Thursday, 16 December 2010

Localism Bill – Enforcement provisions (1)

Although there are only four clauses in the Bill dealing with Enforcement, they will make substantial changes to the existing legislation. Clause 103 will significantly reduce the scope for obtaining retrospective planning permission where an enforcement notice is in force. Clause 104 will insert some far-reaching provisions in the 1990 Act after Section 171B dealing with the time limits for enforcement action and, in particular, in cases where development has been concealed (no doubt prompted by the Welwyn-Hatfield and Fidler cases). Clause 105 will make a number of changes to the time limits for prosecutions and the penalties which can be imposed by the Courts. Finally, Clause 106 will introduce extensive changes to the remedies available in respect of the unauthorised display of advertisements.


Clause 103 will insert a new Section 70C in the 1990 Act, which will give local planning authorities the power to decline to determine retrospective applications if a grant of planning permission for the development would involve granting (whether in relation to the whole or any part of the land to which an enforcement notice relates) planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

This appears to me to be a very undesirable change, although the limited use which LPAs have made of their power under Section 70A to decline to entertain repeat applications may possibly indicate that the use of this new power could in practice be fairly selective. The power would clearly be discretionary, and one would expect circular guidance similar to that in Circular 14/91 advising LPAs not to use the power indiscriminately. The right of appeal under Section 78 would be excluded (in the same way as under Section 70A), but the LPA would have to observe the Wednesbury principles, and so such action on the part of the LPA would in principle be susceptible to judicial review. Nevertheless, this very limited (and somewhat expensive and uncertain) protection for the applicant is hardly adequate to prevent unfair treatment at the hands of an LPA.

No change is to be made to Section 180, so that if the LPA does decide to entertain the application, and permission is then granted, either by the Council or on appeal, the enforcement notice will still cease to have effect so far as inconsistent with that permission.

I frankly cannot see the need for the new Section 70C. If the LPA thinks that an application for retrospective planning permission in these circumstances is unacceptable, they already have the option of refusing that application. It seems perfectly reasonable that such a decision should then be capable of being appealed under Section 78. If it is unmeritorious, the appeal will be dismissed (and there is the possibility of an award of costs against an unreasonable appellant). However, a retrospective grant of planning permission could be the only way of resolving the type of anomalous position to which I have referred in previous posts where an enforcement notice has taken effect in circumstances in which no enforcement notice should have been served or in which it would have been quashed if there had been a timely appeal against it. I have already drawn attention to the injustice wrought by the preclusive provisions of Section 285, and this new provision could well compound such injustices.

I will deal with Clauses 104 to 106 in future posts.


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