ENFORCEMENT DECISIONS; roles and duties of the LPA By Clare Parry 2-3 Grays Inn Square.

ENFORCEMENT DECISIONS; roles and duties of the LPA

By

Clare Parry

2-3 Gray’s Inn Square

AIMS

NOT intended to be a comprehensive introduction to the powers and duties of local authorities.

Looking at recent developments which impact on how planning authorities should go about making enforcement decisions.

Looking at how this can feed into best practice procedures already in place.

OVERVIEW OF ISSUES

Duty to consider human rights position. Delegated powers. Bias. Estoppel/nullity. Stargazing-what does the future hold?

HUMAN RIGHTS AND ENFORCEMENT Most HR developments in gypsy and traveller

cases. New circular 1/06-:

New definition gypsy. Gypsy & Traveller Accommodation Assessments (feeding

into DPD production and RSS). Frontloading decision making. Allocations not criteria based approach. G & T sites in green belt usually inappropriate. Transitional arrangements-use of temporary permissions.

R (NEW FOREST DC) v SHUTLER [2005] EWHC 3122 Pre new circular. Interesting because HC said:

Where was failure of conventional enforcement measures over a prolonged period was no further requirement of resort to criminal courts first.

Shutler had opportunity to address Council before its decision to use full powers-no further obligation to obtain medical reports. Accepted the Council did take into account personal circumstances.

SOUTH BUCKS v SMITH [2006] EWHC 281 February 2006 (after new circular). Application for s.187 Injunction. Long planning history (1st D had lived there

for 30 years!). Judge said new application for permission not

now hopeless because of new circular. BUT for circular would have struck different

balance. Injunction refused (pending application).

SOUTH CAMBS v FLYNN [2006] EWHC 1320 Application for s. 187 injunction. NOT green belt land. Defendants relied heavily on Smith & new circular. To refuse under Porter judge would have to be satisfied real

prospect successfully obtaining planning permission. Not because: Inspector had considered temporary permission. Inspector had found there was a strong case against grant of

permission. Para 109 circular 11/95 still in force-temporary permissions still

not acceptable where damage to amenity cannot be accepted. Injunction granted.

BATH v CONNORS [2006] EWHC 1595 Application for an injunction. Judge preferred the Flynn approach (looking at whether ‘real

prospect success’ in new application) to Smith approach. No realistic prospect of success in succeeding in fresh appeal-

inspector had already given great weight to unmet need. Given environmental impact need for injunctive relief-issue

proportionality comes down to length of suspension. No evidence why council thought three months adequate-made

injunction suspended for four months.

SOUTH BEDFORDSHIRE v PRICE [2006] EWCA Civ 493 Defendants failed to comply in any way with s. 187 injunction. Council applied for committal, Defendant’s applied to vary the

injunction. CofA. Would only be right to suspend the committal order if there were

evidence showing substantial likelihood would succeed in getting at least temporary permission.

On evidence before court it was impossible to conclude that the chances of getting permission were particularly strong.

Appeal against committal order dismissed.

MID BEDFORDSHIRE DC v BROWN [2006] EWHC 1362 Gypsies moved off land pursuant to an injunction

but moved back due to desperation. Application for committal. Gypsies applied for temporary planning permission

and sought to vary injunction. Each case turned on own facts-not just question of

whether there was ‘real prospect success’ on new application.

Could take into account deliberate flouting court order.

Personal circumstances did not outweigh public policy.

TEMPORARY STOP NOTICES Wilson v Wychavon DC v FSS [2007] EWCA

Civ 52. Upheld Crane J saying S. 183 (permanent stop

notices) NOT incompatible ECHR Art 8 and 14. However, this is in part because LPAs have a

discretion whether to serve SN, have to exercise compatibly HRA 1998 under s. 6.

Arguable article 8 defence could be raised in prosecution for breach of a SN. In any event could JR decision to seek SN.

SUMMARY HR CASES

Clearly have to make Porter inquiries but courts taking a sensible view about what is required.

Don’t necessarily have to have prosecuted before seeking injunction.

Due to new circular, should consider whether has been previous consideration temporary permission before seeking s.187 injunction.

New application for planning permission doesn’t necessarily mean shouldn’t seek injunction/committal.

Before seeking SN have to go through Article 8 considerations.

DELEGATED POWERS

STILL cases on this going to the High Court-shows the need for a carefully drafted delegations policy and careful consideration by officer applying policy.

Particular cases: Kirklees v Brook [2004] EWHC 2841 R (Springall) v Richmond-upon-Thames [2006]

EWCA Civ 19

KIRKLEES V BROOK [2004] EWHC 2841 Council sought 2 injunctions-1 under s.187B,

1 under s. 214A. Delegation scheme referred to ‘taking of

Enforcement Action under TCPA’. Read on its own the above could have

covered seeking injunctions, reading scheme as a whole did not include seeking injunctions.

Without further ratification by the Council, the court had to dismiss the proceedings.

R (SPRINGALL) v RICHMOND UPON THAMES LBC [2006] EWCA Civ 19 About the scope of a delegation scheme, but not

specifically in relation to enforcement. Suggests more relaxed approach to enforcement.

[32] “in my view it is for local planning authorities to determine the policy or basis of their schemes of delegation, not for the courts to gloss them by imposing fetters on them according to the court’s perception of how the decision-making should be allocated between the council committee and the officer”.

Different approach to delegation challenges in enforcement/non-enforcement proceedings?

BIAS

Courts seem to be taking sensible approach to attempts to challenge planning decisions on basis bias in making them.

Neither of the following cases are on enforcement but the approach to questions of bias are likely to be the same: R (Port Regis School Ltd) v North Dorset DC

[2006] EWCA 1373 National Assembly of Wales v (1) Condron (2)

Argent) [2006] EWCA 1573

R (PORT REGIS SCHOOL) v NORTH DORSET DC [2006] EWCA 1373 It was thought that a lodge of Freemasons had an

interest in a planning decision. 2 members of other lodges (1 member of national

organisation) sat on planning committee. Fair minded observer informed of all the facts about

freemasonry and having regard to circumstances of the case would not conclude there was a real possibility of apparent bias affecting the decision.

It was relevant that Councillors were required by freemasonry and the law to adhere to their obligations under the Local Government Act.

NATIONAL ASSEMBLY WALES v (1) CONTRON (2) ARGENT [2006] EWCA Civ 1573 Incident where member of planning &

development control committee said they were ‘going with inspector’s report’.

CofA considered that when looked at all the circumstances a fair minded observer would not conclude the assembly member or the committee as a whole was biased.

ESTOPPEL/NULLITY

R (East Hertfordshire District Council) v FSS [2007] EWHC 834

About second bite enforcement notice. Had accidentally given the wrong drawings in first

proceedings-couldn’t conclude the dwelling was in the wrong place.

Cause of action estoppel in enforcement notice proceedings survives Reprotech.

On the very particular facts of this case the inspector in 1st proceedings had merely said there wasn’t enough evidence-he hadn’t made a final decision on the issue.

STARGAZING

White paper published in 2002 “Review of the Planning Enforcement System”.

In November 2006 DCLG published Review Planning Enforcement Summary of Recommendations (6 page document).

No major changes in LPA’s enforcement role. Recommends 25 changes (see next slide for

most relevant).

REVIEW PLANNING ENFORCEMENT (NOV 2006) Government will set indicators and give enforcement

a higher priority in planning (recommendation 1). Trying to bring about a culture change in

enforcement, eg by career structure, common salary scale etc (recommendation 7).

Enforcement will remain discretionary (recommendation 9).

Development without planning consent or in breach of consent not to be criminalised (recommendation 10).

All enforcement powers should remain available for LPA’s to use (recommendation 14).

REVIEW PLANNING ENFORCEMENT (NOV 2006) (2) Rest of the recommendations can be found

at: http://www.communities.gov.uk/index.asp?

id=1504355

FINAL THOUGHTS

Considered a number of issues-thoughts from the floor about how these can feed into existing good practice procedures.

Any issues not raised. Any questions.