by Martin Edwards and John Martin
This year marks the watershed of the planning system. The Planning and Compensation Act 1991 (“the new Act”) is now upon us, having received the Royal Assent on July 25.
The purpose of this article is to examine the changes brought about by the new Act in so far as they relate to England and Wales and to consider the likely effects upon owners and occupiers of land.
Enforcement
One of the bigger failings of the planning system in the past has been the lack of effective powers of enforcement. Cases such as R v Kuxhaus [8] 2 PLR 59 have only compounded the problem. As a consequence, Robert Carnwath QC was commissioned by the DOE to examine the system of enforcement of planning control and to recommend changes where necessary. His report was published in 1989 and attracted praise from many quarters.
The report’s main recommendations now find their way into the new Act making wholesale changes to the principal Act. The overall effect of these changes will be to give local planning authorities much greater powers to police breaches of planning control, backed with more stringent penalties. This will ensure that it will no longer be possible for some irresponsible developers and landowners to treat the planning system with a cavalier disregard. Indeed, before the Act received the Royal Assent, it was clear that the courts were adopting a far less forgiving attitude towards developers in breaching planning control, as evidenced by the £75,000 fine in the crown court secured by English Heritage against a company which caused damage to an ancient monument, the Bishop of Winchester’s Palace in Southwark.
Planning contravention notices
A new supplemental consensual method of enforcement is provided by section 1, which inserts into the principal Act section 171C allowing local planning authorities to serve “planning contravention notices” where they suspect that there may have been a breach of planning control. The notice will be served on the owner or occupier of land or anyone with any interest in it or anyone carrying out operations or using the land for any purpose.
The notice will specify what information is to be provided by the recipient. It may also include details of a time and place where the recipient may wish to make an offer to apply for planning permission, to refrain from carrying out operations or activities or to undertake remedial works, together with any representations that the recipient may wish to make about the notice. If any misinformation is given in reply it may adversely affect any right to compensation for the wrongful service of any stop notice which is subsequently issued. It is an offence for the recipient not to reply within 21 days to the notice, for which there is a maximum daily fine not exceeding level 3 on the standard scale (currently £400) for each day the offence continues. Any false, misleading or reckless statement will attract a maximum fine not exceeding level 5 (£2,000). There is a statutory defence to any prosecution if the the recipient can prove that he had reasonable excuse for failing to comply with the notice.
There is no right of appeal against either the service of a planning contravention notice or the failure to provide any of the information specified in the notice. Unreasonable requirements may, however, afford an opportunity to the recipient to rely upon the statutory defence of reasonable excuse.
Breach of condition notices
Section 2 inserts into the principal Act a section 187A which introduces powers to enforce against breaches of conditions on planning permissions. In such instances the local planning authority may, if any of the conditions have not been complied with, serve a “breach of condition notice” on any person who is carrying out or has carried out the development or any person having control of the land. Individuals in the latter category are affected only where the conditions in question regulate the use of the land. This provision was inserted during the passage of the Bill through the House of Commons. It could clearly catch successors in title or subsequent occupiers and it may therefore be necessary for more rigorous inquiries to be made in order to check that conditions on planning permissions have been fully complied with.
A breach of condition notice will require the recipient to comply with the conditions specified in the notice. The local planning authority can withdraw a notice at any time without prejudicing its power to serve fresh notices in respect of the conditions specified in the withdrawn notice. The recipient is allowed at least 28 days to comply. If the steps specified in the notice have not been complied with then an offence is committed and continues to be committed on a daily basis, for which there is a maximum fine of level 3 on the standard scale (£400) for each offence. There is no right of appeal against a breach of condition notice, but it will be a defence to prove either that all reasonable measures to secure compliance were taken or, in the case of conditions regulating the use of land, that the defendant no longer controls the land.
Injunctions
The ability of local planning authorities to seek injunctions to restrain breaches of planning control is clarified by section 3, which inserts a section 187B into the principal Act enabling them to apply, whenever it is considered necessary or expedient, either to the High Court or to the county court to restrain actual or apprehended breaches.
Enforcement notices
The time-limits for taking enforcement action (which may be by way of an enforcement notice or a breach of condition notice) are altered by section 4. Section 171B is inserted into the principal Act replacing the time-limits set out in section 172. For breaches of planning control involving operational development, no enforcement action can be taken after the period of four years from the date when the operations were substantially completed. Similarly, with changes of use of buildings to use as a single dwelling-house the period within which enforcement action must be taken is four years from the date of the breach. In all other cases the period is 10 years beginning with the date of the breach. Subsection (4) stipulates that a breach of condition notice can be served even if an enforcement notice in respect of the same breach is in effect, and further enforcement action can be taken even if action has been taken or purported to have been taken during the past four years. Section 171B will be of no assistance to local planning authorities where the relevant time-limit has expired before the new Act comes into force.
Sections 172 and 173 of the principal Act are replaced by section 5 of the new Act, which introduces much more flexibility into the enforcement procedure. A local planning authority can issue enforcement notices where it appears that there has been a breach of planning control and that it is expedient to issue the notice having regard to the provisions of the development plan and to any other material considerations. The new section 54A inserted into the principal Act will be of added importance in this respect. Notices must be served on the owner and occupier and on any other person having an interest in the land which is materially affected by the notice. Service of the notice must take place within 28 days of its being issued and at least 28 days before it is specified to take effect.
An enforcement notice must state what the breach of planning control is, that is to say either carrying out development without permission or failing to comply with a condition. It must also specify what steps are required or the activities that must cease in order to remedy, either wholly or partly, the breach. These steps include discontinuing any use of the land or restoring it to its condition before the breach took place or remedying any injury to amenity caused by the breach.
Under the old provisions enforcement notices could be used only to restore the land to its former condition or seek compliance with conditions, whereas the new section 173 gives local planning authorities wider and more flexible powers to use enforcement action in a more imaginative fashion. In other words, while total restoration may have been neither warranted nor desirable, there was no room for compromise under the old system once a notice had been issued. The question of under-enforcement had never been satisfactorily resolved by the courts, as the legislation indicated that nothing short of a complete remedy could lawfully be required. Some decisions had suggested otherwise, eg Iddenden v Secretary of State for the Environment [2] 1 WLR 1433. Now there is no longer any doubt, and under-enforcement, when considered desirable, will be lawful.
One amendment to the enforcement provisions of the new Act in the House of Commons is worthy of examination. Enforcement notices now can be served so as to require the construction of a replacement building which is as similar as possible to a demolished building, although it would have to comply with current building and other regulations. It is expected that this will cover demolition of dwelling-houses only, as this follows on from the provisions which bring demolition within the definition of development. Section 7 widens the powers of the local planning authorities to execute works and recover costs where enforcement notices have not been complied with.
If a local planning authority chooses to under-enforce and all the requirements of the notice are complied with, section 173(9) provides that any unauthorised buildings or works that remain or any activity that continues shall be treated as having planning permission. Likewise, if an enforcement notice requires construction of a replacement building and the requirements of the notice are complied with the replacement building is treated as having planning permission.
Section 173(A) of the principal Act gives local planning authorities the power to withdraw enforcement notices or to waive or relax any requirement, including extending the period for compliance. This can happen irrespective of whether the notice has taken effect. If an enforcement notice is withdrawn a fresh notice can still be issued.
Consequential amendments are made to section 174 of the principal Act with regard to appeals against enforcement notices. The time-limit for lodging the appeal has been amended to remove the problem created by the Divisional Court decision in Lenlyn Ltd v Secretary of State for the Environment [5] JPL 482. Therefore the Secretary of State will be able to entertain appeals that are sent in pre-paid, properly addressed envelopes at such a time that, in the ordinary course of the post, would be delivered to him within the time-limit. Postal delays will no longer be fatal. Cheapskates who base their appeal on the ground that planning permission ought to be granted but fail to pay the requisite deemed planning application fee when demanded will find that the appeal on that ground and the deemed application lapse.
In the past, enforcement notices remained suspended if appeals were pending before the courts. The consequence was often considerable delay as exemplified by the Kuxhaus case. Section 6 now inserts into the principal Act new subsections (4)(a) and (4)(b) to section 289 so that in any proceedings before the courts, the High Court or the Court of Appeal (as the case may be) can order that the enforcement notice takes effect pending final determination of the proceedings.
The court can also order that the local planning authority give undertakings as to damages if necessary. However, in proceedings as to notices requiring the replacement of trees the notice will be of no effect until those proceedings are finally determined.
Section 8 of the new Act inserts a substitute section 179 in the principal Act. It is an offence to fail to comply with the requirements of an enforcement notice, although it will be a defence to show that everything was done by the defendant that could be expected to have been done to secure compliance. It will also be an offence for persons (other than the owner) who have control of or any interest in the land to carry on any activity prohibited by an enforcement notice.
Offences may be continuing and consequently it will be possible for persons to be charged by reference to each day the offence continues, thus attracting a fine for the initial offence and for each following day. The maximum fine on summary conviction has been increased to £20,000, while the fine is unlimited on indictment. More significantly, the court is now placed under a duty when determining the level of fine to have particular regard to any financial benefit that has accrued or appears likely to accrue as a consequence of the offence. In really blatant instances lasting for, say, 10 days, fines up to £200,000 would be possible. These provisions will ensure that decisions by developers or landowners to breach planning control for commercial reasons will be punished severely with levels of fines that can no longer be treated with contemptuous indifference.
Stop notices
Section 9 substitutes new provisions for section 183(1) to (5) of the principal Act relating to stop notices. It gives statutory effect to the Court of Appeal’s ruling that a stop notice can be served simultaneously with an enforcement notice. The number of matters which a stop notice may not prohibit has been reduced simply to the use of any building as a dwelling-house. The previous provision about activities that have been carried on for 12 months or more being excluded from the scope of the stop notice has been replaced and widened to a period of four years ending with the service of a notice, so that more matters will now be susceptible to stop notices.
The provisions regarding building, engineering, mining or other operations or the deposit of refuse or waste remain. The three-day rule under section 184(3) whereby a stop notice could not take effect for at least three days after service has been amended so that, in cases where special reasons apply and a statement of those reasons is served with the notice, it can take immediate effect. The fine for contravening a stop notice is increased to £20,000 on summary conviction and unlimited on indictment. Once again the court is obliged to take into consideration any financial benefit that has accrued or is likely to accrue to the defendant.
No major changes were made in the House of Commons to the provisions concerning certificates of lawful use or development. Section 10 of the new Act inserts replacement sections 191 to 194 in the principal Act, bringing together the established use certificate procedure and, under section 64, governing determinations as to whether planning permission is required for proposed development. Under the old provisions of the principal Act a use of land became established if it was begun before the beginning of 1964 without planning permission and has continued since then. If this could be proved (which was becoming evidentially increasingly difficult as they years went by) then it was possible to apply for an established use certificate, which acted as a shield rather than a sword in that it rendered the use immune from enforcement action. However, it remained unlawful and could not be lawfully resumed once it had been abandoned. A person wishing to carry out development could apply for a section 64 determination by which the local planning authority could rule whether or not a specific grant of planning permission was required. A determination that planning permission was not required did not itself constitute a grant of planning permission, although some considered it to be just as good.
The new section 191(2) provides that once the time-limit for enforcement action against a particular unauthorised development has passed, that development becomes lawful and, consequently, an application for a certificate of lawfulness can be made. This brings to an end the old anomalous situation where an unauthorised use could become immune from enforcement action yet remain unlawful.
Similarly, no changes of substance were made to the provisions in section 11 of the new Act, which inserts a section 196(A) into the principal Act giving local planning authorities rights of entry with or without warrant in relation to breaches or suspected breaches of planning control.
A local planning authority may now authorise in writing any person to enter without a warrant any land at any reasonable time to ascertain whether there is or has been any breach of planning control, to determine whether any enforcement action should be taken (and if so in what manner) and to ascertain whether there has been compliance with any requirement imposed as a result of any enforcement action. The main protection for landowners is that there must be reasonable grounds for entering the land for these purposes. Before a dwelling-house can be entered, twenty-four hours’ notice is required.
Where admission to the land has been refused (or refusal is reasonably apprehended) or where the matter is one of urgency, the local planning authority or the Secretary of State can apply to a justice of the peace for a warrant of entry. Admission will be regarded as having been refused if no reply is received to a request for admission within a reasonable period. Such a warrant authorises one entry only and must be exercised within 28 days of issue and at a reasonable hour except in urgent cases. Obstruction of a person acting in exercise of a right of entry is a summary offence carrying a maximum penalty of level 3 (£400).
Compensation is payable for any damage caused to land and chattels by the local planning authority which gave the written authority to enter. It is an offence for anyone who enters land in exercise of a right of entry to disclose to any person any information gained by him in relation to any manufacturing process or trade secret.
Controls over particular matters
Section 20 of the new Act deals with land of interested planning authorities and development by them. It substitutes a new section 316 for the present section in the principal Act. The new section is basically an empowering provision authorising the Secretary of State to modify by regulations the application of the principal Act in relation to the land or development of such authorities. It stipulates that those regulations must provide for the determination of planning applications by another body where an application is made for planning permission to develop the land of an interested planning authority and the local planning authority in question does not intend to develop the land either itself or jointly with a third party, unless the application is called in by the Secretary of State. (“Land of an interested planning authority” for this purpose is land in which an interest is held by an authority which exercises any functions of a local planning authority in relation to it.)
There are two specific points to note in relation to the new section. First, there would appear to be no definition of joint development; second, the question remains unanswered whether the whole of the principal Act applies to land and development of a local planning authority (subject to the regulations) or whether only those Parts of the Act specified in section 316 (namely Parts III, VII and VIII) apply.
Sections 21 and 22 of the new Act are intended to implement the provisions of Schedules 1 and 2 to that Act which, in turn, amend the principal Act in a number of detailed ways. This strengthens the arrangements for dealing with the deposit of mineral waste and the restoration and after-care of non-mineral waste, obliges mineral planning authorities to undertake periodic reviews about the winning and working of minerals and the depositing of mineral waste in their areas and deals with the problems of planning permissions granted under interim development orders between 1943 and 1948.
The problems associated with these planning permissions were summarised in a consultation paper issued in February of this year. The main causes for concern have been the lack of any requirement for registration (so enabling long dormant mineral workings to be reactivated without warning) and the lack of conditions governing the operation of the workings.
The new Act provides that holders of such permissions who wish to apply to have their permissions registered must do so within six months of the date on which the relevant provisions of the Act come into force. Failure to do so will result in the permissions lapsing.
Where there has been no working on the site for a period of two years up to May 1 1991 working cannot recommence unless the permission has been registered and a scheme of operational and restoration conditions submitted to and approved by the mineral planning authority.
By section 23 of the new Act amendments are made to those provisions of the principal Act which impose special controls in the case of trees. In part they reflect, and are consequential upon, earlier sections of the new Act and, in particular, those dealing with injunctions and rights of entry for enforcement purposes.
The definition of “advertisement” in section 336 of the principal Act is expanded by section 24 of the new Act and now includes an awning and a blind.
The provisions of section 25 of and Schedule 3 to the new Act make amendments to the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Planning (Hazardous Substances) Act 1990. (The latter Act has yet to be brought into force.) The enforcement provisions in both Acts are extensively modified; as before, the underlying principles are similar to those supporting some of the earlier sections of the new Act.
Section 29 gives English Heritage (the Historic Buildings and Monuments Commission) power to prosecute in its own right for any offence under Part I of the Ancient Monuments and Archaeological Areas Act 1979 or under the Planning (Listed Building and Conservation Areas) Act 1990 or to institute proceedings for injunctions for any contravention of the provisions of those Acts. There are also extended to English Heritage powers to require information in connection with these matters. It remains to be seen how frequently these powers will be used. Clearly there is scope for potential conflict between English Heritage and the local planning authority.
Section 30 now gives the power to the Secretary of State to award costs on an appeal where an inquiry is arranged but the hearing does not take place.
The original proposals put forward by the Government to give the DOE power to determine which appeals were suitable for hearing rather than leaving the choice to the parties concerned were withdrawn following considerable controversy.
Many of the outdated planning and compensation provisions, including all those dealing with compensation in respect of unexpended development value, are repealed by virtue of section 31. Further minor and consequential amendments are made by section 32 of the new Act.
Land compensation
The Government has responded to growing criticism of the inadequacy of existing legislation regarding compensation for the compulsory acquisition of land by introducing a number of changes in the Act.
Section 62 introduces a new subsection into section 26 of the Land Compensation Act 1973 and section 246 of the Highways Act 1980 to enable local authorities to acquire by agreement land which has become blighted by proposals to carry out public works, including the construction of highways. This provision is limited to land on which it is proposed to carry out the works and does not apply to any neighbouring or surrounding land which may be adversely affected by the works when they are eventually carried out.
Section 63 replaces subsection (5) in section 52 of the Land Compensation Act 1973 by two new subsections which provide that where an advance payment has been made on the basis of the acquiring authority’s estimate of compensation and it appears to the acquiring authority that the estimate was too low, they shall, if requested, pay to the claimant the difference between the original advance payment and the revised estimate.
The new subsection (5) similarly provides for repayment of any excessive amount or aggregate amount of advance payment of compensation.
A new section 52A is inserted into the Land Compensation Act 1973. This provides that where an acquiring authority has taken possession of any land and, following a request, an advance payment of compensation is made, it shall also pay accrued interest calculated by reference to the amount of estimated compensation rather than the actual payment (which is 90% of estimated compensation). Where an advance payment has been made and the estimate was too low, the acquiring authority likewise has to pay accrued interest for the period beginning with the date of entry to the date of payment on the unpaid balance.
There are provisions for the annual payment of accrued interest on advance payments of compensation until the claim is finally settled when the amount of accrued interest per year exceeds £1,000.
Section 64 amends section 14 of the Land Compensation Act 1961 by adding new subsections (5) to (8) inclusive. These relate to the assumptions to be made as to planning permission in connection with highway schemes. Where land is to be acquired for highway purposes or a highway authority is considering using it for highway purposes, the assumption is made that no highway will be constructed on any other land unless it is held by the highway authority or could be acquired by it for highway purposes (which is defined as meaning use for or in connection with the construction, alteration or improvement of a highway).
The effect of this section is that on a determination of an application for a certificate of appropriate alternative development in respect of land acquired for a highway scheme any possible alternatives to the highway scheme shall be disregarded.
Section 65 widens the scope of the provisions of section 17 of the Land Compensation Act 1961 dealing with certificates of appropriate, alternative development.
Section 66 revives Part IV of the Land Compensation Act 1961 which was repealed by the Land Commission Act 1967. Thus, where land has been compulsorily acquired, the former owner will be entitled to additional compensation for up to 10 years from the date of completion of the compulsory acquisition if a planning decision is subsequently made granting planning permission for carrying out additional development of any of the land compulsorily acquired. There are exceptions to this rule relating to urban development areas, new town areas and, most important, where listed buildings have been deliberately left to fall into disrepair.
Section 67 inserts a new subsection (2)(A) into section 5 of the Compulsory Purchase Act 1965 and provides that a notice to treat will cease to have effect three years after the date of service unless:
(i) compensation has been agreed, awarded or paid into court, or
(ii) a general vesting declaration has been executed, or
(iii) the acquiring authority has entered on to or taken possession of the land, or
(iv) the question of compensation has been referred to the Lands Tribunal.
The three-year period may be extended with the consent of the landowner and the notice ceases to have effect at the end of the extended period unless a further extension has been agreed to.
Provisions regarding home loss payments are made in section 68. The qualifying period of occupation is reduced from five years to one by a replacement subsection (2) in section 29 of the Land Compensation Act 1973. The section also substitutes a new section 30 to the Land Compensation Act 1963 and provides that the amount of home loss payment shall be 10% of the market value of the claimant’s interest in the dwelling, subject to a maximum of £15,000 and a minimum of £1,500. In all other cases the amount of home loss payment shall be £1,500. Previously the maximum was only £1,500 with a £150 minimum.
A new section 29(A) is inserted by section 69 of the new Act into the Land Compensation Act 1973 which enables spouses enjoying a statutory right of occupation (within the meaning of the Matrimonial Homes Act 1983) to be entitled to be treated as occupying the dwelling and compensated as such. They will not, however, be entitled to compensation in respect of the owner’s interest.
Section 70 and Schedule 15 make further amendments of details to land compensation.
Miscellaneous and general
By section 80 of the new Act interest is made payable (at the rate prescribed under the Acquisition of Land (Rate of Interest after Entry) Regulations on compensation due under the enactments set out in Part I of Schedule 16 to the new Act. Authorities are also given power to make payments on account both of the compensation and of the interest.
Part X of the Highways Act 1980 (which deals with the power of local authorities to make new street byelaws) is repealed by section 81 of the new Act.
Consequential amendments are made to section 91A of the Income and Corporation Taxes Act 1988 (which gives relief, by way of a deduction in computing profits, for expenditure incurred in making good a landfill waste disposal site) by section 83 of the new Act. These flow from section 12 of the new Act.
Section 84 of the new Act deals with matters such as commencement and repeals. Save for the provisions dealing with planning compensation repeals (which came into force immediately), the Act will be brought into force on a day or days to be appointed.
Conclusion
The significance of the new Act is readily apparent. It marks the transformation of the planning system from what many have considered to be a bureaucratic hindrance to the development process into a major tool of environmental control.
The new emphasis placed on the development plan, coupled with greater enforcement powers and more stringent penalties, will mean that a new approach to all aspects of development will be required, with greater need for appropriate professional advice.
For local authorities, the increased powers will carry heavier responsibilities and they will need, in particular, to ensure that local plans are kept up to date if the development-plan-led system is to work properly and effectively. It is truly a brave new world that the planning system is about to enter and the underlying message must be “adapt or fail”.
