This planning club provided an update regarding the housing white paper and a session on planning enforcement, including consideration of a case study.

1. Planning club
April 2017, Nottingham

2. Planning Club
26 April 2017, Nottingham

3. Planning enforcement
Dmitrije Sirovica & Ben Standing

4. Introduction
• Consider the issue of enforcement in relation to
planning breaches
• Provide for discussion by way of consideration of
case studies

5. Development
• S.55 TCPA
– “means the carrying out of building, engineering,
mining or other operations in, on, over or under
land, or the making of any material change in the
use of any buildings or other land”
• S.57 TCPA
– “…planning permission is required for the carrying
out of any development of land”

6. TCPA
• Section 171A TCPA defines “breach of planning control” and “enforcement
action”
• Breach of planning control
– Carrying out development without the required planning permission;
or
– Failing to comply with any condition or limitation subject to which
planning permission has been granted
• Enforcement action
– Issue of an enforcement notice
– Service of a breach of condition notice

7. Enforcement Toolkit
• Part VII TCPA
– Planning Contravention Notices (S.171C-171D)
– Temporary Stop Notice (S.171E-171H)
– Enforcement Notices (S.172-182)
– Stop Notices (S.183-187)
– Breach of Condition Notice (S.187A)
– Injunctions (S.187B)

8. NPPF
207. Effective enforcement is important as a means of
maintaining public confidence in the planning system.
Enforcement action is discretionary, and local planning
authorities should act proportionately in responding to
suspected breaches of planning control. Local planning
authorities should consider publishing a local enforcement plan
to manage enforcement proactively, in a way that is
appropriate to their area. This should set out how they will
monitor the implementation of planning permissions,
investigate alleged cases of unauthorised development and
take action where it is appropriate to do so.

9. Case study
• Mr A is the owner of two properties
– A vacant piece of land in a discrete area which he seeks
to develop into a property for himself and his wife to live
in
– An office from which Mr A runs his storage business (Class
B8)
• Life is good for Mr A, his business is prospering and he
decides to apply for planning permission for his dream home
• Mr A duly makes his application to District Council A
• The application is granted, subject to a number of conditions
including pre-commencement conditions

10. Case study
• It subsequently transpires that Mr A does not own all of the land
within the red line of the proposed development
• Mr A had completed Certificate A with his application
• Condition 1 of the permission requires development to be
commenced within 3 years of the date of the permission
• Condition 3 of the permission states “before any work is
commenced on the site the ground floor levels of the building
hereby permitted shall be agreed with the Local Planning
Authority in writing”
• Plans submitted with the application set out the incline of the
driveway and its level at the parking area, fixed the height of the
property, and the position and fall of sewage water and foul
drainage pipes

11. Case study
• After 2 years Mr A starts to build his property
and foundations are laid
• Mr A then runs into financial difficulties and
does not continue works until 2 years later
• Condition 3 has not been discharged

12. Case study
What options are available to District Council A?
Are there any difficulties that may arise, and what
needs to be taken into account?

13. Whitley & Sons v SoS for Wales
(1992) 64 P&CR 296
“As I understand the effect of the authorities to which I am about
to refer, it is only necessary to ask the single question: are the
operations (in other situations the question would refer to the
development) permitted by the planning permission read
together with its conditions? The permission is controlled by and
subject to the conditions. If the operations contravene the
conditions they cannot be properly described as commencing the
development authorised by the permission. If they do not comply
with the permission they constitute a breach of planning control
and for planning purposes will be unauthorised and thus
unlawful. This is the principle which has now been clearly
established by the authorities.”

14. Greyfort Properties Ltd v SSCLG
[2012] JPL 39
• Starting point is Whitley
• Number of recognised exceptions:
– Approval applied for prior to commencement and
subsequently given so that enforcement action cannot be
taken
– Agreement by the LPA for development to commence
without compliance
– Compliance in substance but formalities not achieved
– Condition does not go to “the heart of the planning
permission” (R (Hart Aggregates Ltd) v Hartlepool Borough
Council [2005] EWHC 840 (Admin))

15. R (Hammerton) v London Underground
Limited [2002] EWHC 2307 (Admin)
“the principle discernible in Woolf LJ's reasoning [in
Whitley] is that where it would be unlawful, in
accordance with public law principles, notably
irrationality or abuse of power, for a local planning
authority to take enforcement action to prevent
development proceeding, the development albeit in
breach of planning control is nevertheless effective
to commence development”

16. NPPF para 206
1. Necessary
2. Relevant to planning and;
3. To the development to be permitted;
4. Enforceable;
5. Precise and;
6. Reasonable in all other respects.

17. Use of Conditions Precedent
Guidance document “Use of Conditions” (March 2014)
“Such conditions should only be used where the local planning
authority is satisfied that the requirements of the condition
(including the timing of compliance) are so fundamental to the
development permitted that it would have been otherwise necessary
to refuse the whole permission. A condition precedent that does not
meet the legal and policy tests may be found to be unlawful by the
courts and therefore cannot be enforced by the local planning
authority if it is breached. Development carried out without having
complied with a condition precedent would be unlawful and may be
the subject of enforcement action.”

18. Case study
• The development is completed and Mr & Mrs A move in.
• 15 years pass, during which time Mr & Mrs A happily live together
in their property.
• A complaint is received by District Council A in relation to three
buildings having been erected on Mr & Mrs A’s property in addition
to their home.
• A planning officer attends the property and finds the following:
– A huge stack of boxes with the name of Mr A’s business, behind
which is a building
– A building with no windows or doors but with a row of shutters
at the front of the building
– A small cottage occupied by Mr & Mrs A’s son and his family

19. Case study
• In response to correspondence Mr A provides the following answers:
– That the building behind the boxes was constructed 8 years ago, and that
the boxes are stored next to that building due to capacity at his business
site and for no other purpose.
– That the building with the shutters was constructed 11 years ago as a
storage facility.
– That the cottage occupied by the son and his family was constructed 5
years ago.
• Further investigation reveals
– That the building with the shutters has always been used for residential
purposes by Mr & Mrs A. That building is not registered for Council tax,
and post is sent to Mr & Mrs A’s original property which is now rented to
Mrs B who uses this for residential and business use.
– That rooms of the cottage occupied by the son are not in use and require
further works before they can be.

20. Task
What are the enforcement options?

21. Task
What actions would need to be taken if Mr A had
refused to respond to questions and refused to allow
access to his property?

22. Time limits
• S.171B TCPA
• Failure to take enforcement action results in use becoming lawful
(S.191(2) and (3))
• “Where there has been a breach of planning control consisting in the
carrying out without planning permission of building, engineering, mining
or other operations in, on, over or under land, no enforcement action
may be taken after the end of the period of four years beginning with the
date on which the operations were substantially completed”
• “Where there has been a breach of planning control consisting in the
change of use of any building to use as a single dwelling house, no
enforcement action may be taken after the end of the period of four
years beginning with the date of the breach”
• In all other cases no action may be taken after the end of the period of
ten years beginning with the date of the breach

23. Time limits - Concealment
• Welwyn Hatfield Council v SoS for Communities
and Local Government [2011] 2 AC 304
– Where development is concealed from view, time
does not start to run
• Section 171BA TCPA – application to magistrates’
court
• Jackson v SoS for Communities and Local
Government [2015] EWCA Civ 1246
– Section 171BA does not remove the effect of the
decision in Welwyn Hatfield Council

24. Concealment
• Coles v Lichfield DC [2016] EWHC 3059 (Admin)
• Kestrel Hydro v SoS for Communities and Local Government [2016] EWCA Civ
784
– When a local planning authority took enforcement action in respect of an
unauthorised change of use of land, the notice could require the cessation
of the unauthorised use and the removal of any building works that
facilitated, and were integral to, that use.
• Welwyn Hatfield Council v SoS for Communities and Local Government [2011]
2 AC 304
– The question to ask is what use the building had or of what use it was
– No change of use to a single dwellinghouse where the building was first
occupied as a single dwellinghouse

25. “Substantially completed”
• Sage v SoS for the Environment Transport and the
Regions [2003] 1 WLR 983
– time does not start to run until the operations are
“substantially completed” as a matter of fact and
degree and the test is not whether any remaining
works comprise development requiring planning
permission
– Holistic approach – comparison between that which
has been completed and that which has been
permitted

26. Planning control
TCPA 1990 – s.196A – without a warrant
• LPA may give authorisation in writing for named officers
to enter any land:
• to ascertain if there has been a breach of planning control
• to determine whether and how the LPAs powers should be
exercised
• to ascertain whether requirements imposed by the LPA
have been complied with
in relation to the land or any other land.

27. Planning control
TCPA 1990 – s.196B – entry with a warrant
• If access to the land cannot be gained under s.196A
then a justice of the peace may issue a warrant
• Must be reasonable grounds for entering the land and
admission to the land has been refused or the case is
one of urgency.
• 3 restrictions on use of warrants:
– Only authorises entry on one occasion
– Entry must be within 1 month from the date of issue
– Entry must be at a reasonable hour, unless urgent.

28. Practical considerations
TCPA 1990 – s.196A / s.196B
• Must be at a reasonable hour
• 24 hours notice required to enter a dwelling house
• PPG: “right is limited to what is regarded as essential”
• Reasonable grounds for entering the land means it must
be logical means of obtaining the required information
• Also see 2010 case of Gazelle Properties Ltd re
reasonableness of enforcement action generally.

29. Practical considerations
TCPA 1990 – s.196A / s.196B
• When entering the land, person must produce evidence
of authorisation and purpose of entry if required
• A person may be accompanied if necessary
• Land must be secured against trespassers as it was found
• Wilful obstruction is an offence
• Disclosure of information obtained is an offence
• LPA may be liable for compensation for damage caused

30. Development consent
Planning Act 2008 – s.163
• LPA may enter land without a warrant at any
reasonable hour if it reasonably suspects an offence
related to development consent
• Similar rights to those in respect of breach of planning
control under TCPA
• Development consent relates to development which
forms part of a nationally significant infrastructure
project.

31. Listed buildings
Planning (Listed Buildings and Conservation Areas) Act 1990
• Provides entry rights equivalent to S.196A/s.196B TCPA
• Purpose for entering the land includes surveying the land
and:
– assessing whether an offence has been committed
– serving orders or notices or ensuring they are being
complied with
– ensuring any buildings on the land are properly maintained.

32. Practical considerations
• Before using rights of entry, LPA should attempt to
negotiate access with the owner/occupier
• Ask for written replies within a specified period and
keep a note
• A warrant under historic building powers is unusual so
expect the Magistrates Court to be unfamiliar
• Once the warrant has been obtained, notify the owner
of the proposed date and time of entry.

33. Tree preservation
• LPA may authorise a person to enter land in connection
with a Tree Preservation Order:
– surveying the tree
– making, amending or revoking a tree preservation order
– ascertaining an offence in respect of tree preservation
– determining whether to serve a tree replacement notice.
• Where a tree replacement notice is not complied with,
the LPA may enter the land and plant the tree
• Wilful obstruction is an offence

34. Case study
• The planning officer decides to issue an enforcement notice. What
are the key points to include?

35. Enforcement Notice
• The LPA may issue an enforcement notice where it appears to
them that:
– There has been a breach of planning control; and
– It is expedient to issue the notice, having regard to the
provisions of the development plan and to any other material
considerations
• R (Ardagh Glass Ltd) v Chester CC [2009] Env LR 34
– “Expedient” – balance of advantages and disadvantages of a
course of action

36. Contents of Enforcement Notice
• Clear, unambiguous steps to remedy breach of
planning control
• Period for compliance
• Date enforcement notice takes effect
• Precise boundaries of land to which the
enforcement notice relates
• Service of correct persons
• Relevant explanatory notice

37. Case study 2
• See handout
• What are Council B’s options?
• Each case will be fact dependant, but highlights
the importance of clarity regarding what has been
granted planning permission.

38. Recent enforcement decisions
of the Planning Inspectorate

39. Roof terrace not material change
• Terrace installed on flat roof of single storey
rear extension to terraced house
• Enforcement Notice required:
1. Removal of terrace and staircase leading to
terrace
2. Use of flat roof as roof terrace to cease
• Applicant appealed the Notice

40. Roof terrace not material change
• PINS considered impact on living conditions of
neighbouring occupiers (privacy, noise and
disturbance)
– View from roof terrace directly into
neighbouring courtyards and first floor
windows

41. Roof terrace not material change
• PINS upheld the Enforcement Notice with a
variation:
– Council could not require use of the roof as a
terrace to cease
 No material change of use – operational
development only

42. Extension to High Street shop front
• Applicant built timber frame on his shopfront to
house fruit and veg
• Enforcement Notice required demolition and return
to original condition
• Numerous other shops with similar frontages,
remaining in place for 24 hours
• Applicant appealed the Notice

43. Extension to High Street shop front
• PINS held ‘obvious permanence’ of structure
was relevant in this case
– Type of material used
– Solidity and visual prominence
– Cumulative change to the character of the area
• Enforcement notice upheld: applicant required
to demolish

44. Residential extension: multiple issues
• Permission granted for roof top extension and 5m
single storey rear extension
• Rear extension built to 5.75m and Enforcement Notice
served: Ground (a) appeal on basis that planning
permission should be granted
• Council’s supplementary planning document (SPD) on
house extensions:
– Rear extensions no more than 4m
– Not normally permitted when remaining garden less
than 50sqm

45. Residential extension: multiple issues
• PINS held:
– Council had gone beyond the limits in their own
planning policy, however had taken into account
the need to balance need for accommodation
with impact on neighbours
– Additional 0.75m was beyond reasonable limit
for extension

46. Residential extension: multiple issues
• Additional issues considered by PINS:
– Large Charedi Jewish family: regard to Public Sector
Equality Duty
– Considered best interests of children: need for
indoor and outdoor space
– Article 8 rights to home and private life: need for
proportionality
• Enforcement notice upheld: extension must be
removed or modified to comply with plans

47. Listed Building: Internal alterations
• Alterations to staircases in Grade II listed 18th
century house used as a restaurant: glass panels
and metal rails
• Council submitted that materials are inappropriate
and unsympathetic
• Enforcement Notice served requiring removal of
materials and replacement with softwood or oak
balasters and moulded hand rail

48. Listed Building: Internal alterations
• PINS held:
– Significance of building largely derived from exterior
– Many alterations to interior to facilitate current
(authorised) use as restaurant: illustrate the fact the
building has evolved
– Simple, clean design of staircases do not detract from
surrounding features
• Appeal on ground (e) allowed: Enforcement Notice
quashed and listed building consent granted

49. Questions?

50. Fixing our broken housing
market – The Housing White
Paper
Stephen Coult

51. The 4 Main Chapters of the White
Paper
• Chapter 1: Planning for the right homes in the
right places
• Chapter 2: Building homes faster
• Chapter 3: Diversifying the market
• Chapter 4: Helping people now

52. Executive Summary – key points
for Local Authorities
• Local Leadership Vital
• Extra Money
• Action against land hoarding
• Ambition and innovation
• An up-to-date plan with communities meeting local
housing requirement
• Intervention where no progress.

53. Drilling down into the detail

54. 1 Leadership
• Heads Executive Summary
• Only a single reference – para 2.35 Chapter 2 -
Holding developers and local authorities to
account.

55. 2. More money (1)
• Boosting Local Authority Capacity
• Increase fees by 20% from July 2017
• Further increase of 20% for authorities delivering
homes communities need
• £25M for ambitious authorities in areas of high
housing need to plan for new homes and
infrastructure

56. More Money (2)
• But lots of recycling
– £8.6Bn Help to Buy
– £7.1Bn Public Housing
– £3Bn Home Building Fund
– £2.3Bn Housing Infrastructure Fund
– £1.2Bn Starter Homes Land Fund
– £1Bn Digital Infrastructure
– £800M Supported Units
– £45M Land Release Fund
– Unspecified funds for Neigbourhood Planning

57. 3.Action against land hoarding
• From para 2.36 onwards
• More data to be collected in relation to delivery
• Shorten planning permission times
• Use of completion notices
• Use of compulsory purchase powers to build out
stalled sites

58. 4. Ambition and Innovation
• Ambition referred to 9 times - Innovation referred to 17
times
• Hard detail in relation to application to Local
Authorities very limited:-
– Ambition referred to in para 3.33 regarding bespoke deals
in areas of high demand, particularly using HCA backing.
– Innovation referred to in Paras 3.27-3.30 “Backing local
authorites to build” and references to local development
corporations, local housing companies and/or joint
venture models as exemplars of innovation.

59. 5. Getting plans in place (1)
• Will ensure that every authority is covered by a plan,
but remove the expectation that they should be
covered by a single local plan;
• Will enable spatial development strategies, produced
by new combined authorities or elected Mayors, to
allocate strategic sites;
• Will improve the use of digital tools to make plans and
planning data more accessible.

60. 6. Intervention
The Government;
• Will, when necessary, intervene to ensure that plans
are put in place, so that communities in the areas
affected are not disadvantaged by unplanned growth.
• Will set out in regulations a requirement for plans to be
reviewed at least once every five years
• Will consult on changes to the National Planning Policy
Framework, so that authorities are expected to prepare
a Statement of Common Ground;

61. Changes to NPPF (1)
• Standardised approach to OAN
– Statement of Common Ground to supplement Duty to
Cooperate
• Support development of small windfall sites.
• 10% of allocated sites to be less than 0.5ha
• Encourage developers to subdivide large sites
• All sites to deliver minimum 10% Affordable Housing with
appropriate level of starter homes agreed at local level
• Requirement for neighbourhood plans to meet share of local
housing need
– Subject to delivery tests
– Question of status of land – site allocation or otherwise

62. Changes to NPPF (2)
• Starter Homes Proposals
– Income limits £80k /£90k London
– Requirement for mortgage
– 15 year discount repayment with tapering
– More brownfield land for starter homes
– Starter homes on rural exception sites (subject to
local connection tests)

63. Changes to NPPF (3)
• Green Belt only amended when other options fully
examined
– Use of brownfield
– Using surplus land
– Optimising density
– Co-operation with other authorities
• Impact offset following removal of land
• Expect local planning authorities to identify
opportunities for villages to thrive;

64. Changes to NPPF (4)
• When preparing plans authorities should have a clear
strategy to maximise the use of suitable land in their
area;
• Should make efficient use of land and avoid building
homes at low densities;
• Should address the particular scope for higher-density
housing in urban locations;
• Should indicate that great weight should be attached to
the value of using suitable brownfield land within
settlements for homes

65. Changes to NPPF (5)
• LPAs Should ensure that the density and form of
development reflect the character, accessibility
and infrastructure capacity of an area;
• Should take a flexible approach in adopting and
applying policy and guidance that could inhibit
these objectives;
• The Government will review the Nationally
Described Space Standard to ensure greater local
housing choice.

66. Changes to NPPF (6)
• encourage greater use of Local Development Orders and area-wide
design codes
• expect that local and neighbourhood plans and more detailed
development plan documents should set out clear design
expectations;
• strengthen the importance of early pre-application discussions;
• make clear that design should not be used as a valid reason to
object to development where it accords with clear design
expectations set out in statutory plans;
• recognise the value of using a widely accepted design standard.

67. New Statutory Powers
• Statutory Duty on SoS to provide guidance on meeting needs of
older and disabled persons
• Optional Building Regulations to meet such needs
• Regulations requiring 5 year reviews of Local Plans
• Regulations to allow Spatial Development Strategies to allocate
strategic sites in combined authority areas.
• Amendments to General Development Regulations in relation to
LPA own permissions.
• Planning Freedoms Schemes
• S123 LGA 1972 Duty to sell at market price under review
• Legislation for locally accountable New Town Development
Corporations

68. CIL and S106
• Current system not fast, simple or transparent.
• Announcement in Autumn Budget 2017
• Continued exemption of self build whilst longer
term reforms explored.
• Scope for short term reform to S106
– Open Book
– Dispute Resolution process

69. Contact us…
Stephen Coult – stephen.coult@brownejacobson.com
T: 0115 976 6152
Ben Standing – ben.standing@brownejacobson.com
T: 0115 976 6200
Dmitrije Sirovica – dmitrije.sirovica@brownejacobson.com
T: 0115 976 6238

70. All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the prior
consent of Browne Jacobson.