 copies of their written comments to the Secretary of State; and

(b) in the case of an enforcement appeal, a copy of their written comments to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the written comments to the local planning authority and to the appellant. Statement of matters and pre-inquiry meetings 7.—(1)  An inspector may, within 12 weeks of the starting date, send to the appellant, the local planning authority and, in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served, a written statement of the matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal. (2)  An inspector shall hold a pre-inquiry meeting— (a) if he expects an inquiry to last for 4 days or more, unless he considers it is unnecessary; or (b) for shorter inquiries, if it appears to him necessary. (3) An inspector shall give not less than 2 weeks’ written notice of a pre-inquiry meeting to— (a)

the appellant;

(b) the local planning authority; (c)

any other person known to be entitled to appear at the inquiry; and

(d) any other person whose presence at the pre-inquiry meeting appears to him to be desirable. (4)  The inspector— (a)

shall preside at the pre-inquiry meeting;

(b) shall determine the matters to be discussed and the procedure to be followed; (c)

may require any person present at the pre-inquiry meeting who, in his opinion, is behaving in a disruptive manner to leave; and 519

Appendix 5 (d) may refuse to permit that person to return or to attend any further pre-inquiry meeting, or may permit him to return or attend only on such conditions as he may specify. (5)  An inspector may request any further information from the appellant or the local planning authority at the pre-inquiry meeting. (6)  The appellant and the local planning authority shall— (a)

send 2 copies of any further information requested under paragraph (5)  to the inspector; and

(b) in the case of an enforcement notice appeal, send a copy to any person on whom a copy of the enforcement notice has been served, within 4 weeks of the conclusion of the pre-inquiry meeting. (7)  The inspector shall, as soon as practicable after receipt, send a copy of the further information received from the local planning authority to the appellant and a copy of any further information received from the appellant to the local planning authority. Inquiry timetable 8.—(1)  In respect of inquiries that appear to the Secretary of State likely to last for 4 days or more, the inspector shall prepare a timetable for the proceedings. (2)  In respect of shorter inquiries, the inspector may at any time prepare a timetable for the proceedings at, or at part of, an inquiry. (3)  The inspector may, at any time, vary the timetable prepared under the preceding paragraphs. (4)  The inspector may specify in a timetable prepared pursuant to this rule a date by which any proof of evidence and summary sent in accordance with rule 15(1) shall be sent to him. Date and notification of inquiry 9.—(1)  The date fixed by the Secretary of State for the holding of an inquiry shall be— (a)

not later than 20 weeks after the starting date unless he considers such a date impracticable; or

(b) the earliest date after that period which he considers to be practicable. (2)  Unless the Secretary of State agrees a lesser period of notice with the appellant and the local planning authority, he shall give not less than 4 weeks written notice of the date, time and place fixed by him for the holding of an inquiry to every person entitled to appear at the inquiry. (3)  The Secretary of State may vary the date fixed for the holding of an inquiry, whether or not the date as varied is within the period of 20 weeks mentioned in paragraph (1); and paragraph (2) shall apply to a variation of a date as it applied to the date originally fixed. (3A)  A written notice shall be taken to have been given by the Secretary of State for the purposes of paragraph  (3) where he and any person entitled to appear at 520

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 the inquiry have agreed that notice of the matters mentioned in that paragraph may instead be accessed by that person via a website, and— (a)

the notice is a notice to which that agreement applies;

(b) the Secretary of State has published that notice on the website; (c) not less than 4 weeks before the date fixed by the Secretary of State for the holding of the inquiry, the person is notified of— (i)

the publication of the notice on a website,

(ii) the address of the website, and (iii) the place on the website where the notice may be accessed, and how it may be accessed. (4)  The Secretary of State may vary the time or place for the holding of an inquiry and shall give such notice as appears to him to be reasonable. (5)  The Secretary of State may in writing require the local planning authority to take one or more of the following steps— (a) not less than 2 weeks before the date fixed for the holding of an inquiry, to publish a notice of the inquiry in one or more newspapers circulating in the locality in which the land is situated; (b) to send a notice of the inquiry to such persons or classes of persons as he may specify, within such period as he may specify; or (c) to post a notice of the inquiry in a conspicuous place near to the land, within such period as he may specify. (6)  Where the land is under the control of the appellant, he shall— (a)

if so required in writing by the Secretary of State, affix a notice of the inquiry firmly to the land or to some object on or near the land, in such manner as to be readily visible to and legible by members of the public; and

(b) not remove the notice, or cause or permit it to be removed, for such period before the inquiry as the Secretary of State may specify. (7)  Every notice of inquiry published, sent or posted pursuant to paragraph (5), or affixed pursuant to paragraph (6), shall contain— (a) a clear statement of the date, time and place of the inquiry and of the powers enabling the inspector to determine the appeal in question; (b)

a written description of the land sufficient to identify approximately its location;

(c)

a brief description of the subject matter of the appeal; and

(d) details of where and when copies of the local planning authority’s completed questionnaire and any document sent by and copied to the authority pursuant to rule 6 may be inspected. Notification of appointment of assessor 10.  Where the Secretary of State appoints an assessor he shall notify every person entitled to appear at the inquiry of the name of the assessor and of the matters on which he is to advise the inspector. 521

Appendix 5 Appearances at inquiry 11.—(1)  The persons entitled to appear at the inquiry are— (a)

the appellant;

(b) the local planning authority; (c)

any of the following bodies if the land is situated in their area and they are not the local planning authority— (i)

a county or a district council;

(ii) an enterprise zone authority designated under Schedule 32 to the Local Government, Planning and Land Act 1980; (iii) the Broads Authority, within the meaning of the Norfolk and Suffolk Broads Act 1988; (iv) a housing action trust specified in an order made under section 67(1)  of the Housing Act 1988; (d) where the land is in an area previously designated as a new town, the Homes and Communities Agency; (e) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served; (f)

in the case of an appeal under section 195 of the Planning Act or an appeal under section 26K of the Listed Buildings Act, any person having an interest in the land;

(g) the Historic Buildings and Monuments Commission for England where— (i)

the inquiry relates to an enforcement notice under section 38 of the Listed Buildings Act;

(ii) the listed building is in Greater London; and (iii) if an application for listed building consent had been made for the works set out in the enforcement notice, the Commission would have been notified of the application under a direction given under section 15(5)  of the Listed Buildings Act; (h)

any other person who has served a statement of case in accordance with rule 6(6).

(2)  Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at an inquiry and such permission shall not be unreasonably withheld. (3)  Any person entitled or permitted to appear may do so on his own behalf or be represented by any other person. Information to be provided by all parties 12.  Any person entitled or permitted to appear at the inquiry, who proposes to give, or call another person to give evidence at the inquiry, shall send in writing to the Secretary of State no later than 4 weeks before the inquiry— (a)

an estimate of the time required to present all their evidence; and

(b) the number of witnesses that they intend to call to give evidence. 522

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 Representatives of government departments at inquiry 13.—(1)  Where the Secretary of State or any other Minister of the Crown or any government department has expressed in writing to the local planning authority a view on an appeal and the authority refer to that view in a statement prepared pursuant to rule 6(1), the appellant may, not later than 4 weeks before the date of an inquiry, apply in writing to the Secretary of State for a representative of the Secretary of State or of the other Minister or department concerned to be made available at the inquiry. (2)  Where an application is made in accordance with paragraph (1), the Secretary of State shall make a representative available to attend the inquiry or, as the case may be, send the application to the other Minister or department concerned, who shall make a representative available to attend the inquiry. (3)  A person attending an inquiry as a representative pursuant to this rule shall state the reasons for the expressed view and shall give evidence and be subject to crossexamination to the same extent as any other witness. (4)  Nothing in paragraph (3) shall require a representative of a Minister or government department to answer any question, which in the opinion of the inspector, is directed to the merits of government policy. Inspector may act in place of Secretary of State 14.  An inspector may in place of the Secretary of State take such steps as the Secretary of State is required or enabled to take under or by virtue of rule 6(6)  to (10), (14) and (15), rules 9, 22 and 23; and where an inspector requires further information or copies pursuant to rules 6(8) or 23, that information or copies shall be sent to him. Proofs of evidence 15.—(1)  Any person entitled to appear at an inquiry who proposes to give, or to call another person to give, evidence at the inquiry by reading a proof of evidence shall— (a) subject to paragraph  (2), send 2 copies, in the case of the local planning authority and the appellant, or 3 copies in the case of any other person, of the proof of evidence together with a written summary to the Secretary of State; and (b) in the case of an enforcement appeal, simultaneously send copies of these to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of each proof of evidence together with any summary to the local planning authority and the appellant. (2)  No written summary shall be required where the proof of evidence proposed to be read contains no more than 1500 words. (3)  The proof of evidence and any summary shall be sent to the Secretary of State no later than— (a)

4 weeks before the date fixed for the holding of the inquiry, or 523

Appendix 5 (b) where a timetable has been prepared pursuant to rule 8 which specifies a date by which the proof of evidence and any summary shall be sent to the Secretary of State, that date. (4)  The Secretary of State shall send to the inspector, as soon as practicable after receipt, any proof of evidence together with any summary sent to him in accordance with this rule within the relevant period, specified in this rule. (5)  Where a written summary is provided in accordance with paragraph (1), only that summary shall be read at the inquiry, unless the inspector permits or requires otherwise. (6)  Any person, required by this rule to send copies of a proof of evidence to the Secretary of State, or any other person, shall send with them the same number of copies of the whole, or the relevant part, of any document referred to in the proof of evidence, unless a copy of the document or part of the document in question is already available for inspection pursuant to rule 6(13). (7)  The local planning authority shall give any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any document sent to or by them in accordance with this rule. (8)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where the person is notified of— (a)

publication of the relevant document on a website,

(b) the address of the website, (c)

the place on the website where the document may be accessed, and how it may be accessed.

Statement of common ground 16.—(1)  The local planning authority and the appellant shall together prepare an agreed statement of common ground and shall send it to— (a)

the Secretary of State; and

(b) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served, not less than 4 weeks before the date fixed for the holding of the inquiry. (2) The local planning authority shall give any person who asks, a reasonable opportunity to inspect, and where practicable, take copies of the statement of common ground sent to the Secretary of State. (3)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where the person is notified of— (a)

publication of the statement of common ground on a website,

(b) the address of the website, (c)

the place on the website where the document may be accessed, and how it may be accessed.

Procedure at inquiry 17.—(1)  Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry. 524

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 (2)  At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. (3) Nothing in paragraph  (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph. (4)  Unless the inspector otherwise determines, the appellant shall begin and shall have the right of final reply; and the other persons entitled or permitted to appear shall be heard in such order as the inspector may determine. (5)  A person entitled to appear at an inquiry shall be entitled to call evidence and the appellant, the local planning authority and, in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served shall be entitled to cross-examine persons giving evidence, but, subject to the foregoing and paragraphs (6) and (7), the calling of evidence and the cross-examination of persons giving evidence shall otherwise be at the discretion of the inspector. (6)  The inspector may refuse to permit the— (a)

giving or production of evidence;

(b) cross-examination of persons giving evidence; or (c)

presentation of any matter,

which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the inquiry. (7)  Where a person gives evidence at an inquiry by reading a summary of his proof of evidence in accordance with rule 15(5)— (a) the proof of evidence referred to in rule 15(1)  shall be treated as tendered in evidence, unless the person required to provide the summary notifies the inspector that he now wishes to rely on the contents of that summary alone; and (b) the person whose evidence the proof contains shall then be subject to crossexamination on it to the same extent as if it were evidence he had given orally. (8)  The inspector may direct that facilities shall be made available to any person appearing at an inquiry to take or obtain copies of documentary evidence open to public inspection. (9)  The inspector may— (a) require any person appearing or present at an inquiry who, in his opinion, is behaving in a disruptive manner to leave; and (b) refuse to permit that person to return; or (c)

permit him to return only on such conditions as he may specify,

but any such person may submit to him any evidence or other matter in writing before the close of the inquiry. (10)  The inspector may allow any person to alter or add to a statement of case served under rule 6 so far as may be necessary for the purposes of the inquiry; but he shall (if necessary by adjourning the inquiry) give every other person entitled to appear who 525

Appendix 5 is appearing at the inquiry an adequate opportunity of considering any fresh matter or document. (11)  The inspector may proceed with an inquiry in the absence of any person entitled to appear at it. (12)  The inspector may take into account any written representation or evidence or other document received by him from any person before an inquiry opens or during the inquiry provided that he discloses it at the inquiry. (13)  The inspector may from time to time adjourn an inquiry and, if the date, time and place of the adjourned inquiry are announced at the inquiry before the adjournment, no further notice shall be required. (14)  Where the Secretary of State expects an inquiry to last for 4 days or more, any person who appears at the inquiry and makes closing submissions, shall before the close of the inquiry, provide the inspector with a copy of their closing submissions in writing. Site inspections 18.—(1)  The inspector may make an unaccompanied inspection of the land before or during an inquiry without giving notice of his intention to the persons entitled to appear at the inquiry. (2)  During an inquiry or after its close, the inspector— (a) may inspect the land in the company of the appellant, the local planning authority, any person with an interest in the land and, in the case of an enforcement appeal, any other person on whom a copy of the enforcement notice has been served; and (b) shall make such an inspection if so requested by the appellant or the local planning authority before or during an inquiry. (3)  In all cases where the inspector intends to make an accompanied site inspection he shall announce during the inquiry the date and time at which he proposes to make it. (4)  The inspector shall not be bound to defer an inspection of the kind referred to in paragraph (2) where any person mentioned in that paragraph is not present at the time appointed. Procedure after inquiry 19.—(1)  Where an assessor has been appointed, he may, after the close of the inquiry make a report in writing to the inspector in respect of the matters on which he was appointed to advise, and where he does so the inspector shall state in his notification of his decision pursuant to rule 20 that such a report was made. (2)  When making his decision the inspector may disregard any written representations or evidence or any other document received after the close of the inquiry. (3)  If, after the close of the inquiry, an inspector proposes to take into consideration any new evidence or any new matter of fact (not being a matter of government policy) which was not raised at the inquiry and which he considers to be material to his decision, he shall not come to a decision without first— 526

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 (a)

notifying the persons entitled to appear at the inquiry who appeared at it of the matter in question; and

(b) giving them an opportunity of making written representations to him or of asking for the re-opening of the inquiry, and they shall send such written representations or request to re-open the inquiry to the Secretary of State within 3 weeks of the date of the notification. (4)  An inspector may, as he thinks fit, cause an inquiry to be re-opened, and he shall do so if asked by the appellant or the local planning authority in the circumstances and within the period mentioned in paragraph (3); and where an inquiry is re-opened— (a) the inspector shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters with respect to which further evidence is invited; and (b) paragraphs (2)  to (7) of rule 9 shall apply as if references to an inquiry were references to a re-opened inquiry. Notification of decision 20.—(1) The inspector shall, as soon as practicable after reaching his decision, notify his decision on an appeal, and his reasons for it in writing to— (a)

the appellant and the local planning authority;

(b) all other persons entitled to appear at the inquiry who did appear; and (c)

any other person who, having appeared at the inquiry, has asked to be notified of the decision.

(1A)  Notification in writing of a decision and reasons shall be taken to have been given to a person for the purposes of this rule where— (a)

the Secretary of State and the person have agreed that decisions, reasons, and copies of reports required under this rule to be given in writing may instead be accessed by that person on a website;

(b) the decision and reasons are a decision and reasons to which that agreement applies; (c)

the Secretary of State has published the decision and reasons on a website;

(d) the person is notified, in a manner for the time being agreed between him and the Secretary of State, of— (i)

the publication of the decision and reasons on a website;

(ii) the address of the website; (iii) the place on the website where the decision and reasons may be accessed, and how they may be accessed. (2)  Any person entitled to be notified of the inspector’s decision under paragraph (1) may apply to the Secretary of State in writing for an opportunity to inspect any documents listed in the notification and any report made by an assessor and the Secretary of State shall give him that opportunity. (2A)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where that person is notified of— 527

Appendix 5 (a)

publication of the relevant documents on a website;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed.

(3)  Any application made pursuant to paragraph (2) shall be sent to the Secretary of State within 6 weeks of the date of the decision. Procedure following remitting of appeal 21.—(1) Where a decision of an inspector on an appeal for which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination, the Secretary of State— (a)

shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters on which further representations are invited in order for him to consider the appeal further;

(b) shall give those persons the opportunity of making written representations to him about those matters or asking for the re-opening of the inquiry; and (c)

may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector) and if he does so paragraphs (2)  to (8) of rule 9 shall apply as if the references to an inquiry were references to a re-opened inquiry.

(2) Those persons making representations or asking for the inquiry to be reopened under paragraph (1)(b) shall send such representations or requests to the Secretary of State within 3 weeks of the date of the written statement sent under paragraph (1)(a). Allowing further time 22.  The Secretary of State may at any time in any particular case allow further time for the taking of any step which is required or enabled to be taken by virtue of these Rules, and references in these Rules to a day by which, or period within which, any step is required or enabled to be taken shall be construed accordingly. Additional copies 23.—(1) The Secretary of State may at any time before the close of the inquiry request from any person entitled to appear additional copies of the following— (a)

a statement of case sent in accordance with rule 6;

(b) a proof of evidence sent in accordance with rule 15; (c) any other document or information sent to the Secretary of State before or during an inquiry, and may specify the time within which such copies should be sent to him. (2)  Any person so requested shall send the copies to the Secretary of State within the period specified. 528

TCP (Enforcement) (Determination by Inspectors) (England) Rules 2002 Sending of notices, etc 24.  Notices or documents required or authorised to be served, sent or supplied under these Rules may be served, sent or supplied— (a)

by post; or

(b) by using electronic communications to serve, send or supply the notice or document (as the case may be) to a person at such address as may for the time being be specified by the person for that purpose.’ Withdrawal of consent to use of electronic communications 24A. Where a person is no longer willing to accept the use of electronic communications for any purpose of these Rules which is capable of being carried out electronically, he shall give notice in writing— (a)

withdrawing any address notified to the Secretary of State or to a local planning authority for that purpose, or

(b)

revoking any agreement entered into with the Secretary of State or with a local planning authority for that purpose,

and such withdrawal or revocation shall be final and shall take effect on a date specified by the person in the notice but not less than seven days after the date on which the notice is given. Revocation and savings 25.—(1)  Subject to paragraph (2), the Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1992 (‘the 1992 Rules’) shall continue to apply to any local inquiry in England held for the purposes of— (a)

an enforcement appeal; or

(b) an appeal under section 195 of the Planning Act, which was made before 23rd December 2002. (2)  Where a decision of an inspector on an appeal to which the 1992 Rules applied is subsequently remitted by any court to the Secretary of State for rehearing and redetermination, the matter shall be redetermined in accordance with these Rules or the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002.

529

Appendix 6

The Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 (SI 2002/2686)

The Lord Chancellor, in exercise of the powers conferred upon him by section 9 of the Tribunals and Inquiries Act 1992 and of all other powers enabling him in that behalf, and after consultation with the Council on Tribunals, hereby makes the following Rules: Citation, commencement and extent 1.—(1)  These Rules may be cited as the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 and shall come into force on 23rd December 2002. (2)  These Rules extend to England only. Interpretation 2.—(1)  In these Rules— ‘assessor’ means a person appointed by the Secretary of State to sit with an inspector at an inquiry or re-opened inquiry to advise the inspector on such matters arising as the Secretary of State may specify; ‘certificate of lawful use or development’ means a certificate under section 191 or 192 of the Planning Act; ‘document’ includes a photograph, map or plan; ‘electronic communication’ has the meaning given in section 15(1) of the Electronic Communications Act 2000; ‘enforcement appeal’ means an appeal against an enforcement notice; ‘enforcement notice’ means a notice under section 172 of the Planning Act or under section 38 of the Listed Buildings Act; ‘inquiry’ means a local inquiry to which these Rules apply; ‘inspector’ means a person appointed by the Secretary of State to hold the relevant inquiry or re-opened inquiry; ‘land’ means the land or building to which an inquiry relates; ‘Listed Buildings Act’ means the Planning (Listed Buildings and Conservation Areas) Act 1990; 530

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 ‘Listed Buildings Act certificate of lawfulness’ means a certificate under section 26H of the Listed Buildings Act; ‘local planning authority’ means in relation to— (a) an enforcement appeal, the body who issued the relevant enforcement notice; (b) an appeal against the refusal or non-determination of an application for a certificate of lawful use or development, the body to whom the application was made; (c)

an appeal against the refusal or non-determination of an application for a Listed Buildings Act certificate of lawfulness, the body to whom that application was made;

‘outline statement’ means a written statement of the principal submissions which a person proposes to put forward at an inquiry; ‘Planning Act’ means the Town and Country Planning Act 1990; ‘pre-inquiry meeting’ means a meeting held before an inquiry to consider what may be done with a view to securing that the inquiry is conducted efficiently and expeditiously, and where two or more such meetings are held references to the conclusion of a pre-inquiry meeting are references to the conclusion of the final meeting; ‘questionnaire’ means a document in the form supplied by the Secretary of State to local planning authorities for the purpose of proceedings under these Rules ‘, and for this purpose a form is taken to be supplied where the Secretary of State has published it on a website and has notified the local planning authority of— (i)

publication of the form on the website,

(ii) the address of the website, and (iii) the place on the website where the form may be accessed, and how it may be accessed; ‘relevant notice’ means the Secretary of State’s written notice under rule 4(1)  informing the appellant and the local planning authority that an inquiry is to be held; ‘starting date’ means the date of the— (a)

Secretary of State’s written notice to the appellant and the local planning authority that he has received all the documents required to enable him to entertain the appeal pursuant to regulation 10 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002; or

(b) relevant notice, whichever is the later; ‘statement of case’ means, and is comprised of, a written statement which contains full particulars of the case which a person proposes to put forward at an inquiry, and a list of any documents which that person intends to refer to or put in evidence; 531

Appendix 6 ‘statement of common ground’ means a written statement prepared jointly by the local planning authority and the appellant, which contains agreed factual information about the development, breach of conditions or works which are the subject of the appeal. (2)  In these Rules, and in relation to the use of electronic communications for any purpose of these Rules which is capable of being carried out electronically— (a)

the expression ‘address’ includes any number or address used for the purposes of such communications, except that where these Rules impose an obligation on any person to provide a name and address to any other person, the obligation shall not be fulfilled unless the person on whom it is imposed provides a postal address;

(b)

references to statements, notices, summaries, applications, or other documents, or to copies of such documents, include references to such documents or copies of them in electronic form.

(3)  Paragraphs (4) to (8) apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in these Rules that an application, notice, or other document should be made, sent or given to any other person (‘the recipient’). (4)  The requirement shall be taken to be fulfilled where the application, notice, or other document or (in the case of an agreement) the text concluding the agreement which is transmitted by means of the electronic communication is— (a)

capable of being accessed by the recipient,

(b) legible in all material respects, and (c)

sufficiently permanent to be used for subsequent reference.

(5)  In paragraph  (4), ‘legible in all material respects’ means that the information contained in the notice or document is available to the recipient to no lesser extent than it would be if sent or given by means of a notice or document in printed form. (6) Where the electronic communication is received by the recipient outside the recipient’s business hours, it shall be taken to have been received on the next working day; and for this purpose ‘working day’ means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday. (7) A  requirement in these Rules that any notice or other document should be in writing is fulfilled where the document transmitted meets the criteria in paragraph (4), and ‘written’ and cognate expressions are to be construed accordingly. (8) A  requirement in these Rules to send more than one copy of a statement or other document may be complied with by sending one copy only of the statement or document in question. Application of the Rules 3.—(1)  These Rules apply in relation to any local inquiry caused by the Secretary of State to be held in England before he determines an appeal made on or after 23rd December 2002 under— (a)

section 174 of the Planning Act (appeal against enforcement notice);

(b)

section 195 of the Planning Act (appeal against refusal or non-determination of an application for a certificate of lawful use or development); 532

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (ba) section 26K of the Listed Buildings Act (appeal against a refusal or failure to give a decision on an application for a Listed Buildings Act certificate of lawfulness); (c) section 39 of the Listed Buildings Act (appeal against listed building enforcement notice), but do not apply to any local inquiry by reason of the application of any provision mentioned in this rule by or under any other enactment. (2)  Where these Rules apply in relation to an appeal which at some time fell to be disposed of in accordance with— (a)

the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002; or

(b) the Town and Country Planning (Enforcement)(Inquiries Procedure) Rules 1992, any step taken or thing done under those Rules which could have been done under any corresponding provision of these Rules shall have effect as if it had been taken or done under that corresponding provision. Preliminary information to be supplied by local planning authority 4.—(1)  The Secretary of State shall, as soon as practicable after it is determined to hold an inquiry under these Rules, inform the appellant and the local planning authority in writing that an inquiry is to be held. (2)  The local planning authority shall within 2 weeks of the starting date— (a)

send to the Secretary of State and the appellant a completed questionnaire and a copy of each of the documents referred to in it;

(b) in the case of an enforcement appeal, notify any— (i)

person on whom a copy of the enforcement notice has been served;

(ii) occupier of property in the locality in which the land to which the enforcement notice relates is situated; and (iii) other person who in the opinion of the local planning authority is affected by the breach of planning control or contravention of listed building control which is alleged in the enforcement notice, that an appeal has been made and of the address to which and of the period within which they may make representations to the Secretary of State. Notification of name of inspector 5.—(1)  The Secretary of State shall, subject to paragraph (2), notify the name of the inspector to every person entitled to appear at the inquiry. (2)  Where the Secretary of State appoints another inspector instead of the person previously appointed and it is not practicable to notify the new appointment before the inquiry is held, the inspector holding the inquiry shall, at its commencement, announce his name and the fact of his appointment. 533

Appendix 6 Procedure where pre-inquiry meeting is to be held 6.—(1)  The Secretary of State shall hold a pre-inquiry meeting— (a) if he expects an inquiry to last for 4 days or more, unless he considers it unnecessary; (b) for shorter inquiries, if it appears to him necessary. (2)  Where the Secretary of State decides to hold a pre-inquiry meeting the following provisions shall apply— (a) the Secretary of State shall send to the appellant and the local planning authority— (i)

notice of his intention to hold a pre-inquiry meeting; and

(ii) a statement of the matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal in question; (b) the local planning authority shall publish in a newspaper circulating in the locality in which the land is situated a notice of the Secretary of State’s intention to hold a pre-inquiry meeting and of the statement sent in accordance with paragraph (2)(a)(ii) above; and (c) the appellant and the local planning authority shall send 2 copies of their outline statement to the Secretary of State within 8 weeks of the starting date. (3)  The Secretary of State shall, as soon as practicable after receipt, send a copy of the local planning authority’s outline statement to the appellant and a copy of the appellant’s outline statement to the local planning authority. (4)  The Secretary of State may in writing require any other person who has notified him of an intention or a wish to appear at the inquiry to send an outline statement to him, the appellant and the local planning authority. (5)  A person required to send an outline statement under paragraph (4) shall send it to the Secretary of State, the appellant and the local planning authority within 4 weeks of the date on which the Secretary of State so requires. (6)  The pre-inquiry meeting (or where there is more than one, the first pre-inquiry meeting) shall be held within 16 weeks of the starting date. (7)  The Secretary of State shall give not less than 3 weeks written notice of the preinquiry meeting to— (a)

the appellant;

(b) the local planning authority; (c)

any person known at the date of the notice to be entitled to appear at the inquiry; and

(d) any other person whose presence at the pre-inquiry meeting appears to him to be desirable. (8)  Rule 11(6) shall apply to a pre-inquiry meeting as it does to the holding of an inquiry. (9)  The inspector— (a)

shall preside at the pre-inquiry meeting; 534

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (b) shall determine the matters to be discussed and the procedure to be followed; (c)

may require any person present at the pre-inquiry meeting who, in his opinion, is behaving in a disruptive manner to leave; and

(d) may refuse to permit that person to return to or attend any further pre-inquiry meeting, or may permit him to return or attend only on such conditions as he may specify. (10) Where a pre-inquiry meeting has been held pursuant to paragraph  (1), the inspector may hold a further pre-inquiry meeting and he shall arrange for such notice to be given of a further pre-inquiry meeting as appears to him necessary; and paragraph (9) shall apply to such a pre-inquiry meeting. (11)  If the Secretary of State requests any further information from the appellant or the local planning authority at the pre-inquiry meeting, they shall send— (a)

2 copies of it to him; and

(b) in the case of an enforcement appeal, a copy to any person on whom a copy of the enforcement notice has been served, within 4 weeks of the conclusion of the pre-inquiry meeting. (12) Where the Secretary of State receives further information pursuant to paragraph (11) he shall, as soon as practicable after receipt— (a)

send a copy of such further information received from the appellant to the local planning authority; and

(b) send a copy of such further information received from the local planning authority to the appellant. Statement of matters 7.  The Secretary of State may, before an inquiry is held, serve on the local planning authority, the appellant, any person required to serve a statement of case pursuant to rule 8(6)  and, in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served, a written statement of the matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal. Service of statements of case, etc 8.—(1)  The local planning authority shall— (a)

within 6 weeks of the starting date, or

(b) where a pre-inquiry meeting is held pursuant to rule 6, within 4 weeks of the conclusion of that pre-inquiry meeting, serve 2 copies of their statement of case on the Secretary of State and, in the case of an enforcement appeal, a copy on any person on whom a copy of the enforcement notice has been served. (2)  The local planning authority shall include in their statement of case details of the time and place where the opportunity will be given to inspect and take copies described in paragraph (13) (and including, in any case in which the local planning authority rely on paragraph (13A), the details mentioned in that paragraph). 535

Appendix 6 (3)  The appellant shall— (a)

in the case of an appeal where no pre-inquiry meeting is held, within 6 weeks of the starting date, or

(b) in any case where a pre-inquiry meeting is held, within 4 weeks of the conclusion of that pre-inquiry meeting, serve 2 copies of his statement of case on the Secretary of State and, in the case of an enforcement appeal, a copy on any person on whom a copy of the enforcement notice has been served. (4)  The Secretary of State shall, as soon as practicable after receipt, send a copy of the local planning authority’s statement of case to the appellant and a copy of the appellant’s statement of case to the local planning authority. (5)  The appellant and the local planning authority may in writing each require the other to send them a copy of any document, or the relevant part of any document, referred to in the list of documents comprised in that party’s statement of case; and any such document, or relevant part, shall be sent, as soon as practicable, to the party who required it. (6)  The Secretary of State may in writing require any other person, who has notified him of an intention or a wish to appear at the inquiry, to serve— (a)

3 copies of their statement of case on him within 4 weeks of being so required; and

(b)

in the case of an enforcement appeal, simultaneously, a copy of their statement of case on any person specified by the Secretary of State,

and the Secretary of State shall, as soon as practicable after receipt, send a copy of each such statement of case to the local planning authority and to the appellant. (7)  The Secretary of State shall, as soon as practicable— (a) send to any person from whom he requires a statement of case in accordance with paragraph (6)  a copy of the statements of case of the appellant and the local planning authority; and (b) inform that person of the name and address of every person to whom his statement of case is required to be sent. (8)  The Secretary of State or the inspector may in writing require any person, who has served on him a statement of case in accordance with this rule, to provide such further information about the matters contained in the statement of case as he may specify and may specify the time within which the information shall be sent to him. (9)  A local planning authority or appellant required to provide further information, shall send within the time specified— (a)

2 copies of that information in writing to the Secretary of State or, as the case may be, the inspector; and

(b) in the case of an enforcement appeal, a copy to any person on whom a copy of the enforcement notice has been served, and the Secretary of State or, as the case may be, the inspector, shall, as soon as practicable after receipt, send a copy of the further information received from the local planning authority to the appellant and a copy of the further information received from the appellant to the local planning authority. 536

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (10)  Any other person required to provide further information shall send within the time specified— (a)

3 copies of that information in writing to the Secretary of State or, as the case may be, the inspector; and

(b) in the case of an enforcement appeal, a copy to any person on whom a copy of the enforcement notice has been served, and the Secretary of State or, as the case may be, the inspector, shall, as soon as practicable after receipt, send a copy of the further information to the local planning authority and the appellant. (11) Any person other than the appellant who serves a statement of case on the Secretary of State shall send with it a copy of— (a)

any document; or

(b) the relevant part of any document, referred to in the list comprised in that statement, unless a copy of the document or part of the document in question is already available for inspection pursuant to paragraph (13). (12)  Unless he has already done so, the Secretary of State shall, within 12 weeks of the starting date, send a written statement of the matters referred to in rule 6(2)(a) (ii) to— (a)

the appellant;

(b) the local planning authority; (c) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served; and (d) any person from whom he has required a statement of case. (13)  The local planning authority shall give any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of— (a)

any statement of case, written comments, further information or other document a copy of which has been sent to the local planning authority in accordance with this rule; and

(b) the local planning authority’s completed questionnaire and statement of case together with a copy of any document, or of the relevant part of any document, referred to in the list comprised in that statement, and any written comments, information or other documents sent by the local planning authority pursuant to this rule. (13A)  For the purposes of the previous paragraph an opportunity shall be taken to have been given to a person where the person is notified of— (a)

publication on a website of the documents mentioned in that paragraph;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed.

(14)  If the local planning authority or the appellant wish to comment on another person’s statement of case, they shall send within 9 weeks of the starting date— 537

Appendix 6 (a)

2 copies of their written comments to the Secretary of State; and

(b) in the case of an enforcement appeal, a copy of their written comments to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the written comments received from the appellant to the local planning authority and a copy of the written comments received from the local planning authority to the appellant. (15)  Any person, other than the local planning authority or the appellant, who serves a statement of case on the Secretary of State under this rule and who wishes to comment on another person’s statement of case, shall send, not less than 4 weeks before the date fixed for the holding of the inquiry— (a)

3 copies of their written comments to the Secretary of State; and

(b) in the case of an enforcement appeal, a copy of their written comments to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of the written comments to the local planning authority and to the appellant. (16)  The Secretary of State shall, as soon as practicable after receipt, send to the inspector any statement of case, document or further information or written comments sent to him in accordance with this rule and sent to him within the relevant period, if any, specified in this rule. Further power of inspector to hold pre-inquiry meetings 9.—(1)  Where no pre-inquiry meeting is held pursuant to rule 6, an inspector may hold one if he thinks it necessary. (2) An inspector shall give not less than 2 weeks written notice of a pre-inquiry meeting he proposes to hold under paragraph (1) to— (a)

the appellant;

(b) the local planning authority; (c)

any person known at the date of the notice to be entitled to appear at the inquiry; and

(d) any other person whose presence at the pre-inquiry meeting appears to him to be desirable. (3)  Rule 11(6) shall apply to a pre-inquiry meeting held under this rule. Inquiry timetable 10.—(1)  The inspector shall prepare a timetable for the proceedings at, or at part of, an inquiry where— (a)

a pre-inquiry meeting is held; or

(b) it appears to the Secretary of State likely that an inquiry will last for 4 days or more. 538

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (2)  In respect of shorter inquiries or those where no pre-inquiry meeting is held the inspector may at any time prepare a timetable for the proceedings at, or at part of, an inquiry. (3)  The inspector may, at any time, vary the timetable prepared under the preceding paragraphs. (4)  The inspector may specify in a timetable prepared under this rule a date by which any proof of evidence and summary sent in accordance with rule 16(1) shall be sent to the Secretary of State. Date and notification of inquiry 11.—(1)  The date fixed by the Secretary of State for the holding of an inquiry shall be, unless he considers such a date impracticable, not later than— (a)

subject to paragraph (b), 22 weeks after the starting date; or

(b) in a case where a pre-inquiry meeting is held, 8 weeks after the conclusion of that meeting. (2)  Where the Secretary of State considers it impracticable to fix a date in accordance with paragraph (1), the date fixed shall be the earliest date after the end of the relevant period mentioned in that paragraph which he considers to be practicable. (3)  Unless the Secretary of State agrees a lesser period of notice with the appellant and the local planning authority, he shall give not less than 4 weeks written notice of the date, time and place fixed by him for the holding of an inquiry to every person entitled to appear at the inquiry. (3A)  A written notice shall be taken to have been given by the Secretary of State for the purposes of paragraph  (3) where he and any person entitled to appear at the inquiry have agreed that notice of the matters mentioned in that paragraph may instead be accessed by that person via a website, and— (a)

the notice is a notice to which that agreement applies;

(b) the Secretary of State has published that notice on the website; (c) not less than 4 weeks before the date fixed by the Secretary of State for the holding of the inquiry, the person is notified of— (i)

the publication of the notice on a website,

(ii) the address of the website, and (iii) the place on the website where the notice may be accessed, and how it may be accessed. (4)  The Secretary of State may vary the date fixed for the holding of an inquiry, whether or not the date as varied is within the relevant period mentioned in paragraph (1); and paragraphs (3) and (3A) shall apply to a variation of the date as it applied to the date originally fixed. (5)  The Secretary of State may vary the time or place for the holding of an inquiry and shall give such notice as appears to him to be reasonable. (6)  The Secretary of State may in writing require the local planning authority to take one or more of the following steps— 539

Appendix 6 (a) not less than 2 weeks before the date fixed for the holding of an inquiry, to publish a notice of the inquiry in one or more newspapers circulating in the locality in which the land is situated; (b) to send a notice of the inquiry to such persons or classes of persons as he may specify, within such period as he may specify; or (c) to post a notice of the inquiry in a conspicuous place near to the land, within such period as he may specify. (7)  Where the land is under the control of the appellant, he shall— (a)

if so required in writing by the Secretary of State, affix a notice of the inquiry firmly to the land or to some object on or near the land, in such manner as to be readily visible to and legible by members of the public; and

(b) not remove the notice, or cause or permit it to be removed, for such period before the inquiry as the Secretary of State may specify. (8)  Every notice of inquiry published, sent or posted pursuant to paragraph (6), or affixed pursuant to paragraph (7), shall contain— (a) a clear statement of the date, time and place of the inquiry and of the powers enabling the Secretary of State to determine the appeal in question; (b)

a written description of the land sufficient to identify approximately its location;

(c)

a brief description of the subject matter of the appeal; and

(d) details of where and when copies of the local planning authority’s completed questionnaire and any document sent by and copied to the authority pursuant to rule 8 may be inspected. Notification of appointment of assessor 12.  Where the Secretary of State appoints an assessor he shall notify every person entitled to appear at the inquiry of the name of the assessor and of the matters on which he is to advise the inspector. Appearances at inquiry 13.—(1)  The persons entitled to appear at the inquiry are— (a)

the appellant;

(b) the local planning authority; (c)

any of the following bodies if the land is situated in their area and they are not the local planning authority— (i)

a county or a district council;

(ii) an enterprise zone authority designated under Schedule 32 to the Local Government, Planning and Land Act 1980; (iii) the Broads Authority, within the meaning of the Norfolk and Suffolk Broads Act 1988; (iv) a housing action trust specified in an order made under section 67(1)  of the Housing Act 1988; 540

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (d) where the land is in an area previously designated as a new town, the Homes and Communities Agency; (e) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served; (f)

in the case of an appeal under section 195 of the Planning Act or an appeal under section 26K of the Listed Buildings Act, any person having an interest in the land;

(g) the Historic Buildings and Monuments Commission for England where— (i)

the inquiry relates to an enforcement notice under section 38 of the Listed Buildings Act;

(ii) the listed building is in Greater London; and (iii) if an application for listed building consent had been made for the works set out in the enforcement notice, the Commission would have been notified of the application under a direction given under section 15(5)  of the Listed Buildings Act; (h) any other person who has served a statement of case in accordance with rule 8(6)  or who has sent an outline statement in accordance with rule 6(4). (2)  Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at an inquiry and such permission shall not be unreasonably withheld. (3)  Any person entitled or permitted to appear may do so on his own behalf or be represented by any other person. Information to be provided by all parties 14.  Any person entitled or permitted to appear at the inquiry, who proposes to give, or call another person to give evidence at the inquiry, shall send in writing to the Secretary of State no later than 4 weeks before the inquiry— (a)

an estimate of the time required to present all their evidence; and

(b) the number of witnesses that they intend to call to give evidence. Representatives of government departments at inquiry 15.—(1)  Where the Secretary of State or any other Minister of the Crown or any government department has expressed in writing to the local planning authority a view on an appeal and the authority refer to that view in a statement prepared pursuant to rule 8(1), the appellant may, not later than 4 weeks before the date of an inquiry, apply in writing to the Secretary of State for a representative of the Secretary of State or of the other Minister or department concerned to be made available at the inquiry. (2)  Where an application is made in accordance with paragraph (1), the Secretary of State shall make a representative available to attend the inquiry or, as the case may be, send the application to the other Minister or department concerned, who shall make a representative available to attend the inquiry. 541

Appendix 6 (3)  A person attending an inquiry as a representative pursuant to this rule shall state the reasons for the expressed view and shall give evidence and be subject to crossexamination to the same extent as any other witness. (4)  Nothing in paragraph (3) shall require a representative of a Minister or government department to answer any question which, in the opinion of the inspector, is directed to the merits of government policy. Proofs of evidence 16.—(1) Any person entitled to appear at an inquiry who proposes to give, or to call another person to give, evidence at the inquiry by reading a proof of evidence, shall— (a) subject to paragraph  (2), send 2 copies, in the case of the local planning authority and the appellant, or 3 copies in the case of any other person, of the proof of evidence together with a written summary, to the Secretary of State; and (b) in the case of an enforcement appeal, simultaneously send copies of these to any person on whom a copy of the enforcement notice has been served, and the Secretary of State shall, as soon as practicable after receipt, send a copy of each proof of evidence together with any summary to the local planning authority and the appellant. (2)  No written summary shall be required where the proof of evidence proposed to be read contains no more than 1500 words. (3)  The proof of evidence and any summary shall be sent to the Secretary of State no later than— (a)

4 weeks before the date fixed for the holding of the inquiry, or

(b) where a timetable has been prepared pursuant to rule 10 which specifies a date by which the proof of evidence and any summary shall be sent to the Secretary of State, that date. (4)  The Secretary of State shall send to the inspector, as soon as practicable after receipt, any proof of evidence together with any summary sent to him pursuant to this rule within the relevant period, specified in this rule. (5)  Where a written summary is provided in accordance with paragraph  (1), only that summary shall be read at the inquiry, unless the inspector permits or requires otherwise. (6)  Any person, required by this rule to send copies of a proof of evidence to the Secretary of State, or any other person, shall send with them the same number of copies of the whole, or the relevant part, of any document referred to in the proof of evidence, unless a copy of the document or part of the document in question is already available for inspection pursuant to rule 8(13). (7)  The local planning authority shall give any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any document sent to or by them in accordance with this rule. (8)  For the purposes of the previous paragraph an opportunity is to be taken to have been given to a person where the person is notified of— 542

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (a)

publication of the relevant document on a website,

(b) the address of the website, (c)

the place on the website where the document may be accessed, and how it may be accessed.

Statement of common ground 17.—(1)  The local planning authority and the appellant shall together prepare an agreed statement of common ground and shall send it to— (a)

the Secretary of State; and

(b) in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served, not less than 4 weeks before the date fixed for the holding of the inquiry. (2) The local planning authority shall give any person who asks, a reasonable opportunity to inspect, and where practicable, take copies of the statement of common ground sent to the Secretary of State. (3)  For the purposes of the previous paragraph an opportunity is to be taken to have been given to a person where the person is notified of— (a)

publication of the statement of common ground on a website,

(b) the address of the website, (c)

the place on the website where the document may be accessed, and how it may be accessed.

Procedure at inquiry 18.—(1)  Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry. (2)  At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. (3) Nothing in paragraph  (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph. (4)  Unless the inspector otherwise determines, the appellant shall begin and shall have the right of final reply; and the other persons entitled or permitted to appear shall be heard in such order as the inspector may determine. (5)  A person entitled to appear at an inquiry shall be entitled to call evidence and the appellant, the local planning authority and, in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served shall be entitled to cross-examine persons giving evidence, but, subject to the foregoing and paragraphs (6) and (7), the calling of evidence and the cross-examination of persons giving evidence shall otherwise be at the discretion of the inspector. (6)  The inspector may refuse to permit the— 543

Appendix 6 (a)

giving or production of evidence;

(b) cross-examination of persons giving evidence; or (c)

presentation of any matter,

which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the inquiry. (7)  Where a person gives evidence at an inquiry by reading a summary of his proof of evidence in accordance with rule 16(5)— (a)

the proof of evidence referred to in rule 16(1)  shall then be treated as tendered in evidence, unless the person required to provide the summary notifies the inspector that he now wishes to rely on the contents of that summary alone; and

(b) the person whose evidence the proof contains shall be subject to crossexamination on it to the same extent as if it were evidence he had given orally. (8)  The inspector may direct that facilities shall be made available to any person appearing at an inquiry to take or obtain copies of documentary evidence open to public inspection. (9)  The inspector may— (a) require any person appearing or present at an inquiry who, in his opinion, is behaving in a disruptive manner to leave; and (b) refuse to permit that person to return; or (c)

permit him to return only on such conditions as he may specify,

but any such person may submit to him any evidence or other matter in writing before the close of the inquiry. (10)  The inspector may allow any person to alter or add to a statement of case served under rule 8 so far as may be necessary for the purposes of the inquiry; but he shall (if necessary by adjourning the inquiry) give every other person entitled to appear who is appearing at the inquiry an adequate opportunity of considering any fresh matter or document. (11)  The inspector may proceed with an inquiry in the absence of any person entitled to appear at it. (12)  The inspector may take into account any written representation or evidence or other document received by him from any person before an inquiry opens or during the inquiry provided that he discloses it at the inquiry. (13)  The inspector may from time to time adjourn an inquiry and, if the date, time and place of the adjourned inquiry are announced at the inquiry before the adjournment, no further notice shall be required. (14)  Where the Secretary of State expects the inquiry to last for 4 days or more, any person who appears at the inquiry and makes closing submissions, shall before the close of the inquiry, provide the inspector with a copy of their closing submissions in writing. Site inspections 19.—(1)  The inspector may make an unaccompanied inspection of the land before or during an inquiry without giving notice of his intention to the persons entitled to appear at the inquiry. 544

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (2)  During an inquiry or after its close, the inspector— (a) may inspect the land in the company of the appellant, the local planning authority, any person with an interest in the land and, in the case of an enforcement appeal, any person on whom a copy of the enforcement notice has been served; and (b) shall make such an inspection if so requested by the appellant or the local planning authority before or during an inquiry. (3)  In all cases where the inspector intends to make an accompanied site inspection he shall announce during the inquiry the date and time at which he proposes to make it. (4)  The inspector shall not be bound to defer an inspection of the kind referred to in paragraph (2) where any person mentioned in that paragraph is not present at the time appointed. Procedure after inquiry 20.—(1)  After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations. (2)  Where an assessor has been appointed, he may, after the close of the inquiry, make a report in writing to the inspector in respect of the matters on which he was appointed to advise. (3)  Where an assessor makes a report in accordance with paragraph (2), the inspector shall append it to his own report and shall state in his own report how far he agrees or disagrees with the assessor’s report and, where he disagrees with the assessor, his reasons for that disagreement. (4) When making his decision the Secretary of State may disregard any written representations, evidence or any other document received after the close of the inquiry. (5)  If, after the close of an inquiry, the Secretary of State— (a)

differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or

(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it. (6)  Any person notified under paragraph (5) shall be given the opportunity to make written representations to the Secretary of State or (if he has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) to ask for the re-opening of the inquiry. (7)  Those persons making written representations or requesting the inquiry to be re-opened under paragraph  (6) shall send such representations or requests to the 545

Appendix 6 Secretary of State within 3 weeks of the date of the Secretary of State’s notification under that paragraph. (8)  The Secretary of State may, as he thinks fit, cause an inquiry to be re-opened, and he shall do so if asked by the appellant or the local planning authority in the circumstances mentioned in paragraph  (6) and within the period mentioned in paragraph (7). (9)  Where an inquiry is re-opened under this rule (whether by the same or a different inspector)— (a)

the Secretary of State shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters on which further evidence is invited; and

(b) paragraph (3)  to (8) of rule 11 shall apply as if references to an inquiry were references to a re-opened inquiry. Notification of decision 21.—(1) The Secretary of State shall, as soon as practicable after reaching his decision, notify his decision on an appeal, and his reasons for it in writing to— (a)

the appellant and the local planning authority;

(b) all other persons entitled to appear at the inquiry who did appear; and (c)

any other person who, having appeared at the inquiry, has asked to be notified of the decision.

(1A)  Notification of a decision and reasons is to be taken to have been given to a person for the purposes of this rule where— (a) the Secretary of State and the person have agreed that decisions and reasons required under this rule to be given in writing may instead be accessed by that person on a website; (b) the decision and reasons are a decision and reasons to which that agreement applies; (c)

the Secretary of State has published the decision and reasons on a website;

(d) the person is notified, in a manner for the time being agreed between him and the Secretary of State, of— (i)

the publication of the decision and reasons on a website;

(ii) the address of the website; (iii) the place on the website where the decision and reasons may be accessed, and how they may be accessed. (2)  Where a copy of the inspector’s report is not sent with the notification of the decision or published on a website in accordance with paragraph (1A), the notification shall be accompanied by a statement of his conclusions and of any recommendations made by him, and if a person entitled to be notified of the decision has not received a copy of that report, he shall be supplied with a copy of it on written application to the Secretary of State. 546

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (3)  In this rule ‘report’ includes any assessor’s report appended to the inspector’s report but does not include any other documents so appended; but any person who has received a copy of the report may apply to the Secretary of State in writing, within 6 weeks of the date of the Secretary of State’s decision, for an opportunity of inspecting any such documents and the Secretary of State shall give him that opportunity. (3A)  For the purposes of the previous paragraph an opportunity is to be taken to have been afforded to a person where that person is notified of— (a)

publication of the relevant documents on a website;

(b) the address of the website; (c)

the place on the website where the documents may be accessed, and how they may be accessed.

(4) Any person applying to the Secretary of State under paragraph  (2) shall send his application to the Secretary of State within 4 weeks of the Secretary of State’s determination. Procedure following remitting of appeal 22.—(1)  Where an appeal in respect of which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination, the Secretary of State— (a)

shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters on which further representations are invited in order for him to consider the appeal further;

(b) shall give those persons the opportunity of making written representations to him about those matters or asking for the re-opening of the inquiry; and (c) may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector) and if he does so paragraphs (3)  to (8) of rule 11 shall apply as if the references to an inquiry were references to a re-opened inquiry. (2)  Those persons making representations or asking for the inquiry to be re-opened under paragraph (1)(b) shall send such representations or requests to the Secretary of State within 3 weeks of the date of the written statement sent under paragraph (1)(a). Allowing further time 23.  The Secretary of State may at any time in any particular case allow further time for the taking of any step which is required or enabled to be taken by virtue of these Rules, and references in these Rules to a day by which, or period within which, any step is required or enabled to be taken shall be construed accordingly. Additional copies 24.—(1) The Secretary of State may at any time before the close of the inquiry request from any person entitled to appear additional copies of the following— (a)

an outline statement sent in accordance with rule 6;

(b) a statement of case or comments sent in accordance with rule 8; 547

Appendix 6 (c)

a proof of evidence sent in accordance with rule 16;

(d) any other document or information sent to the Secretary of State before or during an inquiry, and may specify the time within which such copies should be sent to him. (2)  Any person so requested shall send the copies to the Secretary of State within the period specified. Sending of notices, etc 25.  Notices or documents required or authorised to be served, sent or supplied under these Rules may be served, sent or supplied— (a)

by post; or

(b) by using electronic communications to serve, send or supply the notice or document (as the case may be) to a person at such address as may for the time being be specified by the person for that purpose. Withdrawal of consent to use of electronic communications 25A. Where a person is no longer willing to accept the use of electronic communications for any purpose of these Rules which is capable of being effected electronically, he shall give notice in writing— (a)

withdrawing any address notified to the Secretary of State or to a local planning authority for that purpose, or

(b)

revoking any agreement entered into with the Secretary of State or with a local planning authority for that purpose,

and such withdrawal or revocation shall be final and shall take effect on a date specified by the person in the notice but not less than seven days after the date on which the notice is given. Modifications where national security direction given 25B. The modifications set out in the Schedule shall have effect where a direction is given by the Secretary of State under— (a) section 321(3)  of the Planning Act (planning inquiries to be held in public subject to certain exceptions); or (b) paragraph  6(6)  of Schedule  3 to the Listed Buildings Act (determination of certain appeals by person appointed by the Secretary of State). Revocation, saving and transitional provisions 26.—(1)  Subject to paragraphs (2), (3) and rule 25 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, the Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1992 (‘the 1992 Rules’) are hereby revoked in relation to England. (2)  The 1992 Rules shall continue to apply to any local inquiry held for the purposes of— 548

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (a)

an enforcement appeal; or

(b) an appeal under section 195 of the Planning Act, made before 23rd December 2002. (3)  Where an appeal to which the 1992 Rules applied is subsequently remitted by any court to the Secretary of State for rehearing and redetermination, the matter shall be redetermined in accordance with these Rules. SCHEDULE MODIFICATIONS WHERE NATIONAL SECURITY DIRECTION GIVEN Interpretation 1.  In rule 2(1)— (a)

before the definition of “assessor” insert— ‘“appointed representative” means a person appointed under— (a)

section 321(5)  or (6) of the Planning Act; or

(b) paragraph 6(6)  of Schedule 3 to the Listed Buildings Act;’; (b) after the definition of “certificate of lawful use or development” insert— ‘“closed evidence” means evidence which is subject to a security direction;’; (c)

after the definition of ‘relevant notice’ insert— ‘“security direction” means a direction given by the Secretary of State under— (a)

section 321(3)  of the Planning Act (matters related to national security); or

(b)

paragraph 6(6)  of Schedule 3 to the Listed Buildings Act (matters related to national security);’; and

(d) in the definition of “statement of common ground” after “local planning authority” insert “, or appointed representative, as the case may be,”. Procedure where pre-inquiry meeting is to be held 2.  In rule 6— (a)

for paragraph (3)  substitute— ‘(3)  The Secretary of State shall, as soon as practicable after receipt, send a copy of the local planning authority’s outline statement to the appellant, a copy of the appellant’s outline statement to the appointed representative and a copy of the appellant’s open outline statement to the local planning authority. (3A) In this rule “open outline statement” means such part (if any) of an outline statement as does not include or refer to closed evidence.’;

(b)

in paragraph (4)  after ‘statement to him’ insert ‘and the open outline statement to’; 549

Appendix 6 (c)

in paragraph (5)  after ‘outline’ insert ‘, or outline open,’; and

(d) after paragraph (5)  insert— ‘(5A)  The Secretary of State shall, as soon as practicable after receipt, send a copy of any outline statement received in accordance with paragraph (4) to the appointed representative.’. Service of statements of case etc 3.  In rule 8— (a) in paragraph  (3) for ‘copy on any person’ substitute ‘copy of their open statement on any person’; (b) in paragraph  (4) for ‘statement of case to the local planning authority’ substitute ‘open statement to the local planning authority’; (c)

in paragraph (6)— (i)

in sub-paragraph (b) for ‘statement of case’ substitute ‘open statement’;

(ii) for ‘send a copy of each such statement of case’ substitute ‘send a copy of any open statement received by him in accordance with sub-paragraph (a)’; (d) in paragraph (7)— (i)

in sub-paragraph (a) for ‘statements of case of the appellant and the local planning authority’ substitute ‘open statement of the appellant and the statement of case of the local planning authority’;

(ii) in sub-paragraph (b) for ‘statement of case’ substitute ‘open statement’; (e)

in paragraph (16)  after ‘inspector’ insert ‘and appointed representative’; and

(f)

after paragraph (16)  insert— ‘(17)  For the purposes of this rule “open statement” means such part (if any) of a statement of case as does not include or refer to closed evidence.’.

Appearances at inquiry 4.  In rule 13(1)  after sub-paragraph (a) insert— ‘(aa)

the appointed representative;’.

Proofs of evidence 5.  In rule 16— (a) in paragraph  (1) for “Any person” substitute “Subject to rule (1A), any person”; (b) after paragraph (1)  insert— ‘(1A)  Paragraph (1B) applies where the proof of evidence includes or refers to closed evidence. (1B)  Where this paragraph applies, any person entitled to appear at an inquiry, who proposes to give, or to call another person to give evidence at the inquiry by reading a proof of evidence, shall— 550

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (a)

send to the Secretary of State 2 copies, in the case of the local planning authority and the appellant, or 3 copies in the case of any other person, of— (i)

the proof of evidence including closed evidence together with any written summary of it;

(ii)

the proof of evidence excluding closed evidence (“the open proof”) together with any written summary of it; and

(b) simultaneously send copies of the open proof and any written summary of it to any statutory party, and the Secretary of State shall, as soon as practicable after receipt, send a copy of each open proof together with any written summary of it to the local planning authority and the appellant.’; (c)

in paragraph after ‘inspector’ insert ‘and appointed representative’; and

(d) in paragraph (5)  after ‘paragraph (1)’ insert ‘or (1B)’. Statement of common ground 6.  In rule 17— (a) in paragraph (1)  after ‘ground’ insert ‘insofar as it does not relate to closed evidence’; and (b) after paragraph (3)  insert— ‘(4)  Where the appeal is made by or on behalf of the Crown, the appointed representative and the appellant shall— (a) together prepare an agreed statement of common ground insofar as it relates to closed evidence; and (b)

ensure that the Secretary of State receives it not less than 4 weeks before the date fixed for the holding of the inquiry.’.

Site inspections 7.  In rule 19— (a)

in paragraph (1)  for ‘The inspector’ substitute “Subject to paragraph (1A), the inspector”;

(b) after paragraph (1)  insert— ‘(1A)  Paragraph  (1) does not apply where a site inspection will involve the inspection of closed evidence.’; (c)

in paragraph (2)  for ‘During’ substitute ‘Subject to paragraph (2A), during’;

(d) after paragraph (2)  insert— ‘(2A) Where an accompanied site inspection will involve the inspection of closed evidence, paragraph (2) does not apply and the inspector— (a)

may inspect the land in the company of the appellant and the appointed representative, where one has been appointed; and 551

Appendix 6 (b) shall make such an inspection if so requested by the appellant or the appointed representative before or during an inquiry.’; and (e)

in paragraph (4)  after ‘paragraph (2)’ insert ‘or (2A)’.

Procedure after inquiry 8.  In rule 20— (a)

after paragraph (3)  insert— ‘(3A)  Where closed evidence was considered at the inquiry— (a)

the inspector and assessor, where one has been appointed, shall set out in a separate part (“the closed part”) of their reports any description of that evidence together with any conclusions or recommendations in relation to that evidence; and

(b) where an assessor has been appointed, the inspector shall append the closed part of the assessor’s report to the closed part of his own report and shall state in the closed part of his own report how far he agrees or disagrees with the closed part of the assessor’s report and, where he disagrees with the assessor, his reasons for that disagreement.”; (b) at the beginning of paragraph (5)  insert “Subject to paragraph (5A)”; and (c)

after paragraph (5)  insert— ‘(5A)  Where the Secretary of State differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector in relation to closed evidence, the notification referred to in paragraph (5) shall include the reasons for the Secretary of State’s disagreement unless— (a) the notification is addressed to a person who is neither the appointed representative nor any person specified, or of a description specified, in the security direction; and (b)

inclusion of the reasons would disclose any part of the closed evidence.’.

Notification of decision 9.  In rule 21— (a) in paragraph  (1) for ‘The Secretary of State’ substitute ‘Subject to paragraph (1B), the Secretary of State’; (b) after paragraph (1A)  insert— ‘(1B)  Where the Secretary of State’s reasons for a decision relate to matters in respect of which closed evidence has been given, nothing in paragraph (1) requires the Secretary of State to notify those reasons to any person other than— (a)

the appointed representative; or

(b) a person specified, or of any description specified, in the security direction.’; 552

TCP (Enforcement) (Inquiries Procedure) (England) Rules 2002 (c) in paragraph  (2)  for ‘Where a copy” substitute “Subject to paragraph  (2A), where a copy”; and (d) after paragraph (2)  insert— ‘(2A)  Nothing in paragraph (2) requires the disclosure of any closed evidence to a person other than— (a)

the appointed representative; or

(b) a person specified, or of any description specified, in the security direction.’. Procedure following remitting of appeal 10.  In rule 22— (a) at the beginning of sub-paragraph (a) of paragraph  (1) insert “subject to paragraph (1A)”; and (b) after paragraph (1)  insert— ‘1A) Where the matters referred to in paragraph (1)(a) will involve consideration of closed evidence, the Secretary of State shall only send the written statement to— (a)

the appointed representative; and

(b) a person specified, or of any description specified, in the security direction.”. Closed evidence not to be disclosed 11.  After rule 25A insert— ‘Closed evidence not to be disclosed 25B. Nothing in these Rules shall be taken to require or permit closed evidence to be disclosed to a person other than— (a)

the Secretary of State;

(b) the appointed representative; or (c)

a person specified, or of any description specified, in the security direction.’

553

Appendix 7

Model Forms

MODEL PLANNING CONTRAVENTION NOTICE Important – This Communication Affects Your Property Town and Country Planning Act 1990 (As amended by the Planning and Compensation Act 1991) Planning Contravention Notice SERVED BY: [name of Council] To: [Name[s] of those thought to be owner[s] or occupier[s] of land or person[s] having any other interest in it] [Name[s] of person[s] thought to be responsible for a possible breach of planning control] 1.  THIS NOTICE is served by the Council because it appears to them that there may have been a breach of planning control, within section 171A(1) of the above Act, at the land described below. It is served on you as a person who appears to be the owner or occupier of the land or has another interest in it, or who is carrying out operations in, on, over or under the land or is using it for any purpose. The Council require you, in exercise of their powers under section 171C(2) and (3), so far as you are able, to provide certain information about interest in, and activities on, the land. 2.  THE LAND TO WHICH THE NOTICE RELATES The land at [address or description of land], shown edged [a distinctive colour] on the attached plan. 3.  THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING CONTROL [Without planning permission] [Specify the suspected breach of planning control] [The failure to comply with a condition or limitation] 4.  WHAT YOU ARE REQUIRED TO DO Provide in writing, the following information: [Specify the information required, having regard to the terms of section 171C(2) and (3)] (1) (2) (3) etc 554

Model Forms Time within which the information must be provided: within twenty-one days, beginning with the day on which this notice is served on you: 5.  OPPORTUNITY TO MAKE REPRESENTATIONS IN RESPONSE TO NOTICE If you wish to make an offer to apply for planning permission, or to stop carrying out any operations or activities, or to undertake remedial works; or to make any representations about this notice, the Council, or representatives of the Council, will consider them on [date and time] at [address where the person served with the notice may be heard] where you will be able to make any offer or representations in person at that time and place. 6.  WARNING It is an offence to fail, without reasonable excuse, to comply with any requirements of this notice within twenty-one days beginning with the day on which it was served on you. The maximum penalty on conviction of this offence is a fine of [level 3 on the standard scale]. Continuing failure to comply following a conviction will constitute a further offence. It is also an offence knowingly or recklessly to give information, in response to this notice, which is false or misleading in a material particular. The maximum penalty on conviction of this offence is an unlimited fine. 7.  ADDITIONAL INFORMATION If you fail to respond to this notice, the Council may take further action to deal with the suspected breach of planning control. In particular, they may issue an enforcement notice, under section 172 of the 1990 Act, requiring the breach, or any injury to amenity caused by it, to be remedied. [Add any other ‘likely consequences’, in accordance with section 171C(5)(a), if appropriate.] If the Council serve a stop notice, under section 183 of the 1990 Act, section 186(5) (b) of the 1990 Act provides that should you otherwise become entitled (under section 186) to compensation for loss or damage attributable to that notice, no such compensation will be payable in respect of any loss or damage which could have been avoided had you given the Council the information required by this notice, or had you otherwise co-operated with the Council when responding to it. Dated: [date of notice] Signed: [Council’s authorised officer] On behalf of: [Council’s name and address]

555

Appendix 7 EXAMPLE ENFORCEMENT NOTICE – OPERATIONAL DEVELOPMENT Note 1: Wording for enforcement notices for a material change of use or failure to comply with a condition would need to reflect different types of breaches of control, remedies and time period for enforcement action. All notices must comply with the requirements of Section 172 and Regulation 4 – Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 and should attach a copy of the Planning Inspectorate note on how to make an appeal against an enforcement notice. Note 2: Every copy of the enforcement notice must also be accompanied by an Explanatory Note that complies with Regulation 5 – Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 Note 3: Regulation 13 – Town and Country Planning General Regulations 1992 requires that notices and envelopes be marked with the words: ‘Important – This Communication affects your Property’. Important – This Communication Affects Your Property Town and Country Planning Act 1990 (As amended by the Planning and Compensation Act 1991) Enforcement Notice ISSUED BY: [name of Council] 1.  THIS NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, within paragraph (a) of section 171A(1) of the above Act, at the land described below. They consider that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations. The Annex at the end of the notice and the enclosures to which it refers contain important additional information. 2.  THE LAND TO WHICH THE NOTICE RELATES Land at [address of Land], shown edged in [a distinctive colour] on the attached plan. 3.  THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING CONTROL Without planning permission, the erection of [describe the development], in the approximate position marked with a cross on the attached plan. 4.  REASONS FOR ISSUING THIS NOTICE [Include the reasons why the local planning authority consider it expedient to issue the notice and all the policies and proposals which are relevant to the decision to issue an enforcement notice] 5.  WHAT YOU ARE REQUIRED TO DO [Explain what steps the local planning authority require to be taken [or what activities are required to cease to remedy the breach]]

556

Model Forms 6.  TIME FOR COMPLIANCE [Identify the time period after which this notice takes effect] 7.  WHEN THIS NOTICE TAKES EFFECT This notice takes effect on [specific date, not less than 28 clear days after date of issue], unless an appeal is made against it beforehand. Dated: [date of issue] Signed: [Council’s authorised officer] On behalf of: [Council’s name and address] Nominated Officer: [Name of contact officer] Telephone Number: [of Nominated Officer] Annex YOUR RIGHT OF APPEAL You can appeal against this notice, but any appeal must be received, or posted in time to be received, by the Planning Inspectorate acting on behalf of the Secretary of State before the date specified in paragraph 7 of the notice. The enclosed information sheet published by the Planning Inspectorate gives details of how to make an appeal [link to http://www.planningportal.gov.uk/uploads/pins/enfinfosheet.pdf] WHAT HAPPENS IF YOU DO NOT APPEAL If you do not appeal against this enforcement notice, it will take effect on the date specified in paragraph  7 of the notice and you must then ensure that the required steps for complying with it, for which you may be held responsible, are taken within the period[s] specified in paragraph 6 of the notice. Failure to comply with an enforcement notice which has taken effect can result in prosecution and/or remedial action by the Council.

557

Appendix 7 MODEL STOP NOTICE Important – This Communication Affects Your Property Town and Country Planning Act 1990 (As amended by the Planning and Compensation Act 1991) Stop Notice Served By: [name of Council] To: [name of intended recipient of the notice] 1.  On [date], the Council issued an enforcement notice (of which a copy is attached to this notice) alleging that there has been a breach of planning control on [description of the land to which the notice relates]. 2.  THIS NOTICE is issued by the Council, in exercise of their power in section 183 of the 1990 Act, because they consider that it is expedient that the activity specified in this notice should cease before the expiry of the period allowed for compliance with the requirements of the enforcement notice on the land described in paragraph 3 below. The Council now prohibit the carrying out of the activity specified in this notice. Important additional information is given in the Annex to this notice. 3.  THE LAND TO WHICH THIS NOTICE RELATES Land at [address of land, or description of relevant part of the land to which the enforcement notice relates], shown edged in [a distinctive colour] on the attached plan. 4.  ACTIVITY TO WHICH THIS NOTICE RELATES [Specify the activity required by the enforcement notice to cease, and any activity carried out as part of that activity, or associated with it] 5.  WHAT YOU ARE REQUIRED TO DO Cease all the activity specified in this notice. 6.  WHEN THIS NOTICE TAKES EFFECT This notice takes effect on [date] when all the activity specified in this notice shall cease. Dated: [date of notice] Signed: [Council’s authorised officer] On behalf of [Council’s name and address]

558

Model Forms Annex WARNING THIS NOTICE TAKES EFFECT ON THE DATE SPECIFIED IN PARAGRAPH 6. THERE IS NO RIGHT OF APPEAL TO THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT AGAINST THIS NOTICE. It is an offence to contravene a stop notice after a site notice has been displayed or the stop notice has been served on you (section 187(1) of the 1990 Act). If you then fail to comply with the stop notice you will be at risk of immediate prosecution for which the maximum penalty is an unlimited fine. If you are in any doubt about what this notice requires you to do, you should get in touch immediately with [Council’s nominated officer to deal with enquiries, address and telephone number]. If you need independent advice about this notice, you are advised to contact a lawyer, planning consultant or other professional adviser specialising in planning matters urgently. If you wish to contest the validity of the notice, you may only do so by an application to the High Court for judicial review.

559

Appendix 7 MODEL TEMPORARY STOP NOTICE Important – This Communication Affects Your Property Town and Country Planning Act 1990 (As amended by the Planning and Compensation Act 1991) Temporary Stop Notice Served By: [name of Council] herein after referred to as ‘the Council’. To: [name of intended recipient of the notice] 1.  The Council considers that there has been a breach of planning control on the land described in paragraph 3 below. The breach of planning control is [set out details of the breach]. 2.  THIS TEMPORARY STOP NOTICE is issued by the Council, in exercise of their power in section 171E of the 1990 Act, because they think that it is expedient that the activity specified in this notice should cease on the land described in paragraph 4 below. The Council now prohibits the carrying out of the activity specified in this notice. Important additional information is given in the Annex to this notice. 3.  THE REASONS FOR ISSUING THIS NOTICE [Briefly specify the reasons why the temporary stop notice has been issued. There is no requirement to outline specific policies from the development plan.] 4.  THE LAND TO WHICH THIS NOTICE RELATES Land at [address of land, or description of relevant part of the land to which the enforcement notice relates], shown edged in a distinctive colour on the attached plan. 5.  ACTIVITY TO WHICH THIS NOTICE RELATES [Specify the activity required by the temporary stop notice to cease, and any activity carried out as part of that activity, or associated with it] 6.  WHAT YOU ARE REQUIRED TO DO Cease all the activity specified in this notice. 7.  WHEN THIS NOTICE TAKES EFFECT This notice takes effect on [date] when all the activity specified in this notice must cease. This notice will cease to have effect on [date 28 days after it takes effect]. Dated: [date of notice] Signed: [Council’s authorised officer] On behalf of [Council’s name and address] Nominated Officer: [Name of contact officer] Telephone Number: [of Nominated Officer] 560

Model Forms Annex WARNING THIS NOTICE TAKES EFFECT ON THE DATE SPECIFIED IN PARAGRAPH 7. THERE IS NO RIGHT OF APPEAL TO THE SECRETARY OF STATE AGAINST THIS NOTICE. It is an offence to contravene a temporary stop notice after a site notice has been displayed or the temporary stop notice has been served on you (section 171G(1) of the 1990 Act). If you then fail to comply with the temporary stop notice you will be at risk of prosecution, for which the maximum penalty on conviction is an unlimited fine. If you are in any doubt about what this notice requires you to do, you should get in touch immediately with [Council’s nominated officer to deal with enquiries, address and telephone number]. If you need independent advice about this notice, you are advised to contact urgently a lawyer, planning consultant or other professional adviser specialising in planning matters urgently. If you wish to contest the validity of the notice, you may only do so by an application to the High Court for judicial review.

561

Appendix 7 MODEL BREACH OF CONDITION NOTICE Important – This Communication Affects Your Property Town and Country Planning Act 1990 (As amended by the Planning and Compensation Act 1991) Breach of Condition Notice SERVED BY: [name of Council] To: [name[s] of person[s] responsible for the alleged breach of condition] 1.  THIS NOTICE is served by the Council, under section 187A of the above Act, because they consider that [a condition] [conditions] imposed on a grant of planning permission, relating to the land described in paragraph 2 below, [has] [have] not been complied with. The Council consider that you should be required to [comply] [secure compliance] with the condition[s] specified in this notice. The Annex at the end of this notice contains important additional information. 2.  THE LAND TO WHICH THE NOTICE RELATES Land at [address of land], shown edged in [a distinctive colour] on the attached plan. 3.  THE RELEVANT PLANNING PERMISSION The relevant planning permission to which this notice relates is the permission granted by the Council on [date of issue of permission] for [description of development] Ref [Council’s reference number]. 4.  THE BREACH OF CONDITION The following condition[s] [has][have] not been complied with: [State the terms of each condition which has not been complied with.] (1) (2) (3) 5.  WHAT YOU ARE REQUIRED TO DO As the person responsible for the breach[es] of condition[s] specified in paragraph 4 of this notice, you are required to [comply][secure compliance] with the stated condition[s] by taking the following steps: [State clearly the steps to be taken in order to secure compliance with the condition[s] in paragraph 4 above.] (1) (2) (3) [and] [ceasing the following activities:] [State clearly the activities which must cease in order to secure compliance with the condition[s] in paragraph 4 above.] 562

Model Forms (1) (2) (3) Period for compliance: [not less than 28 days] beginning with the day on which this notice is served on you. [Different periods may be specified for each requirement]. Dated: [Date of notice] Signed: [Council’s authorised officer] On behalf of [Council’s name and address] Nominated Officer: [Name of contact officer] Telephone Number: [of Nominated Officer] Annex WARNING THIS NOTICE TAKES EFFECT IMMEDIATELY IT IS SERVED ON YOU IN PERSON OR ON THE DAY YOU RECEIVED IT BY POST. THERE IS NO RIGHT OF APPEAL TO THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT AGAINST THIS NOTICE. It is an offence to contravene the requirements stated in paragraph 5 of this notice after the end of the compliance period. You will then be at risk of immediate prosecution in the magistrates’ court, for which the maximum penalty is [standard level 4] for a first offence and for any subsequent offence. If you are in any doubt about what this notice requires you to do, you should get in touch immediately with [Council’s nominated officer to deal with enquiries, address and telephone number]. If you do need independent advice about this notice, you are advised to contact urgently a lawyer, planning consultant or other professional adviser specialising in planning matters. If you wish to contest the validity of the notice, you may only do so by an application to the High Court for judicial review.

563

Appendix 7 CERTIFICATE OF LAWFUL USE OR DEVELOPMENT Town and Country Planning Act 1990: sections 191 and 192 The Town and Country Planning (Development Management Procedure) (England) Order 2015: article 39 CERTIFICATE OF LAWFUL USE OR DEVELOPMENT The (a) ………………………………………………… Council hereby that on (b)  ………………………………………………… the use/operations/ matter* described in the First Schedule to this certificate in respect of the land specified in the Second Schedule to this certificate and edged/hatched/coloured* (c)  ………………………………………………… on the plan attached to this certificate, was/were/would have been/would be* lawful within the meaning of section 191/192* of the Town and Country Planning Act 1990 for the following reason(s): ……………………………………………………………………………………… …………………………………………………………………………………….… Signed ………………………………………………..(Council’s authorised officer) On behalf of (a) …………………………………………………………….. Council Date ………………………………………………………………………………… First Schedule (d) Second Schedule (e) Notes 1  This certificate issued solely for the purpose of section 191/192* of the Town and Country Planning Act 1990. 2  It certifies that the use/operations/matter* specified in the First Schedule taking place on the land described in the Second Schedule was/were/would have been* lawful, on the specified date and, therefore, was not/were not/would not have been* liable to enforcement action under Part 7 of the 1990 Act on that date. 3  This certificate applies only to the extent of the use/operations/matter* described in the First Schedule and to the land specified in the Second Schedule and identified on the attached plan. Any use/operations/matter* which is/are* materially different from that/those* described or which relate/s* to other land may render the owner or occupier liable to enforcement action. *4  The effect of the certificate is also qualified by the proviso in section 192(4) of the 1990 Act, which states that the lawfulness of a described use or operation is only conclusively presumed where there has been no material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness. * delete where inappropriate 564

Model Forms Insert: (a)  name of Council (b)  date of application to the Council (c)  colour used on the plan (d)  full description of use, operations or other matter, if necessary, by reference to details in the application or submitted plans, including a reference to the use class, if any, specified in an order under section 55(2)(f) of the 1990 Act, within which the certificated use falls (e)  address or location of the site

565

Index

A Abuse of process challenge, where bringing, 1.37 public authority, by, 1.44 Advertising control advertisement— meaning, 18.02, 18.03 categories see categories of advertisement below permissible, where, 18.05 regulations as to see regulations below standard conditions see standard conditions below area of special control order, 18.23, 18.24 categories of advertisement— England, in, 18.10, 18.12, 18.13, 18.14 Northern Ireland, in, 18.11, 18.13, 18.14 Wales, in, 18.11, 18.13, 18.14 deemed consent— Advertising Regulations, display in accordance with, 18.58 categories of advertisements, and, 18.10–18.14 classes of, 18.19 compensation, right to, 18.22 discontinuance notice, power to issue, 18.22 express consent, after expiry of, 18.21 generally, 18.18–18.22 London, in, 18.19 lucrative advertisements, 18.19 Northern Ireland, in, 18.20 period of time, after, 18.20 Wales, in, 18.20 defacement of premises— appeal, right of, 18.48, 18.50, 18.51 costs of removal etc, recovery, 18.48 detriment to community, where, 18.48 generally, 18.47–18.51 graffiti, 18.47, 18.49 letter box: meaning, 18.49 notice, service of, 18.48 offensive, where, 18.48 operational land, powers of entry onto, 18.53–18.55 pouch box: meaning, 18.49

Advertising control – contd defacement of premises – contd removal of signs at owner’s or occupier’s request, 18.52 sign: meaning, 18.47 statutory authority, 18.47–18.51 statutory undertakers, protection for, 18.49, 18.50 time for removal, 18.48 universal postal service providers, protection for, 18.49 different advertisements on different dates, 18.26 display structure, removal of see structures used for unauthorised displays, removal of below enforcement— injunctions, 18.59 powers, 18.56 remedies, 18.57, 18.58 entry on land, 18.53–18.55 examples, 18.02–18.04 generally, 18.01–18.09 graffiti, 18.47, 18.49 guidance, 18.09 injunctions, 18.59 legislation, 18.01 National Planning Policy Framework, 18.09 obliteration powers see removal or obliteration powers below operational land, powers of entry onto, 18.53–18.55 persistent problems, remedying— action notice— appeal, right of, 18.44–18.46 costs, recovery of, 18.43 counter-notice by statutory undertaker, 18.42 measures in, 18.40 other legislation, subject to, 18.41 service of, 18.40 time limit for taking action, 18.40 circumstances justifying use of powers, 18.38 frequent flyposting, where, 18.38 measures to be taken, 18.40

567

Index Advertising control – contd persistent problems, remedying – contd persistent problem: meaning, 18.39 statutory authority, 18.38 time for taking action, 18.40 unauthorised advertisement: meaning, 18.39 placards and posters, removal or obliteration see removal or obliteration powers below prosecution— breach, nature of, 18.27 defence, 18.25 display of advertisement, for, 18.25 penalties, 18.28 separate offences, for, 18.26 summary offence, 18.25, 18.26 time limit for bringing, 18.26 purpose of regime, 18.05 regulations— English, relevant factors in, 18.06 list of, 18.01 Northern Irish, relevant factors in, 18.08 power to make, 18.05 Welsh, relevant factors in, 18.07 removal or obliteration powers— ‘cancelled’ sticker, incorrect use of, 18.30 compensation for damage caused by, 18.30 defacement of premises see defacement of premises above entry powers, 18.30 generally, 18.29–18.31 judicial review to challenge, 18.31 notice prior to, 18.29 operational land, powers of entry onto, 18.53–18.55 signs, of, at owner’s or occupier’s request, 18.52 structures see structures used for unauthorised displays, removal of below sentencing, 18.28 standard conditions— England, in, 18.15 Northern Ireland, in, 18.17 Wales, in, 18.16 structures used for unauthorised displays, removal of— appeal— court’s powers, restrictions on, 18.36, 18.37 eligible parties, 18.34, 18.35 grounds for, 18.34 removal suspended pending, 18.37 right of, 18.34 time limit, 18.37

Advertising control – contd structures used for unauthorised displays, removal of – contd compensation, right to, 18.33 costs of removal, recovery, 18.37 display structure: meaning, 18.32 generally, 18.32–18.37 notice, service of, 18.33 statutory authority, 18.32 unauthorised advertisements, persistent problems see persistent problems, remedying above Appeal see also Challenge breach of condition notice, against, 12.01, 12.33, 12.34, 12.35 certificate of lawfulness of proposed works, as to, 16.78 Commissioners, heard by, 1.11 costs of re-determining, 24.61 court’s powers, 1.36 enforcement notice, against see under Enforcement notice England and Wales, in, 1.11 High Court, to see generally under High Court Inspectors, heard by, 1.11 listed building enforcement notice, against see under Listed building enforcement notice Northern Ireland, in, 1.11 remission of appeal decision to Minister, 1.36 stop notice, against, 22.26, 22.27 submission notice, against see under Submission notice Archaeological works area of archaeological importance, 16.61 car keys defence, 16.65 investigations, 16.62–16.66 metal detectors see under protected place below Northern Ireland, in, 16.66 protected place— meaning, 16.63 metal detector, use of— defence, 16.65 metal detector: meaning, 16.62 offence, 16.64 penalty, 16.64 prohibition, 16.62 B Biodiversity need to conserve, 4.06 Breach of condition notice appeal against, 12.01 binding nature of, 12.04

568

Index Breach of condition notice – contd challenging, 12.01, 12.33, 12.34, 12.35 compliance with— extension of time limit, 12.14 failure to comply with see prosecution below generally, 12.13 minimum period for, 12.08 contents, 12.09, 12.10 defences, 12.31 drafting, 12.09, 12.11 enforcement register, entry on, 12.12 failure to comply with— offence, 12.01, 12.13 prosecution for see prosecution below fixed penalty notice in Northern Ireland see under Northern Ireland generally, 12.01, 12.02 Government guidance as to use of, 12.07 legislation, 12.02 model notice, 12.11 Northern Ireland, in see under Northern Ireland offence under— continuing nature of, 12.30 defences, 12.31, 12.35 essential element of, 12.29 generally, 12.01, 12.13 prosecution for see prosecution below sentence, 12.32 planning permission, effect, 12.15 prosecution— defences, 12.31, 12.35 essential element of offence, 12.29 further, 12.30 generally, 12.27–12.30 guidance, 12.28 legislation, 12.27 summary nature of trial, 12.30 time limit for bringing, 12.30 what must be proved, 12.29, 12.30 quashing, 12.13 service— by whom served, 12.01, 12.03 challenging, 12.01, 12.33, 12.34 compliance following, 12.13 generally, 12.01, 12.03–12.08 Government guidance, 12.07 grounds for, 12.03 parties for, 12.04 person in control of land, 12.05 several notices, where, 12.08 time limits, 12.06 validity in criminal proceedings, 12.35 waiver or relaxation of requirements in, 12.14

Breach of condition notice – contd withdrawal— further notice following, 12.14 generally, 12.14 time limit for compliance, and extension of, 12.14 wrongful service, after, 12.13 Breach of planning control meaning, 2.01 breach of condition or limitation— barn housing dwellinghouse, 2.66 condition remaining in force, need for, 2.68 failure to comply, determining, 2.58 generally, 2.56–2.58 implementation of planning permission see under Planning permission interpretation of conditions, 2.72, 2.73 interpretation of planning permissions, 2.69, 2.70 limitation, examples of, 2.57 types of condition, 2.56 development without planning permission see under Development enforcement see Enforcement powers generally, 2.01 notice see Breach of condition notice Building examples, 2.08 operations see under Development C Caravan removal of, 3.64, 4.09 Challenge see also Appeal abuse of process, where, 1.37 circumstances for bringing, 1.37 collateral, 1.37 defence, 1.37 nullity following, 1.37 parties able to mount, 1.37 ultra vires doctrine, and, 1.37 validity following, 1.37 Change of use advertisements, use of, 2.47 agricultural purposes etc, 2.38–2.40 carrying on of a use, 2.34–2.36 dwellinghouse, use for purposes incidental to enjoyment of, 2.37 exceptions to, 2.37–2.44 external alterations, 2.44 flats, conversion of house into, 2.45 generally, 2.26, 2.27 judicial analysis, 2.26 material changes, examples of, 2.45–2.47 matters constituting, 2.26, 2.27 planning unit, determining, 2.30–2.33

569

Index Change of use – contd primary and ancillary uses, 2.28, 2.29 short-term lettings in London, 2.48 single dwelling house, to, time limit for enforcement action, 3.11–3.14 sub-division of building, 2.44 use of land— meaning, 2.26, 2.28 abandonment, 2.35 agricultural purposes etc, 2.38–2.40 carrying on of, 2.34–2.36 dwellinghouse, use for purposes incidental to enjoyment of, 2.37 mixed, 2.43 no activity on site, where, 2.35 ordinarily incidental, 2.29 start of use, identifying, 2.36 surviving period of inactivity, 2.35 waste materials, deposit of, 2.46 Child need to protect welfare of, 4.18 Civil proceedings challenge to public law decision, and, 24.64 Civil servants exercise of powers by, 1.11 Community Infrastructure Levy apportionment of liability, 22.03 assumption of liability notice, 22.03 chargeable development: meaning, 22.02 charging authorities: meaning, 22.02 collecting authorities, 22.01 enforcement powers— charging order, 22.20 civil proceedings, 22.23 demand notice, service of, 22.04 distress, 22.19 generally, 22.02, 22.04 imprisonment, 22.21 interest, right to, 22.24 liability order see liability order below local land charges, 22.22 reminder notice, 22.17, 22.18 stop notice see stop notice below surcharges, imposition of, 22.25 entry powers, 22.29, 22.30 false information, offence of supplying, 22.31 general consents, information requirements for, 22.28 generally, 22.01–22.03 legislation, 22.01 liability for, 22.03 liability order— application for, 22.17 contents, 22.18 court’s power to grant, 22.18 debt, as, 22.18

Community Infrastructure Levy – contd liability order – contd enforcement, 22.18 reminder notice, preceded by, 22.17 purpose, 22.01 schedule of charges, adoption, 22.02 stop notice— meaning, 22.05 appeal against, 22.26, 22.27 breach, injunction for, 22.14, 22.15 cessation of effect, 22.13 contents, 22.08 contravention, offence, 22.05, 22.09, 22.10 defence, 22.11 discretionary use of, 22.05 display of, 22.08 effective date of, 22.09 generally, 22.04 injunction for breach, 22.14, 22.15 offence— defence, 22.11 generally, 22.05, 22.09, 22.10 penalty, 22.12 triable either way, 22.12 parties on whom served, 22.07 purpose, 22.05 register, entry on, 22.16 relevant activity: meaning, 22.08 service, 22.05, 22.07 unlawful, where, 22.07 validity, challenging, 22.11 warning notice, 22.06, 22.07 withdrawal, 22.13 time for payment, 22.03 Completion notice circumstances warranting use of, 15.16, 15.18, 15.19 confirmation or rejection of, 15.21 contents, 15.19, 15.21 effect, 15.17 generally, 15.01, 15.16–15.22 oral hearing, 15.21 partially constructed building, where, 15.21 service, 15.17, 15.20 where work not completed for many years, 15.16 withdrawal, 15.22 Condition breach of see under Breach of planning control cessation, circumstances leading to, 2.68 interpretation, 2.72, 2.73 Conservation area consent see Conservation area consent demolition of building in, 1.22

570

Index Conservation area – contd enforcement action in, 4.06 entry powers, 17.26 trees in, protection of, 17.17–17.23, 17.26 Conservation area consent England, in see under Demolition Northern Ireland, in, 16.50 Wales, in, 16.48, 16.49 Criminal proceedings enforcement notice, questioning validity of— enforcement notice: meaning, 24.69 failure to comply with notice, 24.65 generally, 24.65 grounds for, 24.66 interest in land, parties with, 24.65, 24.67 knowledge of notice, whether person having, 24.65, 24.68 legislation, relevant, 24.65 nullity, where notice is, 24.69 public law grounds, restriction on raising, 24.69 substantial prejudice, existence of, 24.66 Crown land Duchy interest: meaning, 6.56 enforcement action on— appropriate authority, with consent of, 6.58 generally, 6.53–6.58 meaning— England and Wales, in, 6.55 Northern Ireland, in, 6.57 whether bound by statute, 6.53, 6.54 D Demolition conservation area, building within— criminal offence, 1.22 time limit for enforcement action, 3.56 see also England, conservation area in below criminal offence, where, 1.22 England, conservation area in— abolition of consent, 16.52, 16.56 appeal against enforcement notice, 16.54 Demolition Direction, unlawfulness of, 16.51 demolition prior to 1 Oct 2013, 16.56 enforcement provisions, availability, 16.54 generally, 16.51–16.55 health and safety defence, 16.53 legislative changes, 16.52 offence, 16.52

Demolition – contd England, conservation area in – contd planning control, introduction of, 16.52 relevant demolition: meaning, 16.52 time limit for enforcement action, lack of, 16.55 operational development, where not constituting, 2.23, 2.24 penalties for historic environment offence— aggravating factors, 16.71 case law, 16.67–16.69 generally, 16.67–16.72 Heritage Crime Impact Statement, 16.72 Historic England’s guidance, 16.72 IHBC database, use of, 16.70 time limit, 3.56 Department for Infrastructure generally, 1.08 Development meaning, 2.02–2.04 alterations only visible from aircraft, 2.19 building operations— carrying out, 2.07 examples, 2.06, 2.08 exclusions from operational, 2.16–2.22 not resulting in buildings, 2.09 change of use, material see Change of use demolition see Demolition engineering operations, 2.10, 2.25 fish farming, 2.25 floodlighting, 2.19 highway works, 2.21, 2.22 internal works, 2.18, 2.20 land: meaning, 2.03 material alteration, 2.18, 2.19 mezzanine floors, 2.20 mining operations see Mining operations operational— meaning, 2.03 building operations see building operations above demolition, 2.23, 2.24 enforcement action, time limit for see under Enforcement action engineering operations, 2.10 exclusions from, 2.16–2.22 fish farming, 2.25 mining operations see mining operations above other operations, 2.15 planning permission, need for— deemed permission, grant of, 2.50 enforcement notice, effect, 2.54, 2.55 exceptions, 2.54, 2.55 further work involved, effect, 2.51, 2.52

571

Index Development – contd planning permission, need for – contd generally, 2.49–2.53 limited use of permission, 2.51, 2.52 projects granted for, 2.50 repeated development, 2.53 spent permission, 2.52 statutory authority, 2.49 time for grant of permission, 2.50 short-term lettings in London, 2.48 without planning permission— development: meaning, 2.02–2.04 operational development see operational development above Discontinuance order breach— defence, 15.06 offence, 15.06 caravans and tents, land used for, 15.07 challenging, 15.03 circumstances warranting, 15.02 compensation, payment of, 15.02, 15.04 effective date of, 15.03 generally, 15.01 hearing, right to, 15.03 local authority powers, 15.02 minerals special order, 15.06 parties able to make, 15.05 rare use of, 15.07 test to be met, 15.03 withdrawal, prohibition on, 15.03 E Enforcement action advertising, control of, 18.57–18.59 authorisation for, 4.35, 4.36 biodiversity, need to conserve, 4.06 breach of condition, for— notice see Breach of condition notice test for, 3.25–3.28 caravans, removal of, 4.09 children, welfare of, 4.18 compensation payment, whether having effect on, 4.23 conservation area, in, 4.06 criminal sanctions, indirect nature of, 14.02 development plan, regard to, 4.04, 4.05 development taking place, need for, 4.22 Enforcement Concordat, 4.43 enforcement notice see Enforcement notice Equality Act 2010, and, 4.19–4.21 expediency, 4.03, 4.07, 4.34 extent of breach, relevance, 4.22 failure to bring, judicial review on, 24.52 generally, 14.01 humans rights, and see Human rights

Enforcement action – contd injunction see Injunction landowner’s response to potential for, 4.47 Local Enforcement Plan, 4.41 National Park, in, 4.06 National Planning Policy Framework see National Planning Policy Framework notice see Enforcement notice no duty to take, 4.02 operational development, for breach of— change of use, involving, 3.29–3.32 generally, 3.29–3.32 time limits see under time limits below personal circumstances, relevance, 4.08, 4.09 planning enforcement order see Planning enforcement order public sector equality duty, 4.19–4.21 recording duties— decision to enforce, 4.37 informal action or no plan, where, 4.38–4.40 regulation— generally, 4.42, 4.46 Regulators’ Compliance Code, 4.45 report on, 4.44 response to, range of options, 4.47 retrospective planning permission, whether appropriate, 4.22 SSSI, in, 4.06 statutory duties affecting need for, 4.06, 4.07 time limits— agricultural building converted into house, 3.40 agricultural use, building no longer in, 3.40 barn fitted out as house, 3.33–3.37 breach of condition— notice, 12.06 test for, 3.25–3.28 continuity of breaches, 3.21 conversion of building into flats, 3.13 demolition in conservation area, 3.56, 3.65 extension— breach of condition notice following enforcement notice, 3.58, 3.60 caravans, involving, 3.64 errors, remedying, 3.59, 3.63 generally, 3.59–3.64 mixed use, notice comprising, 3.64 purported nature of action taken, relevance, 3.63 second bite provision, 3.59–3.64 second enforcement notice, whether possible, 3.62

572

Index Enforcement action – contd time limits – contd five-year time limit in Northern Ireland, 3.01, 3.20 flat, garage storage space converted into, 3.41 four-year rule— barn fitted out as house, 3.33–3.37 breach of occupancy condition, 3.19 conversion of building into flats, 3.13 generally, 3.03 hay bales, house built behind, 3.33, 3.38, 3.39 legislation, 3.01 operational development see operational development below purpose, 3.02 single dwelling house, change of use to, 3.11–3.14 generally, 3.01, 3.02, 3.65 hay bales, house built behind, 3.33, 3.38, 3.39 legislation, 3.01 listed building, unlawful works to, 3.65 material change of use, effect, 3.22–3.24 mining operations, 3.10 Northern Ireland, in, 3.01, 3.20 occupancy condition, breach of, 3.13, 3.19 operational development— breach of condition, where, 3.04 change of use, involving, 3.29–3.32 expiry of period at different times, 3.08 house behind hay bales, 3.06 legislation, 3.04 planning permission, without, 3.04, 3.06 running of time, 3.05 some operations carried out within time limit, 3.09 substantial completion of operations, 3.05–3.09 planning enforcement order see Planning enforcement order planning injunctions, 3.66, 3.67 positive deception, not running where, 3.33–3.41 purpose, 3.02 residential use, change to, 3.13 single dwelling house, change of use to, 3.11–3.14 stop notice, and, 3.65 summary only offence, prosecution for, 3.65 ten-year rule— breach of occupancy condition, 3.13, 3.19

Enforcement action – contd time limits – contd ten-year rule – contd change of use over time, where, 3.16 conditions or limitations, breach of, 3.17 dwelling house, building constructed as, 3.14 generally, 3.15–3.18 legislation, 3.15 residential use, change to, 3.13 rolling nature of period, 3.18 Welsh Office Circular, 3.13 unlawful works to listed buildings, 3.65 Enforcement notice meaning, 24.69 appeal against— advocate’s role, 7.142, 7.143 appeal form, filling in, 7.67 burden of proof, 7.50, 7.51 conservation area, demolition in, 7.40 costs— application, 7.200–7.205 cancellation of inquiry or hearing, on, 7.198 generally, 7.190–7.192 guidance as to, 7.190 legislation, 7.190 third parties, 7.199 unreasonable behaviour, where— appellant, by, 7.195, 7.196 generally, 7.191, 7.192 local planning authority, by, 7.193, 7.194, 7.196, 7.197 procedural matters, in, 7.196, 7.197 third parties, 7.199 unreasonable: meaning, 7.192 withdrawal of notice or appeal, 7.198 withdrawal of notice or appeal, 7.198 decision— costs see costs above errors in, correction of, 7.206–7.209 generally, 7.186–7.189 Inspector, by, 7185 Minister, by, 7.183, 7.184 powers on, 7.189 service, 7.188 written reasons for, 7.186, 7.187 disclosure of information, restrictions on, 7.76 documents, inspection of, 7.110, 7.111 fees— deemed application, whether payable for, 7.70 England, in, 7.68

573

Index Enforcement notice – contd appeal against – contd fees – contd for each notice appealed, 7.72 generally, 7.68 liability for payment, 7.71 Northern Ireland, in, 7.69 refund, 7.72–7.75 size of site area, and, 7.70 time for payment, 7.72 Wales, in, 7.68, 7.70 full statement of case in Wales, 7.64, 7.65 generally, 7.01, 10.01 grounds of appeal— generally, 6.27, 7.09, 7.10 ground (a), 7.11–7.19 ground (b), 7.20 ground (c), 7.22, 7.23 ground (d), 7.24–7.26 ground (e), 7.27–7.30 ground (f), 7.31–7.36 ground (g), 7.37–7.39 Northern Ireland, in, 7.66 onus of establishing, 7.50 guidance, 7.03 hearing— advocate’s role, 7.142, 7.143 attendance at, right of, 7.123, 7.125– 7.128 date, 7.132–7.134 formal, 7.48, 7.55 informal see informal hearing below Northern Ireland, in, 7.48, 7.55, 7.176 notification of date, 7.135–7.141 preparations for, 7.56, 7.57 procedure at, 7.167–7.175 reasons for arranging, 7.55 site visit see site visit below statement, 7.91, 7.92 third party representations see third party representations above witness’s responsibility, 7.142, 7.143 informal hearing— adjournment, 7.49 appropriateness, decision as to, 7.52–7.54 attendance at, 7.49 generally, 7.48, 7.49 legal representation and submissions at, 7.54 Northern Ireland, in, 7.48, 7.55 preparations for, 7.56, 7.57 reasons for arranging, 7.55 site visit see site visit below inquiry see public inquiry below

Enforcement notice – contd appeal against – contd Inspectorate’s action on receipt of appeal, 7.76 legislation as to, 7.02, 7.03 local planning authority’s actions on receipt of appeal— certified copy of notice, duty to provide, 7.77 generally, 7.76 notice to interested parties, duty to give, 7.82–7.85 questionnaire, 7.86 methods of dealing with, 7.48, 7.49 Minister or inspector, determined by, 7.01, 7.44–7.47 national security matters etc, 7.76, 7.210–7.212 Northern Ireland, in— fees, 7.69 formal hearing, 7.48, 7.55, 7.176 generally, 7.01 grounds of appeal in, 7.66 informal hearing, 7.48, 7.55 notice of appeal, 7.85 Planning Appeals Commission, 7.47 procedural rules, 7.03 response to representations, 7.108 statement of case, 7.96, 7.97 written representations, 7.48, 7.100, 7.108 notice of appeal, 7.60, 7.82–7.85 nullity, where notice claimed to be, 7.10, 7.41–7.43 oral hearing, no right to, 7.52 persons able to appeal, 7.05, 7.06 public inquiry— advocate’s role, 7.142, 7.143 appropriateness, decision as to, 7.52–7.54 assessors, appointment and role, 7.144 attendance at, right of, 7.122, 7.124– 7.128 common ground, statement of, 7.152, 7.153 cross-examination at, 7.54 date, 7.132–7.134 evidence at, 7.54, 7.145–7.151 expert evidence, use of, 7.150 further information in, 7.112–7.114 generally, 7.48, 7.49 government department representation at, 7.129–7.131 holding of, 7.49 media presence at, 7.49 notification of date, 7.135–7.141

574

Index Enforcement notice – contd appeal against – contd public inquiry – contd pre-inquiry meetings, 7.115–7.119 preparations for, 7.56, 7.57 procedure at, 7.49, 7.155–7.166 proofs and statements of evidence at, 7.145–7.151 site visit see site visit below skeleton submissions, 7.154 statement of case, 7.93, 7.94 statement of matters, 7.120 summary of proof of evidence, 7.146, 7.149 third party representations see third party representations above timetable, 7.121 venue, 7.49 witness’s responsibility, 7.142, 7.143 recovered appeal, 7.44, 7.45 refusal to accept appeal, 7.76 relevant occupier: meaning, 7.05 right of, 7.01 site visit— accompanied, 7.177, 7.179, 7.180 adjournment of hearing to, 7.178, 7.181 attendance of representatives, 7.180 closure of hearing prior to, 7.179 generally, 7.49, 7.177–7.182 inspection of site, 7.180–7.182 private property, entry into, 7.180 sufficiency of inspection, 7.182 unaccompanied, 7.177, 7.182 Wales, in, 7.179 written representation appeals, in, 7.177 stages in process— list of, 7.58 preliminary, 7.59–7.75 standard of proof, 7.50, 7.51 starting date, duty to set, 7.78–7.81 statement of appeal in England, 7.61–7.63 statement of case— comprehensive nature of, importance of, 7.92 contents, 7.87, 7.92 dating etc, 7.90 failure to serve, effect, 7.87 generally, 7.87–7.94 hearings, in case of, 7.91, 7.92 inquiry, in case of, 7.93, 7.94 later rule 6 party comments, 7.109 Northern Ireland, in, 7.96, 7.97 regulations as to, 7.87, 7.89 response to, 7.107, 7.108 timescale, 7.87 Wales, in, 7.95 see also written representations below

Enforcement notice – contd appeal against – contd statement of matters, 7.120 statistics, 7.04 submission, procedure for, 7.07, 7.08 third party representations— comments on, 7.105, 7.106 evidence, presentation of, 7.101 generally, 7.98–7.104 permission to participate, 7.102 response to, 7.107, 7.108 rule 6 status, 7.103 third party: meaning, 7.98 time limit, 7.99 types, 7.98 Wales, in, 7.99, 7.102, 7.104 time limit on, 6.26 transferred appeal, 7.44 Wales, in— attendance at inquiry, 7.124 fees, 7.68, 7.70 full statement of case, 7.64, 7.65 further information, request for, 7.113 generally, 7.01 guidance, 7.03, 7.53 notice of appeal, 7.60 notice to interested parties, duty to give, 7.84 oral hearing, no right to, 7.52 pre-inquiry meeting, 7.117 procedural requirements, 7.57 public local inquiry, 7.49 recovered appeal, 7.45 response to representations, 7.108 site visit, 7.179 statement of case, 7.95 third party representation, 7.99, 7.102, 7.104, 7.104, 7.108 written submissions, time limit, 7.99 witness’s responsibility, 7.142, 7.143 written representations— appropriateness, decision as to, 7.52–7.54 further representations, 7.88, 7.89 generally, 7.48, 7.49 preparations for, 7.56, 7.57 procedure, 7.49 response to, 7.107, 7.108 site visit, 7.49, 7.177 third party representations see third party representations above time limits, 7.99 timescale, 7.88 see also High Court (enforcement notice appeal, challenging decision on)

575

Index Enforcement notice – contd breach— charging offence— criteria to be satisfied, 8.10 decision not to prosecute, need to explain, 8.12 documentation to be provided, 8.12 further offences, 8.16 generally, 8.10–8.16 more than one defendant, where, 8.14 Proceeds of Crime Act order, 8.11 recording of decision to prosecute, 8.12 review of prosecution, 8.13 time limit, 8.15 control or interest offence— elements of, 8.08, 8.09 generally, 8.08, 8.09 permitting activity, 8.09 what prosecution must prove, 8.08 fixed penalty notice in Northern Ireland see fixed penalty notice in Northern Ireland below nature of offence, 8.02 owner offence— elements of, 8.04–8.06 generally, 8.03 no liability, where, 8.05 reinstatement or restoration, 8.05 resumption of prohibited use, 8.06 validity of notice etc, no need to prove, 8.06 what prosecution must prove, 8.04 subsequent development after, 8.59, 8.60 carrying out works in default of compliance— challenge to exercise of power, 8.68 consultation, no duty of, 8.65 delated powers, use of, 8.67 Department’s powers, 8.74 entry powers, 8.70–8.73 expenses, recovery of, 8.71 generally, 8.63–8.69 judicial analysis, 8.64 notice provisions, 8.66 relevance circumstances, need to consider, 8.69 Secretary of State’s powers, 8.74 statutory authority, 8.63 Welsh Ministers’ powers, 8.74 cessation, 6.47–6.51 compliance with requirements not discharging, 6.52 confiscation order— circumstances for making, 8.55

Enforcement notice – contd confiscation order – contd criminal lifestyle, in case of, 8.55, 8.56 danger of incurring, 8.58 examples of cases made in, 8.57 generally, 8.55 judicial approach, 8.58 recoverable amount under, 8.56 requirements under, 8.56 restriction on making, 8.57 statutory authority for, 8.55–8.58 contents, 6.08 Crown land, enforcement on, 6.53–6.58 defences— generally, 8.31 lack of knowledge, 8.35–8.37 owner, 8.32–8.34 direct action see carrying out works in default of compliance above directors’ liability, 8.38, 8.39 drafting, 6.08–6.10 effective date of— appeal, effect of, 6.29 compliance period following, 6.26–6.28 generally, 6.26–6.28 suspension, 6.29, 6.30 time for, 6.26, 10.01 enforcement of— defences see defences above direct action see carrying out works in default of compliance above directors’ liability, 8.38, 8.39 disclosure, duties of, 8.45, 8.46 generally, 8.01 indictment, form of, 8.44 information, 8.42 mode of trial, 8.43 non-prosecution, assurances of see nonprosecution, assurances of below offence see breach above procedural rules, 8.40–8.46 prosecution see prosecution below sentencing see sentencing below subsequent development in breach of notice, 8.59, 8.60 written charge, 8.42 explanatory note to accompany, 6.09 failure to comply with, 6.01 fixed penalty notice in Northern Ireland— appeal or challenge, restriction on, 8.25 contents, 8.19 continuing breach, 8.21 disputing liability, 8.25 future breaches, 8.21 future enforcement, 8.22 generally, 8.17–8.26 judicial review, 8.26

576

Index Enforcement notice – contd fixed penalty notice in Northern Ireland – contd more than one notice, 8.23 no liability arising, where, 8.17 payment, methods of, 8.24 person giving, 8.18 power to bring, 8.17 prohibition on proceedings after giving, 8.20 reasons for giving, 8.18 receipts from, use of, 8.26 generally, 6.01, 6.02 interpretation of, judicial approach to, 6.22 issue— actual rather than apprehended breach, where, 6.04–6.06 criteria for, 6.03 discretionary power, 6.07 expediency, and, 6.07 national authorities, by, 6.59–6.62 power, 6.03 repealed provisions, under, 6.63 Secretary of State, by— power to issue, 6.59, 6.62 prosecution for failure to comply with, 8.61 variation of original notice, following, 6.46 legislation, 6.02, 6.08 markets and car parking, prohibition on, 6.22 model form of, 6.09 non-compliance with— carrying out works where see carrying out works in default of compliance above see also enforcement of above non-prosecution, assurances of— binding but revocable nature of, 8.27 formality and technical compliance of, issues as to, 8.28 generally, 8.27–8.30 involvement after notice issued, 8.29 statutory authority for, 8.27 withdrawal, 8.30 Northern Ireland, in— fixed penalty notice see fixed penalty notice in Northern Ireland above generally, 6.02 nullity, where, 6.19 offence for breach see breach above ‘old’, effect, 6.63 operational development, against, 6.10, 6.12–6.15 permanent, where, 6.52

Enforcement notice – contd permitted development rights, no interference with, 6.22 Proceeds of Crime Act, and see confiscation order above prohibition of lawful development, 6.20, 6.21 prosecution— power to bring, 8.61, 8.62 sentencing see sentencing below registers of, 6.42, 6.43, 12.12 restaurant, against, 10.17 retrospective planning permission, deemed grant of, 6.18 running with land, 6.52 sentencing— aggravating factors, 8.51, 8.53 checklist for prosecutors in, 8.54 compensation orders, 8.53 confiscation order— preceding sentencing, 8.49 see also confiscation order above culpability, consideration of, 8.51 financial circumstances, consideration of, 8.50 Friskie schedules, use of, 8.53 guilty plea, effect, 8.51 harm caused in planning terms, relevance, 8.52 indictment, conviction on, 8.47 matters court shall have regard to, 8.48 mitigating factors, 8.52, 8.53 schedule of facts etc, use of, 8.53 statutory purposes of, 8.47 summary conviction, on, 8.47 service— chargee, on, 6.35 difficulties in identifying proper party, 6.38 email or other electronic means, by, 6.41 freeholder, on, 6.31 impermissible means of, 6.41 intended recipient not receiving notice, 6.36 interest in land, on person with, 6.35 leaseholder, on, 6.32 manner of, 6.36–6.41 mortgagee, on, 6.35 Northern Ireland, in, 6.40 occupier of land, on, 6.31, 6.34 owner, on— case law, 6.33 generally, 6.31–6.33 owner: meaning, 6.31 parties for, 6.31–6.35

577

Index Enforcement notice – contd service – contd person mistakenly served, no right of appeal, 7.06 rack rent: meaning, 6.32 time not vital, where, 6.39 unoccupied land, where, 6.39 steps required by— compliance with planning permission, 6.11 examples, 6.17 failure of notice to take, effect, 6.23– 6.25 generally, 6.11–6.22 later approval of details, where acceptable, 6.20 Mansi doctrine, and, 6.20–6.22 operational development, removal of, 6.12–6.15 partial restoration of status quo, 6.11 precision in wording, need for, 6.19, 6.20 residential use, where change from, 6.13, 6.14 restoration of land to original condition, 6.12 retrospective planning permission, deemed grant of, 6.18 works not part of change of use, protection for, 6.16 subsequent development, effect on, 6.52 subsequent planning permission, effect, 6.47–6.51 suspension, 6.29, 6.30 under-enforcement permission, effective grant of, 6.23–6.25 validity— challenging see under High Court requirements, 6.08 variation, 6.44–6.46 withdrawal, 6.44, 6.45 works not part of change of use, protection for, 6.16 Enforcement powers action see Enforcement action advertising, control of, 18.57–18.59 breach of enforcement notice, 1.24 discretionary nature of powers, 1.05, 4.02, 4.03 enforcement notice see Enforcement notice generally, 1.19–1.27 hazardous substances regime see under Hazardous substances information-gathering powers, 1.23 legislation, 1.12–1.14 local authority’s responsibilities, 1.01

Enforcement powers – contd Northern Ireland, in, 1.20, 1.22 Planning Practice Guidance, 1.03, 1.16 public interest, importance of, 1.05 purposes, 1.01–1.05 submission notice see Submission notice time limits see under Enforcement action types of powers, 1.20 Wales, in, 1.20 Enterprise zone authority power to make, 1.10 Entry powers Community Infrastructure Levy, to recover, 22.29, 22.30 information, to obtain see under Information Northern Ireland, in, 5.28, 5.36 other than for enforcement actions, 5.35, 5.36 Environment damage to see Environmental damage environmental impact assessment see Environmental impact assessment historic see Historic environment Environmental damage s 215 notice see under Maintenance of land waste and fly-tipping, 14.21 Environmental impact assessment absence of planning consent see enforcement notice appeal, on below assessments required under, 9.15 caravans, removal of, 9.25 case law, 9.17–9.25 categories of projects, 9.04 consent regimes in UK, integration into, 9.05 direct action in enforcement matters, and, 9.25 discontinuance order, in case of, 9.13, 9.14 dredging, 9.22 enforcement duty, 9.17–9.25 enforcement notice appeal, on— caravans, in case of, 9.06 case law, 9.06 decision as to, 9.08, 9.09 development consent, in case of, 9.07 environmental statement, need for, 9.10–9.12 generally, 9.06, 9.07 glass factory, building of, 9.06, 9.19 minerals and waste development, 9.06, 9.20 regulations, relevant, 9.07 retrospective planning permission, and, 9.06

578

Index Environmental impact assessment – contd enforcement notice appeal, on – contd screening direction, application for, 9.09 screening opinion, 9.08, 9.09 environmental statement, need for, 9.10–9.12 European legislation— generally, 9.03, 9.16 need to implement, 9.15 generally, 9.01–9.05 implementation in UK, 9.05 introduction, 9.03 lawful development certificate system, challenge to, 9.18, 9.24 modification order, in case of, 9.13, 9.14 precautionary principle, application of, 9.23 railway works, 9.17 regulations, 9.02 revocation order, where, 9.13 sand extraction, 9.22 steps required, of, 9.25 stop notice, refusal to issue, 9.22, 9.23 time limits, whether lawful, 9.21 unlawful project avoiding assessment, 9.15–9.23 Equality duty to ensure, 4.19–4.21 Error of fact generally, 1.29 Error of law generally, 1.29 Estoppel meaning, 1.38 cause of action estoppel, 1.39 effect, 1.39 enforcement, how arising, 1.40 generally, 1.39–1.44 issue estoppel, 1.39 per rem judicata, and 1.39–1.41 representation, by, 1.42–1.44 F Fish farming engineering operation, as, 2.25 H Hazardous substances authority, organisations comprising, 20.02 contravention notice— appeal, 20.11, 20.12 contents, 20.10 generally, 20.10–20.13 grounds of appeal, 20.11 legislation, 20.13 power to issue, 20.10 service, 20.10 statement of reasons to accompany, 20.10

Hazardous substances – contd criminal liability for breach, 20.04 enforcement powers— contravention notice see contravention notice above generally, 20.03 injunctions, 20.14, 20.15 prosecution see under offence below generally, 20.01, 20.02 injunctions in respect of, 14.22 legislation, 20.01, 20.02 offence— meaning, 20.04 appropriate person, commission by, 20.05 prosecution— appropriate person, of, 20.05 consent, absence of, 20.07 defences, 20.06–20.08 failure to comply with condition, for, 20.08 generally, 20.04–20.09 penalties, 20.09 Hedgerow enforcement procedures, 17.29 entry rights to protect, 17.34 important— meaning, 17.27 criteria to be met, 17.27 protection of, 17.27 injunction to protect, 17.34 offence and penalty— corporate liability, 17.31 generally, 17.31 permissible removal, 17.30 regulations as to— power to make, 17.27 removal in contravention of, 17.29 removal notice, service of, 17.28 replacement notice— appeal against, 17.33 service, 17.32 retention notice— appeal against, 17.33 service, 17.28 Heritage offences injunctions in respect of, 14.22 High Court challenges in— civil proceedings, 24.64 collateral challenge, 24.63 costs decisions, as to, 24.05–24.07 criminal proceedings see Criminal proceedings decisions reviewable, 24.01–24.04 enforcement notices see enforcement notice appeal, challenging decision on below

579

Index High Court – contd challenges in – contd generally, 1.36, 24.01–24.04 legislation, relevant, 24.04 mechanisms applicable to, 24.04 Northern Ireland, in, 24.03 collateral challenge, 24.63 costs of appeals and applications, recovery, 24.43, 24.61 Court of Appeal, appeal to— s 288, under, 24.44, 24.45 s 289, under, 24.30, 24.45 enforcement notice, challenging validity of— judicial review, by see Judicial review see also validity of enforcement notice below enforcement notice appeal, challenging decision on— appellant’s notice, need for, 24.13 case for High Court’s opinion, 24.09 case stated option not available, 24.10 costs, recovery of— case stated, appeal by, 24.29 general rule, 24.25 judicial review, 24.29 permission hearing, 24.26–24.28 Court of Appeal, appeal to, 24.30 filing date for permission, extension of, 24.17 filing procedures, 24.22 generally, 24.02 grounds, 24.11 human rights legislation, and, 24.08 judicial review— appropriate mechanism, as, 24.53 see further Judicial review Minister offering to submit to judgment, 24.24 permission to appeal— costs, recovery of, 24.26 obtaining, 24.16–24.21 right to appear, 24.28 persons interested in land, service of documents on, 24.15 point of law, on, 24.09, 24.10, 24.11 Practice Direction, guidance in, 24.13, 24.14 procedure, 24.13–24.15 remission of appeal back to Minister, 1.36, 24.23, 24.24 respondents in, 24.01 s 288, under see grant of planning permission, application to quash below s 289, under, 24.08–24.10, 24.45, 24.61 scope of challenge, 24.08

High Court – contd enforcement notice appeal, challenging decision on – contd standing, 24.12 substantive hearing, 24.22–24.24 time for bringing proceedings, 24.17 validity of enforcement notice see validity of enforcement notice below grant of planning permission, application to quash— comparison with s 288 and planning judicial review, 24.45 costs, recovery of, 24.61 court’s power to quash, 24.33 generally, 24.31 grounds of challenge, 24.32 procedure— accompanying details, 24.37 acknowledgment of service, 24.39 Civil Procedure Rules, in, 24.35 claim form details, 24.35, 24.36 defendant’s need to file and serve evidence etc, 24.40 evidence, provision of, 24.40, 24.41 filing time limits, 24.39, 24.40 generally, 24.35–24.42 invalid claim form, 24.27 permission, application for, 24.38, 24.39 reply by claimant, 24.39 skeletons, sequential production, 24.41 summary grounds, filing of, 24.39 suspension of planning permission, 24.42 standing, 24.34 suspension of challenged planning permission, 24.42 judicial review see Judicial review lawfulness of proposed actions, declaration as to, 23.54–23.57 nullity issue on appeal to Secretary of State, 24.62 planning judicial review, comparison with s 288 and s 289 appeals, 24.45 s 288, application under see grant of planning permission, application to quash above Secretary of State’s decision, challenging see enforcement notice appeal, challenging decision on above validity of enforcement notice— criminal proceedings see under Criminal proceedings enforcement notice: meaning, 24.47 excluded grounds of challenge, 24.49

580

Index High Court – contd validity of enforcement notice – contd formal validity, 24.47 general prohibition on challenge, 24.46–24.49 judicial review, prevention of, 24.48 prohibited defence, 24.47 restrictions on challenging, 24.48 Historic environment area of archaeological importance, 16.61 generally, 16.01 listed building control see Listed building control penalties for offences— aggravating factors, 16.71 case law, 16.67–16.69 generally, 16.67–16.72 Heritage Crime Impact Statement, 16.72 Historic England’s guidance, 16.72 IHBC database, use of, 16.70 policy on, 16.01 scheduled monuments, 16.57–16.60 Housing action trust power to make, 1.10 Human rights discrimination, prohibition of, 4.12 general duty, 4.10 legislation, 4.10 private and family life, right to respect for, 4.11 property, protection of, 4.13–4.17 I Information companies, as to, 5.42 council records, 5.39 entry rights— disclosure of certain information obtained, offence, 5.34 exercise of power, 5.30, 5.31 generally, 5.24, 5.35, 5.36 means of obtaining entry, 5.24 ministerial powers, 5.29 nationally significant infrastructure project, as to see under Nationally significant infrastructure project Northern Ireland, in, 5.28, 5.36 obstruction, penalties for, 5.34 purposes for which granted, 5.25, 5.26 statute, under, 5.25–5.28 warrant, under, 5.32, 5.33 false representations, 5.20–5.22 interviews, 5.44 land ownership, 5.41 methods of obtaining— appeal, on, 5.59, 5.60

Information – contd methods of obtaining – contd council minutes and officer’s reports, 5.48 data protection rights, and, 5.55 developer’s records, 5.57 enforcement register, 5.47 environmental information legislation, under, 5.49, 5.50 exemptions from duty to provide, 5.52, 5.53 freedom of information legislation, under, 5.49–5.55 generally, 5.45 inspector’s decision letters and reports, 5.56 neighbours and former occupants, 5.58 planning register, 5.46 precision, need for, 5.54 statutory charges register, 5.47 non-disclosure, 5.23 notice see s 330 notice below obtaining— appeal, on, 5.59, 5.60 court powers, 5.37 data protection rights, and, 5.55 entry powers see entry rights above environmental information legislation, under, 5.49, 5.50 exemptions from duty to provide, 5.52, 5.53 false representations, 5.20–5.22 freedom of information legislation, under, 5.49–5.55 general power, 5.19 generally, 5.01–5.04 interests and use of land see s 330 notice below methods see methods of obtaining above non-disclosure, 5.23 planning contravention notice see Planning contravention notice precision, need for, 5.54 stop notice compensation, effect of failure to provide, 10.47, 10.48 surveillance, 5.38 types, 5.01, 5.39–5.44 photographs, 5.40, 5.43 s 330 notice— circumstances for use of power, 5.14 contents, 5.16, 5.17 failure to comply with, 5.18 generally, 5.12 issue, 5.15 penalties for non-compliance etc, 5.18 purpose, 5.13 statutory authority for, 5.12

581

Index Information – contd site visit— need for, 5.43 see also entry rights above surveillance, restrictions on, 5.38 unauthorised business, in case of, 5.43 Injunction advertising, control of, 18.59 application for see procedure for obtaining below area-wide, 14.19–14.21 committal for contempt, enforcement by, 14.44 damages, cross-undertaking in, 14.37 defendants— acknowledgment of service, by, 14.31 evidence, filing of, 14.31 generally, 14.19 Local Government Act 1972, under, 14.07 reply by claimant, 14.31 response of, 14.31 Town and Country Planning Act, under, 14.18 unknown persons, 14.18, 14.20, 14.21 enforcement, 14.44 final hearing, 14.38 form of, 14.39–14.41 generally, 14.01–14.03 hazardous substances, offences in connection with, 14.22, 20.14, 20.15 hedgerow, protect, 17.34 heritage matters, offences in connection with, 14.22 interim— American Cyanamid principles, and, 14.34 application notice, filing and service, 14.32 application without notice, 14.32, 14.33 delay in applying for, 14.34 delay in granting, court’s reluctance, 14.35 discharge or variation, 14.36 disclosure required, nature of, 14.32 effective date of, 14.32 generally, 14.32–14.36 informal notification of application for, 14.33 permanent injunction, proceeding straight to, 14.34 suspension, application for, 14.36 time for obtaining, 14.32 listed building control, to support, 16.39– 16.41 Local Government Act 1972, under— area-wide injunction, 14.21

Injunction – contd Local Government Act 1972, under – contd case law, 14.05, 14.06 criminal offence committed, where, 14.05 defendants, 14.07 generally, 14.11 judicial guidance, 14.05 limitations on power, 14.05, 14.06 mandatory, 14.21 right to bring proceedings, 14.04 Town and Country Planning Act, comparison with, 14.24 wording, 14.04 mandatory, 14.09, 14.21 nationally significant infrastructure projects, and— application for, 21.19 court’s powers, 21.20 prohibited activity: meaning, 21.19 Northern Ireland, in, 14.23 penal notice in, 14.42, 14.43 persons unknown, against— claim form, 14.28 collective identification inadequate, 14.30 generally, 14.18, 14.20, 14.21 individual identification, 14.30 witness statement, 14.29 planning and general injunctions compared, 14.24 procedure for obtaining— affidavits, contents of, 14.26 defendants see defendants above exhibits required, 14.27 generally, 14.03, 14.25 Pt 8 claim, 14.25 unknown persons, against see persons unknown, against above witness statements, contents of, 14.26 public authorities, to prevent breaches by, 14.52, 14.53 qua timet, 14.09 relator actions, 14.47, 14.48 sanctions for non-compliance with, 14.03 statistics as to use of, 14.03 statutory authority for— generally, 14.03 Local Government Act see Local Government Act 1972, under above Town and Country Planning Act see Town and Country Planning Act, under below stop notice, for breach of, 22.14, 22.15 third party rights— application by third parties, 14.45, 14.46

582

Index Injunction – contd third party rights – contd generally, 14.03, 14.45, 14.46 public authorities, breaches by, 14.52, 14.53 relator actions, 14.47, 14.48 works prejudicing court proceedings, 14.49–14.51 Town and Country Planning Act, under— changes in planning circumstances, relevance, 14.13 constraints, 14.10 court’s role, 14.12–14.17 defendants, range of, 14.18 essential test of ruse of court’s powers, 14.12 generally, 14.08 human rights legislation, and, 14.14– 14.17 Local Government Act, comparison with, 14.24 mandatory injunction, 14.09 qua timet injunction, 14.09 scope of power, 14.09–14.11 Wednesbury unreasonableness, and, 14.13 wording 14.08 trees— offences in connection with, 14.22 protection of, 14.22, 17.24, 17.25 uses of, 14.03 waste and fly-tipping, 14.21 works prejudicing court proceedings, 14.49–14.51 Inspector appeals heard by, 1.11 generally, 1.11 Investigation covert sources, use of, 5.38 restrictions on carrying out, 5.38 Irrationality see Unreasonableness J Judicial review alternative challenges, existence of, 24.50 court’s powers, 1.35, 1.37 enforcement action, on failure to bring, 24.52 enforcement notice appeal— challenging, 24.53 human rights legislation, and, 24.53 Secretary of State’s refusal to hear, 24.53 England and Wales, procedures in, 24.54, 24.55 exceptions, 24.50 generally, 24.50–24.53, 24.64

Judicial review – contd Northern Ireland, procedures in see under Northern Ireland notice a nullity, where, 24.51 public law decision, to challenge, 24.64 public law grounds related to expediency, 24.50 remedies available, 24.60 L Lawful Development Certificate appeal on refusal to grant— challenging appeal decision, 23.39 generally, 23.36–23.38 case law, 23.01, 23.02 CLEUD— application for— accompanying documents, 23.17, 23.18 acknowledgment of receipt, 23.20 appeal on refusal— challenging appeal decision, 23.39 generally, 23.36–23.38 burden of proof, 23.21 consultation on, 23.23 contents, 23.16, 23.17, 23.18 decision see decision-making process below evidence on factual issues, 23.21 fees, 23.22 form, 23.15 grant with different use from that applied for, 23.10 grounds supporting, 23.09 invalid, notification as to, 23.20 misleading information in see misleading information, provision of below no interest in land required, 23.15 planning register, inclusion on, 23.34 practical points, 23.21 refusal, 23.10, 23.31, 23.36–23.38 standard of proof, 23.21 time for determining, 23.20 to whom made, 23.15 two or more uses, operations etc, where, 23.18 CLOPUD, comparison with, 23.13 contents, 23.26, 23.28–23.30 effect, 23.05 enforcement action, time for taking, 23.08 Established Use Certificates, replacing, 23.05 form of certificate, 23.27 generally, 23.03

583

Index Lawful Development Certificate – contd CLEUD – contd lawful failure to comply with conditions etc, 23.07 lawful uses and operations: meaning, 23.06 matters determined by, 23.05 CLOPUD— application for— accompanying documents, 23.17, 23.18 acknowledgment of receipt, 23.20 appeal on refusal— challenging appeal decision, 23.39 generally, 23.36–23.38 burden of proof, 23.21 consultation on, 23.23 contents, 23.16, 23.17, 23.18, 23.19 Crown land, where, 23.19 decision see decision-making process below evidence on factual issues, 23.21 factors for consideration, 23.13 fees, 23.22 form, 23.15 invalid, notification as to, 23.20 invalid condition, to address alleged, 23.13 misleading information in see misleading information, provision of below no interest in land required, 23.15 planning register, inclusion on, 23.34 practical points, 23.21 refusal, 23.13, 23.31, 23.36–23.38 standard of proof, 23.21 time for determining, 23.20 to whom made, 23.15 two or more uses, operations etc, where, 23.18 CLEUD, comparison with, 23.13 contents, 23.26, 23.28–23.30 form of certificate, 23.27 generally, 23.03, 23.11 issue, 23.13 matters determined by, 23.12 planning permission, whether lawfully implemented, 23.14 refusal to issue, 23.13 conclusive nature of, 23.03, 23.32 contents, 23.26, 23.28–23.30 decision-making process— form of certificate, 23.27 form of decision— form of certificate, 23.27 content of certificate, 23.26 generally, 23.26–23.31

Lawful Development Certificate – contd CLOPUD – contd form of decision – contd grant of application, on, 23.26 refusal of application, on, 23.26, 23.31 generally, 23.24, 23.25 effect, 23.32, 23.33 generally, 23.01–23.04 legislation, 23.04 lawfulness of proposed actions, declaration by High Court as to, 23.54–23.57 misleading information, provision of— prosecution for— generally, 23.45–23.47 offence, 23.45 penalties, 23.47 persons liable, 23.46 trial, 23.47 revocation for, 23.40–23.44 planning obligation, and, 23.35 revocation— false statement or withholding, for, 23.40–23.42, 23.44 generally, 23.40–23.44 grounds for, 23.40 notice of, 23.43 representations, right to make, 23.43 third party challenge to validity, 23.48 validity— previous means of determining lawfulness, 23.49–23.53 third party challenge to, 23.48 Legislation England and Wales, in, 1.12–1.14 Limitation breach of see under Breach of planning control Listed building control architectural or historic interest, works affecting, 16.09 authorised or excepted works, 16.05 building preservation notice, 16.46, 16.47 certificate of lawfulness of proposed works— appeal procedure, 16.78 application for— accompanying documents, 16.74 contents, 16.74 eligible applicant, 16.73 local planning authority’s powers, 16.75 contents, 16.75 generally, 16.73–16.78 introduction, 16.73 issue of, 16.75 lawfulness: meaning, 16.73

584

Index Listed building control – contd certificate of lawfulness of proposed works – contd offence and penalties, 16.77 restriction on grant, where, 16.73 revocation, 16.76 statutory authority, 16.73 consent for works, grant of— conditions, subject to, 16.10 generally, 16.10 not required, where, 16.10 conservation area consent— Northern Ireland, in, 16.50 Wales, in, 16.48, 16.49 demolition— conservation area consent see conservation area consent above England, conservation area in see under Demolition façade and chimneys, except for, 16.08 removal not constituting, 16.08 whole or substantial part, of, 16.08 effect of works, elements applicable to, 16.07 enforcement mechanisms— generally, 16.11 prosecutions see prosecutions below enforcement order see Listed building enforcement order generally, 16.02–16.10 injunction to support, 16.39–16.41 intentional damage to listed building— building preservation notice, 16.46, 16.47 generally, 16.42–16.45 legislation, 16.42 Northern Ireland, in, 16.44, 16.45 offence— generally, 16.42 Northern Ireland, in, 16.44, 16.45 statutory authority for, 16.43 penalties, 16.42, 16.43, 16.45 listed building— meaning, 16.03, 16.04, 16.08 enforcement notice see Listed building enforcement notice intentional damage see intentional damage to listed building above offence, 16.05, 16.06 planning permission, independent of any need for, 16.10 power to list, 16.02 prohibition on works, 16.05 prosecution— Best Practice Guidance, 16.19 defences, 16.16 enforcement as alternative to, 16.35, 16.36

Listed building control – contd prosecution – contd England and Wales, in, 16.12–16.14 Grounds for, 16.35 intention, irrelevance, 16.17 Northern Ireland, in, 16.15 parties able to bring, 16.20 penalties, 16.18 public interest factors, 16.19 strict liability nature of defence, 16.17 triable either way offences, 16.18 statutory authority— England and Wales, in, 16.02 Northern Ireland, in, 16.02 works covered by, 16.10 Listed building enforcement notice appeal— adjournment of other proceedings during, 16.29 challenging appeal decision, 16.37 grounds of, 16.27, 16.28 legislation, 16.29 Northern Ireland, in, 16.28 procedure, 16.29 proposed procedural amendments, 16.29 right of, 16.27 circumstances warranting, 16.22 contents, 16.24, 16.26 development plan policies, relevance, 16.23 expediency test, 16.23 failure to comply with— meaning, 16.30 aiding and abetting offence, 16.31 defence, 16.32 entry powers, 16.33, 16.34 generally, 16.30–16.34 Northern Ireland, in, 16.34 occupier not liable, 16.31 offence— nature of, 16.30 triable either way, 16.33 penalties, 16.33 generally, 16.21, 16.36 parties exercising powers, 16.21 previous owner, works carried out by, 16.25 procedural rules, 16.26 prosecution as alternative to, 16.35, 16.36 remedial works, deemed consent for, 16.26 service, 16.26 suspension during appeal, 16.29 time limit for issue— England and Wales, 16.25 Northern Ireland, 16.25

585

Index Listed building enforcement notice – contd validity, 16.38 waiver or relaxation of requirements in, 16.26 withdrawal, 16.26 Local authority duties, 1.03 Local planning authority enforcement notice, power to issue, 6.59 M Maintenance of land s 215 notice— appeal against— complaint, by way of, 15.28 court’s powers on, 15.28 further appeal against decision made on, 15.28 generally, 15.25–15.29 grounds for, 15.25 lawful use, where land in, 15.26, 15.27 other proceedings, restriction on challenge in, 15.29 time for making, 15.25 unlawful notice, 15.28 carrying out of works following noncompliance with, 15.31 circumstances warranting, 15.23 contents, 15.23 effective date of, 15.24, 15.28 generally, 15.01, 15.23, 15.24 land applicable to, 15.24 lawful use, where land in, 15.26, 15.27 nullity, judicial guidance as to, 15.23 offence of non-compliance with, 15.30 power to serve notice under, 15.23 prosecution for non-compliance with, 15.30 storage of vehicles etc, land used for, 15.26 Mayoral development corporation power to make, 1.10 Minerals special order breach, offence, 15.06 Mining operations enforcement action, time limit for, 3.10 examples— England and Wales, in, 2.11 Northern Ireland, in, 2.12 extraction of further minerals, 2.14 minerals: meaning, 2.13 mineral-working deposit: meaning, 2.13 N National park planning control in, 1.09, 4.06

National Planning Policy Framework advice in, 4.25 generally, 4.24 Planning Practice Guidance, 4.25 Nationally significant infrastructure project criminal offences— breach of development consent order, 21.05 deemed marine licence, exception for condition in, 21.06 entry powers, 21.11 generally, 21.04–21.10 offence: meaning, 21.04, 21.05 penalty, 21.10 reasonable excuse defence, 21.06 time limits, 21.07–21.10 triable either way, 21.06 development consent regime— development: meaning, 21.01 enforcement see enforcement powers below legislation, 21.01 order, grant of, 21.02 outline, 21.01, 21.02 enforcement powers— criminal offences see criminal offences above generally, 21.03 responsibility for, 21.03 entry powers— authority, need to produce evidence of, 21.12 compensation for damage caused, 21.12 Crown land, 21.12 notice in case of dwelling house, 21.11 obstruction, offence and penalty, 21.12 persons who may enter, 21.12 refusal of entry, 21.11 right of entry, 21.11 time of entry, 21.11 warrant, with or without, 21.11, 21.12 information— entry powers to obtain see entry powers above notice— admissibility of evidence obtained by, 21.15 compliance with, 21.14 false or misleading statement, penalty, 21.16 improper use of, 21.15 non-compliance with, offence, 21.14 persons on whom served, 21.13 power to serve, 21.13 purpose, 21.15

586

Index Nationally significant infrastructure project – contd information – contd notice – contd required information in, 21.13, 21.15 self-incrimination, 21.15 power to require— generally, 21.13–21.16 notice see notice above injunction— application for, 21.19 court’s powers, 21.20 prohibited activity: meaning, 21.19 notice of unauthorised development— contents, 21.17 direct action, and, 21.17, 21.18 entry powers, 21.18 expenses incurred, recovery of, 21.18 non-compliance with, 21.18 obstruction, offence, 21.18 persons on whom served, 21.17, 21.18 power to serve, 21.17 Natural justice categories, 1.32 generally, 1.32–1.34 identifying errors, approach to, 1.34 interpretation of facts, 1.33 public law challenges, 1.33 Northern Ireland advertising regulations, 18.08 archaeological excavations, 16.66 breach of condition notice— alternative to serving see fixed penalty notice below enforcement register, entry on, 12.12 fixed penalty notice see fixed penalty notice below legislation, 12.02 conservation area consent in, 16.50 discontinuance order— power to make, 15.05 see also Discontinuance order enforcement notice— appeal against see under Enforcement notice (appeal against) fixed penalty notice see under Enforcement notice issue, 6.61 registration, 6.43 service, 6.40 suspension, 6.30 enforcement powers in, 1.20 entry powers in, 5.28, 5.36 fixed penalty notice— alternative to breach of condition notice, as, 12.16 amount under, 12.16, 12.18

Northern Ireland – contd fixed penalty notice – contd appeal against, no right of, 12.24 contents, 12.18, 12.20 continuing offence, effect, 12.20, 12.21 discount for early payment, 12.19 disputing liability, 12.24 failure to pay penalty, 12.16 generally, 12.16–12.26 judicial review, right of, 12.25 no proceedings within 28 days of date of, 12.20 payment— cheque, by, 12.23 effect, 12.20 failure to pay, 12.24 further breaches following, 12.21 liabilities affected by, 12.22 means of making, 12.23 posted, time of receipt, 12.23 receipts, council’s use of, 12.26 service— authorised officer, 12.17 different notices, of, 12.22 party to be served, 12.17 injunctions in, 14.23 judicial review procedures in— application, procedure as to, 24.59 generally, 24.56 guidance as to, 24.57 legislation, 24.57 originating motion, time for issue of, 24.59 remedies available, 24.60 time limit for bringing, 24.58 planning agreement see Planning agreement planning control in, generally, 1.08, 1.09, 1.11 policy and guidance in, 1.15, 1.18, 4.33 revocation or modification of planning permission— confirmation, 15.12 power to make, 15.14 statutory authority for, 15.09 see also under Planning permission screening determination, 9.08 site of scientific interest, enforcement action in, 4.06 stop notice— compensation, right to— adverse effect on failure to provide information, 10.48 claims procedure, 10.49 issue of, 10.06 service of, 10.52 temporary stop notice see temporary stop notice below

587

Index Northern Ireland – contd Strategic Planning Policy Statement, 1.19 submission notice see Submission notice temporary stop notice— compensation, right to, 11.32 restrictions on, 11.16, 11.18 Nullity challenge, following, 1.37 P Planning agreement see also Planning obligation charge to recover expenses, 19.11 generally, 19.01 legislation, 19.02 purpose, 19.01, 19.06 Planning Appeals Commission Northern Ireland, in, 1.11 Planning application notice requiring submission of see Submission notice Planning contravention notice appeal against service of, 5.07 contents, 5.09–5.10 failure to comply with, 5.11 generally, 5.05 guidance on use, 5.05 issue of, 1.23, 5.06–5.08 service— effect on other enforcement powers, 5.08 parties for, 5.08 right of, 5.06 successful challenge to, 5.07 statutory authority for, 5.05 Planning control enforcement action see Enforcement action local level, at, 1.07, 1.09 national parks, in, 1.09 Northern Ireland, in, 1.08, 1.09 responsibility for, 4.02 structure, 1.06–1.11 tiers of government, 1.06 Wales, in, 1.06, 1.10 Planning enforcement order appeal against decision, 3.52 application for— certificate of lawfulness, effect of application for, 3.50 evidence, need for, 3.49 parties entitled to appear, 3.51 service, 3.51 time for, 3.43, 3.48 breach, identification of, 3.53 case law, overlap with, 3.46 contents, 3.53

Planning control – contd court’s decision— appeal against, 3.52 date of, 3.53 deliberate concealment, need for, 3.45– 3.47, 3.55 enforcement notice, subsequent issue, 3.52 generally, 3.42–3.55 grounds for making, 3.44 nature of, 3.42 register, details on, 3.53 restriction on issue of, 3.54 statutory authority, 3.42, 3.54 time limits— application, time for, 3.48 duration of order, 3.43 Planning guidance generally, 1.15–1.18, 4.26 Local Enforcement Plan, 4.41 National Planning Policy Framework see National Planning Policy Framework Northern Ireland, in, 1.15, 1.18, 4.33 Wales, in, 1.15, 1.17, 4.27–4.32 Planning obligation action on specialty, 19.09 agreements still in force, 19.02–19.04 charge to recover expenses, 19.11 deed, by, 19.05 enforcement— costs, recovery of, 19.11 direct action, by, 19.11 entry powers, 19.11 generally, 19.07 injunction, 19.08, 19.10 interim injunction, 19.08 landowner’s response to proceedings, 19.12 limitation period, 19.09, 19.10 obstruction, as offence, 19.11 proceedings, bringing, 19.08 Pt 8 claim form, 19.08 entry into, 19.05 generally, 19.01 historical background, 19.02–19.04 landowner’s response to proceedings, 19.12 legislation, 19.02 nature of obligation, 19.05 Northern Ireland, in see Planning agreement purpose, 19.01, 19.05 third parties, rights of, 19.13 Planning permission completion notice see Completion notice

588

Index Planning permission – contd condition, breach of see under Breach of planning control development, for see under Development future development, condition as to commencement, 15.16 implementation— conditions, compliance with, 2.61, 2.62 departure from approved plans, 2.63, 2.64 generally, 2.59–2.67 material operations constituting, 2.59, 2,60 Northern Ireland, in, 2.60 time limits, 2.65, 2.67 unlawful, where, 2.65, 2.66 interpretation— ambiguity, where, 2.69, 2.71 application as part of permission, 2.69 clarity, where, 2.69 extrinsic evidence, use of, 2.69, 2.71 generally, 2.69–2.71 judicial analysis, 2.69, 2.70 outline permission, 2.70, 2.71 summary of principles, 2.69 lapsing, 2.67 limitation, breach of see under Breach of planning control modification see revocation or modification below retrospective, 2.60, 2.67 revocation or modification— compensation, 15.13 confirmation, need for, 15.12 exercise of powers, 15.10 failure to comply with, 15.15 generally, 15.01, 15.08–15.15 Northern Ireland, in, 15.09, 15.12, 15.14 operations already covered out, where, 15.11 parties able to make, 15.14 prospective effect of order, 15.05 rare use of, 15.14 statutory authority for, 15.08, 15.09 type of development dealt with, 15.10 Planning policy generally, 1.15–1.18 National Planning Policy Framework, 1.15, 1.16 Procedural impropriety see Natural justice Public law principles, 1.28 R Res judicata see also Estoppel application, 1.39 effect, 1.38 elements, 1.39

Res judicata – contd generally, 1.39–1.41 principles on which resting, 1.39 S Scheduled monument generally, 16.57–16.60 legislation, 16.57 Northern Ireland, in, 16.57 offence— generally, 16.57 Wales, in see Wales, offence in below statistics, 16.57 Wales, offence in— appeal, right of, 16.58 direct action, power to take, 16.59 enforcement notice, 16.58 generally, 16.58–16.60 legislation, 16.58 penalty, 16.57, 16.59 temporary stop notice, 16.60 works to, offence, 16.57 Secretary of State enforcement notice— power to issue, 6.59, 6.62 prosecution for failure to comply with, 8.61 Site of special scientific interest enforcement action in, 4.06 Northern Ireland, in, 4.06 Stop notice appeal, prohibition on, 10.02 breach, need to specify, 10.21, 10.22 cessation of activity, requiring, 10.23 cessation of effect, 10.33–10.36 compensation for loss incurred— challenge to claim or amount, 10.51 circumstances warranting, 10.42 claimants, 10.44 claims procedure, 10.49–10.51 compensation recoverable, 10.45 directly attributable loss, need for, 10.45 generally, 10.42, 10.43 heads of claim, no need to specify, 10.50 information, effect of failure to provide, 10.47, 10.48 interest, payment of, 10.46 not payable, where, 10.43 planning control, ascertaining breach of, 10.43 right to, 10.45, 10.46 contents, 10.19 effect, 10.09 effective date of— England and Wales, in, 10.27–10.29 generally, 10.27–10.31 Northern Ireland, in, 10.30, 10.31

589

Index Stop notice – contd enforcement notice appended to, 10.20 enforcement register, entry in, 10.26 failure to comply with— generally, 10.02 prosecution for see prosecution for failure to comply with below form of, 10.19–10.23 generally, 10.01–10.04 guidance as to use, 10.03 identification of land in, 10.21 invalid, where, 10.19 issue— generally, 10.05–10.08 Northern Ireland, in, 10.06, 10.13 validity, challenging, see validity, challenging below see also service below model notices, 10.19 Planning Practice Guidance, and 10.10 precision, need for, 10.22 prosecution for failure to comply with— contravention of notice, for: meaning, 10.57 day or longer period, charging for, 10.58 defences, 10.59–10.61 further offences, conviction for, 10.58 local planning authority, by, 10.53 offence, nature of, 10.55–10.57 penalties, 10.62 sentencing, 10.62 third parties, by, 10.54 purpose, 10.04 registration, 10.26 residential caravans, to prevent use of land for, 10.08 restaurant, against, 10.17, 10.23 restrictions, 10.07 service— case law, 10.15–10.17 Department, by, 10.52 discretionary nature of power, 10.09, 10.10, 10.15 guidance prior to, 10.10–10.14 judicial guidance, 10.15 judicial review, 10.52 Northern Ireland, in, 10.52 party to serve, 10.24 persons on whom served, 10.24 second notice, 10.18 Secretary of State, by, 10.52 site notice following, 10.24, 10.25 time for, 10.02 Welsh Ministers, by, 10.52 site notice, display after service, 10.24, 10.25

Stop notice – contd statistics as to numbers issued, 10.04 statutory authority for, 10.03, 10.05, 10.06 temporary see Temporary stop notice validity, challenging— absence of statutory bars, 10.37 case law, 10.38–10.40 defence to criminal proceedings, as, 10.37, 10.38, 10.40, 10.41 judicial review, by, 10.37, 10.38, 10.41 prescribed period, activity carried out for more than, 10.38, 10.39 Welsh Office Circular, advice in, 10.11 withdrawal— breach prior to service of, 10.36 cessation of effect on, 10.33, 10.34 effective date of, 10.32, 10.34 further stop notice following, 10.32 procedure, 10.32 Submission notice appeal— Commission’s powers on hearing, 13.20 format, 13.18 generally, 13.14–13.20 grounds of, 13.15–13.17 oral hearing, right to, 13.19 procedural guidance, 13.14 right of, 13.14 suspension during, 13.21, 13.22 time limit, 13.18 challenging— appeal, by see appeal above High Court, in, 13.23, 13.24 clarity, need for, 13.10 contents 13.10 defective application for, 13.07 effect, 13.09 failure to comply with— burden of proof, 13.27 defence, 13.26, 13.28 generally, 13.25–13.29 offence, 13.25, 13.29 penalties, 13.29 summary nature of offence, 13.29 validity of notice not a defence, 13.28 generally, 1.20, 13.01 grounds for issuing, 13.03–13.05 issue— generally, 13.03–13.11 time limit for, 13.11 judicial review, challenge by way of, 13.23, 13.24 non-compliance with see failure to comply with above period for compliance in, 13.09 prescribed fee, payment of, 13.07

590

Index Submission notice – contd regional significance, development of, 13.08 retrospective application for approval of permission, 13.06 service, 13.12 suspension during appeal, 13.21, 13.22 time limit for issue, 13.11 withdrawal— generally, 13.13 notice of, 13.13 prohibition on, 13.09 Surveillance restrictions on carrying out, 5.38 T Temporary stop notice activities not prohibited by, 11.13–11.15 application, 11.06 breach of condition notice, used with, 11.02 caravan, stationing of, 11.14, 11.15 cessation, 11.09 compensation where activity lawful— circumstances warranting, 11.31 disputed claim, 11.34 excluded, where, 11.33 generally, 11.30–11.34 Northern Ireland, in, 11.32, 11.34 person entitled to, 11.31 procedure, 11.34 time limits, 11.34 compliance with, giving time for, 11.08 contents, 11.05 contravention before display, 11.07 display requirement, 11.07 duration, 11.01, 11.09–11.11 dwelling house, use of building as, 11.13, 11.14 effective date of, 11.07 exceptions to use of, 11.12 four years’ activity prior to, effect, 11.17, 11.18 generally, 11.01–11.03, 11.06 guidance on use of, 11.03, 11.06 human rights, and. 11.15 issue— discretionary nature of power, 11.21 display requirements, 11.07 generally, 11.07, 11.08 matters for consideration prior to, 11.21 Planning Practice Guidance, 11.23 Wales, in, 11.22 model form, of, 11.06 Northern Ireland, restrictions on, 11.16, 11.18

Temporary stop notice – contd offences— contravention, need for, 11.24–11.26 defence, 11.27 legislation, 11.24 multiple breaches or convictions, 11.26 penalties, 11.29 proof needed, 11.28 purpose, 11.01, 11.06 reasons for issue, 11.04 requirements on issue, 11.07 second notice, 11.19, 11.20 service person on whom served, 11.08 time for, 11.01 statistics, 11.03 statutory authority for, 11.03 use of, 11.02 withdrawal, 11.09, 11.10 Tree conservation area, in, 17.17–17.23, 17.26 entry powers to protect, 17.26 injunctions to protect, 14.22, 17.24, 17.25 legislation protecting, 17.02 protection, methods of, 17.03 replacement, 17.12–17.16 tree preservation order— breach, 17.08–17.11 challenge to validity, 17.05 consent and exemptions, 17.06, 17.07 contents, 17.04 effective date, 17.04 entry powers, 17.26 format, 17.04 generally, 17.04, 17.05 modification, 17.04 objections or representations, 17.04 offences, 17.08–17.11 power to make, 17.04 provisional, 17.04 service, 17.04 suspension, restriction on, 17.05 U Unreasonableness broad sense, in, 1.30 examples, 1.30 generally, 1.30, 1.31 narrow sense, in, 1.31 Wednesbury, 1.31 Urban development corporation local planning authority, as, 1.10 Use of land meaning, 2.26, 2.28 abandonment, 2.35 agricultural purposes etc, for, 2.38–2.40

591

Index Use of land – contd carrying on of, 2.34–2.36 change of, material see Change of use dwellinghouse, for purposes incidental to enjoyment of, 2.37 mixed, 2.43 no activity on site, where, 2.35 ordinarily incidental, 2.29 start of use, identifying, 2.36 surviving period of inactivity, 2.35 V Validity challenge, following, 1.37 W Wales advertising regulations, 18.07 breach of condition notice, legislation, 12.02 Circular, guidance in, 4.32 conservation area— consent, 16.48, 16.49 demolition of building in, 1.22 Development Management Manual— enforcement action arising, where, 4.29

Wales – contd Development Management Manual – contd generally, 1.17, 4.27–4.30, 4.32 principles set out in, 4.28 private householders, action against, 4.30 discontinuance order— power to make, 15.05 see also Discontinuance order enforcement notice— appeal against see under Enforcement notice (appeal against) issue of, 6.59 enforcement warning notice, 1.21 planning control in, 1.07, 1.10 Planning Policy Wales, 1.17 policy and guidance in, 1.15, 1.17 scheduled monument, works to see Scheduled monument (Wales, offence in) stop notice, service of, 10.52 Technical Advice Notes— generally, 1.17, 4.31 replacement by Manual, 1.17, 4.27 see also Development Management Manual above temporary stop notice, issue of, 11.22

592