Linda's Planning Law Blog with the latest news and articles from Fortune Green Legal Practice

 

The Levelling-up and Regeneration Bill and Planning Enforcement - what does the Bill have in store?

 

 

 

 

 

 

 

(Photo: Joanna Zduńczyk, Pexels)

 

The Levelling-up and Regeneration Bill was introduced in the House of Commons on 11 May 2022.

The Bill is wide-ranging, running to almost two hundred clauses. The Policy Paper published by the Government on the same day as the Bill states that it “acts on several fronts to create a robust framework for levelling-up.” In addition, Explanatory Notes provide more details about how the proposals contained in the Bill are intended to be implemented.

This article will focus particularly on the proposals which will affect planning appeals against enforcement notices - assuming they come into force in their current form. We will also look at the other clauses dealing with the topic of planning enforcement, all of which are set out in Chapter 5 of Part 3 of the Bill.

 

Appeals under Ground (a) – what is the effect of the Bill’s Clause 104

With this emphasis on appeals against enforcement notices in mind, Clause 104 is the first one this article will examine. This deals with appeals made on appeal Ground (a). At present, section 174(2)(a) of the Town and Country Planning Act 1990, s.174 (2)(a) allows for an appeal where the appellant wants planning permission to be granted for the development at issue. It states:

"(a) that, in respect of any breach of planning control which may be constituted by the matter stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged."

More recently, section 123 of the Localism Act 2011 inserted clauses limiting the scope of section 174(2)(a) and the circumstances under which a Ground (a) appeal could be made. The purpose of the additional provisions was to close a perceived loophole which could potentially allow an applicant to have an application determined by the local planning authority while at the same time submitting an application under the appeal process for (wholly or partly) the same matter which would be determined by the Planning Inspector. Therefore, the new sub-section (2A) stated that an appeal could not be brought if the enforcement notice related to land in England and was issued at a time after a “related application for planning permission” had been made, but before the period had expired for determination of the application.

The phrase a “related application for planning permission” is explained in sub-section (2B). This states that the restriction applies if granting planning permission for the development set out in the planning application would

“involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

The Levelling Up and Regeneration Bill proposes to restrict Ground (a) appeals further by substituting the current provisions with a new set of sub-sections to be inserted at section 174(2)(a) Town and Country Planning Act 1990. The new restrictions will apply to appeals under Ground (a) where a related application is under consideration or has been considered less than two years previously. In other words, in determining an appeal, the Inspector will need to consider the recent planning history of the site and any applications made. The provisions explain in detail how the two-year period is calculated.

The new proposed legislation refers explicitly to the powers already available to the local planning authority to decline to determine applications. It remains to be seen how the new power to serve an Enforcement Warning Notice, requiring a retrospective planning application (see Clause 103), might work together with the proposed changes to Ground (a) appeals under Clause 104.

 

What other changes are proposed for planning enforcement under the Bill?

Other clauses in the Levelling-Up and Regeneration Bill that address planning enforcement matters are:

  • Clause 101 will standardise the time limits after which a development becomes immune from enforcement action. The time limit for all breaches will be ten years rather than the differing periods of four years and ten years as is currently the case. This will allow local planning authorities more time to take enforcement action. Clause 102 proposes to extend the duration of temporary stop notices. This is currently set at 28 days and will be extended to 56 days.As mentioned above, a new power for local planning authorities is created in Clause 103. This will enable them to serve an Enforcement Warning Notice that requires the person responsible to submit a retrospective planning application within a specified period or to face further enforcement action.
  • Clause 105 proposes to amend section 176 Town and Country Planning Act 1990 to grant the Secretary of State powers to dismiss an appeal if it appears that the appellant is causing undue delay in the process. This strengthens the powers of planning inspectors to determine appeals against enforcement notices or against the refusal to grant certificates of lawfulness.
  • Clause 106 increases the financial penalties that the Court can impose where, firstly, there has been a successful prosecution pursuant to a breach of condition notice and, secondly, a successful prosecution pursuant to a breach of a notice served under section 215 (a so-called “untidy land” notice).
  • Finally, clause 107 inserts a new section 196E in the Town and Country Planning Act 1990. The effect is to give the Secretary of State the power to make regulations which will impact the powers of local planning authorities to take planning enforcement action in some circumstances. The Explanatory Notes provide an example of how these powers may be exercised. The scenario depicted foresees circumstances in which regulations could be issued to take away from a local planning authority the power to take enforcement action against those responsible for an alleged breach of a planning condition regulating the times of day during which goods can be delivered to shops. The effect would be to enable HGV drivers to deliver goods to retail stores at any time of the day. The Explanatory Notes say that this would give confidence and certainty to businesses “during a period of unanticipated disruption.”

The Bill received its second reading on 8 June. The next stage is the Committee Stage, which consists of a detailed examination of the proposals and during which amendments are debated.

22nd June 2022

 

The Council says that I have breached a planning enforcement notice and that I will be prosecuted. What can I do?

Fortune Green Legal Practice recently received a call from the freehold owner of a property with this question. The call was prompted by a letter he had received from the local planning authority where his property is located. They advised him to take legal advice.

The freeholder found Fortune Green Legal Practice online and asked for legal advice. He explained that the circumstances were not straightforward. In short, although he owns the freehold of a property, without his knowledge the leaseholder of the property had committed a breach of planning control. This led to the local planning authority serving an enforcement notice to order that the breach of planning control should stop. The notice was served on both the leaseholder and the freeholder, but the freeholder insists that he cannot comply with the notice without the leaseholder’s assistance.

The freeholder wants to know whether he can be held liable for the breach.

Section 179(2) of the Town and Country Planning Act 1990 states:

“Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.”

This applies to the freeholder as the “owner” of the property.

The owner has a defence, as set out at section 179(3) of the Town and Country Planning Act 1990:

“In proceedings against any person for an offence under subsection (2), 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.”

Where the local planning authority can demonstrate that the provisions of the enforcement notice have not been complied with, the onus is on the defendant to demonstrate that the defence under section 179(3) applies. All the individual circumstances of the case can be considered. The case of Crown v Basildon Crown Court (ex parte Cooper) [2000] 2 WLUK 570 points out, however, that there is a high threshold to establishing this defence. In the words of Mr Justice Blofeld, proving that a person did everything they could be expected to do to secure compliance with the notice is “a far higher burden …than just that of reasonable excuse”

Other cases state that there is also a high threshold to overcome for a defendant who wants to prove that they do not have enough money to carry out the work required by the enforcement notice. The Cooper case, for example, showed it was not enough to say that the defendant had applied for legal aid to prove that she was “impecunious.”

More recently, the case of Mirza v Newham LBC [2017] EWCA Crim 924 highlights that even where it is apparent that the day-to-day responsibility for managing the property is delegated to another person, the primary responsibility rests with the owner.

The answer to the client’s question is that there is a defence that he may be able to rely on in court. Each case will be fact specific, but the key point is that it is not likely to be sufficient to argue that another person, in this instance, the leaseholder, is responsible for ensuring compliance with the notice. The client will need to persuade the judge that he has taken steps himself to do everything he can reasonably be expected to do to comply with the notice.

Finally, the client must be made aware that the stakes are high. Breach of a planning enforcement notice is an offence with the offender liable upon conviction to an unlimited fine (section 179(8), Town and Country Planning Act 1990).

14th June 2022

 

Some of the most common FAQs we receive here at Fortune Green Legal Practice

If you have a planning question you would like Linda to answer, please email her at and she will do her best to respond. 

Q: Who can appeal against the refusal of a planning application?

A: Only the applicant can appeal against the refusal of their planning application to the Planning Inspector. Interested parties, such as neighbours, can also submit their comments and their representations will be considered by the Planning Inspector when the decision is made. However, when the appeal concerns a householder application, comments from interested people, such as neighbours, are not allowed during the appeal process.

 

Q: I have applied for planning permission and I have been told that the decision will be made under delegated powers. What does this mean?

A: The local planning authority has the power in law to determine planning applications in its area. Determining planning applications is a function that can be carried out by a committee or a sub-committee of the Council. Very often, however, the Council’s constitution will make arrangements to delegate the function to the officer in charge of planning who, in turn, will generally delegate the function to a team member. Due to the high volume of applications that local planning authorities receive, it is not practical for the committee to consider each one. However, most Councils will make arrangements for large applications and for applications that local people believe will have a significant impact in the locality to be considered at a committee meeting.

 

Q: What are permitted development rights?

A: Permitted development rights are set out in law and apply to the whole country. They allow some common projects to be built, such as loft conversions or upward extensions, without the need to obtain planning permission. However, permitted development rights only apply to residential buildings that are houses and they don’t apply to buildings that are blocks of flats or which contain some flats. There are many other conditions and limitations, such as size limits, so it is important to check that the project meets all the criteria.

 

Q: Can I object to my neighbour’s planning application?

A: Yes, you can object to a planning application. Anybody can make comments in support of or against a planning application. You do not have to live near the site of the proposed development and even if you do, you do not have to have received a letter from the Council informing you about the application. While you can make any comments you want, you must always be respectful of other people and keep within the law. The officer determining the planning application, or the planning committee, will take all objections into account. The matters that they will be especially concerned about are issues relating to the “amenity” of the area, such as the impact on the street scene. The effect of the proposed development on the neighbouring buildings is generally an important consideration.

 

Q: Can I challenge the grant of planning permission?

A: If the local planning authority has granted permission for a development, there is no right for an objector to appeal against that decision. If you think that there are reasons to challenge the grant of planning permission, the only course of action is to file a judicial review at the High Court. The court process can be expensive, but only the court has the power to quash planning permission. You need to act fast because the court will only accept the case if it is begun within 6 weeks of the date of the grant of permission. If the court agrees that there has been a legal error, it can quash the decision. This means that the decision is overturned. In theory, the planning authority has the power to revoke a decision to grant planning permission, but this power is exercised extremely rarely because it comes with a liability to pay compensation. It should be mentioned that while it is tempting to turn to the Ombudsman for help rather than the court because there is no cost involved, unfortunately, the Ombudsman has no power to overturn a grant of planning permission. At best, it can award a small financial remedy.

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14th June 2022

 

Planning Inspector Decisions

To access this appeal decision, you can click on this link.

APP/N5090/C/21/3268546

 

Inspector:V Bond LLB (Hons) Solicitor       (Non-Practicing)
Appeal Decision date:07 June 2022 (“the Decision Letter”)
Site Address:72 North End Road, LONDON NW11 7SY
Local Planning Authority:London Borough of Barnet
Date of enforcement notice:08 February 2021

 

The breach of planning control alleged in the notice

“Without Planning Permission, the formation of a hardstanding to the front of the property”

Appeal brought on grounds set out in section 174(2) Town and Country Planning Act 1990 as amended (“the Act”):

Ground (a); Ground (c); Ground (f)


The breach of planning control identified by the enforcement notice was:

“Without Planning Permission, the formation of a hardstanding to the front of the property.”

The requirements of the notice were:

“1) Remove the hardstanding and restore the land back to the state it was in prior to the breach occurring (as shown in the attached 3rd photograph), the works to include the reinstatement of the dwarf wall, small garden and concrete hardstanding; and

2) Permanently remove from the property all constituent materials resulting from the works in 1. above.”

Ground (c)

The Inspector dealt first with the appeal under Ground (c). This is set out in the Act as follows:

“that those matters (if they occurred) do not constitute a breach of planning control.”

According to the account given in the Decision Letter, the case the Appellant had submitted on this ground of appeal was that the demolition of the dwarf wall was permitted development. However, it appears that no evidence had been submitted to the Inspector in relation to the breach itself, ie. the formation of the hardstanding, disputing that this represented a breach of planning control. The Inspector held that the appeal on Ground (c) failed.

The demolition of the dwarf wall was considered again in relation to the appeal on Ground (f).

Ground (a)

Turning to the appeal under Ground (a), the Inspector identified the main issue as the impact on highway safety. The Inspector found that there would be a harmful effect. The Inspector concluded that this was in conflict with Policy DM17 of the Council’s Development Management Policies (2012), as well as the Council’s Residential Design Guidance (2016).

The Inspector considered “Other Matters.” The Council had raised the issue of a harmful effect of the hardstanding on the character and appearance of the area but had also conceded that there were other similar developments in the same road. The Inspector said that this did not change the assessment of Ground (a) appeal. Planning permission for the deemed planning application was refused.

Ground (f)

The remaining ground of appeal was Ground (f). This states:

“that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach.”

The Inspector said this referred to the two purposes that an enforcement notice can achieve. In this case, the Inspector found that the purpose was to remedy a breach of planning control. This conclusion was reached, firstly, by drawing on the requirement of the notice that the land should be restored to its previous condition. Secondly, by reference to the photo the Council had produced in evidence of the land in its previous condition. The appellant did not take issue with the photo. Thus, the purpose was not to remedy an injury to amenity.

The Inspector agreed that the demolition of the dwarf wall represented permitted development. However, insofar as the demolition of the wall was “necessary to facilitate the hardstanding” the Inspector considered it was “part and parcel of the unauthorised development” (para 15). Therefore, removing the requirement to rebuild the wall would not in itself remedy the breach of planning control. Accordingly, there were no lesser steps that could remedy the breach of planning control. Ground (f) failed.

In conclusion, the enforcement notice was upheld and planning permission was refused.

Comment:

Having identified the impact on highway safety as the main issue, the Inspector concluded that this development was harmful. Consequently, it was in conflict with the planning policy requiring the safety of “all road users,” specifically “pedestrians” (paragraph 9). The Appellant had been correct to point out that in some important respects the enforcement notice conflicted with permitted development rights but in the Inspector’s view this could not override the policy considerations in these circumstances.

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14th June 2022

 

My property was formally rented out as a small HMO. Now it is rented to a family. Do I need planning permission to rent it as a small HMO again?

 

My property was formally rented out as a small HMO. Now it is rented to a family. Do I need planning permission to rent it as a small HMO again? – NB. Some years ago, the Council brought in an Article 4 direction restricting permitted development rights from C3 to C4.

This is a question that FGLP received recently from a property owner in London. Of course, each case is different, and if you are facing a similar issue, you are always advised to check with the Local Planning Authority. In short, though, as I explained to the property owner who asked this question, I think the most likely response from the planning department is that in the circumstances this change of use will require planning permission.

There are two reasons why this is likely. Firstly, the landlord confirmed that an Article 4 direction requiring planning permission for houses to change from a C3 use (single-family dwelling) to a C4 use (small HMO) was in place in the area where the property is located. The default is therefore that you need to make a planning application.

Secondly, even if the earlier use of the property had been as a C4 HMO, before and during the time when the Article 4 direction came into effect, the fact is that after that the property was in C3 use and rented to a family. This lasted for some years. This suggests that in legal terms the C4 use has been “abandoned.” There are court decisions which have set out that there are four criteria the court will consider when deciding whether a use is abandoned. The intention of the owner is one of the criteria, but it does not override the others and the court will look at all the circumstances. The four criteria are:

(a) the physical condition of the building;

(b) the period of non-use;

(c) whether there had been any intervening use;

(d) any evidence about the owner’s intention.

In this landlord’s case, there was a period of several years when an “intervening” use had taken place. Also, the use was clearly intentional and carried out with the landlord’s knowledge and approval. Altogether, in my view, this indicates that the C4 use can be considered to have been abandoned and the landlord will need to apply for planning permission for a C4 use of the house.

In contrast, there is the case of a client who was recently granted a certificate of lawful use even though it was impossible to prove that the use of his house as separate flats had been in place for a continuous period of ten years, ie. every single day. In that case, the client had applied for a certificate of lawfulness to confirm that while his house had previously been used as a single-family house, it had later been rented out as separate flats. The client made no attempt to deny that there had been times when one or another of the flats had been vacant. This was between tenancies. However, the vacant periods had been only for a couple of days or 2 – 3 weeks at the most. During those times the flats had been marketed with estate agents, proving the owner’s intention that the use should remain the same. There had been no other use of any of the flats, although the property owner had sometimes used the vacant periods to call in builders to refurbish and decorate the flats.  His intention had always been to let the flats to new tenants again. The Council accepted that there had been no abandonment in these circumstances and granted the certificate of lawful use. 

1st June 2022

 

The Council has sent me a tree replacement notice. What should I do?

 

A client recently asked: The Council has sent me a tree replacement notice. What should I do? 

This question came from a client who came to the practice quite late, ie. after he had already been sent a summons by the Council and fined in the Magistrates Court for contravening a tree preservation order (“TPO”). He had pleaded guilty and paid a fine. He had thought that this would be the end of the matter.  

However, a TPO imposes a legal duty on tree owners to replace the protected tree if it has been destroyed. The duty still exists even if the tree owner has breached the order and been prosecuted. According to the National Planning Practice Guidance,” Replacement trees should be of “an appropriate size and species and planted at the same place as soon as the owner of the land can reasonably do this.” 

When the owner of the land does not plant a replacement tree the Council can issue a tree replacement notice. The matters that it can consider before issuing the notice are, for example, whether it thinks it will be a useful deterrent to others. They can also consider the impact on amenity and. 

A tree replacement notice can be issued at any time up to four years after the breach of the TPO. 

Non- compliance with a notice is not an offence. However, after the notice has come into force, the Council will have the right to enter the land and to replace the tree itself.  

If you receive a tree replacement notice, you have the right to appeal to the Planning Inspectorate. There are strict time limits for this, and the appeal must be with the Planning Inspectorate by the latest on the working day before the notice comes into force. 

31st May 2022

 

My neighbour has made an untrue accusation.   What can I do?

What can you do if a negative comment is posted on the Council’s website?

If you have submitted a planning application to the Council, you could find that somebody who takes part in the public consultation about the application may post something online that you find unacceptable. It can be distressing to find that someone has made a negative comment about you. In some cases, the negative comment might seem insulting, or it might be a statement that you know to be untrue. It is unsettling to find this on an “official” website. It can be particularly upsetting if you know that it is one of your neighbours who has made this negative comment.

Responses to the public consultation about your planning application are available to anybody who is looking for information about the planning application. The negative comment that you have concerns about could also be repeated or paraphrased in the officer’s report when the application is determined, although in itself it is unlikely to be a relevant factor when the officer is making a recommendation to grant or to refuse permission. As it is likely to be an insignificant factor in the greater scheme, especially if your application is granted permission, you may decide to ignore the negative comment, even though the data can stay online for years to come. However, there are other options if you think there is a good reason to address the issue.

What can you do about it?

If the person who posted the untrue comment to the Council’s website is not willing or able to take action to put the situation right for you, you may find other options helpful. For example, you can use the Council’s own complaints process to raise the issue. Alternatively, you can write to the Council to ask them to take down the post with the negative comment. Write to the planning officer, but send a copy to the Chief Executive, too.

Should you get legal advice?

While it is generally not necessary to go to the expense of involving a solicitor to resolve an issue of this kind, it is a sensitive situation and some support from your solicitor could be helpful. They can help you to draft your letter in a way that shifts the focus away from the personal element of the situation and more towards constructive action.

Legal action will only be appropriate in the most serious cases. Council websites usually contain warnings about behaviour that is not tolerated, but sometimes an email may slip through. If the comment you are concerned about could amount to discrimination or racism or if it could be described as a hate crime, the Council should deal with it immediately. Your solicitor can advise you on whether you have a case. You may be advised to proceed against the Council or against the person who posted the comment, or both.

The majority of cases will be less serious. In theory, if the negative comment attacks your reputation, it may be possible to win damages for defamation. In practice, however, especially if your application is granted planning permission, the cost of legal action, not just financially but also including the time and effort expended, could be disproportionate in comparison with any benefit.

To sum up, setting aside serious matters such as discrimination, if you find that somebody has made a negative comment about you on the Council’s website, even where you know it is untrue, you may want to consider whether you could simply ignore it. It may be galling for you to read, but for the planning officer determining your application, it is likely to be an irrelevant matter that they will not take into account when they make their recommendation. The negative comment should not have any consequences for the “main event,” ie. the grant of planning permission.

A lot will depend on the specific circumstances. If you are uncertain about whether you should take any action, do not hesitate to give your solicitor a call to talk through the situation.

Photo by freestocks.org from Pexels

 

16th March 2022

 

Planning decisions in the news this month  

The planning related stories in the news this month have highlighted how the law and regulations can have significance for people’s lives.  

Major developments in the news have involved high rise residential buildings. For example, the proposal for a 52-storey tower in Canary Wharf in London has made the headlines. The planning application for this development was to have been considered at a meeting at Tower Hamlets Council this month, but after the intervention of the London Fire Brigade, the application was withdrawn. The LFB expressed concern that the developers had apparently not provided sufficient information about the resilience of the building in case of fire breaking out.  

In the meantime, the global developer behind the scheme at Westfield in West London recently submitted plans to Hammersmith and Fulham Council for a complex of new homes. The development scheme included a 35-storey tower block with just one staircase. This site is close to where Grenfell Tower once stood, the site of the deadly fire in June 2017. This is not the only instance of a fire in a high-rise building, but the proximity of the proposed development to Grenfell struck a particularly sensitive chord. The ongoing inquiry has heard numerous, vivid accounts of how difficult it was to use the stairs on the night of the fire.

Although it is currently permitted for tall residential buildings to have only one staircase, it has been announced that the plans for the building are to be revised, after campaigners and fire safety experts had expressed their strongly held opposition on safety grounds. 

Meanwhile, significant reform of safety regulations for buildings is anticipated for later this year. The Building Safety Bill, which is due to have its second reading in the House of Lords on 2 February, includes proposals that are designed to give residents of high-rise buildings more power to hold developers and builders to account. Among other proposals, the Bill will create the new role of Building Safety Regulator whose function will be to oversee the safety and performance of buildings considered to be high risk.    

Specifically in relation to the risk posed by serious fires, when it comes into force the Fire Safety Act 2021 aims to improve accountability for fire safety in multi-occupied residential buildings. Amendments to the Regulatory Reform (Fire Safety) Order 2005 will clarify who is responsible for the external structure, including the doors and windows set in external walls, the common parts, and the doors between the domestic premises and the common parts.  

Finally in the news, a significant infrastructure proposal for a controversial scheme linking England France by undersea electricity cables has been refused by the Secretary of State for the Department of Business, Energy and Industrial Strategy (BEIS). The Secretary of State determined that the AQUIND Interconnector, a scheme for an electricity link between Portsmouth and Dieppe in northern France would have adverse effects on the area and that it was necessary to consider appropriate alternative routes. The scheme had attracted protests in Portsmouth, and the Secretary of State’s decision was welcomed by many local people and politicians. 

Photo by Aleksandar Pasaric from Pexels.

 

24th January 2022

R (on the application of Wyatt) v Fareham BC - Leave to appeal granted

The Court of Appeal has granted permission to appeal in the case of R (on the application of Wyatt) v Fareham BC, recognising that the case has connotations beyond the local area.

The case deals with an advice note published by Natural England relating to 12 local planning authorities in the Solent region requiring developments to be ‘nitrate neutral.’

Permission to appeal has also been granted in relation to the judge's conclusion that the decision-maker had complied with the duty contained in s. 38(6) of the Planning and Compulsory Purchase Act  2004.

The Court of Appeal has directed that the appeal be expedited.

Gregory Jones QC and Conor Fegan are instructed by Fortune Green Legal Practice on behalf of the Appellant.

#courtofappeal #planninglaw #environmentallaw #planningpermission #residentialdevelopment

25th November 2021

ULEZ

What are the advantages of the ULEZ?

This week the Ultra Low Emission Zone was extended significantly. ULEZ was introduced in London in April 2019 to combat illegal levels of Particulate Matter (PM) and Nitrogen Dioxide (NO2) occurring in the capital. It will now cover an area over 18 times larger than before. This article explains the advantages of ULEZ.  Read more here: https://www.centreforcities.org/blog/londons-ulez-expansion-where-is-next/

22nd November 2021

Is a planning contravention notice serious?

First of all, some free advice. If your Council has sent you a Planning Contravention Notice (PCN), you should fill it in 100% truthfully and send it back to the Council on time. By law, the time limit you have for sending it back is three weeks, starting with the date of service of the notice. The notice does not mention any exceptions.

To emphasise this, in the template for the PCN which is used by many local authorities the time limit appears under the heading “Warning”.

This is a serious matter, but it is also true that three weeks is a relatively short period of time and compliance can be difficult. If the form arrives when the addressee is on holiday, as recently happened to a client of mine, the time period is obviously even shorter.

If I am late, will I have to pay £1000?

Recently, a client was concerned that any delay could cost £1000, because the notice explains that this is the maximum fine on conviction. In other words, in the most serious instances of the offence, this fine can be the worst outcome, ie. the maximum penalty. Where there is a prosecution and the person is found guilty and convicted, the court takes everything about the case into account before deciding the level of the penalty. It needs to be sure that the mitigating circumstances, which are the factors that count in your favour, are balanced against any negative, or aggravating circumstances before deciding the level of the sentence.

One factor the court will consider is the length of delay. If the notice is sent back to the Council after a long delay, or it isn’t sent back at all, the fine imposed by the court is likely to be bigger, and if the delay is short, it is likely to be smaller.

Will the Council prosecute me for sending back the PCN after the deadline?

In reality, it is extremely unusual for a Council to take a person to court for a delay in returning a PCN. Court cases cost the Council time and money to prepare. These resources should only be allocated to the most serious matters and where there is a wider benefit to society in starting a prosecution. Councils should also make sure they are acting proportionately. Put simply, there are usually more important things on which the Council should focus its efforts and resources.

Does the time limit really matter?

Yes, even if a prosecution and fine are uncommon in these circumstances, the time limit still matters because breaking the law is not to be condoned. In addition, it is important to remember the Council’s main reason for serving a PCN, which may well be the first stage of the planning enforcement process. It is a tool to enable the Council to find out information. When they have the answers to their questions, they can decide whether to serve a planning enforcement notice and they may want to take action quickly. If there is a delay in sending back the PCN, the Council could think this has come about because the person has something to conceal.

Conclusion – and a real example

In conclusion, these questions about PCN are exactly the type of thing that solicitors can help with. Often a solicitor can help with weighing up the risks that homeowners and property developers may face when they are dealing with the planning system. It is not the aim to suggest that responding late to a PCN is OK, or that deadlines are unimportant, but it is to explain to why clients should not fear a fine of £1000 if there is a short delay. That is a very, very unlikely outcome and the risk is extremely small. To give a real life example, when my client was served with the PCN on a Monday, meaning that the 21-day period for submitting the notice ended on a Sunday, he did not have to worry too much that the Council would decide to start a prosecution if the notice was sent back on the next working day.

22nd November 2021

What is a Planning Contravention Notice?

Recently there have been a number of enquiries about planning enforcement. Some clients have asked about what a Planning Contravention Notice is, and what is does.

To begin with, I would advise clients to remember that if the Council has sent you a Planning Contravention Notice (“PCN") it is because they want to find out more about a possible breach of planning control. Under the power set out in section 171C of the Town and Country Planning Act 1990, they can use this notice to require that you answer questions about activities being carried out. They can ask wide-ranging questions, and ask you to provide any information that you have about the land they are investigating, and the activities there. You may also be asked to provide details about who is involved in the activity, together with their contact details, such as their addresses. If you don’t return the completed PCN to the Council within 21 days, or you provide false or misleading information, the Council has the power to prosecute you.

A planning solicitor can advise you on any questions you may have about completing a PCN, and you can contact Fortune Green Legal Practice for more information, at www.fglp.o.uk #planninglaw #planningpermission # #legal

22nd November 2021