Localism Bill

Memorandum submitted by Ross McNeill (L 132)

1.0 Summary

Chapter 5, Section 103 Retrospective Planning Permission

The application of this clause in the bill relies on the Local Planning Authority having successfully applied an Enforcement Notice on the land.

There can be a considerable time scale involved from notice of Breach, through issue of Enforcement Notice to expiry of all appeal periods before the Notice is enacted. This will negate the ability of LPA to decide to refuse a rapid retrospective application after breach on the grounds that no Enforcement Notice is currently valid. The LPA may also have applied negotiated compliance which is not considered.

2.0 Consideration of Enforcement Notice Appeal being allowed.

Action by an LPA to refuse to accept a retrospective application under the terms of the bill could become unlawful if the Enforcement Notice applied on the land is subsequently overturned at Appeal. This will lead to LPA’s accepting all retrospective applications to prevent costs incurred in erroneous refusal to accept.

3.0 Consideration for lack of previous Enforcement by LPA’s on reported breaches.

With increasing costs of Enforcement LPA’s are setting priority for Enforcement based on a set priority list. This may mean that an Enforcement Notice to a reported breach has not been issued but has been subject to negotiated compliance and so the LPA does not have the right to refuse any subsequent retrospective application.

e.g. Wychavon District Council

http://www.wychavon.gov.uk/cms/business-and-planning/planning/planning-enforcement.aspx

Enforcing compliance with planning control can be both time consuming and complex. Cases will be judged against a set priority list, which will speed up the response to a complaint and ensure that residents are kept well informed of the progress. In most cases the Council will try to negotiate compliance rather than pursue formal action. However, in those cases where serious environmental damage or harm to the amenities of neighbouring residents is taking place, or where damage is being caused to protected trees and/or listed buildings, then the Council will use the full range of powers available to bring the matter speedily under control.

Whilst it is a criminal offence to carry out unauthorised works to a listed building or a protected tree, it is not illegal or an offence to carry out a development or use that does not have proper planning permission. It is merely unauthorised and no criminal offence has been committed. Only when the Council have served formal enforcement or similar notices, all avenues of appeal have been exhausted and time periods for compliance have expired, does a use or development become illegal and a criminal offence.

The person against whom an enforcement notice is served has rights of appeal which must be respected although this may result in some delay in securing a resolution of the matter.

Feb ruary 2011