The document discusses recent changes to the enforcement provisions of the Localism Act 2011, including new powers for local planning authorities to decline determining retrospective planning applications and appeals against enforcement notices. It also summarizes two recent court cases related to enforcement notices - one regarding what constitutes a material change of use, and another regarding the conduct of site visits during enforcement appeals.

1. Enforcement Provisions of the
Localism Act 2011
Graham Gover

2. Localism Act 2011

3. Localism Act 2011
Where are we now?

4. Localism Act 2011
Where are we now?
Royal assent 15 November 2011

5. Localism Act 2011
Where are we now?
Royal assent 15 November 2011
Some parts in force from 15 January 2012

6. Localism Act 2011
Where are we now?
Royal assent 15 November 2011
Some parts in force from 15 January 2012
Four Commencement Orders to date

7. Localism Act 2011
Where are we now?
Royal assent 15 November 2011
Some parts in force from 15 January 2012
Four Commencement Orders to date
No. 4 dated 1st March 2012, to take effect
from Good Friday, includes all of the
enforcement provisions of the Act

8. Localism Act 2011
Main provisions in force:
• general power of competence
• neighbourhood planning
• enforcement

9. Localism Act 2011
Main provisions in force:
• general power of competence
• neighbourhood planning
• enforcement
Not yet in force
• abolition of regional strategies
• duty to co-operate

10. NPPF 27 March 2012
Documents replaced by this Framework... PPG18
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”.

11. Retrospective planning permission

12. Retrospective planning permission
120
New powers to add to existing powers to
deal with developers’ tactics
• Section 70A power to decline to determine repeat
planning application
• Section 70B power to decline to determine
overlapping planning application

13. Retrospective planning permission
120
New powers to add to existing powers to
deal with developers’ tactics
• Section 70A power to decline to determine repeat
planning application
• Section 70B power to decline to determine
overlapping planning application
Now
• Section 70C power to decline to determine
retrospective application

14. Retrospective planning permission
Where a person makes a planning
application for development
• in respect of land in whole or in part
• to which a pre-existing enforcement notice relates
• for anything specified as the matter constituting a
breach of planning control
the LPA may decline to determine the
application

15. Retrospective planning permission
Pre-existing enforcement notice
• of any age or antiquity
• issued before the planning application was
received (not ‘registered’) by the LPA
No right of appeal. The decision not to
determine is vulnerable to JR on public law
grounds

16. Retrospective planning permission

17. Retrospective planning permission
Developers:
Consider a pre-emptive planning application
if you catch wind of an EN

18. Retrospective planning permission
Developers:
Consider a pre-emptive planning application
if you catch wind of an EN
LPAs:
Consider referring to the power to decline in
the letter accompanying the EN

19. Appeals against enforcement notice
Ground (a) is not available where the
enforcement notice was issued
• after a related application for planning permission
was made
• but before the expiry of the deemed refusal period
under the DMPO 2010 i.e. 8/13 weeks or as
extended

20. Appeals against enforcement notice
Ground (a) is not available where the
enforcement notice was issued
• after a related application for planning permission
was made
• but before the expiry of the deemed refusal period
under the DMPO 2010 i.e. 8/13 weeks or as
extended
Does not prevent an appeal against refusal or
non-determination of the proposal

21. Appeals against enforcement notice

22. Appeals against enforcement notice
The Secretary of State will only be able to
grant planning permission when allowing an
enforcement notice appeal if the ground (a)
is specifically mentioned in the appeal
statement.

23. Appeals against enforcement notice
The Secretary of State will only be able to
grant planning permission when allowing an
enforcement notice appeal if the ground (a)
is specifically mentioned in the appeal
statement.
Likewise, only ground (a) appeals will result
in deemed applications for permission

24. Appeals against enforcement notice
The Secretary of State will only be able to
grant planning permission when allowing an
enforcement notice appeal if the ground (a)
is specifically mentioned in the appeal
statement.
Likewise, only ground (a) appeals will result
in deemed applications for permission
Expect the PINS guidance to reflect this
change

25. Assurances and enforcement notices

26. Assurances and enforcement notices
123
May serve a letter giving an assurance:
• not at risk of prosecution in connection with the
notice, or
• not at risk of being prosecuted in respect of
matters specified in the letter, and
• specifying a reasonable future time to take steps to
avoid risk of prosecution

27. Assurances and enforcement notices
123
May serve a letter giving an assurance:
• not at risk of prosecution in connection with the
notice, or
• not at risk of being prosecuted in respect of
matters specified in the letter, and
• specifying a reasonable future time to take steps to
avoid risk of prosecution
Would Lord Hoffman approve?

28. Assurances and enforcement notices
123
May serve a letter giving an assurance:
• not at risk of prosecution in connection with the
notice, or
• not at risk of being prosecuted in respect of
matters specified in the letter, and
• specifying a reasonable future time to take steps to
avoid risk of prosecution
Would Lord Hoffman approve?
Revisit scheme of delegation?

29. Time limits and penalties

30. Time limits and penalties
124
Breach of condition notice, maximum
fine is now £2,500, was £1,000

31. Time limits and penalties
124
Breach of condition notice, maximum
fine is now £2,500, was £1,000
Non-compliance with TPO or Adverts Regs:
must commence proceedings within 6m of
the date on which sufficient evidence
justifying the proceedings came to the
prosecutor’s knowledge.

32. Time limits and penalties
124
Breach of condition notice, maximum
fine is now £2,500, was £1,000
Non-compliance with TPO or Adverts Regs:
must commence proceedings within 6m of
the date on which sufficient evidence
justifying the proceedings came to the
prosecutor’s knowledge.
May not be brought after 3 years after
date of offence

33. Time limits and penalties

34. Time limits and penalties
125
Certificates:
• signed by or on behalf of the prosecutor
• stating the date when sufficient evidence came to
the prosecutor’s knowledge
is conclusive of that fact

35. Time limits and penalties
125
Certificates:
• signed by or on behalf of the prosecutor
• stating the date when sufficient evidence came to
the prosecutor’s knowledge
is conclusive of that fact
Who is the prosecutor?

36. Case law catch-up 1
SSCLG v Metal and Waste Recycling Ltd 1
Feb 2012 EWHC 277
EN served, alleging c of u from a scrap metal
yard ave throughput of 121,174 tonnes to a
scrap yard ave throughput of 231,716 tonnes
“the totality of the new use having a different
nature and character from the former use”
Requirement: limit throughput, vehicle
movements, time of operation...

37. Case law catch-up 1
Changes in effect:
• dust from site
• explosions from gas bottles
• vehicle movements at unsociable times
• size of vehicles and use of containers
Inspector: increase in throughput did not
amount to materially different planning
consequences.

38. Case law catch-up 1

39. Case law catch-up 1
Ousley J; where effects of change of use are
relied on, they must exceed that which could
be caused by the permitted use.

40. Case law catch-up 1
Ousley J; where effects of change of use are
relied on, they must exceed that which could
be caused by the permitted use.
“It is elusive in practice, perhaps even
illusory ... no decided case has been shown
to me in which a material change of use by
intensification has been found to have
occurred”

41. Case law catch-up 2
R(Tait) v SSCLG 17 02 12 EWHC 643
Appeal against EN concerning external
changes to a dwelling
Letter notifying the parties of the date and
time of the Inspector’s visit, and if a party
was not present there might be an
unaccompanied site visit, or none.

42. Case law catch-up 2
Inspector made a site visit and had a
conversation with the LPA’s officer
A builder on site noticed that the Inspector
was visibly annoyed that the Appellant was
not present
Enforcement notice upheld, as varied

43. Case law catch-up 2

44. Case law catch-up 2
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present

45. Case law catch-up 2
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector

46. Case law catch-up 2
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector
3. the Inspector should have gone inside the house

47. Case law catch-up 2
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector
3. the Inspector should have gone inside the house
4. the anger of the Inspector showed apparent bias

48. Case law catch-up 2
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector
3. the Inspector should have gone inside the house
4. the anger of the Inspector showed apparent bias
5. the accompanied site visit should not have
taken place without the Appellant

49. You be the judge!
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector
3. the Inspector should have gone inside the house
4. the anger of the Inspector showed apparent bias
5. the accompanied site visit should not have
taken place without the Appellant

50. You be the judge!
Grounds of challenge:
1. the Inspector should not have carried out the site
visit when told the Appellant could not be present
2. she was denied the opportunity to make
representations to the Inspector
3. the Inspector should have gone inside the house
4. the anger of the Inspector showed apparent bias
5. the accompanied site visit should not have
taken place without the Appellant

51. Case law catch-up 3
Keevil v SSCLG and Bath and NES Council 9
February 2012 EWHC 322
K applied for a CLU for stationing 2 caravans
and used a plan showing just part of the farm
CLU granted for “all that land known as
[their farm] shown edged red on the attached
plan" but there was no plan attached.

52. Case law catch-up 3
EH granted a caravan site licence for the
whole of the farm.
EN served against two caravans in a field. K
appealed, claiming the use was lawful.
Appeal dismissed, as the CLU applied to a
smaller part of the farm than the CSL.

53. Case law catch-up 3
There definitely was confusion about the extent of the
permission given by the certificate, and it was
unsurprising that the inspector had to decide about that.
If there had been no reference to an attached plan, then
there would be force in the argument that the certificate
could only mean the entire farm. However, the
certificate contained two references: one to the land
known as the farm, the other to a plan. The inspector's
decision, made on the balance of probabilities, about
which plan the certificate referred to, could not be
faulted.

54. Deliberate concealment
Four- and ten-year rules for Certificates
Case law background
Fidler (2010)
Beesley in the Court of Appeal (Jan 2010)
“The arguments may be raised in a future case. The
points may be relevant if and when amendments to
the legislation are considered”
Lord Justice Mummery

55. Deliberate concealment
121
Four- and ten-year rules for Certificates
Case law background
Fidler (2010)
Beesley in the Court of Appeal (Jan 2010)
“The arguments may be raised in a future case. The
points may be relevant if and when amendments to
the legislation are considered”
Lord Justice Mummery

56. Deliberate concealment
Beesley in the Supreme Court (April 2011)
Connor principle: despite an absolute
statutory entitlement, a claim for widow’s
benefit was disallowed because she killed
her husband.
Localism Bill (December 2010 to October
2011)

57. Deliberate concealment
“deception ... dishonest applicant ...
culprit ... fruits of fraud ... pretence ...
concealment ... duped ... reprehensible ...
false representations...” Mummery LJ in CA

58. Deliberatelimits of the case
Problem: concealment
In what circumstances will the Connor
principles bite? “Only [in] truly egregious
[outstandingly bad, shocking] cases such as
this one”, per Lord Brown.

59. Deliberate concealment
Discovery by LPA
• that there may have been a breach of planning
control i.e. carrying out development without
planning permission, or failing to comply with a
condition subject to which planning permission
has been granted
• either by investigation or application for CLEUD
or CLOPUD
• before or after the four- or ten-year period has
expired

60. Deliberate concealment
121
Discovery by LPA
• that there may have been a breach of planning
control i.e. carrying out development without
planning permission, or failing to comply with a
condition subject to which planning permission
has been granted
• either by investigation or application for CLEUD
or CLOPUD
• before or after the four- or ten-year period has
expired

61. Deliberate concealment
121
Discovery by LPA
• that there may have been a breach of planning
control i.e. carrying out development without
planning permission, or failing to comply with a
condition subject to which planning permission
has been granted

62. Deliberate concealment
121
Discovery by LPA
• that there may have been a breach of planning
control i.e. carrying out development without
planning permission, or failing to comply with a
condition subject to which planning permission
has been granted
• either by investigation or application for CLEUD
or CLOPUD

63. Deliberate concealment
121
Discovery by LPA
• that there may have been a breach of planning
control i.e. carrying out development without
planning permission, or failing to comply with a
condition subject to which planning permission
has been granted
• either by investigation or application for CLEUD
or CLOPUD
• before or after the four- or ten-year period has
expired

64. Deliberate concealment
Discovery by LPA: time limits for applying
for a PEO:
“within the 6 months beginning with the date on which
evidence of the apparent breach of planning control
sufficient in the opinion of the local planning authority to
justify the application came to the authority’s knowledge”

65. Deliberate concealment
Discovery by LPA: time limits for applying
for a PEO:
• no overall time limit, looking back to the date of the
apparent breach
• 6 months might run from a date later than discovery of
the apparent breach: “justify the application” e.g. later
discovery of deliberate concealment of the breach
• the need for a certificate, which is “conclusive
evidence” of the date

66. Deliberate concealment
Application
• by way of a complaint for an order + fee

67. Deliberate concealment
Application
• by way of a complaint for an order + fee
• must serve a copy on the owner, the occupier and “on
any other person having an interest in the land that is an
interest which, in the opinion of the authority, would be
materially affected by the taking of enforcement action”

68. Deliberate concealment
Application
• by way of a complaint for an order + fee
• must serve a copy on the owner, the occupier and “on
any other person having an interest in the land that is an
interest which, in the opinion of the authority, would be
materially affected by the taking of enforcement action”
• may serve requisition notice for information, s330 TCPA
1990, or s16 LG(MP)A

69. Deliberate concealment
Application
• by way of a complaint for an order + fee
• must serve a copy on the owner, the occupier and “on
any other person having an interest in the land that is an
interest which, in the opinion of the authority, would be
materially affected by the taking of enforcement action”
• may serve requisition notice for information, s330 TCPA
1990, or s16 LG(MP)A
• but what about a PCN + T&P?

70. Deliberate concealment
Application
• by way of a complaint for an order + fee
• must serve a copy on the owner, the occupier and “on
any other person having an interest in the land that is an
interest which, in the opinion of the authority, would be
materially affected by the taking of enforcement action”
• may serve requisition notice for information, s330 TCPA
1990, or s16 LG(MP)A
• but what about a PCN + T&P?
• keep an eye on time limits

71. Deliberate concealment
Parties
• the local planning authority
• anyone served with a copy of the notice
• “on any other person having an interest in the land that
is an interest which, in the opinion of the court, would
be materially affected by the taking of enforcement
action”
Burden of proof: on the LPA
Standard of proof: balance of probabilities

72. Deliberate concealment
122
Parties
• the local planning authority
• anyone served with a copy of the notice
• “on any other person having an interest in the land that
is an interest which, in the opinion of the court, would
be materially affected by the taking of enforcement
action”
Burden of proof: on the LPA
Standard of proof: balance of probabilities

73. Deliberate concealment
122
Parties
• the local planning authority
• anyone served with a copy of the notice
• “on any other person having an interest in the land that
is an interest which, in the opinion of the court, would
be materially affected by the taking of enforcement
action”
Burden of proof: on the LPA

74. Deliberate concealment
122
Parties
• the local planning authority
• anyone served with a copy of the notice
• “on any other person having an interest in the land that
is an interest which, in the opinion of the court, would
be materially affected by the taking of enforcement
action”
Burden of proof: on the LPA
Standard of proof: balance of probabilities

75. Deliberate concealment
The justices may only make a PEO if
• the apparent breach ... has (to any extent) been
deliberately concealed, AND
• the court considers it just to make the order having
regard to all the circumstances

76. Deliberate concealment
The justices may only make a PEO if
• the apparent breach ... has (to any extent) been
deliberately concealed, AND
• the court considers it just to make the order having
regard to all the circumstances
But what constitutes deliberate
concealment?

77. Deliberate concealment
Commons draft of the Bill as sent to HL
“the actions of a person or persons have resulted in, or
contributed to, full or partial concealment of the apparent
breach”
where
“actions are to be taken to include—
(a) representations made by the person, and
(b) inaction on the person’s part.”

78. Deliberate concealment?
Yes or no?
Mrs Brown in Arun DC?

79. Deliberate concealment?
Yes or no?
Mrs Brown in Arun DC?
“In my opinion, the only respect in which Mrs K Brown in Arun can be said
to have “cheated” was in 1996 when she came to let her extension to
students as independent living accommodation instead of continuing to
occupy it, as for the past eight years she had, as part of her own house.
There was no suggestion of any deceit by her either in the obtaining or in
the initial implementation of the planning permission, no suggestion that
she had always intended to use the extension for independent letting, no
suggestion of any positive steps taken by her to disguise her eventual
breach of planning control.” per Lord Brown in Beesley SC.

80. Deliberate concealment?
Yes or no?

81. Deliberate concealment?
Yes or no?
Breach of an agricultural occupancy
condition?

82. Deliberate concealment?
Yes or no?
Breach of an agricultural occupancy
condition?
If Beesley converted an existing barn into a
dwelling?

83. Deliberate concealment?
Yes or no?
Breach of an agricultural occupancy
condition?
If Beesley converted an existing barn into a
dwelling?
A dwelling is built where it is concealed by
existing features. e.g. a copse?

84. Deliberate concealment?

85. Deliberate concealment?

86. Deliberate concealment?

87. Deliberate concealment?

88. Deliberate concealment?

89. Deliberate concealment?
Applicants say not concealed because:

90. Deliberate concealment?
Applicants say not concealed because:
• bank statements
• medical records
• tax returns
• TV licence
• phone bills
• utility bills

91. Deliberate concealment?
Applicants say not concealed because:
• bank statements
• medical records
• tax returns
• TV licence
• phone bills
• utility bills
But not registered for council tax or to vote

92. Deliberate concealment?
“Whilst it is acknowledged that the building
was constructed in a copse and that the
owners did not register for Council Tax or to
be included in the electoral register, when
considering the evidence as a whole, there
does not appear to be any evidence that
there was any deliberate or positive
deception on the owners’ part to conceal the
building or their address”

93. Deliberate concealment?
Even if “yes” the court has to consider it just
having regard to all the circumstances
• human rights
• length of time since the breach
• extent of deception, if any

94. Time limits after a PEO
The LPA may take enforcement action
serve a BCN or EN
in respect of the apparent breach at any time
within the enforcement year
= 22 + 365 days after PEO is made
without prejudice to the 4, 10 year time
limits

95. Time limits after a PEO
Example: c of u of a barn to a dwelling
Dwelling completed 01.01.11
PEO made by justices 01.10.12
PEO ‘expires’ 23.10.13
Service of enforcement notice by 31.12.14

96. Time limits after a PEO
Example: c of u of a barn to a dwelling
Dwelling completed 01.01.11
PEO made by justices 01.10.12
PEO ‘expires’ 23.10.13
Service of enforcement notice by 31.12.14

97. Time limits after a PEO
Example: c of u of a barn to a dwelling
Dwelling completed 01.01.11
PEO made by justices 01.10.12
PEO ‘expires’ 23.10.13
Service of enforcement notice by 31.12.14

98. Time limits after a PEO
Example: c of u of a barn to a dwelling
Dwelling completed 01.01.11
PEO made by justices 01.10.12
PEO ‘expires’ 23.10.13
Service of enforcement notice by 31.12.14

99. Watch transitional provisions
Where the breach of planning control took
place before 6 April 2012 AND
the s171B(1) time limits have expired
the concealed breaches provisions DO NOT
APPLY to that breach
Commencement No 4 Order, Article 13(3)

100. Appeals against EN after PEO
What grounds of appeal are available?
a. planning permission ought to be granted YES
b. those matters have not occurred YES
c. they are not a breach of planning control YES
d. no enforcement action could then be taken NO
e. copies of the notice were not served on... YES
f. requirements exceed what is necessary YES
g. compliance period is too short YES

101. If the LPA does not apply...
... what powers are available to them?
Are Fidler and Beesley still good law after
this legislation?

102. Downloads
Slides as a pdf:
http://tinyurl.com/cobebgz
SSCLG v Metal and Waste Recycling Ltd
http://tinyurl.com/cl4jkq4
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