Tuesday, 7 February 2012

Powers of entry and RIPA


HW left a comment on my recent post on "Powers of entry". This was rather too long to publish in the comments box, and I felt that the points HW has raised are of sufficient importance to be given their own post in the body of the blog.

HW writes: “Thanks for posting about this case [see the previous post on this topic]. I have attempted to research rights of entry in the past. I get reports of people essentially being harassed by planning officers who repeatedly make visits under these powers with no warning or notification and after the visit no enforcement action is taken, yet they still continue to make repeated unannounced visits whether or not more development has taken place. Certainly, there must be limits to their rights of entry and it seems that in this case the magistrates agreed that there are limits. Is there a way to read online about the decision taken by this court?

Another question is where do rights of entry end and surveillance under RIPA begin? Many people report planning officers are "spying" on them - systematically making unannounced visits without making themselves known on the property and covertly photographing (sometimes with telephoto lenses) and observing owners covertly even though the owners are present on the property. The legislation is quite clear that when exercising rights of entry the officer must produce written authorisation and identification when asked for it. This suggests these elements are conditions that must be met if required by the owner in order for the officer to exercise these rights legitimately and therefore, they are required to make themselves known to the owner or occupier who is present. Repeated covert behaviour of this sort seems to me to come under RIPA, not "rights of entry" for which an entirely different authorisation is required.

What is "written authorisation" in your opinion? Some planning authorities claim certain officers are delegated these powers and these officers carry identification cards only and some of these ID cards say on the back they have been delegated powers of rights of entry. Is this sufficient in your opinion?”
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I have not previously had to consider the point HW has identified, although a client very recently complained to me of repeated visits by planning officers, and I referred him to the recent case which came before the Abergavenny bench. The only reports of this decision that are available are press reports (for example http://www.bbc.co.uk/news/uk-wales-south-east-wales-16694043 and http://www.dailymail.co.uk/news/article-2090691/Millionaire-wins-right-ban-planning-inspectors-nosing-home.html - these are not links, but you can copy and paste them into your web browser). A magistrates’ court is not a court of record, so their decisions are not formally recorded, nor are their decisions of any precedent effect. I was careful for that reason to explain in my original commentary on the case that no great reliance can be placed on this decision (which might yet be subject to appeal by the LPA); it is simply an example of a court declining to issue a warrant when they feel there is no justification for doing so.

I believe that HW may have a point in what he says about RIPA, and it is something which we do perhaps need to consider, and which LPAs in particular need to take on board. I acted for a defendant a few years back against a prosecution for display of an advertisement in breach of the Control of Advertisements Regulations (which took the form of signage on a pub). We were all set to defend the action when the LPA suddenly withdrew the case, because they realised they had failed to comply with the requirements of RIPA in gathering the evidence on which the prosecution was based. HW also makes some valid points about other aspects of the power of entry. There is reason to believe that this power is being abused in some instances.

Enforcement action in the planning context is, of course, of a different nature than criminal investigations, and arguably the gathering of evidence as part of an investigation leading to the service of an enforcement notice would not need to comply with RIPA. But in view of what HW has said, we should perhaps reconsider the matter to see whether and, if so, in what circumstances certain aspects of RIPA might possibly become applicable.

© MARTIN H GOODALL (with acknowledgements to HW for his contribution)

2 comments:

Stephen Doyle said...

I live in a bungalow and the bungalow behind applied for permission to create a first floor.

I objected in view of overlooking and loss of privacy. I was waiting for a site visit and was surprised when the application was granted.

On complaining to the council I am advised that the Planning Officer entered my back garden when I was not at home and made his decision from there.

I thought their Right of Entry is restricted to investigating breeches and checking Enforcement. I do not think he had Right of Entry for simply Assessment purposes i.e. when assessing an application re a different property.

Please can you advise. Thanks.

Martin H Goodall LARTPI said...

This blog post (and the previous item posted on 25 January 2012) dealt solely with the right of entry for enforcement purposes under section 196A of the 1990 Act. However, there is a general power of entry granted by section 324 of the same Act. The purposes for which entry may be made include the consideration of any application under Part III of the Act (as in this case) (- section 324(1)(b)).

Section 324 requires that the person exercising this power of entry must be “duly authorised in writing” by the local planning authority. Section 325 makes various supplementary provisions as to rights of entry, including the duty of the planning officer “if so required” to produce evidence of his authority. The officer may not “demand admission as of right” to any land which is occupied unless 24 hours’ notice of the intended entry has been given to the occupier. However, the wording of the section does not seem to prevent an officer actually entering the land without notice, so we are in a somewhat grey area if the officer did not actually “demand admission as of right”, but simply walked in.

Stephen Doyle may possibly have a complaint for maladministration, as the officer’s actions do not appear to have been in accordance with the spirit of sections 324 and 325, but I suspect that the most he can expect is an apology from the council.

(There might, in theory, be an action for trespass, but I suspect that any damages would be purely nominal in the circumstances, even assuming that entry without notice did amount to a trespass, bearing in mind the slightly ambiguous wording of section 325.)