Would you please explain how planning control is enforced and what amendments have been made to the powers of enforcement by modern legislation.
Enforcement proceedings, which provide the necessary sanctions for breaching planning control, have undergone important and far-reaching changes since 1947. These changes have had two purposes:
(1) to strengthen the effectiveness of enforcement (as it appeared to be too lenient);
(2) to plug some of the loopholes in the procedure (exploited by the ingenuity of businessmen).
Enforcement procedures have been strengthened on three occasions since the Town and Country Planning Act 1947 was enacted:
(1) The Town and Country Planning Act 1968 abolished, in part, the “four years’ rule” with effect from January 1 1968. It also introduced “stop notices”, which enabled a planning authority to stop, almost immediately, some developments which had been served with an enforcement notice;
(2) The Town and Country Planning (Amendment) Act 1977 enlarged the scope of stop notices;
(3) The Local Government and Planning (Amendment) Act 1981 extensively amended enforcement procedures by streamlining them and making them much more flexible.
Enforcement procedures
The enforcement procedures as amended by the above Acts may be summarised as follows:
When it appears to the local planning authority that there has been a breach of planning control (which has taken place after 1963), it may serve an enforcement notice.
This statutory provision (that only the breaches of planning control which have occurred after the end of 1963 can be subject to an enforcement notice) can only be understood in the light of the history of planning control. When the Town and Country Planning Act 1947 introduced (for the first time) a comprehensive control of development, it was provided that an enforcement notice could be served not more than four years after the breach had been committed. It was considered that, if a breach had not been noticed for four years, it was not sufficiently offensive to justify enforcement action. This provision became known as the four years’ rule.
Experience showed, however, that a general application of the four years’ rule was too generous to developers. Whereas developments consisting of an operation were, as a rule, readily noticeable (thus justifying the four years’ rule), developments consisting of a change of use were not necessarily noticeable. For this reason the Town and Country Planning Act 1968 retained the four years’ rule only in respect of developments consisting of operations (and, exceptionally, one change of use, namely the change of use of a building to a single dwelling), but it abandoned the rule for all other changes of use.
However, the 1968 Act, which came into operation on January 1 1968, changed the rule only for the future and it did not affect those offenders who, by the time the Act came into operation, had already enjoyed the immunity given to them by the original four years’ rule. Thus a local authority could not challenge any change of use which had occurred before the beginning of 1964. Such uses became known as established uses.
The Local Government and Planning (Amendment) Act 1981 introduced a new procedure of issuing and serving enforcement notices, making the procedure more simple and less fraught with doubts. This new procedure may be summarised as follows:
If there has been a breach of planning control, the local planning authority may issues an enforcement notice requiring the breach to be remedied and then serve copies of the notice (not later than 28 days after the issue) on the owner and the occupier of the land in question, and also upon any other person having an interest in that land, which interest might, in the opinion of the authority, be materially affected by the notice (eg a tenant not in possession of the land or a building society which has granted a mortgage on the land).
The enforcement notice takes effect at a date stated in the notice, which must be at least 28 days after service. It should specify:
(a) the matters alleged to constitute the breach of planning control;
(b) any steps which are required by the authority to be taken to remedy the breach and also any steps for the purpose of:(1) – making the development comply with the terms of any planning permission which has been granted in respect of the land;
(2) removing or alleviating any injury to amenity which has been caused by the unauthorised development.
(The last two steps have been added by the 1981 Act. They are useful, as they remove any doubts as to the power of the authority to order “steps to be taken”. In some cases this power to remove injury to the amenities is important.)
the period for compliance, ie the period (beginning with the date when the notice takes effect) within which those steps are to be taken. This period may be expressed in stages (for different steps to be taken).
Although it is stated that an enforcement notice takes effect on the date specified in the notice, it should be realised that, if there is an appeal against the enforcement notice, the date of the notice’s effectiveness is postponed until after the appeal is finally disposed of. Therefore, as the actual date when the notice will (eventually) take effect is not known, the period when the notice must be complied with is expressed, not by a date (which is uncertain), but by a number of days, weeks or months, starting from the date when the notice takes effect.
An enforcement notice which does not comply with the above requirements is invalid. Thus if it does not clearly specify when it takes effect or when it should be complied with, or if it is ambiguous or if it is uncertain in its allegations or in its indications as to the exact steps to be taken by the offender, it will be null and void. Thus in Burgess v Jarvis and Sevenoaks RDC [2] 1 All ER 592 the local planning authority served an enforcement notice requiring the demolition of 16 houses “within five years after the date of the service of this notice”. The notice was invalid, as it did not indicate when it was to take effect.
Appeals against enforcement notices
A person having an interest in land to which an enforcement notice relates may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
The appeal should be lodged before the date on which the enforcement notice takes effect. Unless the appeal is “called in” by the Secretary of State, it will be dealt with by an inspector.
The appeal may be made on any of the following grounds:
(1) that planning permission ought to be granted for the development in question, or that any condition (which the local authority is seeking to enforce) should be discharged;
(2) that the matter alleged in the notice does not constitute a breach of planning control. (This is a question of law);
(3) that the breach of planning control alleged in the notice has not taken place. (This is a question of fact);
Note: ground (c) was added by the 1981 Act.(1) that the “four years’ rule” applies to the development in question and that the notice has been served after the four years have expired;
(2) that (in other cases) the development in question was carried out before the beginning of 1964;
(3) that copies of the enforcement notice have not been served as required by the Act;
(4) that the steps required to be taken exceed those necessary to remedy the breach in question, or to remove any injury to amenity caused by the offensive development;
(5) that the period specified in the notice (within which any steps are to be taken) falls short of what should reasonably be allowed.
An appeal against an enforcement notice should be made by notice in writing to the Secretary of State. The grounds on which the appeal is made should be specified either when giving a notice or within 28 days after receiving a request from the Secretary of State. The Secretary of State may also require further information from the appellant or from the local authority. Failure (by either party) to submit the required information will entitle the Secretary of State to reject the appeal (if it is the appellant in default) or to allow the appeal (if it is the local authority which is in default).
On any appeal against an enforcement notice the Secretary of State must, if either the appellant or the planning authority so desires, afford to each of them an opportunity of appearing before an inspector nominated by the Secretary of State. The inspector has a discretionary power to call a public inquiry before deciding the appeal.
The enforcement notice does not take effect until after the final determination of the appeal, and the period for compliance starts to run only when the notice has become operative.
The Secretary of State, in deciding the appeal, may:
(1) grant planning permission for the development to which the enforcement notice relates. (He may also discharge any condition or limitation subject to which planning permission has been granted, and breach of which is alleged in the enforcement notice.)
(2) determine any purpose for which the land may be lawfully used, having regard to any past use and to any previous planning permission relating to the land.
Any determination on appeal against an enforcement notice is final on questions of fact and planning policy. However, the appellant, the local planning authority and any person having interest in the land in question may either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.
In relation to the proceedings the court has power:
(1) to give any decision which might have been given by the Secretary of State;
(2) to remit the matter for rehearing and determination by the Secretary of State. (The last type of decision is more frequent.)
Stop notices
A stop notice, introduced in 1968, orders the developer to stop the development almost immediately (within three to 14 days after service). It may be issued when the enforcement notice is in existence but not yet effective.
Originally a stop notice was possible only in respect of those developments which were either irreversible or reversible only at a high cost (ie in respect of all operations, and one change of use — the deposit of waste material on land).
These provisions were amended and the scope of a stop notice was extended by the Town and Country Planning (Amendment) Act 1977.
A stop notice may now be issued in respect of all activities except the following:
(1) the use of any building as a dwelling-house;
(2) the use of any land as a caravan site, if it is occupied by any person as his only (or main) residence;
(3) the taking of specific steps needed in order to remedy the breach of planning control which is alleged in the enforcement notice.
There is a further condition: if the enforcement notice is issued in respect of any operation (or in respect of any deposit of waste material), it may be issued at any time. If, however, the stop notice refers to any other change of use, it may be issued only within 12 months of the breach. Apparently, if the change of use has been tolerated for 12 months it is not considered to be so offensive that urgent cessation of the relevant activity is necessary. There is no appeal against the stop notice, but if the stop notice becomes ineffective (because an appeal against the enforcement notice is allowed on certain grounds), compensation will be payable.
The Local Government and Planning (Amendment) Act 1981 has introduced a register of enforcement notices and stop notices, to be kept by every district planning authority.
Injunctions
Local planning authorities, in addition to their statutory powers to prosecute offenders for non-compliance with enforcement notices, may apply for an injunction to prevent flagrant disobedience to an enforcement notice and stop notice. Failure to comply with the injunction constitutes contempt of court for which the offender may be fined or committed to prison: Attorney-General v Bastow [7] 2 WLR 340.
