Planning Enforcement

2. Taking Direct Action Presented to NAPE Officers 28th September 2009 by Linda Russell Linda S Russell, Solicitors & Planning Consultants

3. Concepts of Direct Action Legal Powers Ascertaining Non-Compliance Obtaining Authority Pre-Action steps Costs Taking the Action To do or not to do Questions

4. The power of the local planning authority (LPA) to carry out physical works on land that should have been carried out in accordance with the planning requirements*, but have not been so carried out LPA may enter the land & carry out the operations, & recover from the person(s) against whom the notice is enforceable, any reasonable expenses incurred in so doing Applies whether or not LPA taking any other action *See over *See over

5. Planning Enforcement Notices s178 TCPA 1990 Listed Building Enforcement Notices s42 Planning (Listed Buildings & Conservation Areas) Act 1990 Section 215 Notices (Untidy land) s219 TCPA 1990 Section 106 Obligations s106(6) & (7) TCPA 1990

6. S172 Planning Enforcement Notices - s178 Town & Country Planning Act 1990 LPA can enter land Take necessary steps to ensure compliance Recover from the person who is then the owner of the land any expenses reasonably incurred - LPA can seize goods, if not claimed by owner within 3 days, sell goods & put the proceeds towards the payment of expenses � returning any excess sum recovered to the owner of the goods - LPA can register the expenses owed as a local land charge on the land, which will bind successive owners until expenses have been recovered Wilful obstruction is an offence Summary conviction Liable to a fine up to level 3 (�1000)

7. Listed Building Enforcement Notices - s42 Planning (Listed Building & Conservation Areas) Act 1990 LPA can enter land Take necessary steps to ensure compliance Recover from the person who is then the owner of the land any expenses reasonably incurred - LPA can seize goods, if not claimed by owner within 3 days, sell goods & put the proceeds towards the payment of expenses � returning any excess sum recovered to the owner of the goods - LPA can register a local land charge on the land which will bind successive owners until expenses have been recovered Wilful obstruction is an offence Summary conviction Liable to a fine up to level 3 (�1000)

8. S215 Untidy Land Notices - s219 Town & Country Planning Act 1990 LPA can enter land Take necessary steps to ensure compliance Recover from the person who is then the owner of the land any expenses reasonably incurred - LPA can seize goods, if not claimed by owner within 3 days, sell goods & put the proceeds towards the payment of expenses � returning any excess sums to the owner of the goods - Expenses recoverable are now automatically a local land charge binding on successive owners until expenses have been recovered � No sanctions for wilful obstruction (but could constitute a breach of the peace � police to deal)

10. S106 Planning Obligations - s106(6) & (7) Town & Country Planning Act 1990 LPA can enter land - minimum 21 days notice Carry out obligations Recover from the person or persons against whom the obligation is enforceable (inc: successors and mortgagees) any expenses reasonably incurred - No power to seize or sell any goods - Regs not yet made enabling LPA to seek recovery of expenses through entry on charges register (charges register for registered land or Class C charge for unregistered land) Wilful obstruction is an offence Summary conviction Liable to a fine up to level 3 (�1000)

11. Direct action is a last resort only Always seek to persuade the person responsible to carry out the works Consider prosecution (enforcement notices, 215s & listed buildings enforcement notices) Consider injunctive action for s106s Before taking any action, give final written warning (and ensure provisions of the notice/106 are lawful)

12. Ascertain whether authority is delegated to officers. If not committee authority must be sought Report must include complete background to events, correspondence, applications, refusals & appeals, actions taken, prosecutions & results, practical issues & financial considerations (see over) Following a committee decision to approve, check that the minutes correctly reflect the decision If proposed action changes, consider whether further committee approval is needed

13. Costs can only be recovered if it can be demonstrated that they were reasonably incurred Estimates or quotes (usually min of 3) must therefore be obtained Include labour, equipment, professional bodies, statutory undertakers, any expert reports needed prior to works, officer time in arranging and supervising the works Consider the likelihood of recovering costs. Even if no reasonable likelihood, LPA may wish to proceed

14. Decide on timing Decide whether to notify owners/occupiers of timing Ascertain and arrange precisely what is needed � labour and equipment Liaise with environmental health and/or other departments if appropriate If necessary secure police attendance (& warrant if necessary) Make sure you (and camera/video) are available on the day to supervise � Ensure all equipment & safety wear purchased/hired � Obtain any entry warrants necessary Consider whether you want press attendance

15. Meet at an agreed place Take charge. Be polite but firm, ensure everyone is introduced, show any warrant, and explain what will happen Explain that you will record/take photos throughout process Invite owners/occupiers to approach you (not the contractors) if they have any concerns In cases of resistance explain that: Police have power of arrest in event of breach of the peace, and Wilful obstruction is a criminal offence Take as necessary any items for storage Works proceed, supervise carefully, shore up as necessary, note any damage, note timings.

16. Write to owner/occupier enclosing invoice for the works carried out. Give complete breakdown to justify cost. Explain about goods in Storage, that if not collected within 3 days, will be sold: Invite owner to pay for recovery After 3 days, sell and put monies towards cost of works � Where appropriate register outstanding monies as a local land charge, and seek assistance of legal officers in recovering.

17. Pros Problem is solved (in some cases temporarily) Complaints have ceased Good public relations exercise Reduces workload ultimately May recover reasonable costs Cons Time consuming Risk of damage/allegations of damage Expensive - may not recover costs May only be a temporary remedy