Enforcement challenges, core enforcement processes and overall strategy on limited resources Essex Planning Officers’ Association 2 March 2016

Introduction About me - David Warden –MSc Spatial Planning –Chartered Member of the Royal Town Planning Institute –Director & Planning Consultant at DGW Planning –Previously: Planning Inspector (consultant s78 and s174) Principal Planning Officer in Development Management at London Borough of Enfield Area Planning Officer at Hinckley & Bosworth Borough Council

Introduction Contents –Enforcement challenges –Core enforcement processes –Overall strategy on limited resources –Questions and discussion

–good enforcement is part of a strong and local planning process –requires a firm but proportionate response (Bob Neill, former parliamentary under-secretary of state for CLG) –protect the gormless but come down heavily on the greedy (Eric Pickles, former secretary of state for CLG)

Enforcement challenges –GPDO 2015 – permitted changes of use –Pro-active/monitoring vs reactive/complaints –Concealment and/or ‘positive deception’ –‘Intentional unauthorised development’ –Discretionary service – easy target for cuts Failure to take enforcement action where plainly necessary held to be maladministration

Enforcement challenges – GPDO –GPDO 2015, came into force 15 April 2015 –Schedule 2 PD Rights consolidated from 43 to 19 Parts - England only –Multitude of Permitted Changes under Part 3 –Policy through Prior Approval –No retrospective PA, but may impact upon expediency of any enforcement action (less so for householder)

Enforcement challenges – GPDO –Office to residential (now and proposed): use of the building falling within Class C3 of that Schedule was begun after 30th May 2016 No statutory definition of ‘begun’ ‘Building’ defined to include any part of a building Proposed to be 3 years from PA Proposed demolition and rebuild

–A1, A2, betting office, payday loan shop, or mix of these uses to C3 –Building operations reasonably necessary Enforcement challenges – GPDO –Prior Approval (max) whether undesirable impact: (i) on adequate provision of services A1 or A2, only where reasonable prospect of being used to provide such services, or (ii) where the building is located in a key shopping area, on the sustainability of that shopping area

–Part 1: …within curtilage of a dwelling house Larger House Extensions extended until May 2019 –Part 4: Temporary Buildings and Uses Change to a flexible use for 2 years remains Temporary use of buildings or land for film making purposes –Part 7 Non-domestic extensions and alterations Extensions, trolley stores, click and collect within curtilage (PA), modify loading bay, hard surfacing Enforcement challenges – GPDO

Core enforcement processes –Investigation – usually following a complaint –Is there a breach? Operational development or MCU (or both)? Breach of (properly worded) condition Don’t anticipate a breach – e.g. beds in sheds Permitted development rights Planning Unit (start with unit of occupation) – central to whether MCU and terms of any notice

Core enforcement processes –Enforcement toolbox Negotiation – first and foremost / throughout Rights of entry Information – Planning Contravention Notice –failure to reply and/or false information an offence, up to £1,000 and £5,000, respectively Retrospective application (PP or CLUED) –intentional unauthorised development now a material consideration –decline to determine powers

Core enforcement processes –Enforcement toolbox (continued) Breach of Condition Notice (‘BCN’) –no right of appeal, non-compliance an offence, fine now up to £2,500 Temporary Stop Notice (‘TSN’) –immediate for 28 days, non-compliance an offence, fine up to £20,00 Enforcement Notice (inc. BC-EN and LB-EN) –right of appeal, non-compliance an offence, fine now up to £20,000 Stop Notice –on back of EN – greater risk of compensation

Core enforcement processes –Enforcement toolbox (continued) Section 215 Untidy Land Notice –where condition of land adversely affecting the area, non- compliance and offence, fine up to £1,000 Planning Enforcement Orders (‘PEO’) –apply to Magistrates within 6 months, where breach has (to any extent) been deliberately concealed and just to make the order having regard to all the circumstances. EN within 12 months. Injunction –breach is contempt of court, potential for subsequent committal to prison proceedings

Core enforcement processes –Enforcement toolbox (continued) Direct Action –broad power to enter the land and take the steps required by notice, then recover costs Proceeds of Crime Act (‘POCA’) –can follow any offence, removes financial gain –confiscation orders issued for hundreds of thousands (Council can received 37.5%) –Accredited Financial Investigator essential –timing and sound advice critical (too early – assets gone, too late, cannot initiate proceedings)

Core enforcement processes –Enforcement Appeals e) notice not served properly –unlikely if appeal lodged – but beware absent/unknown third parties b) has not occurred as a matter of fact –didn’t happen or something else did c) does not constitute a breach of planning control –e.g. has planning permission, or not development d) out of time to take enforcement action (4 and 10 year rules) –evidence – balance of probabilities assessment

Core enforcement processes –Enforcement Appeals (continued) a) planning permission ought to be granted –for alleged breach, in whole or in part f) steps excessive to remedy breach or injury to amenity –lesser steps, evolving and recent case law has made complex g) period falls short of what should reasonably be allowed –for alleged breach, in whole or in part –Costs, including Inspector initiated –Enforcement appeals 29, 32 & 40 weeks –PINS confirms very busy/stretched

Overall strategy on limited resources –Enforcement Plans Linked to Local Plan Sets priorities Council staff as eyes and ears TSNs where appropriate – threat may be enough Use decline to determine powers Potential chargeable services

Overall strategy on limited resources –Swift decision making requires well trained officers –NAPE - enforcement work/successes to maintain profile and minimise budget cuts –POCA - might make enforcement self-financing

Questions and Discussion