Planning Enforcement

February 4th, 2019 by James Goudie KC

 Johnson v Windsor and Maidenhead RBC (2019) EWHC 160 (Admin) is concerned with enforcement proceedings in relation to land, pursuant to the Town and Country Planning Act 1990 (“the TCPA”). Justine Thornton QC, sitting as a Deputy High Court Judge, described the legal framework as follows:-

(1)       Planning permission is required for the carrying out of development of land;

(2)       The making of a material change in the use of land is development;

(3)       Carrying out development without the required planning permission, or failing to comply with any condition or limitation pursuant to which the planning permission has been granted, constitutes a breach of planning control;(4)       A planning contravention notice (“PCN”) may be issued under Section 171C of the TCPA to allow the local planning authority to request information required for enforcement purposes;

(5)       It is a criminal offence to fail to comply with a requirement of a PCN, or to make false or misleading statements in response to the PCN;

(6)       Where it appears to a Local Planning Authority (“LPA”) that there has been a breach of planning control, and that it is expedient to issue an Enforcement Notice (“EN”), the authority may do so;

(7)       The EN must set out the matters which appear to the LPA to constitute the breach of planning control, so as to enable the person on whom it is served to know what those matters are;

(8)       The EN must also specify the activities which the LPA require to cease in order to achieve, wholly or partly, the remedying of the breach;

(9)       A person served with a PCN may appeal to the Secretary of State (“the SoS”) on a wide ranging number of grounds set out in Section 174(2) TCPA, including that: planning permission ought to be granted (ground a); the matters alleged have not occurred (ground b); the matters in question do not constitute a breach of planning control (ground c) or; at the date when the notice was issued no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters (ground d);

(10)    If the SoS errs in law in reaching a decision on the appeal, the appellant may, with leave, appeal to the High Court, under Section 289 of the TCPA;

(11)    If there is no appeal to the SoS, or if the SoS upholds the EN on appeal, any breach of its requirements is a criminal offence;

(12)    Under the TCPA, a Breach of Condition Notice (“BCN”) may be served where planning permission has been granted subject to conditions and any of the conditions is not complied with;

(13)    The BCN may be served on the person carrying out the development or the person having control of the land (“the person responsible”);

(14)    The BCN must specify the steps to be taken, or activities required to cease, in order to comply with the conditions;

(15)    If the BCN is not complied with in the time allowed, the person responsible is guilty of an offence;

(16)    Unlike Section 174, there is no right of appeal to the SoS or any other body against the service of a BCN;

(17)    The validity of a BCN may be challenged by way of an application for judicial review, or by way of defence to a prosecution;

(18)    Alternatively, an application may be made to the LPA for permission to retain the development without complying with the condition;

(19)    The service of a BCN is a purely public law act: there is strong public interest in its validity, if in issue, being established promptly, both because of its significance to the planning of the area, and because it turns what was merely unlawful into criminal conduct;

(20)    The general time limit for enforcement action is the end of ten years “beginning with the date of the breach” (“the 10-year rule”);

(21)    This period may, in effect, be extended by a further four years to enable an authority which has “taken or purported to take” enforcement action to take further enforcement action in respect of the same breach;

(22)    One effect is that, if the first enforcement action is set aside on appeal, or by the Court, because of some legal defect, the LPA may have a second chance to get it right;

(23)    In addition, the time limits do not prevent the service of a BCN in respect of any breach of planning control if an EN in respect of the breach is in effect;

(24)    The legal principles applicable to construing a planning permission were laid down in R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12;

(25)    The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions;

(26)    This rule excludes reference to the planning application, as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference: in that situation the application is treated as having become part of the permission;

(27)    For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission;

(28)    If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity;

(29)    The principle upon which the Court may intervene to quash a decision by the SoS are well established: matters of planning judgment, are for the decision maker: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759;

(30)    Matters of judgment include whether the LPA had good grounds to withdraw the enforcement notice;

(31)    The Court should respect the expertise of the specialist Planning Inspectors and proceed on the presumption they have correctly understood the policy framework: Hopkins Homes Ltd v Secretary of State [2017] UKSC 37;

(32)    A Court can interfere with an Inspector’s decision if he has acted on no evidence; if he has come to a conclusion to which on the evidence he could not reasonably have come; if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration a matter which he ought not to have taken into account or vice versa: Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320;

(33)    Decision letters should be read in good faith, as a whole and not legalistically: Clark Homes v Secretary of State [1993] 66 P&CR 263;

(34)    The reasons given for a decision must be intelligible and adequate;

(35)    They must enable the parties to understand why the decision was what it was and the conclusions reached on the “principal important controversial issues”: South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953;

(36)    Mistake of fact is a separate ground of review, based on the principle of fairness;

(37)    To give rise to a finding of unfairness, four factors must ordinarily be present: first, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter, secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable; thirdly, the appellant (or his advisers) must not have been responsible for the mistake; and fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning: E v SSHD [2004] QB 1044; and

(38)    Although planning inquiries are adversarial, the LPA has a public interest, shared with the SoS through his Inspector, in ensuring that development control is carried out on the correct factual basis.

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