Wednesday, October 17, 2018
Planning Enforcement notices - Limits lawful use and planning permission
A breach of the terms of a planning enforcement notice issued under s179 of the Town and Country Planning Act 1990 is a criminal offence, the offence however is intertwined with issues of Planning Law and I am often asked about the interrelationship between the planning position and the criminal position. Nowhere is there more confusion about this than in respect of issues of time limits, lawful use and planning permission. In this article I will attempt to explain the interrelationship of these two areas of law and how this can impact upon any criminal prosecution by Local Planning Authorities (LPAs).
The question of time limits is raised repeatedly in planning enforcement case. Questions I am often asked are- If land has been used for its current purposes for a significant period of time where Enforcement Notices have not been complied with, what is the position? Does the ongoing use of the land in breach of the notice preclude criminal liability?
The relevant rule is contained in Section 171B(3) of the Act which provides that:
“In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.”
If this is to be relied upon then there is a requirement that the land must have been continuously used for the same purpose for the entirety of the immunity period. (see Secretary of State for the Environment v Thurrock Borough Council  EWCA Civ 226,  JPL 1278).
However, such a challenge to an enforcement notice would be an issue that relates to the validity of the notice and therefore should be raised as an appeal to the issue of the notice itself. This is relevant as there is in fact no right to challenge the validity of an enforcement notice in Criminal breach proceedings, including Crown Court proceedings (see Irvine v Camarthenshire CC  EWHC 2866 and Clayton and Dockerty v Regina  EWCA Crim 1030.) This means that even if there was an available argument as to lawful use under the 10-year rule that would not be able to aired as part of a defence to a prosecution for breach of a notice.
The test for the validity of an enforcement notice is simply that the notice is: “Issued by a local planning authority which on the face of it complies with the requirements of the Act and has not been quashed on appeal or by judicial review” (see- R v Wicks  AC 92 HL para 122 E to G per Lord Hoffman).
In many cases although enforcement notices have been issued, for whatever reason, local authorities wait a long time, sometimes decades before bringing action in the Courts for breach. I am often asked if there is a time bar for bringing enforcement action. It appears not. The terms of s179 appear to be clear, the act itself states:
- Where, at any time [Emphasis added] after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
- Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
On the face of it therefore, there is no time bar to bringing a prosecution for a breach of a planning enforcement notice.
It has also been held that a Planning Enforcement Notice is not discharged even by compliance and remains in operation indefinitely. It is open to LPA’s to bring prosecutions for breaches of the planning notice even after initial compliance with the notice. (See C & P Reinforcement Ltd v East Hertfordshire District Council  J P L 1045). It is therefore clear that a time bar argument against prosecution for breach of a notice would be bound to fail.
Certificate of Lawful Use
Any person is entitled to apply under section 191 of the Act to apply to the local planning authority for a Certificate of lawfulness for existing use of development. The effect of a Certificate would be to establish a conclusive presumption that the ongoing use of the land for the purposes outlined in the certificate is lawful.
In the event that a Certificate of lawfulness were granted, no criminal liability in respect of the breaches of planning Enforcement Notices could be attached to a potential defendant. However, for the purposes of section 191, “lawful” means the developments in question are not amenable to enforcement action (France v Kensington and Chelsea RLBC  EWCA Civ 429).
If an authority is provided with information that satisfies them that the relevant conditions are met, then under section 191 (4), they must issue a Certificate of lawfulness. Lawfulness is defined by section 191(2) of the Act:
“2)For the purposes of this Act uses and operations are lawful at any time if—
(a)no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b)they do not constitute a contravention of any of the requirements of any enforcement notice then in force.”
I am often asked whether, such a certificate could be sought in an attempt to prevent enforcement action being taken. The short answer is that it is highly unlikely. The burden of proving that such conditions are met falls upon the defendant. (F W Gabbitas v Secretary of State for the Environment and Newham LBC  JPL 630) and as can be seen from s2(a) above the issue of an enforcement notice renders the use of the land in breach of the notice. It therefore could not be said to be legal use and would not succeed under a s191 application.
If a certificate of lawfulness is issued under section 191 of the Act, then no planning permission is required for the continued use of the land for the purposes prohibited by the Enforcement Notices.
In the event that a certificate is not issued, then the prospects of having planning permission granted is complicated by the existence of any Enforcement Notice. Section 70C of the Act provides that a Local Planning Authority has a discretionary power to decline a retrospective planning application on the basis that a pre-existing enforcement notice exists in relation to the land in question.
The purpose of this provision is to prevent to applicant having two opportunities to argue the merit of a development The Courts have consistently upheld LPAs’ decisions to decline applications on the basis of section 70C where the permission sought relates to the same use which led to the Enforcement Notices (see Chesterton Commercial (Bucks) Ltd v Wokingham DC  EWHC 1795 (Admin).
However, if a 3rd Party purchases land with a notice attached to it and seeks planning permission to use the land for purposes other than the purposes referred to in the Enforcement Notices, the LPA would not be permitted to refuse to consider the application on the basis of section 70C (R (on the application of Banghard) v Bedford BC  EWHC 2391 (Admin).
As can be seen from the above the interrelationship between the criminal law and planning law is complex. The main theme that arises however is that the scales are firmly weighed in favour of an LPA’s ability to prosecute for breaches of notices. If you find yourself served with a planning enforcement notice or face prosecution for breach of a notice you may wish to seek expert legal advice as soon as possible. Quentin Hunt is a Barrister who is highly experience in this area of the law. If you need help in this area you may contact Quentin for a no obligation conversation about your case.