– what does the Bill have in store?
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 which 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 determining 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.
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