Local Planning Authorities (“LPAs”) have a statutory role to uphold planning control within their areas. Breaches of planning control can involve the carrying out of development without planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted.
Planning enforcement is a discretionary power. It must be expedient to take enforcement action, having regard to the development plan and other material considerations. Importantly also, it must be in the public interest.
How should Local Planning Authorities deal with planning enforcement during the Coronavirus crisis?
In the specific case of the delivery of food, sanitary products and other essential products, the Government moved quickly and a Written Ministerial Statement (“WMS”) by Robert Jenrick on 13 March 2020 urged Local Planning Authorities ‘to take a positive approach to their engagement with the food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the coronavirus.’
In the WMS, Mr Jenrick says that ‘the Government recognises that increased frequency of deliveries, particularly at night, could have a temporary impact on local residents but this needs to be balanced by the significant public interest in ensuring local residents have continued access to food, sanitary and other essential goods in their local shops’.
Changes to Permitted Development rights closely followed the WMS, allowing temporary relaxation to permit pubs and restaurants to operate as hot food take-aways.
The Coronavirus crisis has introduced new practical and legal issues to dealing with planning enforcement.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the “Regulations”) came into force on 26 March 2020 and are part of the Government’s response to the serious and imminent threat to public health.
Amongst other measures, the Regulations require the closure of certain types of businesses and place stringent restrictions on the movements of individuals. Regulation 6 provides that during the emergency period, no person shall leave the place where they are living without reasonable excuse. Those reasonable excuses include to obtain basic necessities, exercise, medical assistance, to provide care and assistance to a vulnerable person and to travel for the purposes of work or to provide voluntary or charitable services where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living.
A ‘reasonable excuse’, which has had less of an airing in the press, is ‘to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings’.
Whilst leaving the house to collect materials / equipment and to attend land to undertake works required under an Enforcement Notice would probably fall within fulfilling a legal obligation, it would be a very bold LPA to initiate a prosecution if someone did not comply during the emergency period.
The practicalities of investigating possible breaches of planning control have also changed. Officers are less likely to visit sites and will need to put more responsibility on complainants to provide evidence of possible breaches including photographs, diary records and even virtual views of sites by complainants using Skype or Microsoft Teams.
Site visits from officers are likely to continue where there are allegations of unlawful works to protected trees or to heritage assets.
With regard to existing Enforcement Notices, LPAs should take a sensible and balanced view to timescales for compliance. For current outstanding Enforcement Notices, the LPA may wish to formally write to those charged with complying, to advise of an extension. This could be a fixed extension, for example three months, or until further written notice is provided.
In cases where the requirements of an Enforcement Notice have not been met inside the time limits, LPAs should assess the severity of the breach and balance the impact on those affected by a continuing breach against the public interest in holding off taking further action. The reality is that the Courts will not have capacity to deal with any new prosecutions and save for the most serious matters, LPAs will not want to risk the health of their officers or their contractors to exercise self-help remedies.
LPAs should also be mindful of the reputational damage that their actions can cause, if those actions are perceived to be officious or heavy-handed. That said, enforcement action may still be necessary in circumstances where an alleged breach may be pushing up against the four year or ten year period for immunity.
If LPAs are considering relaxing the time limits for compliance, it will be necessary to ensure that the decisions to do so are consistent with the committee authority or the scheme of delegations. It would also be prudent to advise the ward members and any complainants.
In relation to recently issued Enforcement Notices, some LPAs have already built in an extension to the compliance period to take into account a reasonable delay caused by the crisis.
Many LPAs are also reviewing how they deal with financial contributions due under Section 106 Agreements and payments of the Community Infrastructure Levy. Measures include pushing back trigger dates / events, negotiating new instalment plans and exercising discretion in administering penalties for late or missed payments or administrative errors.
During this crisis, planning enforcement will not be a high priority for local authorities as they battle to carry out their core statutory duties as well as protecting their communities. However I think that there will be cases where LPAs decide that enforcement should continue during this emergency period but they will need to tread very carefully. Except in the most serious of cases or where time periods for taking action may expire, the balance will almost certainly lie in favour of leniency.