Localism Bill

Memorandum submitted by the National Association for Planning Enforcement (L 116)

Members of NAPE, the National Association for Planning Enforcement, have identified several areas of concern in the recently published Enforcement package impact assessment. This document sets out those concerns and also queries sections of the impact assessment where the meaning is unclear.

1. Overall comments

1.1 Why legislation is needed (p1) says certain areas have been identified where the planning system makes it difficult to enforce and these weaknesses need to be remedied by legislative measure. While this is a step in the right direction, it fails to recognise that a new deterrent power is not the only change that is needed. Delivering the development that local communities have agreed to/dealing with breaches of planning control requires a mixture of PREVENTION and DETERRENT measures.

1.2 The policy objectives/intended effects of the Bill are said to be to increase confidence in local planning authorities and the enforcement system.  As NAPE has been stressing to the Minister, Government Officials (and now to the Committee); what is included in the Bill is not enough to achieve this aim.

1.3 Both LPAs and communities need some mechanism for knowing when development is about to take place; i.e. a statutory requirement on the developer to notify the LPA of an intention to commence development. This will enable the LPA to check that any pre-commencement conditions have been complied with and then check on the development at a very early stage. A similar power was introduced in the Planning (etc) (Scotland) Act 2006 with failure to comply being a new breach of planning control. This very simple measure would prevent many of the day-to-day enforcement complaints which collectively undermine the public’s confidence in the effectiveness of the planning system. This power is needed more than ever before because many developers choose to use private companies for Building Control approval so the LPA has no means of knowing when development is about to start. (A draft of the required clause has already been submitted) 

1.4 The summary of the analysis and evidence for the Bill (p2) says it will be easier for LPAs to enforce against breaches of planning control but the only new power is to deal with "deliberate deception". As the Impact Assessment itself points out (p12) the cases when this power will be needed are likely to be rare. Enforcement is already the most litigious part of the planning process and likely to continue to be so as lawyers are already arguing over the term, "concealed breach" as this is what happens in all enforcement cases to varying degrees. 

1.5 NAPE is listed as being party to an informal consultation that informed the assessment. We would like to put on record that the "directed questions" put on an informal basis to the Chair of NAPE are not in our opinion "consultation". Had a full and proper consultation process been carried out the points that we are making now, would have been put forward. As the professionals who deal with enforcement we also feel it is necessary to correct some inaccuracies and misunderstanding about how planning enforcement works in this section of the Impact Assessment.

2. Evidence base

2.1 ALL development needs planning permission; deemed permission or express permission (p5) – the sentence should read "Many types of development require a formal application to a planning authority for planning permission or a similar consent."

2.2 The paragraph under the heading "lifting the time limit" (p5) starts by discussing the service of an enforcement notice and what happens if it is not complied with. It then finishes by saying "the notice must be issued within 6 months of the breach occurring". There is no such timescale in relation to an enforcement notice – it is unclear which notice is being referred to.

2.3 The paragraphs (p6) dealing with the increased fine for being found guilty of not complying with a Breach of Condition Notice (BCN) show a lack of understanding of how this procedure works. It can only be used for a limited number of conditions such as hours of operation as its purpose is to secure full compliance. It therefore cannot be used on pre-commencement conditions. In any event many authorities prefer to serve a Breach of Condition Enforcement Notice in order to vary the terms of compliance, allow for an appeal, a high penalty for non-compliance and the option of default action by the LPA – a powers that the BCN unfortunately lacks (but could have been remedied in the Bill).  A Level 4 fine will have only a very marginal effect on increasing the public’s confidence in the enforcement system and is no deterrent to someone who has no respect for the planning system.


3. Assumptions

3.1 It is unclear what is meant by "enforcement actions" relating to advertisement offences (p7). Does this mean prosecutions?

3.2 Presumably figures are estimated as no statistics are kept of advertisement prosecutions (LPAs do however record successful prosecutions on a voluntary data base)

3.3 Advertisements are a very low priority for most LPAs and up to 1500 prosecutions per year seems rather a high figure (p7)

3.4 The estimate of time taken to investigate an illegal advertisement (an investigation only being closed when there is a consent, the advert is removed or there has been a successful prosecution) seems to be very low. This has a knock-on effect to the costings that are provided, however given that the LPA will no longer have to prove the date on which the breach took place there could be some saving in time, but 3 – 5 hours still seems too short a time to most enforcement officers for investigating breaches of advertisement control (p7)

3.5 The estimate of 5 hours for the time of an Enforcement Officer’s involvement in a successful prosecution for failure to comply with a BCN does not seem adequate (p9). The basis for costing and saving therefore need to be questioned.

3.6 It is unclear what has been factored into the assumption that "serving an enforcement notice and potential appeal can take 0.5 to 5 days of an enforcement officer’s time." (p13). Enforcement Notices are not served without there being thorough investigation of the alleged breach of planning control, the gathering of evidence including the use of PCNs, preparing the "expediency report" whether for committee or delegated approval, the drafting the terms of the notice and the steps for compliance, in some instances serving copies of the notice, preparing an appeal statement and attending an appeal (which can last for more than one day).

3.7 Further costs are incurred in checking compliance with the notice or in preparing for a prosecution if there has not been compliance. These costs also need to be factored into the equation.

3.8 The fine for non-compliance with an enforcement notice is £20,000 in the Magistrates Court, but this is a triable either way offence. In the Crown Court, there is no maximum fine, but in determining the amount the court has to have regard to any financial benefit which accrued or appears likely to accrue to the offender.

3.9 In the final section "New Burdens" (p15) it is assumed that for any additional enforcement action taken in exercising the new powers there should be off-setting savings through an easier prosecution process. NAPE has raised concerns on many occasions that ultimately the integrity of the planning enforcement process is in the hands of Magistrates who are not trained to "value"  the environment or amenity in the same way they are traffic offences or offences against the person. Serious breaches of planning and listed building control which the community may have suffered for months/years sometimes only receive fines that are paltry in comparison with the harm done and the potential gains from development. What confidence does that give the public in the planning enforcement system? Increasing the responsibilities of Magistrates, as proposed in the Bill, will require significant work by the Justice Department, if there is to be any noticeable increase in the public’s confidence in the planning enforcement system.

February 2011