Wednesday, 25 January 2012

Powers of entry

As planners and planning lawyers are well aware, a local planning authority has a power of entry to land under s.196A of the principal Act. A similar power is granted in respect of listed buildings by s.88 of the Listed Buildings Act.

If access is denied, the Council can go and get a warrant from the magistrates’ court. However, a recent case in Wales shows that a local planning authority cannot automatically expect that a warrant will be granted by the magistrates.

The case in question involved a listed building which had been the subject of listed building enforcement action in respect of various alterations which had been made to it. Conservation officers had made numerous inspections exercising their statutory power of entry, but it seems the owner had finally had enough of this.

The planning authority wanted to arrange yet another visit, this time by a conservation expert who had been engaged by the authority to advise them about further works that it was suspected had taken place, with a view to possible further enforcement action.

The owner alleged that no further work had taken place since the planning officers’ last visit. There were also family reasons for his not wishing to be disturbed by yet another inspection visit. Counsel for the owner told the magistrates that it seemed the planning authority were ‘coming back for another bite of a cherry that has already been bitten on many occasions.’

The court declined to grant a warrant to the LPA and awarded £500 costs to the owner (somewhat less, one suspects, than he paid for legal representation). The chairman of the bench observed that the owner had said under oath that no further work had been carried out to the property and it was on that ground that the application was refused.

This may not be the end of the story. The LPA may not take this defeat lying down, and they can be expected to consider the possibility of appealing the magistrates’ decision. So no-one should take this as carte blanche to refuse entry to their property to planning officers. On the other hand, planning authorities may need to be more cautious in future about making too many repeat visits to the same property.


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