LPC: Advanced Real Estate Law and Practice Lecture 2
Tutor: Elaine Carter
Date: 16/10/2015
Time: 0900-1000
Room: TR11/12
This document is a transcription. Whilst it is believed to be accurate, it is not warranted
to be so. Should any inaccuracies or omissions be found, please notify
lecturerecordings@law.ac.uk for correction.
Elaine Carter
My name is Elaine Carter and I think probably Leona mentioned that I am here for the
next couple of weeks to take you through advanced real estate lectures. My background
is that I qualified as a solicitor and practised for a while in commercial property and then
I joined the University of Law and then I left the Univerity of Law and I come back
occasionally to visit and I work at somewhere now but I come back now and again just to
visit and its nice because last summer I came to teach advanced property in the summer,
first time I taught at Moorgate and I have to say that the students were lovely and I am
sure you will be similar.
So, what we are going to do this morning is the lecture 2 of the advanced real estate
sessions. This one links in very well to workshops 4 and 5 so what we are doing is
introducing you to some of the topics we will be dealing with, well I won’t be but you
will with Leona be dealing with in workshops 4 and 5 and the basic topic is planning
permission and enforcement. Before, we start, just a little word of warning obviously
what we are not doing is trying to turn out planning experts. If you want to be a planning
expert, clearly you would be looking at a little bit of what we do today but you would
look at it in a lot more depth. So what we are doing is looking at this in the context of a
commercial property lawyer and a commercial real estate lawyer. What do you need to
know about planning to do your job properly, so its not looking at it in detail, its just
giving you that overview. So slightly more detail than you had in the real estate course,
but not as much detail as planning experts.
So the outcome for this morning’s lecture is that we are going to first of all have a little
look at how planning control is organised by Central and Local Governments. One of the
slides I will show you is sort of like little diagrams, starting at the top with Central
Government going down to Central Government, just showing you how it is organised. I
mean, for most people, you would be looking at the bottom layer because you would be
acting for clients who are applying for planning permission so most cases you would be
down here at the bottom at Local Government. It is only if you are looking at appeals
that you would be moving up the chain, further and further up to the chain towards
Central Government which you kind of knew already from doing real estate. Then this
bit is familiar to you, we will look at how and what circumstances planning permission is
needed. You kind have seen this already when you did the Real Estate course, you
looked at it when you did planning permission and we will go back over that but we are
going to look at a little bit more detail, introduce you to a little bit more detail on this on
the sort of conditions that local planning authorities might impose when you apply for
planning permission. You know, some of them are standard, some of them will be
tailored to the particular development we are looking at. It is a little bit difficult because
I need to balance this and not spoil some of the issues that you are meant to discover
when you do workshops 4 and 5 and then we are going to have a little think about
planning obligations so these are separate from planning permissions but they go
alongside it, if you have any reasonable sized developments you will find that as well as
the developer having to apply for planning permission, alongside it, there will be some
sort of planning obligation. I am involved in one at the moment actually where there is a
planning obligation going alongside the planning permission and there is a lot of
negotiation that will go on between the developer and the local planning authority about
what will be in that obligation and whether the developer will give it so we will look at
what they are, what sort of things they cover but again, very much an outline because we
don’t want to spoil what you are doing in the workshops where you will be actually
seeing one of these and negotiating one of them.
The last thing we will look at, again you kind have had a little look at this in Real Estate
but not of any huge detail, we are going to introduce to you the enforcement methods
available to a local planning authority, so we are moving on a stage here, we are saying
that you have planning permission, you are a developer, you have obtained planning
permission but may be you don’t carry out the development in accordance with the
planning permission, you don’t do what you said you were going to do under the terms of
the planning permission or may be you carry out development without planning
permission, it is simple as that.
So we will have a little look at the different enforcement methods available and try to
contrast them, again you will do some exercises on this in tututorial so we are just going
to give you the bare bones and you will look at this in more detail in the workshop and
the tutorial.
So first of all, the planning system, we said that it is split into two, you have the sort of
central role, the governmental role and then down below it, you have the local role.
So first of all thinking about the Central Government role, you have got the Department
for Communities and Local Government and this sort of harks back to when you did your
Public Law stuff, remember you have got the three roles of the state, you’ve got the
legislative role, you’ve got the administrative role and then you have the quasi judicial
role. Well, the Central Government department that is responsible for planning
effectively carries out all three so so much for the separation of powers. So the first one
is its legislative role, it will issue statutory regulations, orders, basically secondary
legislation. Remember, you have primary legislation which is Act of Parliament, second
legislation is when Parliament delegates a particular function to a department and that’s
what is happening here, Parliament will say well we don’t need to talk about the details
of a particular aspect of planning law so we will get this particular department,
Department for Communities and Local Government, to set out the detail of the policy.
So that the legislative role, secondary legislation by statutory instruments.
The second role is the administrative role and this is where you will spend a bit of time
looking at these in the workshop as preparation for the workshop, that’s where the
Department actually issues guidelines for how to interpret the legislation, how to interpret
the regulations, the statutory instruments, its past to do with planning.
And then the last one to some extent, going on to the next bit which is the enforcement
bit, the quasi judiical role, what happens when a developer applies for planning
permission, is not very happy with the outcome of that planning permission, this is where
this department comes into its own judicial role because the Secretary of State will hear
appeals so if you apply for planning permission, you get turned down, the place you
appeal to is the Secretary of State for Communities and Local Government and this is
him/her exercising a judicial role.
So that’s the Central Government aspect. What you will be doing in the workshops is
looking at this mainly in terms of the administrative role, really looking at the guidelines
that have been issued for particular things such as conditions that should be attached to a
planning permission etc, tiny bit on appeals but not much.
Ok, then we move down to the Local Government stage and this is the bit we are kind of
more interested in as a developer so if you are a developer you will have a very good
relationship with the Local Planning Authority and particular Planning Officers and you
know, that will help you when you are trying to get planning permission to work out
whether it is worth your while applying etc but really in the main what we are interested
in in the workshops is thinking about the fact that the Local Planning Authorities prepare
the local plans. They decide what sort of development should and should not be allowed
in their area, they determinate planning applications so you apply to them for planning
permission and they will also enforce planning controls so if you have breached the
condition of your planning permission or if you have carried out development without
planning permission, initially it is Local Planning Authority that will take enforcement
action which I will outline at the end.
Right, so, the next one is this sort of top down organisation so that shows you sort of top
down going up from Central Government right down to Local Government and how it all
fits together. So, at the top, we have the primary legislation which is things like the
Town & Country Planning Acts, then we have got the secondary legislation, the statutory
instruments, the regulations and then we come onto the bits, to some extent you will talk
about the Town & Country Planning Act 1990 etc but this is what you will be looking at
when you come to the workshops, the National Planning Policy Framework and the
National Planning Policy Guidelines so remember we said about the Secretary of State
and his or her department having an administrative function issuing guidelines, these are
the relevant guidelines for you for your workshops and when you get to the workshops
you will be directed to go and look at selected bits of that framework and that guideline.
So the first three are really the Central Government bits and when we come down here
we have got the Local Plans. So, whats the difference between the Local Plan and the
Neighbourhood Plan, well the Local Plan is issued by the Local Authority so essentially
you are looking here at the Local Planning Authority for your particular area, so, for
example, for my parents who live in Dorset, its Weymouth & Portland, for me, it will be
Waverley Borough Council and the idea is that the Local Planning Authority set up a
Local Plan because, as you can see, all these references to policys and plans, planning
policy is plan led so everyone has a plan and everyone has a policy so that when you are
a developer and you try to apply for planning permission, before you make that
application, you have got a very good idea about whether you are going to be successful
or not. So, the Local Plans determine, sort of say, as we said, what the policy should be
for a particular area and the Neighbourhood Plans are issued by the District Council so
the Parish Councils so for me that’s my very local one up the road, the Whitley Council
where they sort of set out the sorts of things they want to happen in their area. We have
to be a bit careful with this because one way you could look at this is that you could say
well when you are going right down here to the bottom which is the Neighbourhood
Plans, could they be used in such a way as to prevent particular sorts of development you
don’t like, things like fracking etc because obviously this is very much a hot issue at the
moment so what you could find is that Local Planning Authorities and District Councils
and Parish Councils could be trying to use these Local Plans almost as to say that I am
not going to have fracking up the road but that’s not the way its meant to work. In fact, it
is meant to work in a different way. The way it is meant to work is rather than working
negatively it is meant to work positively. So the idea is with the Local Plan and the
Neighbourhood Plan, what the Local Planning Authority should be doing, is that they
should be saying well, the sort of development that we want is this kind. Do we want
mainly want light industrial or do we mainly want residential. What sort of development
would we like in our particular area. So, they can propose that a particular sort of
development shouldn’t ought to authomatically get planning permission but it is meant to
work positively nor negatively. So the idea is they are setting the policies for their local
area and the idea is that the Local Plan and the Neighbourhood Plan are drawn up by
people who know the area.
I suppose one other thing we could mention is that when we go up here is that this area
here, Central Government stage, when we are looking at the National Planners Policy
Framework and Guidance, that’s where you are getting the impetious force sustainable
development protecting the Green Belt that kind of thing and if any of you listen to the
radio, there was a program on Radio 4 about eight weeks ago about this, about how it is
not really working and the Green Belt in fact is not really working and Green Belt in fact
is not being protected so there are quite a few programs on that you can listen to if you
are interested.
Ok, so we will now move on to think about the bits, sort of moving on from there, that’s
the sort of framework. Now we are going to move on to think about when planning
permission is necessary so if you are a developer and you are thinking about making a
development, carrying out a development, you will be applying this to your case study in
your workshop, when is planning permission is necessary. This bit you have seen already,
just a reminder, planning permission is obviously needed whenever there is development
as you can see at the bottom, and you know from doing Real Estate that development
happens where there are either building operations so building, engineering, lining
operations or a material change of use. Those constitute development and the starting
point is that if a developer wants to carry out any of those things, any of those activities,
he/she/it needs to obtain planning permission. You will know from doing Real Estate
that there are some exceptions to this, the Use Classes Order changes within certain
classes within the Use Classes Order, you have got the General Development Orders
which allow for certain minor operations to be carried out without planning permission,
painting the fence, painting the outside of your building, putting up a fence as long as it is
not above a certain height, putting up a small building within your garden shed or
something like that so you are familiar with that.
So with the development you are looking at for your case study, very clearly, we are way
beyond Use Classes Order and way beyond you know painting the outside of the house
so I think there is not much there we need for planning permission for our case study site
but that’s the sort of basic position.
Ok so in reality unless you have a major development like the one our clients are
planning, even if your clients are planning something small, you should check very
carefully what the planning permission is for your local area because Local Authorities
can tweak things slightly to restrict things that would normally be allowed or normally
would not be allowed so you will find that there are variations, very much local variations,
and each Local Authority also has a very very different approach to how they enforce it,
some of them are more lapse than others, Oxfordshire traditionally have been quite tough
on enforcement, quite keen to enforce breaches of planning legislation, others are more
relaxed.
Ok, so lets have a think, so we know from our case study we know what the client is
planning to do is definitely building operations and there is going to be some engineering
along the way as there is fair bit of intrastructure that has to go into that ordinance factory
site to turn it into this super duper mixed commercial and residential site. So we know
that there is development, we know planning permission will be needed.
Ok so the next thing we need to think about is how long is it going to take once our client
has submitted the application to actually get the planning permission, now, from memory,
I think you only deal with eight weeks in Real Estate so the traditional time limit for the
decision is eight weeks so the Local Planning Authority are meant to make the decision
within eight weeks and the Town & Country Planning Act says that they have to make
that decision in accordance with the Local Plan so they have to, they can’t just say well
yes or no off the top of their heads, they are meant to go back to those plans we talked
about and check whether the development is in accordance with those plans. Ok, so its
meant to be eight weeks although the developer and the Local Planning Authority can,
and often do, agree for a longer time period. Certainly the developer I am looking
dealing with at the moment, he has, he as in the representative for the company, they
have agreed a longer time period with the Local Planning Authority because the Local
Planning Authority we are dealing with are so inundated with planning applications they
are completely snowed under and cannot cope. Planning applications made in June
didn’t appear on the Local Authority website until August so it didn’t actually show as
being received and therefore the clock did not start to run theoreticall until August and
now the eight week period has now come and then gone but we are just waiting to see
what happens.
With larger developments it is thirteen weeks, again you could extend this with
agreement and with developments that need environmental impact assessements, it is
going to be sixteen weeks. So if you think about it, which one do you think our case
study will come within, yes, I think its going to be the last one, sixteen weeks, no doubt
about it. So, with our case study site which you will see when we come onto the
workshops, the deadline is going to be sixtween weeks because here they are needing
environmental impact assessment because it exceeds half a hectare and it is likely to
have an impact on the environment and that Schedules 2 and 3 of the Enviromental
Impact Assessment Regulations so for that one, that is set out by regulations, delegated
legislation, secondary legislation coming from the Secretary of State for Communities
and Local Affairs. Once the time limit for the decision, either eight, thirteen or sixteen or
as agreed by extension between the parties, once that time limit has passed or possibly
before, you will get a decision from the Local Planning Authority. Do you remember
that if the Local Planning Authority don’t decide in time, you can use that as grounds for
appeal but the trouble with doing that is, and we considered doing it when they were
dragging their heels but, dragging their feet I should say, but the problem with doing that
is if you want to work with that Local Planning Authority again, you don’t necessarily
want to do that unless you are sure that something has gone horribly wrong and you are
happy to upset the apple cart.
So the nature of the decision, you will either get an unconditional grant which is very rare,
much more likely as you will see when you see your case study planning permission, is
you get a grant, you get grant of planning permission but that planning permission is
subject to conditions or the third option is that you are refused. If you do not like the
outcome, you don’t like the conditions that are attached to the planning permission or you
disagree that the planning permission should have been refused then you can appeal
within six months and that’s when we start to climb back up the ladder, looking at
appeals, until we go up to the Secretary of State etc and remember when you are
appealing you need to be thinking, you need to know what you are doing so why am I
refusing, have I got grounds for appeal, can I appeal the use along the basis that the
application was not decided, the decision was not made by consulting with the Local Plan.
Can I appeal against the conditions that have been imposed because they are the sort of
conditions that should not be attached to the planning permission, they are not reasonable,
which means you need to know what the Local Plan says, so you need to do your
research, you need to have a look at what the Local Plan says, if you are a developer who
does a lot of work in a particular area, you will know it already, if it is a new area you
need to do a bit of homework. If you are appealing because you don’t like the conditions,
then you need to have a handle on what sort of conditions the Local Planning Authority
should and should not impose and you need to have an awareness of how to apply that to
your scenario.
So what we are going to do, because you don’t have a Local Plan that you can look at,
you can’t look at this one, we are going to have a little look at this one, grant with
conditions. What sort of conditions can the Local Planning Authority attach. To be
honest if you know what you were doing you would hope not to end up with a refusal
because the idea is if you have done your homework, the development you are planning
should be in accordance with the Local Plans so you should be looking at just arguing
about the conditions.
So, the idea is that when a Local Planning Authority makes its decision, if the Local
Planning Authority is in two minds, if it looks at the application and the Local Planning
Authority thinks we are not entirely sure whether we want to allow this particular
development, what the National Planning Policy Framework says that instead of refusing
it, what the Local Planning Authority should do, is they should instead see if they can
save it by imposing conditions so rather than refusing, before refusing, the Local
Planning Authority should consider if they can save the application and grant it but
subject to conditions that will get rid of any objections the Local Planning Authority may
have to the development.
So the starting point looks terribly wide so the Local Planning Authority can grant
planning permissions subject to such conditions as they think fit. Now when you look at
that, you think it gives the local planning authority unlimited discretion to impose any
conditions they want but obviously that is not the case because that is extremely wide and
it cannot possibly work that way I am sure you are not surprised. So in fact what happens
is that the Local Planning Authority’s power to grant conditions or the sort of conditions
they can impose have to satisfy six tests and those six tests have been around for a long
time so lets show you what they are. They are now enshrined in the National Planning
Policy Framework paragraph 206 but they have been around for a long time, they are the
old new bree test and they come from circa 1195 so I learnt new bree circa 1195 and you
learn this one but they are very much the same. So, you have to show that the conditions
necessary to the proposed development is relevant to the planning application, relevant to
the development to be permitted, not to some other development, that it is enforceable,
something that is capable of being enforced by the Local Planning Authority so you need
to find somebody who can enforce, somebody who can enforce against, its got to be
precise and its got to be reasonable in all other aspects.
Now the sort of thing you would find here, so if we think about a condition that would
satisfy the six tests would be fine and then we will think about a similar example where
the condition would not satisfy the six tests, again I need to be careful not to tread on the
toes of what you are going to do in the workshop.
So if we can imagine for a moment that you are a developer who is applying for planning
permission to build a warehouse. Ok so you are building a warehouse which is a
commercial development and the Local Planning Authority have looked at the Local Plan
and have thought ok this sort of development can be allowed in this particular area and
we look at the way we send this out, we can allow this sort of development in the area but
it is fairly near, quite a large housing estate, in fact quite a few large housing estates and
we do have a bit of an issue because we have a chronic shortage of school places so what
we would like to do here is that we would like to grant the planning permission but we
would like to impose a condition that the developer, as he is building the warehouse, also
pays for or builds us a local school. So that one, that condition, if the Local Planning
Authority put that in the planning permission, the developer would be entitled to appeal
because if you think about that one, just sort of putting in a very obvious one, it is not
relevant to the development. Your client is putting in a warehouse that has absolutely no
relevant to the chronic shortage of schooling in the area and in addition, when you look at
the legislation, you will find that the Local Planning Authority are not allowed to ask for
a developer to pay money towards general infrastructure by way of a condition so that
one would breach the six tests. If the Local Planning Authority proposed that, the
developer would be able to appeal that and get the condition removed and the planning
permission granted without that particular condition in there. If we swop it around and
say instead of the developer building a warehouse, the developer is putting in a housing
estate, that would be different. If you have got a housing estate and the Local Planning
Authority want to improve the infrastructure by getting them to think about a school, that
kind of thing might be more acceptable. You do then have to look at whether it should be
dealt with in a different way by way of a planning obligation but that kind of thing does
actually relate to the development.
So, those are the six tests that you have to satisfy. Precision will depend on the wording
of the condition. I don’t want to tread on your toes too much but what will happen in one
of the workshops 4 and 5, you will be looking at a a planning condition and you will be
deciding whether the conditions imposed for your case study site satisfy the six tests or
not and I think it will become obvious when you look at it and you will have to look at
the National Planning Policy Framework paragraph 206 and some related paragraphs as
well.
Lets go onto planning obligations. So thinking about infrastructure for a moment, what
sort of things might be imposed as a standard condition attached to a planning permission,
well things like landscaping, pick some really boring ones, the sorts of thing that might
be put in, if you are putting in a commercial development along the lines of the one you
have got on the Armory site, what the Local Planning Authority might say is that they
might say well one of the conditions here is that before you allow the site to be occupied
you put in a landscaping scheme and that landscaping scheme is approved by the Local
Planning Authority. You want to make sure it is pretty enough, it is nice enough, the car
parks are well maintained etc or another one which leads onto it is that the Local
Planning Authority might want, or the Armory site, might want improvements to the
access. If you think about the Armory site, what you’ve got is a dissused site at the
moment and what your client is planning to do is put in quite a lot of new buildings so
there are going to be a lot more people coming in and out of this site so the local planning
authority might think quite reasonably that your developer should be thinking about
improving the accessway, should be widening the road, may be putting in new
accessways.
Now one of the things the Local Planning Authority could do is they could try to put that
in as a condition attached to the planning permission so have a look at that kind of thing.
That would be ok, it satisfies six test, the Local Planning Authority do have to be careful
however as they cannot require financial contributions to local infastructure. So what
does a Local Planning Authority to do if it wants the developer to make some sort of
contribution to an infrastructure project. Can’t do it by way of a planning condition
because even if the contribution towards the infrastructure satisfies these conditions, the
rule is that you cannot ask the developer to pay money towards local infrastructure. The
answer is that you would get the developer to enter into a planning obligation so you
can’t attach it as a condition to a planning permission, you put it down alongside in an
agreement running alongside the planning permission. This is paragraph 203 of the
National Planning Policy Framework. So the Local Planning Authority should consider
whether otherwise unacceptable developments should be made acceptable through these
conditons or planning obligations. Planning obligations should only be used where it is
not possible to address unacceptable impacts through a planning condition. So that picks
up on the infrastructure point doesn’t it. If you think about it, if you are a developer, like
the developer who is putting in, dealing with the Armory site and the Local Planning
Authority, quite reasonably, are worried about the traffic, the increased footfall coming in
and out of this site and the worry about the impact it is going to have on the local area.
Well, the Local Planning Authority cannot require the developer to pay a contribution
towards that infrastructure by way of a condition because they are not allowed to do that,
what they can do is they can ask the developer to make that kind of contribution by
making a planning obligation. These planning obligations can be used in various
different contexts, they can be used for roads, they can be used to ask for payments
towards things like schools, shops etc and community centres. They can used in a
different context if you are dealing with a residential context, they can be used to make
contributions towards affordable housing and that’s quite a topic in London where
developers build these very beautiful developments but because the Local Planning
Authority is worried about affordable housing, you have got the front door which is
lovely for the private properties and then you have the rather grotty back door for the
affordable housing so Local Planning Authorities will try and deal with this through
either conditions attached to the planning permission or planning obligations. With the
planning obligations, they will ask for a sum of money to go towards some sort of
affordable housing or they could ask the developer to build the site in such a way as to
build in that affordable housing into the development.
Ok, so that’s planning obligations so again planning obligations, the Local Planning
Authority, does not have an unlimited right to impose anything it wants by way of a
planning obligation. Again, its got to relate to the development so the planning
obligation must be necessary to make the development acceptable in planning terms, its
got to directly relate to the development and its got to fairly and reasonably relate in scale
and kind to the development so you know, a small development, you would not expect a
large obligation to pay money under the planning obligation, you know the point we
made about, if you are making a commercial development, if you are asking for a sum of
money towards a school then that would not relate to the development, however if you
are planning a residential development then that would relate to the provision for school
so its not unlimited. Again, you will see a planning obligation in one of your workshops,
workshops 4 and 5, you will have a look at a planning obligation and think about whether
you think it breaches its regulations or not.
The planning obligation is usually between the Local Authority and the developer so it is
bilateral but there are occasions where a developer will make an unilateral planning
obligation, will actually offer a planning obligation. Certaintly the one I am looking at
the moment, the developer is making an unilaterial offer of a planning obligation to try to
get the planning permission to go through to break the deadlock.
So they are separate, remember they are separate, they run alongside the planning
permission.
Then we just want to mention something else which is new which is the Community
Infrastructure Levy which is gradually coming in. The Community Infrastructure Levy is
coming in and it is a charge when developments and buildings above a certain size so its
for the bigger developments and the idea is that it is a sort of, its meant to be a much
more convenient way than using planning obligations to fund infrastructure identified by
the Local Planning Authority as being needed in that area. So, and what is going to
happen, is that Local Planning Authorities can opt in so since the 6 April, so its very new,
as you will see Local Planning Authorities can’t pull more than five planning obligations
for the same kind of infrastructure, so they can’t sort of just put together loads of
planning obligations and they can’t use a planning ob ligation for infrastructure on the
Local Planning Authority’s list of relevant infrastructure. The idea here is to stop Local
Planning Authorities using, almost having a shopping list and holding developers to
ransome so we are going to see how this pans out. To be honest with your case study,
you won’t really come across this, we are only looking at planning permission, conditions
attached to the planning permission and planning obligations but just be aware that this is
out there now and we will see how it actually ends up being used.
Coming on to planning enforcement time limits and we move on in time with the
developer, we have our planning permission, that planning permission will have
conditions attached to it, we may or may not have also entered into a planning permission,
we may have entered into roads agreements and bonds, highway agreements and bonds,
you will see all of that as you come to your case study.
The next thing to look at is what happens if the development is not done properly so in
that case the Local Planning Authority initially will look at trying to enforce the planning
legislation and as you know there are time limits, there are strict time limits within which
a Local Planning Authority has to take enforcement action if there has been a breach of
planning obligation. So the first one, and you are aware of these I think from real estate,
is four years and the most important one for us is where there has been building without
planning permission so change of use to use as a single dwelling house or building
without planning permission to building operations is four years and with all cases it is
ten years and you are aware of that. Now initially you have understood that those time
limits are quite strict, however there were a number of cases where developers or people,
you know mainly the small scale developers tried to get round these walls so whilst there
was the case that you may have come across in the media of the guy who obtained
planning permission quite legally, obtained planning permission to put up a barn in this
field, he got the planning permission, that was fine, but what he did that instead of
building a barn, he build a house that looked like a barn and then he waited until the four
years enforcement time was up and then he applied to the Local Planning Authority for a
Certificate of Lawful Use say, ok yes, I’ve built without planning permission but your
four years time limit is up so you can’t enforce it any more, you can’t do anything about
it, please give me your Certificate of Unlawful Use, my unauthorised development
magically becomes authorised and this went up all the way up to the Supreme Court and
the Supreme Court allowed the four year time period to be extended to allow the Local
Planning Authority to take enforcement action and that was because the guy had deceived
the Local Planning Authority so where you use deception for example public policy
reasons, the Local Planning Authority can get an extension for time limit which is useful
to know because otherwise developers could be doing this sort of thing all the time. That
wasn’t an isolated case, there were quite a few and the Local Authority just said that you
can’t profit from your own misdeeds basically.
So where a Local Planning Authority thinks that there has been a breach of planning
legislation and they know that they are in the time period, either ten years or four years,
the next step is that they will take enforcement action or will consider taking enforcement
action. Again you will look at this in a workshop and obviously the first thing the Local
Planning Authority should be trying to do before they leap in and take enforcement action,
is they may want to do a bit of information gathering so they might want to exercise
rights of entry onto the property to check whether there has been a breach of planning
legislation, they can serve something called the Planning Contravention Notice which
you will see in the workshops which I think is workshop 5 that deals with that one, where
you serve a notice on the owner/occupier of the property asking them what they are doing
with the property and the idea is that they will send back the information and you use that
information to work out whether there has been a breach of planning legislation and you
can also serve something called a temporary stop notice if you think there has been a
pretty major breach of planning legislation and it is important that you stop it
straightaway and that one came out as a result of cases like that farmer, you know,
carrying out the development and the work in the way he did so those cases led to this
new thing that came in around 2012 of a temporary stop notice, an emergency stop
notice, saying stop the breach of legislation now.
Once the Local Planning Authority has done that information gathering exercise and you
will do a little exercise on this in your workshop and they are satisfied that there is breach
of planning legislation, they will then move onto the next stage which is enforcement
action. Now I think the one you have come across already is the enforcement notice, the
trouble with serving enforcement notices, is that the enforcement notice cannot take
effect for 28 days, you have to give the person, the receipient of the notice at least 28
days to sort themselves out basically and what they normally do, what normally will
happen is that you will serve the enforcement notice on the person who you think is
carrying the unauthorised use if you are the Local Planning Authority so the Local
Planning Authority serves the enforcement notice and within the 28 day period what
happens is that occupier of the land appeals, they appeal the enforcement notice and then
the enforcement has no effect unless and until the appeal is sorted out, until you have the
result of the appeal so effectively it suspended it. So, enforcement notices are useful but
they have their limitations and the other things about enforcement notices, they are only
really meant to be used where it is appropriate, for example, where you are thinking that
the problem comes from a breach of condition attached to a planning permission, the
Local Planning Authority, really in most cases, should not be serving an enforcement
notice and should be going for this one instead, the breach of condition notice. Again,
you will find that each Local Planning Authority has a different take on this, some are
quite clued up on the serving of the breach of condition notice, some are still quite blunt
about it and still tend to use the enforcement notice. So the enforcement notice is useful,
says stop the unauthorised use, take down the unauthorised building or stop the
unauthorised building operations whatever the breach of planning legislation is but it has
its problems because of its appeals, then its of no effect pending the outcome of the
appeal. So what Local Planning Authorities will do sometime is alongside the
enforcement notice they will also serve a stop notice. Now, a stop notice can’t be served
alone, a temporary stop notice can but a normal stop notice can’t so you serve it
alongside the enforcement notice and the idea is that it takes effect almost immediately so
it generally takes effect at least three days from the date of service but you can get, if
there are special circumstances, you can get some that are effected immediately, so the
idea is that you serve the enforcement notice, you know it won’t be effective for 28 days
at least so in the meantime what you can do if you are worried about this, is you can serve
a stop notice alongside it. They cannot be appealed in the same way and the problem for
the Local Authority, the dilemma for the Local Planning Authority is that if you serve the
stop notice incorrectly, the person you serve it on can sue you so you have to be sure that
you are doing the right thing before you serve those notices. As we said earlier, if you
think that the breach of planning legislation you are looking at is a breach of a condition
attached to a planning permission, then you would serve a breach of condition notice.
Then the last option was one you came across probably in your compulsories I would
imagine, probably in business I would think and certainly in Real Estate, is the injunction.
Now an injunction is useful as an injunction can be used to stop an actual or an
anticipated breach of planning legislation so it’s the one you can use, you know,
enforcement notices, stop notices, breach of condition you have to use once the breach
has occurred, with the injunction you can use it if you think it is about to happen.
Obviously it is discretionary, injunctions are equitable remedies that are discretionary and
they have got to be appropriate and proportionate so you are going to have to go to Court
and actually persuade the Court that the injunction should be granted. The Courts tend to
only award the injunction for a pretty serious breaches of planning legislation and
obviously it involves costs because you are going to Court, it is obviously bit more
expensive, you know these are Local Authority filling in the forms, serving the notices,
this one involves going to Court so there are cost implications as well.
And that’s it so we’ve finished. Thank you. Should have put my outcomes at the end so
we have now put them back at the end there we go. So we have done the organisation,
we’ve done the planning permission when its obtained, planning obligations and
enforcement methods and you are going to be doing some activities on all of these in
your workshops.
Thank you.