Enforcement powers have been brought into the lime light following a case involving Mr & Mrs Shepherd who owned a farm in Devon which they had been using as a campsite. During a trial for their breach of planning control the couple stated the only authority they recognised was God.
They were ordered to return use of their site back to that of a farm as was permitted by their planning rights via the issue of an enforcement notice in January 2017. The couple did not comply with the enforcement notice as they stated their only duty was to 'our father almighty god' and that 'no man can serve two masters'. Following the couples refusal, the matter progressed to Exeter Crown Court where they denied charges of failing to comply with an enforcement notice.
Sadly the Court's didn't agree and the Jury at Exeter Crown Court found the Shepherds guilty. The Judge ordered Mrs Shepherd to pay fines and costs totalling just over £16,000. The amount was to be paid within three months or she may risk facing a prison sentence. Her husband however was ordered to pay £2,888 within three months to avoid a 28 day prison sentence.
What happens if you do not comply with planning controls?
The Local Authority are able to carry out planning enforcement where a development has been carried out without the grant of the correct planning permission required or where conditions of a permission have not been complied with.
The decision of whether a Local Authority would chose to take enforcement action is discretionary.
What options do the Council have in terms of planning enforcement?
The full suite of planning enforcement powers are contained in the Town & Country Planning Act 1990 (as amended). These include breach of condition notices, stop notices, temporary stop notices and injunctions. The more common tools in the planning enforcement officer's repertoire are planning contravention notices and enforcement notices.
Planning Contravention Notice ("PCN")
A Planning Contravention Notice usually requires any interested parties/owners to give information relating to any uses or operations being carried out on the land. A "PCN" can have regard to anything relating to the use and development of the land, a planning condition or limitation.
An Enforcement Notice is issued where there has been a breach of planning control and it is deemed expedient to issue the notice.
An Enforcement Notice will be sent to the owners/occupiers and anyone else with an interest in the land affected. An Enforcement Notice could require the alteration or removal of buildings or works, the carrying out of building or other operations, any activity on land not to be carried on except to the extent specified in a notice and, in relation to demolished buildings, the construction of replacement buildings. The Notice will set out when to comply with the requirements.
Time Limits to bring action?
If a land owner has carried out without planning permission any building, engineering, mining or other operations on, over, under land – the time limit is four years beginning with date on which operations substantially completed.
If a land owner has changed the use of any building to use as a single dwelling house then the period in which to bring enforcement action is four years beginning with the date of the breach.
In the even any other breach of planning control has taken place, the Local Authority has a period of ten years in which to bring enforcement action from the date of the breach.
If any of the above are relevant, land owners can make an application for a Certificate of Lawfulness.
Right of appeal?
A person with an interest in the land or the occupier can appeal to the Secretary of State against any notice.
What happens if you do not comply with the Enforcement Notice?
For the owner of the land subject to the Notice, a criminal offence has been committed if the period for compliance has expired and the steps required have not been carried out or any activity required to cease has not ceased.
If an individual is able to show they have done everything they could be expected to do in the circumstances they may be able to provide a defence.
Enforcement can result in a costly situation for landowners. Developers have been required to demolish entire buildings as a result of action and if works continue in breach of an enforcement notice, as highlighted in the above case, a criminal offence is committed. This can result in jail time and claims being made for any profits associated with that breach under the Proceeds of Crime Act 2002. Landowners and developer should therefore be wary of the potential implications of even inadvertently breaching planning controls.
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*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.