ENFORCEMENT DECISIONS roles and duties of the LPA

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ENFORCEMENT DECISIONS roles and duties of the LPA

• By
• Clare Parry
• 2-3 Grays Inn Square

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AIMS

• NOT intended to be a comprehensive introduction
  to the powers and duties of local authorities.
• Looking at recent developments which impact on
  how planning authorities should go about making
  enforcement decisions.
• Looking at how this can feed into best practice
  procedures already in place.

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OVERVIEW OF ISSUES

• Duty to consider human rights position.
• Delegated powers.
• Bias.
• Estoppel/nullity.
• Stargazing-what does the future hold?

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HUMAN RIGHTS AND ENFORCEMENT

• Most HR developments in gypsy and traveller
  cases.
• New circular 1/06-
• New definition gypsy.
• Gypsy Traveller Accommodation Assessments
  (feeding into DPD production and RSS).
• Frontloading decision making.
• Allocations not criteria based approach.
• G T sites in green belt usually inappropriate.
• Transitional arrangements-use of temporary
  permissions.

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R (NEW FOREST DC) v SHUTLER 2005 EWHC 3122

• Pre new circular.
• Interesting because HC said
• Where was failure of conventional enforcement
  measures over a prolonged period was no further
  requirement of resort to criminal courts first.
• Shutler had opportunity to address Council before
  its decision to use full powers-no further
  obligation to obtain medical reports. Accepted
  the Council did take into account personal
  circumstances.

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SOUTH BUCKS v SMITH 2006 EWHC 281

• February 2006 (after new circular).
• Application for s.187 Injunction.
• Long planning history (1st D had lived there for
  30 years!).
• Judge said new application for permission not now
  hopeless because of new circular.
• BUT for circular would have struck different
  balance.
• Injunction refused (pending application).

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SOUTH CAMBS v FLYNN 2006 EWHC 1320

• Application for s. 187 injunction.
• NOT green belt land.
• Defendants relied heavily on Smith new
  circular.
• To refuse under Porter judge would have to be
  satisfied real prospect successfully obtaining
  planning permission. Not because
• Inspector had considered temporary permission.
• Inspector had found there was a strong case
  against grant of permission.
• Para 109 circular 11/95 still in force-temporary
  permissions still not acceptable where damage to
  amenity cannot be accepted.
• Injunction granted.

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BATH v CONNORS 2006 EWHC 1595

• Application for an injunction.
• Judge preferred the Flynn approach (looking at
  whether real prospect success in new
  application) to Smith approach.
• No realistic prospect of success in succeeding in
  fresh appeal-inspector had already given great
  weight to unmet need.
• Given environmental impact need for injunctive
  relief-issue proportionality comes down to length
  of suspension.
• No evidence why council thought three months
  adequate-made injunction suspended for four
  months.

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SOUTH BEDFORDSHIRE v PRICE 2006 EWCA Civ 493

• Defendants failed to comply in any way with s.
  187 injunction.
• Council applied for committal, Defendants
  applied to vary the injunction.
• CofA.
• Would only be right to suspend the committal
  order if there were evidence showing substantial
  likelihood would succeed in getting at least
  temporary permission.
• On evidence before court it was impossible to
  conclude that the chances of getting permission
  were particularly strong.
• Appeal against committal order dismissed.

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MID BEDFORDSHIRE DC v BROWN 2006 EWHC 1362

• Gypsies moved off land pursuant to an injunction
  but moved back due to desperation.
• Application for committal.
• Gypsies applied for temporary planning permission
  and sought to vary injunction.
• Each case turned on own facts-not just question
  of whether there was real prospect success on
  new application.
• Could take into account deliberate flouting court
  order.
• Personal circumstances did not outweigh public
  policy.

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TEMPORARY STOP NOTICES

• Wilson v Wychavon DC v FSS 2007 EWCA Civ 52.
• Upheld Crane J saying S. 183 (permanent stop
  notices) NOT incompatible ECHR Art 8 and 14.
• However, this is in part because LPAs have a
  discretion whether to serve SN, have to exercise
  compatibly HRA 1998 under s. 6.
• Arguable article 8 defence could be raised in
  prosecution for breach of a SN. In any
  event could JR decision to seek SN.

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SUMMARY HR CASES

• Clearly have to make Porter inquiries but courts
  taking a sensible view about what is required.
• Dont necessarily have to have prosecuted before
  seeking injunction.
• Due to new circular, should consider whether has
  been previous consideration temporary permission
  before seeking s.187 injunction.
• New application for planning permission doesnt
  necessarily mean shouldnt seek
  injunction/committal.
• Before seeking SN have to go through Article 8
  considerations.

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DELEGATED POWERS

• STILL cases on this going to the High Court-shows
  the need for a carefully drafted delegations
  policy and careful consideration by officer
  applying policy.
• Particular cases
• Kirklees v Brook 2004 EWHC 2841
• R (Springall) v Richmond-upon-Thames 2006 EWCA
  Civ 19

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KIRKLEES V BROOK 2004 EWHC 2841

• Council sought 2 injunctions-1 under s.187B, 1
  under s. 214A.
• Delegation scheme referred to taking of
  Enforcement Action under TCPA.
• Read on its own the above could have covered
  seeking injunctions, reading scheme as a whole
  did not include seeking injunctions.
• Without further ratification by the Council, the
  court had to dismiss the proceedings.

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R (SPRINGALL) v RICHMOND UPON THAMES LBC 2006
EWCA Civ 19

• About the scope of a delegation scheme, but not
  specifically in relation to enforcement.
• Suggests more relaxed approach to enforcement.
• 32 in my view it is for local planning
  authorities to determine the policy or basis of
  their schemes of delegation, not for the courts
  to gloss them by imposing fetters on them
  according to the courts perception of how the
  decision-making should be allocated between the
  council committee and the officer.
• Different approach to delegation challenges in
  enforcement/non-enforcement proceedings?

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BIAS

• Courts seem to be taking sensible approach to
  attempts to challenge planning decisions on basis
  bias in making them.
• Neither of the following cases are on enforcement
  but the approach to questions of bias are likely
  to be the same
• R (Port Regis School Ltd) v North Dorset DC
  2006 EWCA 1373
• National Assembly of Wales v (1) Condron (2)
  Argent) 2006 EWCA 1573

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R (PORT REGIS SCHOOL) v NORTH DORSET DC 2006
EWCA 1373

• It was thought that a lodge of Freemasons had an
  interest in a planning decision.
• 2 members of other lodges (1 member of national
  organisation) sat on planning committee.
• Fair minded observer informed of all the facts
  about freemasonry and having regard to
  circumstances of the case would not conclude
  there was a real possibility of apparent bias
  affecting the decision.
• It was relevant that Councillors were required by
  freemasonry and the law to adhere to their
  obligations under the Local Government Act.

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NATIONAL ASSEMBLY WALES v (1) CONTRON (2) ARGENT
2006 EWCA Civ 1573

• Incident where member of planning development
  control committee said they were going with
  inspectors report.
• CofA considered that when looked at all the
  circumstances a fair minded observer would not
  conclude the assembly member or the committee as
  a whole was biased.

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ESTOPPEL/NULLITY

• R (East Hertfordshire District Council) v FSS
  2007 EWHC 834
• About second bite enforcement notice.
• Had accidentally given the wrong drawings in
  first proceedings-couldnt conclude the dwelling
  was in the wrong place.
• Cause of action estoppel in enforcement notice
  proceedings survives Reprotech.
• On the very particular facts of this case the
  inspector in 1st proceedings had merely said
  there wasnt enough evidence-he hadnt made a
  final decision on the issue.

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STARGAZING

• White paper published in 2002 Review of the
  Planning Enforcement System.
• In November 2006 DCLG published Review Planning
  Enforcement Summary of Recommendations (6 page
  document).
• No major changes in LPAs enforcement role.
• Recommends 25 changes (see next slide for most
  relevant).

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REVIEW PLANNING ENFORCEMENT (NOV 2006)

• Government will set indicators and give
  enforcement a higher priority in planning
  (recommendation 1).
• Trying to bring about a culture change in
  enforcement, eg by career structure, common
  salary scale etc (recommendation 7).
• Enforcement will remain discretionary
  (recommendation 9).
• Development without planning consent or in breach
  of consent not to be criminalised (recommendation
  10).
• All enforcement powers should remain available
  for LPAs to use (recommendation 14).

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REVIEW PLANNING ENFORCEMENT (NOV 2006) (2)

• Rest of the recommendations can be found at
• http//www.communities.gov.uk/index.asp?id1504355

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FINAL THOUGHTS

• Considered a number of issues-thoughts from the
  floor about how these can feed into existing good
  practice procedures.
• Any issues not raised.
• Any questions.