3 rd Annual UWE/NAPE Planning Enforcement and Development Management Conference 22 February 2013

1. 3rd Annual UWE/NAPE Planning Enforcement and Development Management Conference22 February 2013 Getting the Notice right Stuart Reid Group Manager, Enforcement, Specialist Casework and Costs

2. Why? • Because the LPA has identified that there has been a breach of planning control AND • It considers that it is expedient to issue a notice having regard to the provisions of the Development Plan and to any other material considerations [s172(1)]

3. Why? • Because it is a legal document, which if not complied with may end up being looked at by the Courts • Because it sets out for the Appellant the LPA’s view of what has been done wrong and what is necessary to be done in order to put it right [Miller Mead v Minister of Housing and Local Government [1963] 2 QB 196] • If fee paid/an appeal is lodged on ground (a) then it is going to set the terms of the deemed planning application (s177(1))

4. Why? • Because quashing a defective EN benefits nobody, apart from the rogues. - no public benefit in quashing because of a “technical” failure – the harm continues and the Appellant remains in a state of uncertainty • Because normally the outcome is a second EN under s171B(4) – second bite provision - further delay and cost of a further appeal - possible costs award against LPA

5. Conflicting Objectives? • - to ensure EN contains all it shouldso it is clear to recipient what is wrong and what needs to be put right - to ensure effective enforcement action is not deflected or delayed by technical or unmeritorious points of law • Hammersmith LBC v SSE and Sandral [1975] 30 P & CR 19 – The Inspector has a duty to get the notice in order if he can

6. The Inspector’s Power • S176 - extremely wide power to correct any defect, error or misdescription – only one statutory limitation - no injustice to the appellant or the local planning authority many court cases to support this principle, from: - R v SSE and LB Tower Hamlets, ex parte Ahern [1989] JPL 757 – “the pettifogging has to stop” – virtually any correction can be made – the test is whether there would be injustice to: Howells v SSCLG [2009] EWHC 2757 (Admin) – red line on plan extended – s176 – only test is injustice

7. The Opportunity • More opportunity at hearings and inquiries – airing problems = no surprise • Go back to parties on WRs appeals if practical and would achieve purpose • To get the parties to agree to correction which might well make the notice more onerous – for example by adding to the requirements • Appeal to the better nature of the parties – only going to have to go through the process again on re-issue

8. The exceptions - Nullities • Defective on its face – generally something missing rather than an error • No notice at all – without legal effect – no notice and so no right of appeal • S173 sets out the statutory requirement that enforcement notices shall “state” and “specify” certain matters • If the notice does not comply with requirements of s173 – automatically a nullity – the pain of Payne [Payne v NAW and Caerphilly CBC [2007] JPL 117]

9. s173 - EN must contain • An EN shall state/specify: • s173(1)(a) - the matters which appear to the LPA to constitute the breach of planning control – the allegation • s173(1)(b) - the paragraph of s171A(1) within which, in the opinion of the LPA, the breach falls – development without pp or failure to comply with a condition • s173(3) - the steps to be taken or activities to cease – the requirements • s173(8) - the date on which it is to take effect • s173(9) - the compliance period(s)

10. … continued • s173(10) - as prescribed: reasons why expedient to issue EN, relevant DP policies, precise boundaries of the land & explanatory note [Regs 4 & 5, ENAR 2002]

11. Nullity • If an EN is missing some element required by s173 and the ENAR it will be a nullity • Failure to specify an allegation, steps to be taken, effective date, period for compliance, why it is expedient to take action. • OR if the EN is: • hopelessly ambiguous and uncertain so that the owner or occupier did not know what he had done wrong and what he had to do to put the matter right - s173(2) A lot needs to be wrong for that to apply

12. The s176 power • Is not available if EN is a nullity – to rush to the conclusion that it is a nullity is not in the public interest • Over the years the Courts have encouraged a move away from strict adherence to formalities, in tune with the 1989 Carnwath Report Enforcing Planning Control which raised concern about matters of complexity and technicality • So provided a nullity is not found then the only test as to whether correctable is “injustice”

13. Common Problems • Headings and the right paragraph of s171 • The land to which the notice relates - there generally is, but doesn’t have to be, a plan - correct planning unit identified? Especially important where the breach is a change of use. It provides the basis for assessing the materiality of the change

14. … continued • Reasons for issue - get the right immunity period [s171B] - go back to why it was considered expedient to take action - because planning permission has not been granted or because the building differs from that which was granted planning permission will not do - don’t forget DP policies • Time for compliance - must be a period (not “immediately” or a calendar date)

15. Common Problems – allegation • Stand back and consider the breach • Is it development without pp (Ops/MCU) or is it a BoC? Might be both – can issue notices in the alternative • If Ops should be simple – the erection of a building, the construction of a hard surface • If pp has been granted but something materially different constructed then what you have is development without planning permission – no need to list the changes from the approved scheme in the allegation

16. … allegation continued • Think of the description of development as you would in an application for planning permission • If MCU to mixed use – identify all principal (not ancillary) activities taking place on the planning unit (even the lawful ones) – not just the one you are concerned about • Siting/stationing of caravans is not a use of land – why are they there? – for what use? • Neither is use as residential “curtilage”

17. … allegation continued • If a use continues at the end of a temporary planning permission then there is no further MCU – the breach is the failure to comply with the condition • Describing the previous use is not essential but might help to clarify the change • Description such as “change to a mixed use including …” is not appropriate • BoC – specify the condition and then describe in what way it has not been complied with

18. Common Problems - requirements • S173(3) – specify the steps to achieve the purpose – precision – Payne [Payne v NAW and Caerphilly CBC [2007] JPL 117] • Be clear about what the purpose of the notice is – remedy the breach or remedy injury to amenity [s173(4)(a) or (b)] • In most cases it is to remedy the breach. Why not state the purpose in the notice? It will help in ground (f) appeals since any arguments like “I can paint it a different colour” or “I can reduce its height” would not remedy the breach • Never seek an improvement – can only go back to a previous situation and even then cannot require a previous use to resume [s173(4)(a)]

19. … requirements continued So if the purpose is to Remedy the breach • Match the requirements to the allegation: - erect building – demolish building - change the use – cease that use - didn’t comply with the condition – comply with the condition • If the purpose is to remedy the breach and the requirements don’t match the allegation be sure that you know why and that it isn’t a mistake. Common ones: - to bring a development into line with a pp - to require only the additional activities in a mixed use to cease (Mansi) - to require works and ops that facilitated the MCU to be removed (Murfitt and Somak Travel)

20. … requirements continued • If the requirements don’t match the allegation – was it intentional? – was it to under-enforce? And if the purpose is to Remedy the injury to amenity • Examples: - Erection of an extension – reduce the depth by 2m - Mixed use – only require some of the new activities to cease or require cessation only on one part of the site - BoC non-compliance – require compliance in part But BEWARE unintentional effects of s173(11) • Where an EN could have required buildings/works to be removed or activities to cease and doesn’t do so then once the requirements are complied with those matters have unconditional pp

21. Keeping it simple … … or not! Example 1 Erection of a dwellinghouse and use of associated land for residential purposes (4 years and 10 years cited) Example 2 (as part of a mixed use) storage of two un-roadworthy motor vehicles registration numbers L757BPN and K807FBF (with requirement to remove the vehicles with those registration numbers)

22. Problem spotting a recent example … The allegation: Without pp, a MCU from a single dwellinghouse (and purposes incidental to the enjoyment of the dwelling house) to a mixed use comprising a dwelling house and for purposes of vehicle storage The requirement: Cease the use for the purposes of vehicle parking (save for such domestic parking of no more than 6 vehicles as may be regarded incidental to the enjoyment of the dwelling house)

23. Problem spotting and another … The allegation: MCU from agriculture to mixed use as a caravan site for the stationing of a caravan capable of being used for residential purposes and agricultural land used until recently for the keeping of horses The requirement: Cease the use for the stationing of a caravan capable of being used for residential and storage purposes; dismantle and cause the caravan to be removed; remove or cause to be removed any chattels and ancillary items to the use of the land as a caravan site

24. Problem spotting … seems obvious but reached PINS before problem picked up! The land affected Outlined in blue The breach of planning control Placing 3 containers on the land in the approximate position marked XXX

25. Problem spotting The allegation: The construction of a dwellinghouse which is not wholly in accordance with the approved plan Reason for issue: It appears that the above breach of planning control has occurred. Permission for a dwellinghouse was granted on 20 August 2010. The roof design fails to comply with the approved plan The requirement:Carry out the necessary works to the roof to comply with the approved plan

26. Problem spotting some are just plain odd … The allegation: without planning permission, the erection of a car port to the front of the building on the land The requirement: the land must be restored, in its entirety, to its former use.

27. Problem spotting and some seek to do the job of a pp … The allegation: - MCU to mixed use dwellinghouse and commercial hairdressing The requirements: - limit floorspace used for hairdressing - personal ‘permission’ - restricted hours of operation

28. S176(1)(a) a wide power • … correct any defect, error or misdescription … - Cutting down or expanding the allegation - Cutting down or expanding the requirements - Cutting down or expanding the extent of the land affected - Combining two or more ENs into one - BUT it may be a step too far

29. A step too far? • Is the appellant in a position to deal with the implications of the change? • Does extending the area bring in new occupiers who did not appeal? • Does extending the allegation bring in a s173(11) problem? • Does widening the scope make the notice more onerous? • If MCU/BoC changed to Ops could a ground (d) appeal have succeeded? • Is there agreement to the changes?

30. Top Tips • Keep it simple • Use s173 as a check list • Check the requirements against the allegation – if they are different: Why? What would be the consequences?

31. Finally, make a friend of the Inspector • LPAs: check and double check the EN – get it right at the start. If you identify a problem later ask the Inspector to make the correction early in the appeal process. • Appellant’s advisors: be practical and sensible in accommodating changes – avoid an unwelcome rehearsal of arid technicalities.

32. And even more finally… • Any Questions?