enforcement appeals - east midlands councils - local ...derek stebbing. ipe consultant . ......

Enforcement Appeals

14th March, 2019

East Midlands Councils

Derek StebbingIPE Consultant

www.intelligentplans.co.uk 1

My experience

• London Borough of Redbridge – 1975-1986 : Local Plans and Area Action Plans• Chelmsford City Council – 1986-2016 : Policy Planning preparing Local Plans and

Area Action Plans. Planning Policy Manager from 1994 to 2016• Planning Inspectorate – 2013-2016 : Part-time Planning Inspector Examining Local

Plans/AAPs• Member of the Local Plans Expert Group (LPEG) – 2015-2016 : Report to the

Secretary of State on the Local Plan system• Intelligent Plans and Examinations (IPE) – 2016-to date : Consultancy, Training and

Examining Neighbourhood Plans• Strutt & Parker (part of BNP Paribas Real Estate) – 2016-to date : Planning Policy

Consultant


“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.”

National Planning Policy Framework

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The Enforcement Process - 1


Statistics

There were 1,898 Enforcement appeals in England determined in 2017/18, which represented a 23% reduction from 2016/17.


Highest Number of Appeals 2017/18

By far, the highest numbers of appeals are in London. Many Districts had None

Districts Met Districts Unitaries

Chichester – 27 Bradford – 21 Brighton & Hove - 18Epping Forest – 14 Leeds – 15 Wokingham - 12Wycombe – 14 Manchester – 11 South Gloucestershire – 9

London Counties National Parks

Newham – 76 Dorset – 1 Dartmoor - 11 Brent – 50 Hampshire – 1 South Downs - 8 Hillingdon – 35 Hertfordshire - 1

(None in any other County!)www.intelligentplans.co.uk

S174 - 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 … planning permission ought to

be granted or … 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 …;(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 … to

cease, exceed what is necessary to remedy any breach of planning control …;(g) that any period specified in the notice … falls short of what should reasonably be allowed.

Town and Country Planning Act, 1990


S176 - 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 planningauthority.

(2) Where the Secretary of State determines to allow the appeal, he may quash thenotice.

(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 virtueof paragraph (a), (b), or (d) of section 175(1) within the prescribed period.




S177 Grant or modification of planning permission on appeals against enforcement notices. (Key parts)

(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 in relation to the whole or anypart …… or in relation to the whole or any part of the land to which the notice relates;

(b) discharge any condition …. subject to which planning permission was granted;(c) determine whether … any existing use of the land …any operations .. were lawful or

any matter constituting a failure to comply with any condition or limitation …was lawful. (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 … 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 LPA.


The Grounds of Appeal

There are 7 different grounds, in Section 174 (2) of the Town and Country Planning Act.

Grounds of appeal should:• If ground (a) has been pleaded, and the correct fee paid:

i. cover the planning merits of the caseii. include reference to any planning obligation under Section 106 of the Town

and Country Planning Act• Explain clearly why the appellant disagrees with each of the reasons for issuing the

enforcement notice• Explain why the alleged development would either satisfy the local and/or national

planning policy, or why they are not relevant• Include the full report reference if any case law is cited


Ground (a)

That planning permission should be granted for what is alleged in the enforcement notice (or that the condition which is alleged not to have been complied with should be discharged).

Appellants will normally have to pay a fee for the deemed planning application, which is part of every enforcement appeal, for this ground to be considered. This is because the deemed application and Ground (a) raise the same issues as a planning application.


Ground (b)

That the breach of planning control alleged in the enforcement notice has not occurred as a matter of fact.

Grounds (b)-(e) are often referred to as “the legal” grounds.


Ground (c)

That there has not been a breach of planning control.

For example, because (depending on what the enforcement notice alleges) the development:• does not amount to development, under Section 55 of the Act, or that the

change of use is not a material one• is permitted development under the GPDO/Use Classes Order• has been done or carried out in accordance with a planning permission


Ground (d)

That, at the time the enforcement notice was issued, it was too late to take enforcement action against the matters stated in the notice; has become lawful as it is too late for the local planning authority to take enforcement action.

The time limits are:• Section 171B (1) – a 4 year time limit involving development for operational

development such as building, mining or engineering works;• Section 171B(2) – a 4 year time limit for change of use from a building/part of

a building to a single dwelling house;• Section 171B(3) – a 10 year time limit for any other change – including

changes of use and breaches of any conditions attached to previous planning permissions.

The onus of proof is on the appellant. The test to be achieved is ‘on the balance of probability’ - a lesser requirement than ‘beyond a reasonable doubt’.


Ground (e)

The notice was not properly served on everyone with an interest in the land.

(Even if this ground of appeal is successful, the Inspector or the Secretary of State might disregard the matter. It depends whether they think the failure to serve a copy of a notice on a person has caused that person some injustice).


Ground (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.


Ground (g)

That the time given to comply with the notice is too short.

Appellants should state what they consider to be a more reasonable period and why.


ResourcesEnforcement Appeals can be resource-intensiveA current set of appeals in Winchester – 4 plots and 4 appeals


Other Points

• The appeal site must be the same as the site given in the enforcement notice

• For Inquiry cases, a Statement of Common Ground must be submitted by the appellant not later than 4 weeks before the Inquiry

• Ground (a) is the only ground upon which it can be argued that planning permission should be granted

• If an appeal is only being considered on Ground (g) – the time to comply -then it may be possible to negotiate an extension of the period for compliance with the LPA



Questions and Discussion

enforcement appeals - east midlands councils - local ...derek stebbing. ipe consultant . ......

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