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Enforcement Notices
If a LPA decides to take enforcement action then it can issue an enforcement notice requiring the breach of planning control to be remedied pursuant to section 172 of the Town and Country Planning Act (TCPA) 1990; or seek an injunction pursuant to section 187B of the TCPA 1990.
An enforcement notice should state the matters which appear to the LPA to constitute the breach of planning control and specify the steps which the authority require to be taken or the activities which the authority require to cease, in order to achieve whole or partial remediation. An enforcement notice must state the date on which it is to take effect; and service of the notice shall take place not more than 28 days after the date of issue and not less than 28 days before the date on which it is to take effect.
Any person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State for Communities and Local Government against the notice: see section 174 of the TCPA 1990. The notice will be held in abeyance until the appeal is determined. When appealing an appellant may request that planning permission be granted or that the time for compliance be extended - and in Gypsy and Traveller cases the Secretary of State will have to take account of the same material considerations as those taken into account in appeals against the refusal of planning permission.
Amongst other grounds of Appeal is that at the time that the Enforcement Notice was issued, the alleged breach of planning control had become immune from such enforcement action by virtue of the passage of time. In relation to operational development or the use of a building as a single dwelling house, the relevant time period for conferring immunity is four years; with the changes of use – such as residing on land in caravans – that period is 10 years. It is important to note that section 285 of the TCPA 1990 prevents someone from arguing in any other proceedings any of the grounds that could have been argued in the enforcement Appeal. This is particularly important with respect to applications for Certificates of Lawful Use or Development made under section 191 TCPA 1990. This provides that, if on an application under that section a LPA is provided with information satisfying it of the lawfulness of the use, it shall issue a Certificate to that effect. Appeals against CLUD refusals exist to the Secretary of State under section 195 TCPA 1990 and follow a similar procedure to Enforcement Appeals.
A decision made in respect of an enforcement notice by a planning inspector or the Secretary of State can be appealed by an unsuccessful appellant, an unsuccessful local authority or any other persons having an interest in the land to which the enforcement notice relates, on a point of law to the High Court (Administrative Court) under section 289 of the TCPA 1990. Permission (or leave) to appeal is required before such an appeal can proceed to a final hearing.
Where a LPA issues an enforcement notice and an owner or occupier of land fails to comply with its requirements s/he may be prosecuted for breach: see section 179 of the TCPA 1990. The offence can be tried in the Magistrates’ or the Crown Court. The maximum penalty in the Magistrates' Court is a fine not exceeding £20,000 but there is no limit on the fine that the Crown Court may impose.
The defences to the charge are strictly limited. In proceedings against an owner of land it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
However, in Wycombe DC v Jesse Wells, Newman J held that, when it is within the power of a defendant to comply with a notice, then personal circumstances cannot be taken into account; and he concluded that a statutory defence could not be established by a Gypsy demonstrating that the reason for his non-compliance with the notice was that no alternative site was available.
An enforcement notice should state the matters which appear to the LPA to constitute the breach of planning control and specify the steps which the authority require to be taken or the activities which the authority require to cease, in order to achieve whole or partial remediation. An enforcement notice must state the date on which it is to take effect; and service of the notice shall take place not more than 28 days after the date of issue and not less than 28 days before the date on which it is to take effect.
Any person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State for Communities and Local Government against the notice: see section 174 of the TCPA 1990. The notice will be held in abeyance until the appeal is determined. When appealing an appellant may request that planning permission be granted or that the time for compliance be extended - and in Gypsy and Traveller cases the Secretary of State will have to take account of the same material considerations as those taken into account in appeals against the refusal of planning permission.
Amongst other grounds of Appeal is that at the time that the Enforcement Notice was issued, the alleged breach of planning control had become immune from such enforcement action by virtue of the passage of time. In relation to operational development or the use of a building as a single dwelling house, the relevant time period for conferring immunity is four years; with the changes of use – such as residing on land in caravans – that period is 10 years. It is important to note that section 285 of the TCPA 1990 prevents someone from arguing in any other proceedings any of the grounds that could have been argued in the enforcement Appeal. This is particularly important with respect to applications for Certificates of Lawful Use or Development made under section 191 TCPA 1990. This provides that, if on an application under that section a LPA is provided with information satisfying it of the lawfulness of the use, it shall issue a Certificate to that effect. Appeals against CLUD refusals exist to the Secretary of State under section 195 TCPA 1990 and follow a similar procedure to Enforcement Appeals.
A decision made in respect of an enforcement notice by a planning inspector or the Secretary of State can be appealed by an unsuccessful appellant, an unsuccessful local authority or any other persons having an interest in the land to which the enforcement notice relates, on a point of law to the High Court (Administrative Court) under section 289 of the TCPA 1990. Permission (or leave) to appeal is required before such an appeal can proceed to a final hearing.
Where a LPA issues an enforcement notice and an owner or occupier of land fails to comply with its requirements s/he may be prosecuted for breach: see section 179 of the TCPA 1990. The offence can be tried in the Magistrates’ or the Crown Court. The maximum penalty in the Magistrates' Court is a fine not exceeding £20,000 but there is no limit on the fine that the Crown Court may impose.
The defences to the charge are strictly limited. In proceedings against an owner of land it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
However, in Wycombe DC v Jesse Wells, Newman J held that, when it is within the power of a defendant to comply with a notice, then personal circumstances cannot be taken into account; and he concluded that a statutory defence could not be established by a Gypsy demonstrating that the reason for his non-compliance with the notice was that no alternative site was available.
