20th April 2011

ENFORCEMENT POST–LOCALISM

Scott Stemp

Enforcement Post-Localism

Localism Bill clauses:

• Clause 103 – retrospective permissions

• Clause 104 – enforcement time limits

• Clause 105 – enforcement offences

• Clause 106 – advertisements

Localism – Where Are We?

Localism – Where Are We?

•Pages of Report = 64

•Dealing with ‘enforcement’ amendments = 11 lines

Clause 103

“Retrospective Planning Permission”

•Inserts new s70C T&CPA

•Amends s174 (enforcement notice appeals)

•Miscellaneous other related amendments

Clause 103 – s70C

New s70C T&CPA

•Enforcement Notice relating to land

•Application for permission then made

•LPA may refuse to determine the application if grant of permission relates to whole OR part of matters specified as constituting the breach

Clause 103 – s174(2A)

Amended s174(2A) T&CPA

•Restricts grounds on which EN may be appealed

o If LPA has refused application

o THEN issues EN relating to same matters as application

o THE APPELLANT can not appeal the Enforcement Notice on ground (a)

Clause 104 – the debate

•Fundamental revision of planning enforcement

•Time spent debating clause 104?

o Days?

o Hours?

o Minutes?

Clause 104 – the debate

Clause 104

“Time Limits For Enforcing Concealed Breaches”

•Inserts new s171BA, s171BB and s171BC

•Related other amendments to:

o Section 188 (register of notices)

o Section 191 (CLEUDs)

Clause 104 – s171BA

New s171BA – Time limits in cases involving concealment

• Where it appears there may have been a breach

• LPA may apply to a Magistrates’ Court

• For a “Planning Enforcement Order”

• Extends time for taking enforcement action by an “enforcement year”

• Begins 22 days after Magistrates’ decision is made

Clause 104 – s171BB

New s171BB – Procedure

• Application to be made within six months of LPA having ‘sufficient knowledge’

• LPAs have ‘sufficient knowledge’ when the LPA certifies that they have sufficient knowledge

• Must serve owner, occupier and any other person having an interest materially affected

• They are entitled to appear before Magistrates

Clause 104 – s171BC

New s171BC – Making a planning enforcement order

• Standard = balance of probabilities

• “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”

• AND the court considers it just in all the circumstances to make the order

Clause 104 – s171BC

“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”

Includes:

o Representations made by the person

AND

o Inaction on the person’s part

Clause 104 – s171BC

“Enforcing concealed breaches of planning control”

Court can make PEO when:

•It appears that may have been a breach•AND the actions of a person have:

• Resulted in• OR contributed to

Full or partial concealment

•AND the court considers it just

Clause 104 – s171BC

A B

Aca

cia

Ave

nue

Clause 104 – s191(3A)

Amended s191(3A)

• s191(3A)(a)…

• s191(3A)(b) – no CLEUD if Planning Enforcement Order has been applied for

• s191(3A)(c) – no CLEUD if ‘enforcement year’ not expired

Clause 104 – s191(3A)

Amended s191(3A)

• s191(3A)(a) no CLEUD if the time for applying for an order under s171BA(1) has not expired

BUT the time limit for making an application under

s171BA(1) is six months from the date of ‘sufficient

knowledge’ – as certified by the LPA…

Clause 105

“Planning offences – time limits and penalties”

•Increased penalty for BCNs (up to Level 4)

•Changes time limits for s210 prosecutions (TPOs)

•Changes time limits for s224 prosecutions (adverts)

Cl. 105 – incisive analysis

Clause 105

Amended s210 and s224

•PREVIOUSLY:

o s210(4) [TPO] and s224(3) [adverts] prosecution required within six months of offence

•PROPOSED:

o Prosecution within six months of date of sufficient knowledge (as elsewhere, self-certified)

Clause 106

“Unauthorised advertisements and defacement of premises”

Inserts new ss225A, 225B, 225C,

225D, 225E, 225E, 225F, 225G,

225H, 225I and 225J

Clause 106 – new s225A

• Creates ‘Direct Action Lite’ for LPAs to remove unauthorised display structures

• ‘Lite’ because no power to remove displays from a building to which there is no public right of access

• Service of a ‘removal notice’ required prior to any such action

• Accompanying power to recover costs of action

• LPA potential liability for compensation

Clause 106 – new s225B

•Enables LPAs to serve ‘Action Notice’

•For sites with persistent problem of unauthorised displays of advertisements

•Can require owner/occupier to take reasonable specified steps to prevent/reduce frequency of unauthorised displays

•Includes direct action and expense recovery

•NO EXPENSES re: flats or dwellinghouses

Clause 106 – new s225C

•Appeal regime for s225B Action Notices

•Appeal to Magistrates’ Court

•Specified grounds of appeal:

o Displays not a persistent problemo Material informality, defect or error in the Noticeo Insufficient time for complianceo Notice should be served on another

•Equivalent s285 T&CPA provision (new s225B(5))

Clause 106 – new s225D

•Equivalent ‘Action Notice’ regime for the operational land of Statutory Undertakers

•Statutory Undertaker may serve a ‘counter-notice’ which substitutes the terms of the Action Notice

•LPA may postpone compliance periods of these Notices

Clause 106 – new s225E

•Power to remedy defaced premises

o Surface visible from publicly accessible place

o Sign which is detrimental to amenity or offensive

o LPA may serve notice on owner/occupier requiring removal/obliteration of the sign

•Direct Action, expense recovery etc as per s225B

Clause 106 – new s225F/G

•‘s225E Notice’ may be served in relation to:

o Post boxes (s225F)

o Bus shelters and other street furniture (s225G)

Clause 106 – new s225H

•Appeal procedure for s255E Notice

•Appeal to Magistrates’ Court

•Specified grounds of appeal:

o Sign not detrimental or offensiveo Material informality, defect or error in the noticeo Insufficient time for complianceo Notice should be served on another

•Equivalent s285 T&CPA provision (new s225H(5))

Clause 106 – new s225I

•Owner / occupier may invite LPA to undertake removal / obliteration works

•Expenses recoverable

•NO EXPENSE RECOVERY LIMITATION RE: FLATS, DWELLINGHOUSES OR CURTILAGES

Clause 106 – new s225J

• Operational Land of Statutory Undertakers

• SU may serve a counter-notice preventing or limiting LPA’s powers where:

o Necessary in interests of safety or efficient and economic operation of the undertaking; OR

o For the protection of any works, apparatus or other property

o Prevent risk to safety of the person

o Works would unreasonably risk economic operation of the SU

Questions

Questions?

Scott Stemp

http://www.12cp.co.ukhttp://planningblog.org