by Martin Edwards and John Martin
Nowadays it is axiomatic that whenever new legislation is enacted it will be amended shortly afterwards. Less than three months after three of the four Acts which consolidate the town and country planning legislation came into force the Government published the Planning and Compensation Bill. It must be acknowledged that the Planning Acts 1990 are consolidating Acts that, by convention, make no changes of substance and thus they received a relatively rapid and untroubled passage through Parliament. This Bill, on the other hand, proposes a number of major changes to the legislative framework that underpins the planning system.
It was always likely that the Bill would be the subject of considerable debate as it progressed through Parliament. This was the case in the Lords where the Government itself tabled 208 amendments and was criticised by all sides of the House — especially over the proposals contained in clause 12 regarding unilateral undertakings and planning obligations (see Estates Gazette February 9 at p 92). It has now passed into the Commons where it is certain to receive equally rumbustious treatment.
The areas covered by the Bill came as no surprise as extensive public consultation had taken place. The purpose of this article, based on the contents of the Bill as brought from the Lords on February 28, is to examine the changes proposed in the Bill and speculate on whether they will achieve the Government’s intention, as expressed by the Planning Minister, Michael Spicer, in a departmental press release on November 16 1990, to “strike a fair balance between the needs of protecting the environment and the demands of development in the interest of economic growth and prosperity”.
It is not surprising that the Bill has generated such controversy. Together with the shift in emphasis foreshadowed by PPG 15 (see Estates Gazette February 2 at p 98) it will, if enacted, result in the transformation of the planning system into a key element of environmental control complete with stringent penalties for non-compliance. Local authorities will welcome the Bill, but for the developer returning to the fray after the recent lean years it represents a harbinger of a colder and more difficult climate in which it will be harder than ever before to obtain planning permission and harsh penalties will be meted out to those in breach of planning control.
Enforcement
The enforcement provisions are based closely on the recommendations made in the report to the Secretary of State for the Environment by Robert Carnwath QC published in 1989. The report was commissioned as a response to a growing acknowledgement within the department that the existing enforcement mechanism was not fulfilling its objective. The Bill proposes a number of major changes which the Carnwath report recommended:
Planning contravention notices
This mechanism will supplement the existing powers enjoyed by local planning authorities under the provisions of section 330 of the Town and Country Planning Act 1990 (the 1990 Act). The new provisions propose a wider power to serve “planning contravention notices” enabling local planning authorities, where a breach of planning control is suspected, both to obtain information and to secure compliance by consent without recourse to more formal enforcement action. Clause 1 achieves this by allowing the local planning authority, where it appears that there may have been a breach of planning control, to serve a planning contravention notice on the occupier of the land in question, or any person having any other interest in it, or any person carrying out operations on the land or using the land for any purpose. The notice will specify what information is to be provided. It may also specify a time and place at which the local planning authority will consider any offer by the person on whom the notice has been served to apply for planning permission, to refrain from carrying out any operations or activities or to undertake remedial works.
There is no right of appeal against a planning contravention notice and a failure to comply within 21 days with its terms without reasonable excuse or the making of a false or misleading statement in reply will be a summary offence. There is a further sanction in that failure to comply may also reduce the amount of compensation payable for subsequent wrongful service by the local planning authority of a stop notice.
Enforcement of conditions
Clause 2 proposes that where any condition on a planning permission has not been complied with, the local planning authority may serve (as an optional means of enforcement) a “breach of condition notice” specifying the steps to be taken to secure compliance with the condition in question within a period of not less than 28 days. Failure to comply within the specified time-limit will amount to a summary offence.
Once again there is no right of appeal but there will be a defence to a prosecution if it can be shown that either the activities specified in the notice are not being carried on or the person on whom the notice was served had taken all reasonable measures to secure compliance with the condition.
Injunctions restraining breaches of planning control
Clause 3 proposes that a statutory power should be granted to a local planning authority to apply to either the High Court or the county court for an injunction to restrain any actual or threatened breach of planning control. This will apply whether the local planning authority has exercised or intends to exercise any other enforcement power.
Time-limits for enforcement action
The Carnwath report recommended that the rule relating to breaches of planning control after the end of 1963 should be replaced by a 10-year limitation period after which enforcement action would be statute barred. Clause 4 gives effect to this but preserves the four-year principle in respect of operational development and changes of use to a single dwelling-house.
The 10-year period will apply in all other instances including those of failing to comply with a condition on a planning permission. In the case of operational development the time-limit runs from the date on which the operations were substantially completed and in all other cases the time-limit runs from the date of the breach.
Enforcement notices
The new section 173, introduced by clause 5, allows the local planning authority simply to state in an enforcement notice the matters which appear to them to constitute a breach of planning control and whether those matters amount to a breach of condition or carrying out of development without the required planning permission.
Flexibility is introduced in that the local planning authority can under-enforce by specifying steps to be taken in order “wholly or partly” to remedy the breach or remove or alleviate any injury to amenity. Thus, if the notice does not require any buildings or works to be demolished, or any activity to cease when it could have done so, and all the requirements of the notice have otherwise been complied with, then planning permission is deemed to have been granted for their retention or the continuance of the activity (as the case may be).
Clause 5 also inserts a new section 173(A) into the 1990 Act giving greater flexibility to local planning authorities to vary and withdraw enforcement notices irrespective of whether the notice has taken effect.
Appeals against enforcement notices
Clause 6 makes some changes to the grounds upon which an appeal against an enforcement notice may be made to the Secretary of State. These are by and large consequential but the major change introduced by this clause is to reverse in part the effect of the case of R v Kuxhaus [8] 2 JPL 59 (see Blunting the teeth of planning control? Estates Gazette August 13 1988 at p 89). In that case the Court of Appeal reluctantly decided that “the final determination” of an appeal meant that an enforcement notice remained suspended while all legal avenues of appeal were being pursued. Thus, in theory, the effect of an enforcement notice could be suspended for a number of years while the appellant pursued an appeal up to the House of Lords as happened in that case.
Clause 6 now proposes that the effect of an enforcement notice will remain suspended while an appeal to the Secretary of State is pursued until it is either withdrawn or until the end of the period for challenging the decision of the Secretary of State in the High Court. If such a challenge is mounted then it is proposed that the High Court (or on further appeal the Court of Appeal) can determine whether the effect of the enforcement notice should remain suspended pending the final determination of those proceedings.
Failure to comply
The Carnwath report recommended that the penalties for non-compliance should be reviewed so as to increase the maximum fines, the range of potential defendants and to clarify the position relating to subsequent offences. Clause 8, which substitutes section 179 of the 1990 Act, raises the maximum fine on summary conviction from £2,000 to £20,000 with a similar maximum for a repetition of the offence which can be on a daily basis. There will also be a duty on the court in determining the amount of the fine, to take into account any financial benefit which has accrued or appears likely to accrue to the offender. The result of this amendment may be far reaching. For example, a developer who deliberately flouts a condition on a planning permission could find himself liable to pay a substantial fine. A failure to comply with an enforcement notice for two weeks in theory could result in a total fine of over £250,000 if the court considered that the defendant had gained a substantial financial benefit.
Stop notices
Clause 9 makes a number of amendments to the provisions regarding stop notices. A notice may not prohibit the carrying out of any activity if it has been carried on for a period of more than four years ending with the service of the notice. At the moment the period is 12 months. Any period during which the activity in question was authorised by a planning permission is to be ignored. The maximum fine for non-compliance with a stop notice is similarly increased to £20,000 on summary conviction and for repetitions of the offence. Once again the court is required to have regard to the financial benefit that accrued to the defendant.
Certificate of lawful use or development
In January this year the Department of the Environment published a consultation paper Planning and Compensation Bill: Proposed Certificate of Lawful Use of Development which invited comments on the proposals to implement clause 10 of the Bill, which substitutes sections 191-194 of the 1990 Act enabling local planning authorities, where appropriate, to grant a new certificate of lawful use or development.
Under existing law an established use may become immune from enforcement (if an established use certificate has been granted) but nevertheless remain unlawful. This anomaly will be removed by laying down the principle that where development has become immune from enforcement action planning permission is deemed to have been granted. Under the new provisions it will also be possible to apply for a certificate of lawfulness covering a use or development whether proposed or existing thus bringing together the existing established use certificate procedure under section 191 and the section 64 determination procedure.
Rights of entry for enforcement purposes
At present local planning authorities do not have statutory rights to enter land for enforcement purposes. Clause 11 creates new rights of entry, both with or without warrant, exercisable in relation to breaches of planning control. A local planning authority may authorise in writing any person to enter without a warrant any part of the land at any reasonable time to ascertain whether there is or has been any breach of planning control to determine whether the local planning authority should exercise any of their powers (and if so in what manner) and to ascertain whether there has been compliance with any requirement imposed as a result of the exercise of any such powers.
The main protection for the landowner is that there must be reasonable grounds for entering the land for the specific purpose in question.
Where admission to the land has been refused (or refusal is reasonably apprehended) or where the matter is one of urgency then 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 may be exercised within one month from the date of issue and at a reasonable hour unless the case is one of urgency. Obstruction of a person acting in the exercise of a right of entry is a summary offence.
Control over development
Planning obligations
The details and effect of clause 12 of the Bill have already been discussed in the Estates Gazette February 9 at p 92.
Power of local planning authorities to decline to determine applications
The same consultation paper recommended that local planning authorities should enjoy a statutory power to turn away repetitive planning applications where, in the opinion of the local planning authority, the later planning application was in substantially the same form as one which had been dismissed on appeal within the previous two years and where there had been no material change in circumstances. Clause 14 gives effect to this recommendation. There is no statutory challenge to the exercise of this power by a local planning authority, although a challenge in law would be available in the usual way by judicial review.
It remains to be seen how sparingly local planning authorities use this power but it could be a possible area for dispute. If a local planning authority fails to notify the applicant of their decision to exercise the power within the prescribed or agreed period then the usual right of appeal to the Secretary of State for non-determination remains available.
Dismissals in cases of undue delay
Time may be running out on the common practice of submitting duplicate planning applications with a view to appealing one on the ground of non-determination and negotiating on the other. This enables the developer to get his place in the inquiry queue while at the same time putting pressure on the local planning authority either to determine the application more speedily or to concede points in negotiations rather than to pursue them to inquiry.
Clause 15 proposes to insert into section 79 a new subsection which will enable the Secretary of State, when it appears to him that the appellant (as opposed to the local planning authority) is responsible for undue delay in the progress of an appeal, to give the appellant notice that the appeal will be dismissed unless the appellant within a stated period takes the steps specified in the notice. Failure to comply with the notice will entitle the Secretary of State to dismiss the appeal.
Controls over particular matters
Land of interested planning authorities
In February of last year the Department of the Environment issued a consultation paper, Local Authorities — Deemed Planning Permission. The consultation paper prompted the changes brought about by clause 17 which substitutes a new section 316 of the 1990 Act. It is basically an empowering provision authorising the Secretary of State by regulations to modify the application of the 1990 Act in relation to development control, enforcement and special controls over land of interested planning authorities. Those regulations must also provide for the determination of planning applications by another body in cases of an application being made for planning permission to develop the land where the local planning authority in question does not intend to develop the land either itself or jointly with a third party. An “interested planning authority” means any body which exercises any functions of a local planning authority in relation to that land.
Mines and waste, trees and advertisements
Clauses 18-20 make a number of minor changes to the existing legislation covering these areas. In particular, the arrangement for dealing with depositing minerals waste and the restoration and aftercare of non-minerals waste are strengthened.
Listed buildings, conservation areas and hazardous substances
Following the consolidation last year of the Town and Country Planning Legislation the existing statutory provisions relating to listed building and conservation areas are now contained in the Planning (Listed Buildings and Conservation Areas) Act 1990; those relating to hazardous substances are contained in the Planning (Hazardous Substances) Act 1990.
The enforcement provisions in both Acts are extensively modified by Schedule 2 to the Bill which is given effect to by clause 21. The underlying principles are similar to those supporting some of the earlier clauses in the bill.
Development plans and SPZs
Streamlining of development planning system
The Government in its White Paper, The Future of Development Plans, published some two years ago outlined radical proposals for the reform of the development plan system. These proposals have been substantially watered down and are now reflected in the provisions of Schedule 3 which are given effect to by clause 22.
County councils are required to prepare single structure plans for the whole of their area and are given powers to adopt those plans rather than submitting them to the Secretary of State for approval. Copies of the proposals are to be sent to the Secretary of State to whom there is reserved powers of objection, direction and call in. There has been some concern raised by this proposal which means that the county council will now be in the position of judge and jury in their own cause. The preparation of local plans is to be mandatory (but only within such period, if any, that the Secretary of State may direct). They are to be district-wide and comprehensive and also in general conformity with the structure plan. Separate provision is made for local minerals plans. In addition, Schedule 3 contains some complicated transitional provisions regarding the preparation of unitary development plans, structure plans, local plans and minerals and waste plans.
Clause 23 modifies the procedure for making simplified planning zones.
Increased powers for English Heritage
Clause 24, which has been introduced at the third reading of the Bill in the House of Lords by the Government in response to a request made in Committee, gives English Heritage the power to prosecute and seek injunctions in its own right for breaches of the Planning (Listed Buildings and Conservation Areas) Act 1990 and to prosecute for breaches of the Ancient Monument and Archaeological Areas Act 1979.
Costs where inquiry or hearing not heard
The provisions of clause 25 have attracted considerable controversy. Initially the Government wanted the department to have the power to determine which appeals were suitable for hearing rather than leaving the choice to the parties concerned. This has been watered down so that the Secretary of State will have the power to award costs on an appeal where an inquiry is arranged but the hearing does not take place.
Planning and compensation repeals
Clause 26 and Schedule 5 to the Bill repeals a number of outdated planning and compensation provisions including all of those dealing with compensation in respect of the unexpended development value.
Land compensation
There has been growing criticism of the adequacy of the existing legislation regarding compensation for the compulsory acquisition of land. The Government has responded by introducing provisions into the Bill which make a number of changes.
Clause 49 introduces a new subsection 2A into section 26 of the Land Compensation Act 1963. The new subsection will enable responsible authorities constructing highways and other public works to acquire land which, in their opinion, will be seriously affected by those works.
A new subsection 4A is introduced by clause 50 and substitutes a new subsection (5) to section 52 of the Land Compensation Act 1973. Subsection 4A provides that where an advance payment of compensation has been made and it appears to the acquiring authority that their estimate was too low they shall, if requested, pay the claimant the balance of the advance payment calculated at the time of the request. The new subsection (5) similarly provides that if the acquiring authority’s original estimate of the compensation exceeded the compensation as finally determined or agreed any excess shall be repaid.
There is then inserted a new section 52A into the Land Compensation Act 1973. Clause (2) of the new section provides that where an acquiring authority have taken possession of any land, and following a request, made an advance payment of compensation they shall also pay accrued interest on that payment calculated from the date of entry. Subsection (3) provides that where an advance payment has been made and the estimate was too low they shall likewise pay accrued interest for the period beginning at the date of entry to the date of payment on the unpaid balance. Subsection (5) provides for an annual payment of accrued interest on advance payments of compensation when the amount of accrued interest for that year exceeds £1,000 until the claim is finally settled.
Clause 51 amends section 14 of the Land Compensation Act 1961 by adding new subsections (5)-(8) inclusive. These relate to the assumptions as to planning permission in connection with highway schemes. Subsection (5) provides 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 them for highway purposes. Subsection (8) defines “highway purposes” as meaning use for or in connection with the construction, alteration or improvement of a highway. The effect of this clause is that on a determination of appropriate alternative development in respect of land acquired for a land scheme any possible alternatives to that scheme shall be disregarded.
Clause 53 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 after 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 importantly, where listed buildings have deliberately been left to fall into disrepair.
Clause 54 inserts subsection 2(A) into section 5 of the Compulsory Purchase Act 1965. This subsection places a time-limit on the validity of notices to treat. They 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 period of three years may be extended with the consent of the landowner and the notice ceases to have effect at the end of the extended period.
Provisions regarding home loss payments are made in clause 55. The qualifying period of occupation is reduced from five years to one by substituting a new subsection 29(2) of the Land Compensation Act 1973. Clause 55 also substitutes a new section 30 to the Land Compensation Act 1963 by providing that the amount of home loss payment shall be 10% of the market value of the claimants’ 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. At present the maximum is only £1,500 with a £150 minimum.
