Applying the principles of planning
Making better enforcement decisions
William Orbinson QC Legal Associate RTPI Affiliate IPI
Guildhall 11 November 2014
What are you getting?
Enforcement – catnip for lawyers
Denny Crane: You're one of those planning lawyers?
Peter Barrett: Is there something wrong with that?
Denny Crane: They're evil-doers ...
‘Boston Legal’
The discretion to enforce, and not to enforce
The dangers of mañana, mañana, and the legal dangers of not enforcing
Nullity
The Mansi principle
Immunity
Defending a ground (a) appeal/deemed planning application
Importance of officer and legal advice
The discretion to enforce, and not to enforce
No obligation always to enforce - an exercise of discretion
Test is whether it is “expedient” to enforce, having
regard to the development plan and all other material
considerations
A key consideration is acceptability of the unauthorised
development in planning terms
In a plan-led system, the decision on expediency must
be made in accordance with the development plan
unless other material considerations indicate otherwise
Para 3.2 PPS9 provides guidance on expediency
Must be exercised compatibly with human rights, equality
duties, and administrative law principles
The dangers of mañana, mañana …
Creative delay
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Apparently constructive engagement
Extra time to respond to warning letter
Warding off notices by applying for Certificates
Retention applications & appeals
Appealing notices
Reconfiguring/relocating the breach
Prolonging breach
Establishing immunity
The legal dangers of not enforcing
Failure to enforce can be judicially reviewed
Some possible grounds
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Failure to consider enforcing
Unlawful exercise of discretion to enforce
Failure to enforce to address breach of European law
Error of law in deciding activities are not a breach of
planning control
Failure to consider impact on those affected and
their human rights
Discriminatory reasons for not enforcing
Heavy costs implications
Complaints to the Ombudsman
Increasing trend for the disgruntled to complain to Ombudsman about official planning behaviour,
often in parallel with appeal to the PAC or judicial review
Every reason to expect that trend to continue after transition
Ombudsman decides whether there has been maladministration (very broad) and can award
compensation
Examples
Avoidable delay, faulty procedures/failure to follow correct procedures, not advising of
appeal rights, unfairness, misleading/inadequate advice, refusing to answer reasonable
questions, discourtesy/failure to apologise properly for errors, mistakes in dealing with
complaints, bias, neglect, inattention, incompetence, ineptitude, perversity, arbitrariness,
breach of Local Government Code of Conduct
Surcharge
Local Government Auditor can surcharge the Members or Officers for expenditure caused by their wilful
misconduct
Wilful misconduct = deliberately doing something wrong, knowing it to be wrong, or being reckless as to
whether it is wrong or not
Examples
•Religious etc discrimination
•Politically-driven, not planning-driven decision
•Taking a decision for extraneous/improper reasons
In planning cases, potential surcharges are very high - if you don’t pay, you could be declared bankrupt
Taking legal advice can protect you (even if it is wrong)
Nullity
Nullity
If a supposed enforcement notice is a nullity in law, it simply doesn’t exist - so, it cannot be corrected or
varied by PAC
Basis for challenge to enforcement notice or prosecution
Nullity arises where
•the notice fails to comply with the Article 68A(1) –(4) requirements for an enforcement notice
•it is so ambiguous and imprecise as to be a nullity
e.g. where the recipient cannot tell what he or she is required to do to remedy
the breach, or the notice invites the recipient to figure that out
Nullity does not arise simply because of an error in the accompanying map, as the legislation requires
no map, but such an error may contribute to ambiguity/lack of precision
The Mansi principle
The Mansi principle
The Mansi principle = an enforcement notice may not lawfully seek to restrict planning rights
So, Councils must not include requirements in enforcement notices that interfere with planning rights
If Councils do, expect the PAC on appeal to delete those requirements using its Article 70(2) power to
vary or correct the enforcement notice
Planning rights include
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Permitted development rights
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Use Class rights
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Rights granted by planning permission, and rights ancillary or incidental to primary rights granted by
planning permission (e.g. parking a car in the driveway of a dwelling house)
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Immunities from enforcement
Immunity
The recipient of an enforcement notice can appeal on ground (d), that no enforcement notice can be
taken because the breach of planning control is immune from enforcement
Breach of planning control is immune from enforcement after 5 years – Section 132, Planning Act (NI)
2011
So, now fairly easy to establish immunity
Price of freedom from undesirable development is constant vigilance
Councils need to guard against allowing undesirable development to become immune by inaction –
vulnerable to judicial review, ombudsman complaint, surcharge
Immunity
Key points in challenging immunity claims on appeal
•The onus of proof is on the appellant, but a limp performance by the Council will make the appellant’s
task much easier
•The appellant must demonstrate that the development is more likely than not immune
•Identifying weaknesses in immunity evidence, e.g.
Reliance on the word of the appellant, family, friends or business associates
Lack of independent witnesses
Conflicts in evidence
Lack of independent documentation – e.g. HMRC, rates, building control, utilities
Inconsistency with aerial photographs
Inconsistency with appellant’s press interviews, appellant’s interviews with enforcement
officers,
appellant’s advertisements/website, appellant’s financial records
Defending a ground (a) appeal/deemed planning application
Recipients of an enforcement notice can appeal on ground (a) that planning permission should be
granted for the development, and make a deemed planning application
Council should decide whether to defend that appeal/resist the deemed application exactly as it would
decide whether to grant permission on a normal planning application
Particular points
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There is no room for being punitive
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Deemed planning application must be determined on the basis of the policy applicable when the
enforcement appeal is determined, not when the enforcement notice was served
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Personal circumstances are material and have to be weighed against consequences of breach enforcement can represent unjustified &/or disproportionate interference with human rights
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Immunity, existing planning rights, and permitted development rights are material considerations
What factors must be considering in deciding to grant or refuse
planning permission?
The development plan
(BUAP/BMAP)
Currently, no greater status than any other material consideration
All other material considerations =
planning policy
any consideration serving a planning purpose and relating to the
character or use of land
e.g. prematurity, planning history, fall-back, immunity from
enforcement, creating a precedent, adequacy of infrastructure,
compatibility, amenity, environmental impacts, economic
impacts, available alternatives, planning gain, enabling
development , personal circumstances, human rights,
effectiveness of environmental controls
What’s the difference with a plan-led system?
Section 45(1), Planning Act 2011
Replicates Article 25(1), Planning (NI) Order 1991
BUT
Section 6(4) Planning Act 2011
“Where, in making any determination under this Act, regard is to
be had to the local development plan, the determination must be
made in accordance with the plan unless material considerations
indicate otherwise”
So the local development plan will have primacy – presumption is that determinations will be made in
accordance with the plan, unless …
Guidance and advice from Officers and Lawyers
Member must understand and have regard to guidance and advice from Officers and Lawyers
Officer report must
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fairly report the facts, law and policy (need not fully recite applicable policy)
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fairly report consultation responses
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fairly report objections and letters in support, highlighting anything especially significant
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give a complete planning history
Likely that Councils will require specialist legal advice on the enforcement minefield
Departing from guidance and advice
Going against advice leaves the Council open to judicial review, award of costs on appeal & possible
surcharge of Members
No obligation to follow advice, if incorrect
Incorrect advice, if followed, leaves the planning decision open to Judicial Review
Oral advice may be accepted as correcting/superseding wrong advice given in the report
Ultimately, planning balance is for Members to decide
But planning balance must be conducted according to law
Contact details
M +44 7860 245324
T +44 2890 426751
E [email protected]
Legal Associate of the Royal Town Planning Institute
Affiliate of the Irish Planning Institute
Northern Ireland Associate of PEBA: The Specialist Bar Association for Planning, the Environment
and Local Government