Tonbridge and Malling Borough Council UPDATE ON ENFORCEMENT LAW

1. Tonbridge and Malling Borough CouncilUPDATE ON ENFORCEMENT LAW Jonathan Clay 2-3 Gray’s Inn Square

2. OVERVIEW • I. The powers • Local planning authority’s principal enforcement powers under the Town and Country Planning Act 1990 (as amended) comprise: • The issue of an enforcement notice (s. 172). • The issue of a stop notice (s. 183). • The issue of a temporary stop notice (s. 171E). • The making of an application for a planning injunction (s. 187B). • The issue of a breach of condition notice (s. 187A).

3. Where an enforcement notice is in force, a local authority is further empowered • to prosecute for breach of the notice (s. 179), and • to take direct action in default (s. 178). • The above powers are without prejudice to an authority’s right to regain possession of its own land from unlawful occupiers: Kay v Lambeth LBC [2006] 2 WLR 570.

4. Powers conferred solely on LPAs. In theory, private individuals could seek judicial review of a decision not to take enforcement action, but unlikely to succeed given breadth of LPA’s discretion unless some error of law can be shown: R v Sevenoaks DC, ex p Palley [1995] JPL 915. • Where enforcement action unreasonably refused or delayed, a complaint to the Local Government Ombudsman may lead to a finding of maladministration and a recommendation to pay compensation.

5. II. The guidance • A variety of national guidance documents of varying degrees of relevance and specificity: • PPG 18 • Circular 10/97 • Enforcing Planning Control: Good Practice Guide for Local Planning Authorities. • ODPM Circular 02/2005 (temporary stop notices) • Guidance on Managing Unauthorised Camping (February 2004) • ODPM Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites • Enforcement Concordat (1998) • Code for Crown Prosecutors (2004) (inrespect of criminal proceedings)

6. Recent Cases on Enforcement • I. Enforcement notices • (1) Time limits • S. 171B of the Town and Country Planning Act states: • “(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

7. (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. • (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”

8. Arun District Council v First Secretary of State [2006] 1 WLR 365 • Planning permission granted for an extension to a dwellinghouse subject to a condition that the extension should be used for purposes incidental to the dwellinghouse. After a number of years the council discovered that the extension was in use as a separate dwelling. It served an enforcement notice alleging breach of condition. An appeal against the notice was allowed by an inspector on the ground that it was served more than 4 years after the separate residential use commenced. On appeal by the Council under s. 289 T&CPA 1990, HHJ Mole QC held that 10 years was appropriate period.

9. But now see same case in CA at [2007] 1 WLR 523 reversing the decision at first instance: • Per Carnwath LJ: • “……it appears to me that, if one approaches the amended 1990 Act in accordance with ordinary principles of construction, without undue attention to the history, there is no great difficulty. Section 171A(1) defines "a breach of planning control" as meaning either (a) carrying out a development without the required planning permission or (b) failing to comply with any condition subject to which planning permission has been granted. Accordingly the reference in section 171B(2) to "a breach of planning control" is naturally read as including either type of breach. The only requirement in that section is that the breach should "consist in the change of use in any building used as a single dwelling house".

10. As long as it involves a "change of use", it matters not which type of breach it is: whether development without planning permission or a failure to comply with a condition. This view of the matter is reinforced by the lack of reference to the need for the change of use to be "material", as in the definition of "development" in section 55; nor, unlike section 171B(1), does it require the breach to have involved something done " without planning permission". As I have said, Miss Williams accepts that, apart from the condition, the change would have involved a breach of planning control, but that it would have become immune from enforcement action under the four-year limit. Once it is accepted that sub-section (2) on a natural reading extends to either form of breach of planning control, the same time-limit must apply, and it is hard to see any policy reason why the two cases should be treated differently.”

11. (2) Vague requirements S. 173(3) of the T&CPA 1990 provides: “An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, …” • S. 176(1) confers power to correct a notice: • “On an appeal under section 174 the Secretary of State may— (a) correct any defect, error or misdescription in the enforcement notice; or (b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority”

12. Payne v National Assembly for Wales [2006] EWHC 597 (Admin) • Enforcement notice issued in respect of various unauthorised activities. Paragraph 5 of the notice set out what the recipient was required to do. In addition to ceasing the activities, the notice required the recipient to: • “(f) Submit details of a scheme of levelling and planting of the land to the Local Planning Authority, for written approval, which shall include proposals to Level and plant the areas of the land affected by the activities described in Part 3 of this Notice. • (g) Implement the approved scheme as set out in (f) above.”

13. On appeal, an inspector considered that the above requirements were unacceptably uncertain, but he upheld the notice having replaced the steps (f) and (g) with others of his own devising. On appeal by the landowner under s. 289, Wyn Williams QC held: • The courts still recognised the distinction between an enforcement notice that was a nullity on its face (“so much waste paper”), and a notice that was invalid but capable of correction.

14. An enforcement notice that required steps to be taken to be agreed with the local planning authority was unacceptably uncertain (applying Miller-Mead v Minister of Housing and Local Government [1963] 2 Q.B. 196; Kaur v SSE and Greenwich LBC [1989] EGCS 142). • As the inspector had found that the notice was uncertain on its face and did not comply with s. 173, he should have concluded that the notice was a nullity and incapable of correction.

15. II. Stop notices • Compatibility with the European Convention • Wilson v Wychavon DC [2005] EWHC 2970 (Admin) • A claim for a declaration that section 183(4) of the T&CPA 1990 as amended, is incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination in the application of Convention rights on the grounds of sex, race, religion etc) to the extent that it provides that a stop notice shall not prevent the use of any building as a dwelling house but does not provide the same protection to those dwelling in a caravan, thus having a disproportionate effect on Romany Gypsies and Irish Travellers. Crane J held:

16. There is a difference in the immediate environmental effects of a change in the use of an existing building and the bringing onto land of residential caravans. • It was therefore proportionate for the Government to have a rule that exempted the residential use of buildings, but not caravans.

17. III. Planning injunctions • S. 187B, supplemented by RSC Ord 110, CCR Ord 49 r 7 • South Bucks v Porter [2003] 2 AC 558 • Principal authority on court’s discretion under s. 187B. Summarised by Auld LJ in Davis v Tonbridge and Malling BC [2004] EWCA 194:

18. “(1) section 187B confers on the courts an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds; (2) it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B; (3) the jurisdiction is to be exercised with due regard to the purpose for which was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive relief; (4) however, it is inherent in the injunctive remedy that its grant depends on a court’s judgment of all the circumstances of the case;

19. (5) although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether, and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach; • (6) having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply.”

20. South Cambridgeshire DC v Persons Unknown [2004] EWCA Civ 1280 • Court has power to grant an injunction against persons unknown. • They should not be identified by reference to their subjective intention (eg “persons proposing/intending to do X…”). Instead, they should be identified by reference to the activity which they will cause or permit (eg “persons causing or permitting X to be done on land at …”) • An order for alternative service under CPR 6.8 might provide for service of the claim form and injunction “by which they are placed in clear plastic envelopes and nailed to a stake or gatepost, or other prominent location, on [the land concerned]. Once a week the Council should ensure that the notice is there. The notice should inform [the persons affected] that they can obtain copies of the application notice, and the accompanying witness statement and exhibits, by applying to the Council at an identified address at its planning offices during working hours.”

21. South Cambridgeshire DC v Gammell [2006] 1 WLR 658 • A person who entered onto land and occupied it in breach of an injunction granted against persons unknown thereby became a person to whom the injunction was addressed and a defendant to the proceedings, so that it was not necessary to join him as a defendant at a later date. The Court of Appeal gave guidance on the proper approach to applications to commit for breach of a planning injunction, as well as applications to vary injunctions.

22. The principles in the South Bucks case apply when the court is considering whether to grant an injunction against named defendants. • They do not apply in full when a court is considering whether or not to grant an injunction against persons unknown because the relevant personal information would, ex hypothesi, not be available. However this fact makes it important for courts only to grant such injunctions in cases where it is not possible for the applicant to identify the persons concerned or likely to be concerned. • (3) The correct course for a person who learns that he is enjoined and who wishes to take further action, which is or would be in breach of the injunction, and thus in contempt of court, is not to take such action but to apply to the court for an order varying or setting aside the order. On such an application the court should apply the principles in the South Bucks case.

23. (4) The correct course for a person who appreciates that he is infringing the injunction when he learns of it is to apply to the court forthwith for an order varying or setting aside the injunction. On such an application the court should again apply the principles in the South Bucks case. (5) A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in the South Bucks case and in the Mid BedfordshireDC v Brown [2005] 1 WLR 1460 case.

24. In cases where the injunction was granted at a without notice hearing a defendant can apply to set aside the injunction as well as to vary it for the future. Where, however, a defendant has acted in breach of the injunction in knowledge of its existence before the setting aside, he remains in breach of the injunction for the past and in contempt of court even if the injunction is subsequently set aside or varied. (7) The principles in the South Bucks case are irrelevant to the question whether or not a person is in breach of an injunction and/or whether he is in contempt of court.

25. IV. Direct action • S. 178(1) provides: • “Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may- • (a) enter the land and take the steps; and • (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.”

26. R (O’Brien) v Basildon DC [2006] EWHC 1346 (Admin) • Council resolved to take direct action to remove persons in occupation of land in breach of enforcement notices. Occupiers challenged that decision by way of judicial review, contending (1) it was disproportionate, and therefore contrary to their rights under article 8 of the Convention, to seek to secure compliance with the enforcement notices by direct action rather than by way of a planning injunction; (2) in any event, it was disproportionate and unlawful to secure compliance with the notices at all. Ousely J held:

27. The planning structure in the 1990 Act of enforcement notice, appeal on the merits, compliance period, criminal sanction and direct action, with the possibility of a fresh planning application being made and the planning merits being considered afresh at any time, was generally demonstrative of proportionality. • The enforcement of criminal law is properly to be given very considerable weight in the decision as to the steps to be taken to enforce compliance with enforcement notices which have taken effect. • There was no reason for requiring a further intervention of the court before direct action is taken.  A court decision is not necessary to sanction such action, let alone should it be one in which the court itself decides whether such action is necessary.

28. Selecting a power given by Parliament, which does not require the local planning authority to invoke the assistance of the court, does not become objectionable merely because it avoids court proceedings and the risk of the refusal of relief by the court in the exercise of its own discretion. That is of course different if the purpose of the selection of the route is to avoid a challenge to the lawfulness of the decision. • It may not always be necessary to give notice of proposed direct action; for example, where preparations for violent resistance sensibly dictate that the timing of the action be not notified. • A local planning authority in deciding whether to use section 178 should consider and weigh various factors:  the degree of harm done to the interests protected by planning control; the need for a swift or urgent remedy; the need to uphold and enforce planning control embodied in an effective enforcement notice and the criminal law; the personal circumstances and impact on the individuals of removal.

29. The prospects of success which the occupiers might have on a planning application or appeal were relevant, as was the timetable of any such application or appeal. • On the facts, the prospects of success had not been considered, and the decision was quashed.

30. V. Criminal proceedings • Wycombe DC v Jesse Wells [2005] JPL 1640 • Prosecution of defendant under s. 179 T&CPA 1990 for breach of an enforcement notice requiring the use of land as a caravan site to cease. Defendant acquitted because magistrates considered defence under s. 179(3) – he did everything he could reasonably be expected to do to secure compliance with the notice – made out. Defendant had argued there were no other sites available to him. On an appeal by the Council by way of case stated, Newman J held:

31. A defence under s.179(3) is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site has become available, where the activity in question could be continued. On that basis, a whole range of activities, which take place contrary to planning control, and are commonly enforced against, could continue simply because nowhere else was available for them to be carried on. • For the defence to be made out, it must be established that, despite doing everything that could be reasonably expected, the defendant was nevertheless incapable of complying with the notice. • Appeal allowed.

32. PRACTIAL ISSUES • Ensure enforcement decisions, particularly urgent ones, are taken in accordance with the relevant scheme of delegation • Enforcement decisions should be reasoned and recorded • Alternative service – see CPR 6.8