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?”
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)