Monday, 13 December 2010

Overriding an enforcement notice


There are two ramifications of the law on enforcement notices which seem to be imperfectly understood by planning officers. The first is the effect of under-enforcement, which is governed by Section 173(11), and on which I have commented on at least two previous occasions in this blog. The second is the operation of Section 180, which provides that where, after the service of an enforcement notice planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission.

It seems that Wandsworth LBC failed to understand the effect of this provision when they decided to use their powers under Section 178 to take action in default of the owners of a property not complying with an enforcement notice. The resulting dispute came before the High Court in Rapose v. Wandsworth LBC [2010] EWHC 3126 (Admin) in which judgment was given by Lindblom J on 3 December.

The enforcement notice had alleged the erection of a three-storey side extension and required the removal of the extension and all materials from the property and the restoration of the property to its condition before the breach took place. Having lost an appeal against the notice and having also failed to have the appeal decision quashed in High Court proceedings, Mr. Rapose then applied for planning permission for the redevelopment of the site to provide a three-storey building on an enlarged site comprising a restaurant and six residential units.

Planning permission was granted, but it seems that the Council’s decision to permit the unauthorised extension at the rear of the property was made (or intended to be made) on the basis that it was to be incorporated as part of a comprehensive redevelopment of the larger site, so that the reasons for the enforcement action to secure its removal were largely overcome. The enforcement notice was subsequently put on hold because this planning consent (if actioned) would have permitted the extension to remain as part of the comprehensive development of the larger site. However, the Council now claimed that the planning consent could no longer be actioned because of the compulsory acquisition of the other part of the site by the Council and so the extension must now be taken down.

The Council therefore resolved to use its powers under s.178 to secure the removal of the three-storey extension, apparently on the ground that the planning permission had not been implemented and that following the compulsory purchase of the remainder of the property it was no longer capable of being implemented. The Council’s position was that the application made by Mr Rapose, and the permission granted in June 2003, was significantly different from a scheme which might have been submitted to retain the unauthorised extension by itself. The June 2003 Permission only granted permission as an opportunity to regularise the position as part of a single comprehensive development of a larger site. The June 2003 Permission (they claimed) did not permit the freestanding retention or construction of the unauthorised extension at the property but only permitted development as part of a comprehensive scheme across a combination of three sites, which could no longer take place.

Lindblom J considered the case of Havering LBC v. SSE [1983] J.P.L. 240 in which Hodgson J. had held that a planning permission would be effective to override an enforcement notice, even though it did not go precisely to the matters covered by the enforcement notice and even though it contained conditions, as long as it covered the same area of land and the use permitted by the permission embraced the use enforced against. In that case, which concerned enforcement action against a material change of use and a planning permission which had been granted for effectively the same use, it had been submitted that what is now s.180 of the 1990 Act only applied where the planning permission was to do precisely that which was enforced against, and if the permission had conditions attached to it the section did not apply, at least to the extent that the conditions affected the use. Hodgson J. rejected that proposition and also held that the section plainly deals with the "granting", not the so-called "implementation", of planning permission, and so it is not possible to read it as meaning that the enforcement notice shall only cease to have effect when all the conditions in the permission have been complied with. In Cresswell and Cresswell v. Pearson (1998) 75 P. & C.R. the Divisional Court, endorsing the construction adopted by Hodgson J. in the Havering case, rejected the argument that an enforcement notice would merely be put into suspense while a temporary planning permission subsisted.

On the other hand, the effect of section 180 is not that the enforcement notice ceases to have effect altogether, but only that it ceases to have effect to the extent that its requirements are inconsistent with the subsequent grant of planning permission (see R. v. Chichester Justices, ex p. Chichester District Council (1990) 60 P. & C.R. 342).

In Lindblom J’s judgment, the main question to be considered here was not, as the Council appeared originally to contend, whether the 2003 planning permission did or did not permit the unauthorised extension to be retained on its own, but whether there were elements of development common to both the permission and the enforcement notice. As counsel for the developer submitted, if there is fabric which forms part of the development which the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. Conversely, however, the enforcement notice continues to be effective against so much of the fabric as is not approved by the planning permission.

The Council's resolution under challenge in these proceedings authorised direct action against the whole of the extension. It seems that, when it passed that resolution, the committee did not appreciate what the consequences of the operation of section 180 of the 1990 Act would be for its enforcement notice, given the grant of the 2003 permission. It was advised that the development in that permission had not been commenced (which was in fact irrelevant). This may have distracted the committee from examining the extent to which the originally unauthorised extension had been granted planning permission as part of the development approved by the 2003 planning permission. This failure in itself was sufficient to vitiate the Council's decision to proceed with action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission, and the precise extent to which it was, were matters of fact and degree for the Council as local planning authority to determine, subject to review by the Court on normal public law principles, but there was enough in the material before the Court to demonstrate that such an exercise was not undertaken in this case. The Council's decision therefore had to be quashed.

© MARTIN H GOODALL

13 comments:

Anonymous said...

A good friend of mine (travellers) purchased a plot of land and placed a chalet on it. He had been there uninterruptedly since 1994. He was advised to apply for a lawful development certificate during Jan 2008 he did this. The LPA ignored the application but during May 2008 sent an enforcement notice to my friend's father. there was an appeal and the Inspector agreed with the LPA and to give an extra 6 months to conform with the Enforcement Notice. During June 2009 my friend returned home to his chalet..and requested the LPA to deal with his Jan.2008 application The LPA has now decided that the development is unlawful and the Planning Inspectorate has granted a public planning inquiry early 2012. My friend has now received a summons for not complying with the enforcement notice? Does the CLEUD application not take lrecendence as it was made firstly. What happened to the rule of, application, refusal, appeal enforcement. This LPA does application, enforcement, decision, appeal..can this be right?

Stalwyn

Martin H Goodall LARTPI said...

I am not sure that I have enough information to enable me to comment reliably on Stalwyn’s query, but the effect of section 191(2)(b) is that a CLEUD cannot be issued if the uses or operations that are the subject of the application for a certificate constitute a contravention of any of the requirements of any enforcement notice then in force. I appreciate that no enforcement notice was in force at the time of the application, but my view (subject to any contrary authority which anyone can produce) is that the position has to be considered at the time when the application is determined, by which time there was an enforcement notice already in force in this case.

By one means or another, it seems that the alleged lawfulness of the use was considered but the use was found to be unlawful. The enforcement notice therefore came into force and the application for a CLEUD then necessarily failed. The appellant may wish to re-argue the issue at the forthcoming public inquiry, but the LPA may well argue ‘issue estoppel’ or estoppel ‘per rem judicatam’, relying on the decision in the previous enforcement notice appeal. Magistrates might (or might not) be persuaded to adjourn the summons in the meantime, but the situation looks unpromising for Stalwyn’s friend.

Anonymous said...

As a local authority enforcement officer, I would say that the question of lawfulness is based upon the date of application and not the date of decision. Therefore the issue of an enforcement notice afterwards would not be fatal to the grant of the CLEUD. However, the developer should appeal non determination of the application. He should also have appealed the enforcement notice under ground (d)- that the Council's action was too late.
Failure to lodge this latter appeal will be likely to affect his defence of a prosecution, because of the provisions of s.285 which states that validity of a notice cannot be questioned in proceedings, other than an appeal to the Secretary of State (Planning Inspectorate).

Martin H Goodall LARTPI said...

This comment is clearly in response to my last comment on 31 October. It raises an interesting point regarding the interaction of section 171B and section 191. The lawfulness of a change of use or other development is not dependent on the issue of an LDC. By section 171B, it becomes lawful on the expiry of the 4-year or 10-year period (whichever applies). However, if an enforcement notice is issued and comes into effect because no effective appeal against that notice is made within the time limit, then the EN will effectively trump any immunity from enforcement or lawful development that could have been called in aid in an appeal. It is impossible to go behind the EN once it has come into effect.

I appreciate that when considering an application for an LDC, one has to look at the 4-year or 10-year period running back from the date of the application being made under section 191. However, if an EN takes effect before the section 191 application is determined (whether by the LPA or on appeal), it seems to me that the issue of a certificate is then precluded by section 191(2)(b) – the words “then in force” must necessarily (in my view) refer to the date on which the LDC application is determined. However, if anyone is prepared to argue in any future case that those words actually apply to the date of the LDC application, I would be cheering them on!

I entirely agree that the developer should have appealed agaisnt the EN, as well as against non-determination of the LDC application, but it seems they didn’t. Not only is the issue of an LDC therefore (apparently) precluded by section 191(2)(b) but, as Anonymous points out, section 285 prevents the validity of the EN being questioned in any other proceedings, such as a prosecution for non-compliance with the enforcement notice. It is another example of the injustice that can result from the determination of our legislators to close any loopholes in the enforcement provisions of the 1990 Act.

Anonymous said...

Is it possible to apply for an LDC when you have an outstanding enforcement notice on your property?

I bought a flat at auction, only to find that there was no planning permission to convert the house into 2 flats. I do not own the freehold and have no way of restoring the house back to a house as I dont own the upstairs flat. The enforcement has not be enforced for 14 years, and the house has been split into flats with seperate leases, utilities and council tax bills for at least 7 years - do I have any case for a LDC under the grounds of existing usage or would I need to resubmit retrospective planning permission, in which case would I look at the original reasons for refusal (in 1998) or submit a new planning application based on todays standards - any thoughts would be greatly appreciated!

Martin H Goodall LARTPI said...

The effect of Section 191(2)(b) is that a development cannot be lawful (and so a CLEUD cannot be issued) if the uses or operations in question constitute a contravention of any of the requirements of an enforcement notice then in force. An enforcement notice, once it has come into effect, remains in force without time limit. The only way of getting rid of an enforcement notice is either to persuade the LPA to withdraw it (usually very difficult, if not impossible) or to obtain retrospective planning permission for the development against which the enforcement notice was directed, which will have the effect of overriding the notice (see section 180), but this again may prove difficult. The council now has the power to decline to consider such an application (and there can be no appeal against that.)

If alerted to the position, the council might still seek to secure compliance with the enforcement notice, and could prosecute either or both of the two flat owners and the freehold owner in respect of non-compliance with the requirements of the enforcement notice. So some caution should be exercised in deciding how to proceed.

Anonymous said...

Martin

Would an LPA be likely to prosecute operators for use of land which has enforcement notice on it if they had not given decision on a planning application that they accepted which has been with them for twelve months?

It is being used for Motorsport and 28 days would have been used up (permitted rights use)

Would a magistrate adjourn summons until decision given or until appeal decided if council prosecute?

Regards

Martin

Martin H Goodall LARTPI said...

I cannot predict what attitude the LPA might take. It depends on the circumstances and on the view they take as to the effect of this breach of planning control. There is a continuing breach of the enforcement notice, so a criminal offence has been committed, and this is a continuing offence while any of the requirements of the enforcement notice remain to be complied with. I suspect that the magistrates might be rather unsympathetic to an application for an adjournment in the event of a prosecution being launched. The question arises as to why the non-determination (deemed refusal) of the planning application has not been appealed. If time for appealing has now expired (as it appears it may have done), it seems that there will be little or no prospect of escaping the consequences.

lyndsay wright said...

What happens if you buy a stable block with an enforcement notice on. the previous owner has been convicted for non compliance help please

Martin H Goodall LARTPI said...

A subsequent occupier of a property, such as a purchaser, may become criminally liable under section 179(4) and (5) for any failure to comply with the requirements of an enforcement notice (but not a breach of condition notice) that continues after they have taken up ownership and/or occupation of the property, notwithstanding that the original breach of planning control was not committed by them (unless the Enforcement Notice was not put on LPA's register of enforcement and stop notices under section 188).

Similarly, a purchaser or other subsequent occupier of a property will be criminally liable under section 179(4) and (5) in respect of any resumption of a use or development which has been the subject of an enforcement notice that remains in force (unless the Enforcement Notice was not put on LPA's register of enforcement and stop notices under section 188).

Evan Owen - Snowdonia said...

Hi Martin. I hope you are well, my Friend Robert Morfee said you worked at Clarke Willmott together.

I have been scouring the Internet for any reference to planning permission that has lapsed following non implementation. Does the EN cease to have any effect? The LPA agrees that it hasn't been implemented.

Martin H Goodall LARTPI said...

In answer to Evan’s query, I have refreshed my memory as to the actual wording of section 180, namely: “Where.........planning permission is granted for any development carried out before the grant of that permission.........”. The EN therefore ceases to have effect so far as inconsistent with the permission upon the actual grant of planning permission, but it is clear that this must be a retrosepctive planning permission for the development that has already been carried out.

I was slightly puzzled by Evan’s statement that the planning permission hasn’t been implemented. By its very nature, a planning permission to which section 180 applies must necessarily be one that retrospectively authorises the development that was the subject of the EN. Any question of the PP not having been implemented should not therefore arise.

I wonder if Evan has in mind, instead, a planning permission that did not in fact retrospectively authorise the development that had been the subject of the EN, but did authorise a development which, if carried out, would effectively replace the unlawful development. Section 180 would not be applicable in such a case. The execution of the consented development would in itself bring about compliance with the EN, because the unlawful development would be removed and any unlawful use would cease as a result of the new development being carried out. However, I am afraid that section 180 does not apply at all, if the PP that has subsequently been granted did not retrospectively authorise the unlawful development but authorised instead a different development that would replace it.

Non-implementation of the ‘replacement’ development would necessarily involve continuing non-compliance with the EN while the original unlawful development remains unremedied. If the PP for the ‘replacement’ development has now lapsed due to non-implementation, then it would seem that the landowner may now be vulnerable to further action by the LPA under sections 178 or 179.

Evan Owen - Snowdonia said...

Thanks Martin.

The LPA saw an advert for holiday lets for a permission which had a condition restricting occupation to locals or members of HM Armed Forces (I kid you not), they immediately issued an EN which wasn't appealed.