Monday, October 08, 2018
s172 Planning enforcement notices
I often have bewildered clients calling with questions about planning enforcement notices- What do I do if I have been served with a planning enforcement notice? Do I take it seriously? Can I appeal? What are the consequences of non compliance with a planning enforcement notice?
The first thing to say is don’t panic. There are criminal sanctions available if the notice is not complied with but these are often a tactic of last resort by the local authority. The notice should be taken seriously though. Not only does the notice require that certain actions are completed in respect of the land but also failure to comply with the terms of the notice constitutes a criminal offence.
I will try to address some of the basic in respect of the criminal law side of planning enforcement in this article. This is designed to be a basic layman’s guide to a complex area of the law. Please see my other blog posts for more detailed analysis of the various matters outlined in this article.
What is a planning enforcement notice?
Simply speaking, where a local authority is satisfied that there has been a breach of planning control and that it would be expedient to them to issue an Enforcement Notice, they possess a discretionary power by virtue of section 172 of the Town and County Planning Act 1990 to do so. Such notices must particularise the breach and lay out the steps the authority requires be taken or what activities must cease in order to remedy the breach. The notice may be appealed against.
What happens if I fail to comply with a planning enforcement notice?
Failure to comply with a planning enforcement notice in the absence of an outstanding appeal is an offence under section 179 of the Town and Country Planning Act 1990. It is often said that the offence is one of quasi strict liability in that the notice must be complied with, if it is not then the owner of the land commits a criminal offence (see R v Collett  2 All E.R. 372). Criminal liability falls upon all those served with a notice. The notice attaches to the land, not to the individual. So if the land changes hands there is no need for the council to re-serve the enforcement notice as it remains validly attached to the land itself, not the person upon whom it is served. Therefore, the purchaser of a land that is subject to an enforcement notice commits a criminal offence if he purchases the land and does not comply with the terms of the notice.
Are there defence available to a prosecution?
If the enforcement notice is not complied with then liability falls under s179A. A person has a defence under section 179(3) of the Town and Country Planning Act 1990 if they show that they did everything they could be expected to do to secure compliance with the notice.
Section 179(7) of the Town and Country Planning Act 1990 also provides a defence if the defendant is able to show that, amongst other things they were not aware of the existence of the notice, that the notice was not served on them and that the notice was not contained on the appropriate register. This is a niche defence and legal advice should be sought if you think that this applies to you.
What are the financial consequences of conviction?
Upon conviction the defendant may be labile for a financial penalty by way of a fine, the maximum fine is unlimited so consequences can be severe for wealthy individuals and corporations. The defendant will also have a criminal record.
The proceeds of the rental of property which is owned in breach of a planning enforcement notice or any other pecuniary advantage gained from the property could be said to be criminal property under s340 of the Proceeds of Crime Act. Post conviction, the turnover will be liable to confiscation under POCA. Also, regardless of the prosecution position, any person acquiring or possessing monies that came from the illegal occupation of the notice contrary to the terms of the enforcement notice may also be committing a separate criminal offence under s329 of POCA.
What do I do if I receive a planning enforcement notice?
One of the most important things in respect of enforcement notices is to keep open lines of communication with the local Council who issued the notice. Putting one’s head in the sand and hoping that it will go away will not help the situation.
There are rights of appeal and it is important that they are explored. Time limits apply so make sure that you gain advice in a timely manner in this way criminal sanctions may be avoided. If proceedings for breach have already been issued, then you should seek advice immediately. Councils do not like taking people to Court and if the case is picked up expeditiously then negotiations can take place with the council to try to avoid litigation and criminal conviction. The longer this is left the more entrenched the Council’s position will become.
If you find yourself served with a planning enforcement notice and do not know what to do or if you find yourself facing proceedings for breach of an enforcement notice you should seek specialist legal help as soon as possible. Quentin Hunt is a Barrister who specialises in cases involving planning enforcement issues, you may contact Quentin directly for a free no obligation conversation about your case.