Planning Enforcement : Round-up of recent law

1. Planning Enforcement :Round-up of recent law William Upton, Barrister, williamupton@6pumpcourt.co.uk Chambers of Stephen Hockman QC, Six Pump Court, Temple, London.

2. Planning Enforcement • Notices: • Breach of Condition • Enforcement Notices, and Stop Notices • Listed Building ENs etc • Injunctions • Direct action • Prosecution

3. Time Limits and concealment • Fidler v SoS CLG [2010] EWHC 143 (Admin) • Hay bale wall hides house • building was not substantially complete • R. (oao Welwyn Hatfield Council) v SoS CLG [2010] EWCA Civ 26, • Internal dwelling in a hay barn

4. the Localism Bill 2011 • Section 104 deals with the Fidler issues. • LPA will apply to Magistrates for a "planning enforcement order“; • apply for order within 6m of the date on which evidence of an apparent breach of planning control, “came to the authority's knowledge". • Magistrates must be satisfied that person’s actions have resulted in or contributed to the full or partial concealment of the apparent breach & consider it just to make an order, having regard to all the circumstances. • 12 months to act thereafter

5. the Localism Bill • Despite lobbying, time limits for taking enforcement action essentially the same. • Part 1, Chapter 5: • decline to determine a planning application if all or part of the proposed development is already the subject of an enforcement notice • removal of deemed planning permission under section 177(5).

6. Direct Action • R. (on the application of Harper) v Waverley BC [2010] EWHC 1175 • Residential annex - no need to agree schedule of works • Challinor v Staffordshire CC [2011] EWCA • strike out as an abuse of process landowner's claim for damages in relation to direct action • should have been raised during earlier proceedings concerning the direct action.

7. Interpretation of pp • Singh v Secretary of State for Communities and Local Government [2010] EWHC 1621 (Admin) • certain parts of a development given pp become physically incapable of being completed • due to work completed under a later pp • whole development under the first permission became unlawful.

8. Enforcing a section 106 • R (oao of ASDA Stores Ltd and another) v South Tyneside BC [2010] EWHC 3285 • ASDA relocated, agreed s.106 restricting food retailing on old store it was vacating • within a couple of years, Morrisons had taken a 25 year lease of the old store and was fitting it out for the purpose of food retail. • the enforcement Section 106 agreements depends on whether the council considers it expedient or necessary.

9. Resolving an old breach of condition • Trim v North Dorset DC [2010] EWCA Civ 1446 • Old Breach of Condition Notice, not enforced • appropriate means of challenge to its validity was by way of judicial review and not by private law proceedings.

10. Section 180 complications • R (oao Rapose) v Wandsworth LBC [2010] EWHC 3126 (Admin) • Failure to consider effect of later pp on earlier EN - s.180 effect • Brent LBC v Adil and others [2010] EWHC 3654 (Admin) • Magistrates error on s.180 and EN prosecution

11. Amending the notice • Howells v SoS CLG and Gloucestershire CC [2009] EWHC 2757 • Inspector had the power (under s.176(1)) to amend a plan attached to an enforcement notice issued by a local authority, to expand the area covered, so long as the amendment did not cause any injustice to the parties.

12. drafting • Independent Pension Management Ltd v SoS for CLG & Kent County Council [2010] EWHC 3090 (Admin) • Waste or B2 • No need in EN to make clear that it was not intended to prevent lawful activities on a site

13. Jamie Oliver as a Material consideration … • R. (on the application of Copeland) v Tower Hamlets LBC [2010] EWHC 1845 (Admin) • material considerations • opponents of a planning application for a hot food takeaway very close to a school entrance

14. Current Issues in Planning and Environmental Enforcement Law William Upton, Barrister, williamupton@6pumpcourt.co.uk Chambers of Stephen Hockman QC, Six Pump Court, Temple, London.