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Development consent orders: enforcement
This article was first published here by Westlaw UK on 14 August 2014.
A Development Consent Order ("DCO") is a statutory instrument granted by the Secretary of State to authorise the construction and development of a Nationally Significant Infrastructure Project. The nature of these projects are defined by ss. 14-30 of the Planning Act 2008. Examples of such projects are power stations and large offshore wind-farms.
The DCO is the document issued at the end of the examination process conducted under the Planning Act 2008. It is a single document that provides a composite authorisation for the project, which in effect grants planning consent, compulsory purchase powers if required and other statutory consents to enable it to proceed such as rights to discharge water or the stopping up and diversion of highways and public rights of ways. It is granted following an extensive pre-application consultation process followed by an examination of the application which is conducted by the Planning Inspectorate. There are also a number of safeguarding provisions incorporated in the Planning Act 2008 to deal with consents that may be required to carry out the works either with statutory undertakers, or other bodies with specific roles and enforcement responsibilities. Some of these consents can be a deemed consent within the DCO, a consent that has to be obtained within the provisions of the DCO, or a consent that is obtained outside the DCO process. At the conclusion of the examination the DCO is granted in an agreed form incorporating an agreed position on the required consents.
The DCO contains a Schedule of Requirements , which are in effect the conditions which govern how the project is to be delivered. In terms of approach and content they are broadly similar to conditions found on a planning consent, and seek to govern phasing , design and operation of the project. They also consider practical matters such as landscaping, drainage and lighting.
Overview of Topic
1. The enforcement regime for DCOs is set out in Pt 8 of the Planning Act 2008 and is undertaken by the Relevant Local Planning Authority. The Relevant Local Planning Authority is the planning authority for the area within which the project is situated. In areas where there is both a district and a county planning authority, enforcement of the DCO will still rest with the district authority, except when there is a hazardous waste facility involved where the enforcement of requirements will rest with the County Planning Authority. The enforcement regime has jurisdiction over the development authorised by a DCO and regulated by the schedule of requirements, as well as the ability to take enforcement action against a person who carries out development requiring a DCO without one ("Unauthorised Development").
2. The Nature of the Enforcement Regime: The regime is broken down into three broad phases:
3. Investigation and evidence gathering: The monitoring of compliance with the DCO conditions may be delegated to a particular officer within the Council, or as is more likely in the current climate will be a reactive response to a complaint from an aggrieved person. In order to consider whether there has been a breach, the officer of the Council has two principal ways to collect evidence.
4. In terms of collecting documentary evidence the officer has the power to serve an Information Notice.
5. The notice can be served if it appears to the Local Authority that an offence may have been committed, either in failing to comply with a condition or requirement imposed by a DCO or in respect of Unauthorised Development.
6. It is a notice served on the owner or occupier of the land or any person who is carrying out operations on the land or using it for any purpose.
7. The notice will request details of the following:
a. Details of owners and occupiers
b. Details of mortgagees
c. Information relating to the operations/activities/uses being carried out in, on, or under the land
d. Information relation to any DCO authorising the operation/activities/uses on the land
8. The notice gives a period of 21 days from the date of service for a response to be returned to the Council. A failure to respond is a criminal offence and is liable on conviction to a fine not exceeding level 3 on the standard scale. A person who returns a notice with a response that he knows to be false or misleading in a material respect is also guilty of a criminal offence and is liable on conviction to a fine not exceeding level 5 on the standard scale.
9. The Investigating Officer, has a right to enter land without a warrant whilst investigating whether there has been a breach of a DCO requirement , or Unauthorised Development. The officer needs prior written authorisation from the Local Authority and if he is to enter a dwelling house there is a requirement for 24 hours prior notice on the occupier. If entry onto the land had been refused and the case is one of urgency a warrant can be applied for at the local magistrates court.
10. Once the evidence has been collated it will be for the case officer often with legal support to ascertain whether an offence has been committed and whether it is in the public interest to proceed with a prosecution. In reality there is often a period where if there are breaches that require action there may be a period of abeyance whilst the owner/occupier of the land takes the required action to an agreed timetable. In the absence of such a period of abeyance the breach may proceed to prosecution.
11. Prosecution / Injunctive Relief: In the event that evidence is collected and a decision to issue proceedings is made by the local authority this will take the form of a summons issued initially in the local magistrates court. In terms of the summons issued in the Magistrates court, the offences relate to carrying out Unauthorised Development or carrying out development in breach of the terms of a DCO, or failing to comply with the terms of a DCO. The offences are triable either in the Magistrates Court or the Crown Court depending on the seriousness of the offence. On conviction the maximum fine in the Magistrates Court is £50,000 per offence, in the Crown Court the fine is unlimited.
12. There is also provision to enable the Local Authority to apply for an injunction against a person or organisation where it considers it expedient or necessary for any activity that may be taken or is about to be taken should be restrained by the court . Such enforcement powers would be used sparingly and are only normally exercised when there is a real prospect of an installation of perhaps a nuclear power station not being constructed in accordance with the DCO consent.
13. The proceedings must be issued within strict time limits. In respect of Unauthorised Development or a breach of the terms of the DCO, within 4 years of substantial completion of the development, or if an Information Notice is served, or an injunction is issued four years from the date of service of the information notice or date of issue of the application for an injunction as is appropriate.
14. Notice of Unauthorised Development and Works in Default: In the event that the Local Authority secures a conviction against a person who has committed an offence pursuant toss.160 or 161 of the Act, the Local Authority has the ability to serve a Notice of Unauthorised Development on the convicted person. The notice can set out a number of steps and activities that are required to be carried out and can involve the removal of any unauthorised developments, the restoration of the land to its previous condition. The notice also has to set out the steps required to remedy the breach or failure. It must also set out the time period within which the various steps must be undertaken, and different periods of time can be specified for different steps in the notice.
15. In the event that the steps specified in the Notice of Unauthorised Development are not completed by the end of the period stated in the notice, the Local Authority has a discretion to take action in default. The Local Authority has the ability to enter onto the land and take the required steps and then seek to recover from the person who is convicted any expenses reasonably incurred. This will normally involve the local authority to seek three quotations for the work to evidence the reasonableness of the costs that may be incurred, carrying out the works and then seeking recovery of the sums incurred.
16. In addition, if a Notice of Unauthorised Development has been served and the owner of the land has incurred expenditure in seeking to comply with the notice, and or has met the costs of the Local Authority acting in default, those costs are deemed to be incurred for the use and at the request of the person who is convicted of an offence. At present those sums can be recovered from the convicted party, the means of securing the repayment of costs has not been precisely defined , although normal remedies of seeking charging orders on land based assets and other debt recovery process are anticipated.
17. The practical issues that I can foresee arising, are concerned around the nature and scale of works in default that may have to be undertaken by a district council. In the current financial climate many smaller authorities will have ever decreasing reserves and a shrinking budget. It would not be difficult to foresee a situation where a significant percentage of the revenue budget of the authority could be targeted to carry out works in default on a nationally significant project. If this is financed by borrowing or some other method and recovery is not straight forward and immediate, this could have budgetary consequences for the authority in the next fiscal year. The position could lead to a reluctance on the part of the authority to carry on works in default. It does not seem appropriate to burden the smaller authorities with the enforcement of such large scale national projects.
18. Other complementary enforcement regimes involved in a Development Consent Order: As set out above there is an element of the consent process that has safeguards built in to protect those agencies and bodies that have jurisdiction over statutory regimes. These consents can if agreed be deemed to be granted as part of the DCO process, there are other categories of consent that are not deemed as part of the DCO process, and require consent to be obtained as the project develops, and there is provision for the necessary consents to be obtained out with the DCO process. If there are conditions imposed in respect of a consent which are breached or works take place in the absence of a consent, then enforcement of those breaches will not fall to the relevant local authority, but will be enforced by the relevant agency.
19. The enforcement of any breaches are likely to be as a response to a complaint, or as a result of a parallel investigation by the relevant local authority in response to breaches of the requirements of the DCO.