It is important to recognise that where there is an alleged breach of planning control local planning authorities are responsible, in the public interest, for deciding what (if any) enforcement action should be taken.
The choice of enforcement actions that are available to local planning authorities when there has been an alleged breach of planning control is extensive. A temporary stop notice is one of those options. This power was introduced by section 171E of the Town and Country Planning Act 1990 which was added to the act in 2004. However, statistics have shown that between July 2014 and June 2015 only around 25% of local planning authorities issued temporary stop notices. The London Borough of Kensington and Chelsea and the London Borough of Newham issued the most of these notices.
When should a temporary stop notice be used?
The issuing of a temporary stop notice is discretionary. A local planning authority may issue the notice, under the powers conferred by section 171E of Town and Country Planning Act 1990, if they believe there to be a breach of planning control and that "it is expedient that the activity which amounts to the breach is stopped immediately". Planning Practice Guidance makes clear that:
"The local planning authority should ensure that a temporary stop notice's requirements prohibit only what is essential to safeguard amenity or public safety in the neighbourhood; or to prevent serious or irreversible harm to the environment in the surrounding area.
Stop notice or temporary stop notice?
Whereas a stop notice must be accompanied with an enforcement notice to be effective, this is not the case with temporary stop notices, i.e. they can be issued as a stand-alone notice. It is therefore quicker than issuing a stop notice as the local authority is not required to wait until the enforcement notice has been served, nor do they have to wait the 3 days after the date the stop notice is served for it to take effect. Therefore where immediate action is required, for example to preserve land or otherwise immediately halt any unlawful activity or development, a temporary stop notice rather than a stop notice should be issued.
It is important to remember that a temporary stop notice is only valid for a period of 28 days. After this time, if there remains a threat of the activity resuming the local planning authority must decide whether to take subsequent and alternative types of enforcement action.
What if the local authority gets it wrong?
Compensation may be payable by the local authority "for any loss or damage directly attributable to the prohibition effected by the temporary stop notice". The circumstances in which compensation is payable are set out in section 171H of the Town and Country Planning Act 1990, but in summary compensation is only payable if:
"a) the activity specified in the temporary stop notice was the subject of an existing planning permission and any conditions attached to the planning permission have been complied with;
b) it is permitted development (including under a local or neighbourhood development order);
c) the local planning authority issue a lawful development certificate confirming that the development was lawful;
d) the local planning authority withdraws the temporary stop notice for some reason, other than because it has granted planning permission for the activity specified in the temporary stop notice after the issue of the temporary stop notice."
Although it should be slim, it seems that the risk of compensation becoming payable is probably the main reason why local authorities have been reluctant to issue temporary stop notices. As the effect of a temporary stop notice is to immediately halt the activity, this can have immediate adverse consequences for a developer or a business, perhaps more so than would be caused through the issuing of a stop notice, which at least affords the developer or business some advance warning as to the halting of operations. Having said that, where a stop notice is withdrawn or if the related enforcement notice is "quashed, varied or withdrawn" compensation may also be payable by the local authority.
Whether or not a temporary stop notice should be issued is ultimately a decision for the local authority and is dependent on the particular circumstances. Whilst some have commented that the issuing of a temporary stop notice is a draconian step on the other hand, as the ramifications of some activities are so serious and the long term impact that they may have on the land is sometimes irreversible, there will definitely be occasions when the use of a temporary stop notice (rather than a stop notice) will be appropriate to safeguard and protect the land in question. As it is now over 10 years since they were first introduced perhaps it is time for local authorities to remind themselves of the use and issue of temporary stop notices, and it will be interesting to see whether we see an increase in the amount issued in future.
This article was jointly written by Graham Cridland and Trainee Solicitor Lee Ward.