October 28, 2020

Compliance, compliance, compliance…

Planning Law solicitor, Michael Harman discusses some recent appeal and Court decisions concerning compliance period – particularly in the context of planning enforcement notices.

Issuing an enforcement notice

To set the scene, a Local Planning Authority (‘LPA’) may issue an enforcement notice where it appears to it that there has been a breach of planning control and that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material consideration (per s172 Town and Country Planning Act 1990).

I add that an LPA may (not must) issue an enforcement notice where it appears to them that there has been a breach of planning control and it is expedient to issue the notice. The taking of enforcement action is usually the cumulation of an investigation by the LPA and, in some cases, even if the LPA considers that it may be expedient to issue a notice they will not do so initially but instead invite a form of application to resolve the issue at hand.

Within the 1990 Act there are various further provisions as to the content and effect of enforcement notices (s173), the variation or withdrawal of enforcement notices (s173A) and a statutory right of appeal (s174); for which there are prescribed grounds of appeal (see more below).

Readers will, I hope, be aware that it is a criminal offence to not comply with the requirements of an enforcement notice, once it has taken effect and the compliance period expired, (per s179) and that the consequences of such may not only be a fine but, in some cases, imprisonment. Maters may get worse because, following a successful conviction, an LPA may apply for a confiscation order under the Proceeds of Crime Act 2002 – the purpose of such confiscation orders being to recover the financial benefit that the wrong doer has obtained from their criminal conduct; which is typically the income (not profit) and can be substantial in the case of rental receipts from an unauthorised dwelling or house in multiple occupation etc.

No compliance period, no valid enforcement notice

Section 173(9) is clear in that an enforcement notice shall specify a period at the end of which any steps requirement to be taken, or activity ceased, to address the breach must have been carried out. This is commonly referred to as the compliance period.

Unfortunately, a enforcement notice issued by Leeds City Council, which identified a period for compliance “within the next three months” to remove unauthorised shipping containers, trailers and associated vehicles and vehicle parts, failed to identify an actual period of time for compliance and fell foul of this rule. The case of Miller-Mead v MHLG [1963] JPL 151 has long established the principle that an enforcement notice must be clear on it “four corners” what a recipient is required to do or abstain from doing – an enforcement notice with vague or ambiguous requirements offends that rule and is a nullity. In June of this year the Planning Inspector had no trouble finding that the enforcement notice was a nullity and hence no further action could be taken with the appeal.

For this reason, an enforcement notice will, for example, prescribe a date by which action is to be taken etc; typically by reference to a number of weeks or months from the date that the enforcement notice takes effect.

So a useful reminder for recipients of an enforcement notice to look at how it has been drafted and whether it is clear.

One word of caution however, it was open to Leeds City Council to re-issue a new enforcement notice following the Inspector’s decision that the original one was a nullity. So, the Inspector’s appeal decision is unlikely to be a “golden bullet” for the appellant in that case; Leeds City Council may have lost that battle but they may still win the war…

Planning applications made during an enforcement notice compliance period

It is not uncommon for an application to be made seeking to regularise the breach of planning control; the applicant’s aim being that, if they obtain planning permission, then the provisions of s180 confirm that the provisions of any enforcement notice will cease to have effect so far as inconsistent with that planning permission.

I pause that, under the Localism Act 2011, the government introduced a power (at s70C) for an LPA to decline to determine an application for planning permission for development if doing so would mean granting planning permission in respect of the whole or any part of the matters specified in an existing/extant enforcement notice as constituting a breach of planning control. This decision must be exercised rationally but the discretion is wide (per Wingrove v Stratford-on-Avon DC [2015] PTSR 708) – and will invariably be used if an enforcement notice is not the subject of an appeal and the enforcement notice has taken effect. Even if the compliance period has not yet ended.

This point is well illustrated by the facts of the case in Kpogho v London Borough of Brent [2020] EWHC 1905 (Admin).

In Kpogho planning permission was obtained in October 2017 for several extensions to a dwellinghouse. However, the extensions were not built in accordance with the permission. In September 2018 a retrospective application was submitted seeking to regularise the dwelling with its extensions. Prior to the determination of that application the Council, in November 2018, issued an enforcement notice requiring Mr Kpogho to demolish the unauthorised extensions. Mr Kpogho did not appeal the enforcement notice; the enforcement notice took effect on 7 January 2019 and the date for compliance was 7 July 2019.

Within the compliance period Mr Kpogho, on 15 April 2019, made a further retrospective application with some amendments to the proposal.

The Council refused the September 2018 application on 1 March 2019; the later application (15 April 2019) was refused on 21 June 2019.

Spotting that he only had a few weeks to comply with the enforcement notice, Mr Kpogho asked the Council to extend the compliance period (as to which s173A(1)(b) afford an LPA the power to waive or relax the requirement(s) of an enforcement notice, including extending the time for compliance). The Council refused.

Mr Kpogho submitted an appeal against the refusal of his second retrospective application (i.e. that made on 15 April 2019; a Planning Inspector allowed his appeal subject to amended plans which showed a rear single-storey extension to be demolished.

Mr Kpogho complained to the Court, by way of an application for Judicial Review, that the Council had acted irrationally by failing to extend the time for compliance with the enforcement notice; namely to align with the decision in the appeal of his second retrospective application.

The Court gave Mr Kpogho short shrift; it was held that the Council was entitled to take into account that there had been no appeal against the enforcement notice and, also, that it had refused both retrospective planning applications. The fact that the Inspector had taken a different view on the planning merits of Mr Kpogho’s application did not render the Council’s decision irrational.

This case perhaps emphasises a few things. Firstly, the importance of appealing an enforcement notice before it takes effect; particularly if aggrieved as to the extent/nature of remedial action required, the “keenness” of the compliance period and/or the recipient wishes to obtain planning permission retrospectively. All of such fall within the prescribed grounds for an appeal against an enforcement notice. A reminder that an enforcement notice will confirm the date on which it takes effect; this is typically 28 days after its date of issue and service.

Secondly, if we do not appeal an enforcement notice but instead seek to obtain planning permission retrospectively, then we must be mindful of the fact that, initially, the LPA may not entertain the application (per s70C) but, even if they do, there is no guarantee of planning permission being obtained. Hence the time for compliance may end up being (very) tight and the LPA may not agree to an extension if sought. As above, the effect could be prosecution for non-compliance with the enforcement notice or, less commonly, direct action by an LPA to carry out remedial action required by the notice.

Fines for non-compliance with an enforcement notice

I wish to briefly touch upon the case of Western Trading Ltd and another v R [2020] EWCA Crim 1234. In that case the Appellant was fined £25,000 for non-compliance with an enforcement notice which it sought to overturn by appeal to the High Court and then Court of Appeal.

Western Trading were issued with an enforcement notice in April 2014. An appeal was not successful. Western Trading did not comply. Three years after the date for compliance Birmingham City Council began a prosecution. At first instance the judge found that there has been “obdurate disobedience” by Western Trading and had attempted to avoid the cost of remedial works (estimated at £25-£30,000 had the work been done properly). The Judge started at a £40,000 fine but this was reduced following early guilty pleas and the fact that remedial works had been carried out (at an eventual cost of £60,000) following a deferment of sentencing.

The Court dismissed the appeal finding that the fines were not manifestly excessive.

I wish to briefly touch upon the case of Western Trading Ltd and another v R [2020] EWCA Crim 1234. In that case the Appellant was fined £25,000 for non-compliance with an enforcement notice which it sought to overturn by appeal to the High Court and then Court of Appeal.

Western Trading were issued with an enforcement notice in April 2014. An appeal was not successful. Western Trading did not comply. Three years after the date for compliance Birmingham City Council began a prosecution. At first instance the judge found that there has been “obdurate disobedience” by Western Trading and had attempted to avoid the cost of remedial works (estimated at £25-£30,000 had the work been done properly). The Judge started at a £40,000 fine but this was reduced following early guilty pleas and the fact that remedial works had been carried out (at an eventual cost of £60,000) following a deferment of sentencing.

The Court dismissed the appeal finding that the fines were not manifestly excessive.

This decision is consistent with what we, as a team, have seen in cases where people are being prosecuted for non-compliance with an enforcement notice; namely, fines typically start in the five-figures and work upwards. Non-compliance with an enforcement notice carries real risk therefore.

Compliance periods; breach of planning condition(s)

One of the grounds of appeal against and enforcement notice, but also the basis of an application for a Certificate of Lawfulness under s191, is that a breach of planning control has existed for the prescribed period within s171B and, hence, is now lawful – or immune from planning enforcement action. In the context of a breach of condition the relevant period is 10 years (per s171B(3)). For operational development, or the change of use of an existing building to a dwelling the relevant period is 4 years (per s171B(1) and s171B(2) respectively).

The two cases I discuss remind us that the breach must be continuous throughout the whole of the relevant period in order for immunity to arise. Such can arise in the context of existing building being put to an unauthorised residential use but also breaches of planning conditions; the two cases I discuss touch upon both.

The first case (London Borough of Islington v SoSHCLG [2019] EWHC 2691 (Admin)) is the older of the two and was decided in October 2019. In that case Maxwell Estates owned the ground floor and basement of a premises with an established use for professional and financial services (then Use Class A2 now Use Class E). The upper floors were in residential use. In early 2013, Maxwell Estate converted the based into a residential flat and subsequently leased to a tenant from April 2013. They did not seek planning permission for this change. The tenant stayed until October 2013. Following the tenant’s departure Maxwell Estates decided to renovate the basement – they accepted that the basement was “gutted” to facilitate these works which included damp proofing, re-wiring and tiling a shower room etc. The renovation works started in November 2013 and on 4 February 2014 a certificate was signed by private building inspectors certifying that works had been completed. The basement was advertised for re-let in March 2014 and a tenant took up occupation in May 2014. That tenant stayed for two years with new tenants moving into the basement in May 2016 and staying there until May 2018.

In November 2017 Maxwell Estates had applied for a Certificate of Lawfulness on the basis that the change of use had existed for more than 4 years at that time and, thus, was immune. The Council rejected the application, citing the absence of occupation/use between October 2013 and May 2014. The Council then issued an enforcement notice having been satisfied both to the existence of the breach but also that it was expedient to take action to maintain the integrity of the Conservation Area as well as the planning process but also finding that the poor quality of accommodation was contrary to policy. The enforcement notice was issued in Janaury 2018.

Maxwell Estates submitted an appeal against the enforcement notice which the Inspector allowed on prescribed ground (d); i.e. that there had been a continuous period of use as a dwelling for more than 4 years, including the period of renovations (November 2013 to May 2014) following the tenant’s departure in October 2013.

The Council were not happy with the Inspector’s decision and made a statutory challenge to the High Court under s289.

The High Court allowed the appeal and quashed the Inspector’s decision. In so doing, the High Court re-affirmed the cases of Thurrock and Swale which confirms the statutory test that the use had to exist throughout the whole of the relevant period so that the planning authority could at any time take enforcement action. If, for example, the Council would have been unable to take enforcement proceeding, for example because no breach was taking place, then that period could not count towards the period of time which gives rise to immunity. In other words, ther is no presumption of continuance in respect of a change of use which had ceased to be an active use before immunity had arise. So in Maxwell Estates the inspect should not have considered the flat’s availability or suitability for residential use, but whether (during the relevant period) it was actually put to such a use.

The second case concerns an appeal and does not make new law but, again, reminds us that a breach of condition must be continuous in order for immunity to arise. In this case East Midland Helicopters (‘EMH’) were issued with an enforcement notice alleging a breach of planning control for failing to comply with a planning condition limiting their hours of operation to 7am to 9pm each day (except in an emergency). The site was in close proximity to a number of dwellings and Rushcliffe Borough Council issued the enforcement notice in order to safeguard residential amenity.

EMH appealed arguing that the relevant condition had been breached for more than 10 years and hence was immune (a ground (d) appeal). EMH further argued that, alternatively, the condition should be varied to increase the hours of operation and sought retrospective planning permission to that extent (a ground (a) appeal). On 1 September 2020 an Inspector dismissed both grounds of appeal.

In terms of the ground (d)/continuous breach for 10 years argument, EMH produced flight logs showing that the condition had been breached each and every year between 2008 and 2019 and EMH argued, rather boldly, that they had never intended to comply with the condition. EMH therefore argued that the breach should be regarded as continuous rather than a series of individual breaches.

The Inspector, correctly, addressed the question as to whether, on a balance of probability and as a matter of fact and degree, the breach of condition had been continuous and referred to the cases of Nicholson v SSE, North Devon DC v Stokes and Basingstoke and Deane DC v SSCLG(1) and Stockdale(2) in making that decision. The Inspector considered that the number of specific breaches was an important consideration as were issues of timing and intent. The Inspector did assess the first breach as occurring more than 10 years before the enforcement notice was issued but the first year in which there were more than ten breaches was 2011.  Whilst accepting that it would not be necessary for a breach for every day of the 10-year period to show immunity, the Inspector specifically cited a period between November 2010 and April 2011 in which there was not record of any breach.

The Inspector found that this 6-month period between November 2010 and April 2011 was significant and so, when a further breach occurred in May 2011 the 10-year period started again. The enforcement notice was thus issued before immunity had been obtained and this the ground (d) appeal was dismissed.

The Inspector did comment that in the early years the intermittent pattern of breaches did not demonstrate anything about intent, rather an occasional failure to comply with the condition. This appeal case, as well as a recent reminder of existing case law, provides a useful example as to how the Inspectorate may approach immunity periods insofar as relevant to an enforcement notice appeal (or indeed refusal of Certificate of Lawfulness); I imagine that it will also be of interest to LPAs when determining applications under s191.

[n.b. the Inspector also dismissed EMH’s appeal for retrospective planning permission/varying the condition. The Inspector found that the original condition as drawn struck an appropriate balance between EMHs operational needs and the amenity of neighbouring occupiers.]

Perhaps these cases highlight the value of not only taking advice before applying for a Certificate of Lawfulness – because as Maxwell Estates found out a refusal may very well lead to an enforcement notice – but also advice as to understanding the terms and effect of a condition because there is always the option of seeking to vary or remove condition (by formal application or within 12 weeks/6 months of grant of planning permission) rather than finding yourself on the wrong end of an enforcement notice(!).

Whether a use is immune from enforcement action is a point upon which the team is frequently asked to advise. And I add that in some cases, a short period of non-use, may not disentitle a claim to immunity. Each case will be fact sensitive of course.

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