Chapter 5: Enforcement
Section 123: Retrospective planning permission
311.Subsection (2) inserts new section 70C into the Town and Country Planning Act 1990 – it provides that a local planning authority in England may decline to determine a retrospective planning application if an enforcement notice has previously been issued in relation to any part of the development.
312.Subsection (4) amends section 174 of the Town and Country Planning Act 1990 to provide (in relation to England only) that if a retrospective planning application has been made, but an enforcement notice has been issued before the time for making a decision has expired, the developer cannot then appeal against the enforcement notice on the ground in section 174(2)(a) (that planning permission ought to be granted – “ground (a)”).
313.Subsections (5) and (6) amend section 177 of the Town and Country Planning Act 1990 such that the Secretary of State (again, in relation to England only) may only grant planning permission when allowing an enforcement appeal if the appeal was made under ground (a) and that only ground (a) appeals result in a deemed application for planning permission.
Section 124: Time limits for enforcing concealed breaches of planning control
314.Subsection (1) inserts new sections 171BA, 171BB and 171BC into the Town and Country Planning Act 1990 to allow enforcement action, in England, to be taken against a breach of planning control when the time limits for taking action have expired and the breach has been concealed.
315.In order to use these powers, the local planning authority must apply to the magistrates’ court for a “planning enforcement order” within six months of the day on which the apparent breach came to the authority’s knowledge. If an order is granted, the authority has one year to take enforcement action. The authority can also apply for a planning enforcement order before the time limits for taking action have expired, as the expiry date may be in dispute.
316.The authority must serve a copy of the application on the persons on whom they would be required to serve an enforcement notice. Anyone served would be able to appear in court when the application was heard.
317.A magistrates’ court may make the order only if satisfied, on the balance of probabilities, that a person or persons have deliberately concealed the apparent breach.
318.Subsection (2) provides for planning enforcement orders to be included in the local planning authority’s enforcement register.
Section 126: Planning offences: time limits and penalties
319.Section 126 makes amendments to a number of planning-related offences in England. Subsection (2) raises the maximum penalty from level 3 on the standard scale (currently £1,000) to level 4 (currently £2,500) for failure to comply with a breach of condition notice under section 187A of the Town and Country Planning Act 1990.
320.For most offences prosecuted in the magistrates’ court proceedings must be brought within six months of commission. In some cases it is not clear when an offence was committed, which can lead to difficulties in bringing forward a prosecution. Subsections (3) and (4) provide that prosecution for the offences of lopping or damaging a protected tree under section 210(4) of the Town and Country Planning Act 1990, and of contravening regulations on the control of advertisements in section 224(3) of that Act, may be brought within six months of sufficient evidence of the offence coming to the prosecutor’s knowledge (but no more than three years after the offence was committed).
Section 127: Powers in relation to: unauthorised advertisements; defacement of premises
321.Subsection (1) inserts five sections at the end of Chapter 3 of Part 8 of the Town and Country Planning Act 1990.
New sections 225A and 225B: Power to remove structures used for unauthorised display
322.New section 225A allows a local planning authority in England to remove any display structure in their area which, in their opinion, is used for the display of illegal advertisements. This is not effective against a structure in a building to which the public have no right of access.
323.Before taking any action, the local planning authority must serve a removal notice on the person responsible for the erection and maintenance of the structure, provided they can identify the person. If not, the authority must fix the removal notice to the structure or display it in the vicinity and serve a copy on the occupier of the land, if one is known or can be identified. If the removal notice is not complied with within the time allowed (at least 21 days), the authority may remove the structure and recover its expenses from anyone served with the removal notice. A person who can satisfy the authority that he or she was not responsible for either the erection or maintenance of the structure cannot be required to pay the expenses.
324.If the authority damages any land or chattels in removing the structure, they must pay compensation, but not for damage to the structure removed or for damage reasonably caused in moving the structure.
325.There is a right of appeal to the magistrates’ court against a section 225A notice. However, in proceedings for cost recovery the applicant cannot raise any issue that they could have raised in an appeal against the notice.
New sections 225C to 225E: Remedying persistent problems with unauthorised advertisements
326.New section 225C allows local planning authorities in England to take action against persistent fly-posting on ‘surfaces’. They may serve an action notice on the owner or occupier of the land where the surface is situated if their name and address are known or can be discovered. If not, they may fix the notice to the surface. The action notice requires the owner or occupier to take specified measures to prevent or reduce the frequency of the unauthorised advertisements. At least 27 days must be allowed for action to be taken. If action is not taken, the authority may take the specified action itself and recover its expenses from the owner or occupier. Expenses cannot be recovered if the surface is on, within the curtilage of, or forms part of the curtilage boundary of, a dwellinghouse.
327.There is a right of appeal to the magistrates’ court against a section 225C notice. However, in proceedings for cost recovery the applicant cannot raise any issue that they could have raised in an appeal against the notice.
328.New section 225E modifies the notice procedure for statutory undertakers. If a notice under new section 225C is served on a statutory undertaker, it can serve a counter-notice on the local planning authority specifying alternative measures which would have the same effect as the notice in dealing with fly-posting.
329.Subsection (2) of section 127 inserts new Chapters 4 and 5 into Part 8 of the Town and Country Planning Act 1990.
New sections 225F to 225J: Power to remedy defacement of premises
330.New section 225F allows local planning authorities in England to take action against signs (graffiti) which it considers to be detrimental to the amenity of the area or offensive. The authority may serve a notice on the occupier of the premises requiring them to remove or obliterate the sign allowing at least 14 days to comply. If there appears to be no occupier, the authority may fix the notice to the surface. If action is not taken within the time specified, the authority may take the action itself and recover its expenses from the person who should have done it. Expenses cannot be recovered if the surface is on, within the curtilage of, or forms part of the curtilage boundary of, a dwellinghouse.
331.New sections 225G and 225H provide that the local planning authority must give 28 days’ notice of their intention to serve a notice under new section 225F on the owners of letter boxes and bus shelters and other street furniture.
332.There is a right of appeal to the magistrates’ court against a section 225F notice. However, in proceedings for cost recovery the applicant cannot raise any issue that they could have raised in an appeal against the notice.
333.New section 225J enables the local planning authority to remove signs at the request of the owner or occupier of premises at that person’s expense.
334.New section 225K modifies the provisions to enter land and do works to remove hoardings, fly-posters or graffiti so far as they apply to the operational land of transport statutory undertakers (except airports). The power can only be exercised if the local planning authority has given 28 days’ notice of its intention to do so. The statutory undertaker can serve a counter-notice which, on safety or operational grounds or to protect other works or apparatus, would impose conditions on the taking of the action. The statutory undertaker can also prevent the action being taken.
335.Section 127 replaces provisions of certain London Local Authorities Acts that apply only in relation to London with provisions that apply throughout England.
