3 Planning and Compulsory Purchase Bill
Letter from Rt Hon Jeff Rooker MP, Minister for
Regeneration and Regional Development, Office
of the Deputy Prime Minister
1. I am writing in response to the Eighth Report
of the Session 2003-04 in which the Committee expresses concern
about Government amendment 143A (now clause 52) to the Planning
and Compulsory Purchase Bill regarding temporary stop notices.
You have raised a number of points relating to
the grounds and procedure for issuing a stop notice,
whom notices are served on
appeals against temporary stop notices
the effect on Gypsies and Travellers
Grounds and procedure for issuing a temporary
stop notice
2. Temporary stop notices are being introduced
to give local planning authorities (LPAs) a new power to take
early action against all types of unauthorised development where
they consider it expedient. Given the wide range of situations
in which such powers may need to be used, it would not be feasible
to define more precisely in advance in the legislation when they
should be used. Any misuse of the powers would be subject to judicial
control in judicial review proceedings. It is accepted in the
Strasbourg jurisprudence that it is legitimate for states to create
powers which may need to be used by public authorities in conditions
of urgency in wide discretionary terms, subject to subsequent
judicial control against arbitrariness (compare Bronda v Italy
(2001) 33 EHRR 4, para. 52 and Petra v Romania (2001) 33
EHRR 5, paras. 37-38). That is what is proposed here.
3. There is no requirement under the ECHR that
in the area of planning control (or, indeed, in other areas) enforcement
action by public authorities should only be permitted after prior
judicial authorisation. It would not be appropriate to introduce
such a requirement in the present context, where it may be important
that a local planning authority should be able to act speedily.
4. In the planning field, it is well established
in the Strasbourg and domestic caselaw that the general position
is that assessment of a situation by a planning authority coupled
with a right of judicial review is acceptable under the Convention.
No requirement of a hearing before a temporary stop notice is
issued is written into the legislation because generally there
will not be a requirement that such a hearing be given in the
sort of urgent cases where these powers would be used. If there
were any Convention requirement of a hearing after the issue of
such a notice, it would be met in most cases by the usual procedure
whereby ordinary stop notices and enforcement notices may be challenged
and set aside, and in any other cases—if any such arose
on particular facts—by virtue of the obligation upon LPAs
which would then apply under s. 6(1) of the HRA to act compatibly
with Convention rights in any case.
5. New clause 171E of the Town and Country Planning
Act 1990 ("the 1990 Act") enables local planning authorities
to issue a temporary stop notice where there has been a breach
of planning control in relation to land and it is expedient that
the activity stop immediately. Temporary stop notices cannot prohibit
the use of any buildings as a dwellinghouse The provisions mirror
those for stop notices as set out in section 183 the 1990 Act.
6. Guidance on the use of enforcement powers
generally is set out in "Enforcement Planning Control: Good
Practice Guide for Local Authorities". This guidance will
be revised to incorporate temporary stop notices. A planning authority's
decision to take enforcement action must always be well founded.
The Guide says "whether it is expedient for the authority
to initiate formal action … requires thorough assessment
of the relevant factors in every case". LPAs are advised
to have a clear statement of enforcement policy to provide a decision-making
framework. LPAs making decisions about the use of these discretionary
powers on a "whim" face being challenged by judicial
review.
Temporary Stop Notices ("TSN")
7. Temporary stop notices can be served on any
of the following—the person who the authority think is carrying
on the activity; a person who the authority think is an occupier
of the land; a person who the authority think has an interest
in the land. It is for the authority to decide which is the most
appropriate person. Again, given the wide variety of situations
in which these powers may have to be used, it would not be appropriate
to adopt any different approach which might hamper rather than
promote the effective enforcement of planning controls. In cases
where such persons cannot immediately be located, it is correct
that criminal liability may arise on the basis of a notice displayed
prominently at the site. That is the usual position under the
existing planning legislation, and is particularly justifiable
in the context of the need for urgent action in which temporary
stop notices would be used. There are appropriate defences available,
to ensure that the application of these provisions strikes a fair
balance in the circumstances and is proportionate.
8. The temporary stop notice must specify the
activity that the authority think amounts to the breach and set
out the authority's reasons for issuing the notice. Again, these
provisions mirror those in the 1990 Act. They are provisions which
directly assist individuals' to know their position and seek relief
from the courts, if appropriate, in judicial review proceedings.
Appeals
9. Any person affected by the temporary stop
notice would be able to exercise other rights under the planning
legislation. The person would be able to apply for retrospective
planning permission for any development that has taken place,
under section 73A and for planning permission in relation to further
proposed development. Alternatively, the person may apply for
a Lawful Development Certificate (section 191 of the 1990 Act),
where it is considered that the development is lawful.
10. The temporary stop notice would operate for
a short period of time; 28 days at maximum. Where the local planning
authority do decide to take action, a person affected would be
able to seek redress through the enforcement measures taken. In
the case of an enforcement notice the person would be able to
appeal to the Secretary of State and in the case of an injunction,
the person would be able to defend the proceedings.
11. For temporary stop notices, the decision
being taken by the local planning authority is whether there has
been a breach of planning control and whether it is appropriate
that the breach should be temporarily stopped to enable consideration
as to whether further enforcement action is appropriate. The rights
of the person carrying out the breach of planning control are
affected for a relatively short period of time. Judicial review
is considered a sufficient remedy, given the nature of the interference.
If those rights have been interfered with unlawfully, because
the person carrying out the development was entitled to do so
in any event, compensation is payable.
Gypsies and Travellers
12. The temporary stop notice provision applies
to persons in breach of planning control but does not prohibit
the use of any buildings as a dwellinghouse or the carrying out
of an activity of a description or in circumstances prescribed
in regulations (section 171F(1)(b)). Therefore in respect of caravans,
it would apply to persons residing in caravans on land without
planning permission unless such regulations apply.
13. The distinction is made between buildings
and caravans, in part, because of the nature of the development.
The detrimental effect of caravans moving onto land and being
resided in will be greater than an existing building already situated
on land (ie already part of the landscape) then being used for
residential purposes. In addition, with buildings, there is an
opportunity for LPAs to take enforcement action at the stage when
the building is built, prior to it being occupied as a residence;
whereas, with caravans, this initial opportunity for enforcement
will not be available. It may be added that where a building has
been erected over time without enforcement action being taken,
the occupier may have a legitimate expectation that he will be
able to make use of it; such a consideration would not apply in
relation to a caravan taken onto land for the first time. Also,
the practical reality that a home in a caravan can be moved without
ceasing to be a home; the same is not true of a building.
14. The temporary stop notice provision contains
a power (171F(1)(b)) to prescribe other circumstances when temporary
stop notices will not apply to an activity. It is the Government's
clear intention not to commence the temporary stop notice provisions
until regulations are in place that will condition their use with
regard to persons living in caravans, with the intention that
they will have similar protection to those who live in dwelling
houses as I said during the debate last week. Therefore, the legislative
scheme as a whole, when it comes into effect, will not differentiate
at all in this respect between caravans and buildings. In those
circumstances, there could be no question of treatment of individuals
in contravention of any rights they might have under Article 14.
15. We intend to use regulations to condition
the use to which the temporary stop notice powers may be put because
we want to consult fully as to how these powers might operate
in practice. This would not be possible if the condition were
placed on the face of the Bill. We would also want the flexibility
to change the position with regard to caravans as further detail
of the policy around Gypsy and Traveller accommodation develops,
and/or as local authorities make greater provision of sites for
caravans in their areas.
16. The Committee is concerned that the provision
does not satisfy the requirements of Article 1 of the First Protocol
because there are insufficient safeguards. The Committee's report
at paragraph 5.4 lists a number of matters that are of particular
concern. Article 1 of the First Protocol provides that a person
is entitled to the peaceful enjoyment of his possessions. It is
a qualified right and I accept that any interference of such a
right under must be for a legitimate purpose and must be proportionate.
In addition to the points already made above, I have set out below
why the provision for temporary stop notices would not contravene
Article 1 of the First Protocol and why the power is proportionate.
17. The temporary stop notice provision could
not lawfully be used in a way that contravenes Article 1 of the
First Protocol and Article 14 of the European Convention on Human
Rights. The temporary stop notice powers will be subject to section
3 of the Human Rights Act 1998, and must be read so that they
are compatible with the Convention rights. Prior to issuing a
temporary stop notice, the LPA must be satisfied that there has
been a breach of planning control and that "it is expedient
that the activity which amounts to the breach is stopped immediately",
see section 171E(1)(b). Section 171E(3) requires the local planning
authority to give reasons for issuing the notice on the face of
the notice. The LPA must therefore be satisfied that immediate
cessation of the activity is expedient in the circumstances and
must set out its reasons for this decision on the face of the
notice.
18. The purpose of the provision is to temporarily
stop breaches of planning control, as such breaches may cause
harm to the amenity of an area and immediate cessation would stop
harm occurring that could not be or would be difficult to remedy.
There are many other provisions where the issue of a notice to
require a person to carry out certain action is not subject to
a prior hearing such as the issue of an enforcement notice or
breach of condition notice (sections 172 and 187A of the 1990
Act). What is important is that there are sufficient safeguards.
In the case of temporary stop notices any unreasonable decision
on the part of the local planning authority, or a decision which
breached Convention rights, would be challengeable by judicial
review As the reasons for the issue of any notice must be stated
on the notice, any person affected would have clear notice of
such reasons and be able to take advice as to whether the actions
of the LPA were unreasonable or in breach of the Human Rights
Act 1998.
19. It is also our intention that guidance issued
in respect of the use of temporary stop notice will advise LPAs
that the provision should be used in a reasonable and responsible
manner. The guidance will also advise that LPAs should provide
a mechanism whereby persons affected by a temporary stop notice
will be able to make representations regarding the temporary stop
notice.
20. The temporary stop notice powers are further
regarded as proportionate, because the interference with a person's
right under Article 1 of the First Protocol will be for a limited
period only. LPAs are prevented from issuing "repeat notices"
(section 171F(5)). A LPA cannot therefore issue continuous notices,
it must decide whether it wishes to take further action; the temporary
stop notice will cease to have effect after 28 days.
21. The temporary stop notice will have effect
upon any person contravening the notice provided the notice has
been displayed properly upon the land. Any person contravening
the notice is liable to prosecution. There is a defence available
where the person did not know or could not reasonably have expected
to have known of the existence of the notice. This provision replicates
the provisions of 187 of the 1990 Act relating to stop notices.
The provisions of section 329 of the 1990 Act would also apply
where local authorities in serving a notice cannot, after reasonable
inquiry, ascertain the name of the person upon whom a notice can
be served, may leave the notice in a conspicuous place on the
land marked as an important document. Again it is considered a
reasonable and proportionate provision given the nature of the
problem being addressed. Temporary stop notices are intended to
make temporary provision, applying for only a short period of
time to enable urgent action to be taken to prevent any increase
in possible harm to the amenity of an area whilst the local planning
authority obtain sufficient information and decide whether further
planning enforcement action is necessary.
22. The Committee has also expressed concern
that that the provision would not be compatible with Article 14
of the ECHR taken together with Article 1 of the First Protocol.
This is because the provision prevents a temporary stop notice
from prohibiting the use of a building as a dwelling but does
not prohibit the use of a caravan as a dwelling, and it might
be said that this would tend to discriminate indirectly against
Gypsies and Travellers, who are more likely to reside in caravans.
However, there are objective reasons, which justify the different
approaches to buildings used as dwellinghouses and caravans used
as a residence. The distinction between the approaches to buildings
used as dwellinghouses and caravans used as a residence arises
from the different natures of the development and from the different
effects on the environment and amenity. Caravans moving onto land
and being resided will have a greater effect than an existing
building already situated on land (ie already part of the landscape)
then being used for residential purposes. However, with buildings,
there is an opportunity for LPAs to take enforcement action at
the stage when the building is built, prior to it being occupied
as a residence; whereas, with caravans, this initial opportunity
for enforcement will not be available. In addition, where a building
has been erected over time without enforcement action being taken,
the occupier may have a legitimate expectation that he will be
able to make use of it; such a consideration would not apply in
relation to a caravan taken onto land for the first time and there
is the practical reality that a home in a caravan can be moved
without ceasing to be a home; the same is not true of a building.
The temporary stop notice provision is not discriminatory for
these reasons because it arises from the different circumstances
in which people in caravans live and the mischief the provisions
are designed to address, see paragraphs 12 and 13 above.
23. From consultations with relevant groups,
I was made aware of the possible effects this provision may have
on persons who reside in caravans. As I have explained in paragraphs
11 and 12 above, it is the intention that regulations will provide
that temporary stop notices shall not prohibit the use of caravans
as an only or main place of residence and that the temporary stop
notice provision will not take effect until the necessary regulations
are in place. Therefore, the legislative regime as a whole will
not, when it is introduced, involve any differential treatment.
24. Please accept my apologies for not writing
to the JCHR on this issue. I am advised and I am satisfied that
these provisions are fair and proportionate and do not contravene
Article 1 of the First Protocol and Article 14 of the Convention.
It was certainly not my intention not to inform the House of the
amendment. The amendment was in fact brought to the attention
of the Delegated Powers and Regulatory Reform Committee because
it introduced additional provisions for secondary legislation.
24 March 2004
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