UPDATE ON
ENFORCEMENT LAW
6th JULY 2007 -RTPI
CELINA COLQUHOUN
3
GRAY'S INN
SQUARE
CONTENTS
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Part 1Consequence of proposed
Review of Enforcement Law
Part 2 Recent Enforcement cases
DEVELOPMENT
TIME LIMITS/IMMUNITY
NULLITY & INVALIDITY
INJUNCTIONS
PROCEDURE
CONDITIONS
EN & COMPLETION NOTICES
CONSEQUENCES OF REVIEW
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“REVIEW OF THE PLANNING
ENFORCEMENT SYSTEM OF ENGLAND” –
consultation ran until 31st December 2002
Chp 7 Q.12 - LATE AMENDMENTS TO
PLANNING & COMPLULSORY PURCHASE
BILL included “TEMPORARY STOP
NOTICE” – tabled 24th February 2004 refKeith Hill Hansard col 52-53WS as a result
of the review.
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PLANNING & COMPLULSORY
PURCHASE ACT – Royal Assent May
13th 2004 – Section 52 inserted
Ss 171E, F,G and H into principal
Act
Town and Country Planning
(Temporary Stop Notice) England
Regulations 2005 (SI 2005 No.206)
Circular 02/2005 Temporary Stop
Notice 7th March 2005
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REVIEW OF PLANNING
ENFORCEMENT: SUMMARY OF
RECOMMENDATIONS November 2006
Follows Oct 2002 consultation
List of 25 “Recommendations and
Measures DCLG intends to take
forward to promote good
enforcement practice”
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10 of the recommendations are no
change to current system(Nos
2,9,10,11,13,14,18,20,21 and 25)
“changes” :- 4 address
financing/fees (3,4,6 and 22); 3 are
aimed at promoting priority and
image of enforcement (1,7 and8);
and 4 address 2 new good practice
guides (15 and 16 )for LPAs and (23
and 24 ) for JJs
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3 recommendations are to be subject
to further research and consultation
(No.5 – charges for compliance and
monoitroing;
No.12 – unlawful developments
notices and new PCNs; and No.19 –
proposal to abolish 10 year time limit
Part 2 - RECENT
ENFORCEMENT CASES
DEVELOPMENT
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Waverley BC (planning appeal decision) [2006]
JPL 761 that moveable ‘polytunnels’ could
constitute ‘development’ and is not a use of the
land but is a building operation and hence
‘development’.
Beronstone Ltd-v-First SofS[2006]EWHC
2391(admin) EN required removal of 554
wooden posts laid out to define plot boundaries
within site in AONB and Green Belt. HHJ Mole QC
on appeal against dismissal rejected notion Ins
under an obligation to define threshold at which
conglomeration of posts became “development” .
His approach was unassailable – took account of
extent, viability, form and degree of permanence.
Decision upheld.
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Re Kennet DC and British Waterways – Ref
App/W1715/A/05176 (EN appeal) whether
use of land for mooring of residential
barges/boats which were not in course of
navigation was a material change of use
Appeal on ground (e)- [failed ]- only landowner
(BW)and leaseholder had been served. Indiv
owners as occupiers under licence should have
been served (as officer had advised). In circs
hwoever where requisition notice only id’d BW
and leaseholder and copy of notice had been
fixed to post at site entrance and substantial
number of boat owners attended no signif
prejudice by failure.
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Appeal on ground ( c) – [succeeded]
EN alleged “unauthorised use of land for mooring
of residential barges/boats not in the course of
navigation”. Based on evid it was accepted
predominant use was not residential.Insp
changed EN to “home mooring of barges/boats”.
Planning unit Insp held to be canal as entity
including its banks at Ladies Bridge is incidental
and ancillary to use of canal therefore not MCU.
Inspector noted unusually large size.
Insp accepted contention was that based on test
in Harrods-v-SSETR[2002] EWCA Civ412
“home”mooring of boats was reasonably
incidental to canal primary use and no MCU.
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R (on the application of Wallis)-vNational Assembly for Wales
[2007]JPL 962
Mr Wallis had pp for change of use from
sewage works to kennels subject to
conditions that, inter alia, kennel/hound
lodge and associated run area only to be
used for accommodating dogs owned by
him and not to be used in any other
capacity
Subsequently sought pp for residential
caravan - refused and appeal dismissed.
EN issued in respect of this change of use.
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On appeal Insp rejected argument that there was
need for caravan to secure well-being of dogs as
such special circs only relate to commercial
kennels which was not an authorised by pp nd
dismissed appeal.
On appeal to High Ct Davies J allowed – (1) Insp
fell into error in his interpretation of pp and
treating way Mr W had been using kennel hound
lodge and associated run area as “commercial
kennel operation”. His use was entirely within the
pp conditions – only him and his own dogs.
TIME LIMITS/IMMUNITY
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R (on the application of Arun DC) v The First
Secretary of State and Brown [2005] EWHC
2520, [2006] EWCA Civ 1172
Enforcement against breach of non-separate use
conditions-time limits
Permission was granted to build an extension to a
property to house a dependent relative. A
condition attached to the permission said the
property was not be occupied or disposed of as a
separate independent unit of accommodation.
Some time in 1996 the extension was used as
separate accommodation. The Council issued an
enforcement notice in 2004.
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Judge Mole QC held:
In 1996 there were effectively two sorts of
breach: (1) non-permitted change of use
from a single dwelling-house to two
separate dwelling-houses (2) breach of
condition prohibiting change of use to two
separate dwelling-houses.
S. 171 B (2) states “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 breach.”
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S. 171 B (2) does NOT mean that the time
limit for enforcing against a breach of
condition against separate use is four
years. Instead the normal ten-year rule
applies and EN had been served within
time .
HOWEVER in the CofA it was held that the
time limit for enforcing against change
ofuse of any building to use as a single
dwelling is 4 years whether breach was
development without permission or breach
of condition.
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In Arun - Carnwath LJ pointed out that
clear legislative intention was that, unlike
other changes of use, householders should
only be vulnerable to enforcement action if
it was instituted within 4 years. Given
such intent it would be illogical for there to
be a different period depending on how
breach came about ie breach of condition
or development without pp.
Similarly – illogical for time limit to
depend on how LPA formulated breach.
NULLITY & INVALIDITY
Clive Payne –v-(1) National Assembly for Wales (2)
Caerphilly County BC (2006) [2006] EWHC 597[2007]
JPL117
Test to apply
 Inspector had correctly identified that an enforcement
notice did not comply with S.173(3) because of
uncertainty and therefore failed to specify steps. The
notice had asked for submission of a scheme to the LPA
. Inspector decided to exercise power under S.176 to
correct and vary.
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Issue of nullity not been taken on appeal to Inspector but
on appeal to High Court DDJ Wyn Williams QC held that
the Inspector having reached the conclusion that the
notice did not comply with S.173 fell into legal error by
varying its terms. He had no power so to do because
notice was a nullity.
R (on the application of EHDC)-v-First
Sof S[2007]EWHC 834.
 Estoppel – “second bite” Enforcement/
nullity
 EN/Appeal 1 – developer appealed on
written reps, neither developer nor LA
provided sufficient info to determine
whether developmen t compied with pp
or not. Appeal 1 allowed on ground (c) –
no breach.
EN/Appeal2 – Inspector allowed
appeal/quashed notice as nullity on basis
matter had already been determined by
1st Insp.
 LA’s subsequent JR was successful. Q was
whether 1st Insp had actually determined
merits of case when “cause of action
estoppel” would have arisen to prevent 2nd
EN having effect. Sullivan J held no
estoppel arose and that even if it had
special circs enabled ct to exercise
discretion in favour of applicant.
INJUNCTIONS
South Beds DC-v-J. Price [2006]JPL 1805
breach of inj –committal- suspension- gypsiescirc 01/06
 LPA had been granted S.187B inj following EN
being upheld requiring Price and others to move
caravans off site, cease resid use and restore
land. No compliance at all.DC issued commital
proceedings – def X-application for inj to be
discharged or varied.
 In High Ct – Bean J refused to discharge, vary or
suspend inj despite further S.78 appeal pending.
Made commital order suspended for 2 mths
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Further application when date for S.78 inquiry 2
mths away resulted in suspension for short
period to allow defs to get off site(bef inq date)
which they did.
BUT inquiry date got set back, was then adjnd
sine die and C01/06 issued. Def appealed against
committal order and sought permission to appeal
decision not to discharge or suspend.
CofA held: 1. Existing shortage of
accommodation and likelihood of future sites
being identified did not in themselves tolerating
use of site which was unsuitable for purpose. No
basis on which to conclude J’s refusal to suspend
wrong
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2. C01/06 clearly did improve defs’ planning case
– in considering temp pp substantial weight to
be accorded unmet need. But not poss to assume
more likely to succeed. The q was whether defs
should be allowed back on land until decision.
3. Only right to suspend committal pending result
if evidence showing substantial likelihood
planning appeal wld succeed. Whilst def’s
chances had improved but not poss to say
strong.
Appeal agnst commital order dismissed and
permission to appeal J’s refusal to suspend
refused.
South Cambs DC-v-Dan Flynn [2007]
JPL 440;[2006]EWHC 1330 “Smithy Fen”gypsies- Circ 01/06
 LPA sought inj under S.187B to require def
gypsies to move. 3 Ens served re different
parts all upheld on appeal.
 Defs argued against as (1)not
proportionate and (2)effect of Circ 01/06
and temp pp
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Silber J granting application held:
(1)Re Proportionality – Insp andSofS
had weighed issue of unsatisfied need and
personal circs, even taking account of 2
vacant but not approp/available County
Council sites; no failure on DC’s part re
homeless applications nothing more could
or should have been done under Housing
Act; planning merits were clearly not
“finely balanced” as Defs argued;only new
legal change to for Court to consider was
C01/06; land not GB but DC had v strong
claim to relief unless temp pp justified C01/06
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(2) Re Cir 01/06 +Temp pp – defs
argued that C01/06 means strong chance
of success of getting temp pp.But “real
prospect”of success required not satisfeid
by C01/06 provisions as defs putting
forward same case in suppport of claim for
temp pp as before which was rejected.
Nothing in C01/06 alters planning judgmt.
Nothing in C01/06 suggests sites shld be
permitted where such level of harm had
been found; prospects of success
therefore so low ct can disregard.
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Bath and North East Somerset Council-vConnors [2006] EWHC 1595; [2007]JPL 140
S.187B - Gypsies; Injunctions; Enforcement and
suspension
LPA applied for injunctions to restrain existing
and anticipated breaches.
Defendant gypsies had been refused pp for site
and S.78 appeal had been dismissed by Inspector
and Sof S. Their personal circumstances were not
sufficient to outweigh harm to GB and AONB site.
Defs applied for temp PP to permit them to
remain on site until LPA had carried out needs
assessment under circ and land could be
identified for them.
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Defs accepted inj should be granted but
suspended as they had reasonable
prospect of success with fresh application
for temp pp
Tugenhadt J granted application: no
realistic prospect of success for application
or S.78 appeal( cf South Cambs). Planning
circs of site not going to change by end of
temp permission period.Whilst substantial
weight could be given to unmet need and
possibility of further sites being identified
for temp pp, significant weight had
already been accorded previously to same
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Moreover significant degree of env
damage was principal consideration and
that was also unlikely to change.
BUT suspended order for 4 as opposed to
LPAs suggested 3 months to allow time
taking account of personal circs.
J. noted that it remained possible to apply
and extend in future.
PROCEDURE
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Oxford City Council-v-SSCLG[2007]
EWHC 769 – important re way second
inspectors address decisions but also for
procedural point. Where LA taken
enforcement action and inspector grants
pp and quashes EN, it is essential on
appeal to request court quashes both
aspects of decision (S.288 and 289
appeals)
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R on application of Mohammed
Eid-v-First SofS [2006]JPL 1754
Def appealed agnst Insp’s deicisn
dismissing EN appeal on basis that
(1) Insp should not have been
permitted to correct typo in his DL
and (2) erred in holding change of
use from financial and professional
services to café was harmful.
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Held dismissing appeal (1) as long as
correction of modest proportion and did
not cause prejudice and (2) purpose of
S.289 appeal was to id errors of law made
by Insp not to carry out a re-run of
original inquiry which is what def was
doing – seeking to test findings against
the evidence and putting indiv sentences
under magnifying glass. Nevertheless
Insp’s conclusions survived such scrutiny.
CONDITIONS
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Watershore Ltd and Jonathon Bolwesv-National Assembly for Wales and
Cardiganshire CC[2006] JPL 1754-55
EN alleged breach of unauthorised
construction of a building intended for use
as a barn requiring it to be demolished.
Insp rejected contention under S.174(2) (
c) that bldg designed for agric purposes
and accordingly permitted devel. Insp
amended notice removing words “intended
for use as a barn” and rejected ground (a)
and (f) appeals
S.289 appeal dismissed- (1)Insp had
referred to S.75(3) which was not relevant
as no PP to construe but considering
under S.177(5) which, following his
amendment of the EN was for construction
of a building. Ct held probably referring to
S.75(3) by way of analogy where ppsilent
on purpose of bldg. In any event Insp
would have reached same concl without
ref to S.75.
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(2)rejected contention that Insp had
failed to take acc of mc in that he
could have imposed a condition re
agric use. Having found that the
building was not designed for agric
use it would have been perverse to
proceed to impose a condition
limiting it to agric use.
EN & COMPLETION NOTICES
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Carddiff CC-v- National Assembly for
Wales & Malik [2006] EWHC 2391inter-action between a completion notice
and an EN
In 1993 Malik obtained consent to erect
garage to rear of home and began work.
Work ceased 1994. 2001 S.94 completion
notice served but failed to comply by
deadline so EN issue in 2004 alleging
breach and that devel was unsightly.
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Mr Malik’s appeal allowed by Assembly
contrary to Insp.
LPA’s appeal under S.289 was dismissed.
Davies J found that works carried out prior
to expiry of completion notice remained
development authorised by pp in light of
exception provided by S.95(4) for building
works carried out under relev pp. Works
were lawful as had been done under 1993
consent.
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However J went on to point out there
remained significant sanction in loss of
benefit for future of original consent.
He also noted that LPA could,in its
discretion, issue an EN as to part only of
devel.
THE END…