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A call to Direct Action

Article first appeared on Local Government Lawyer website on 13 June 2013.

 

Direct remedial action is an under-utilised tool when it comes to planning enforcement. Izindi Visagie explains its advantages.

 

Planning enforcement has been neglected for many years, but with localism well and truly on the agenda, enforcement may soon find pride of place in planning services. With the squeeze on council resources showing no signs of letting up any time soon, increasing quality over quantity seems the only sensible approach. By appropriately matching the enforcement action method with the desired outcome the service could be more effective without necessarily monopolising council resources.

 

The familiar planning enforcement lifecycle goes something like this: Planning breach-> Investigations -> Report for authority -> Issuing enforcement notice -> Inevitable appeal and/or other delays -> Enforcement notice (finally!) becomes effective->……  but Planning breach continues ->

…And then what?

 

Planning breaches often persist without councils taking any further action, mostly for reasons related to resources. In the select few cases where further action is taken, prosecutions are usually favoured. But prosecutions are costly, resource intensive and, of course, a conviction and fine do not remedy the breach. Fines are often insignificant, and although stronger financial sanctions permitted by the Proceeds of Crime Act have recently improved the outlook, POCA cannot be used in all cases, e.g. if the financial benefit is under £5,000.

 

The "hidden gem" of planning enforcement is direct remedial action. Section 178(1) of the TCPA gives a local authority the power to enter onto land and “take any steps required by an enforcement notice to be taken” where they are not taken within the period for compliance with the notice.

 

One benefit of direct action is that it resolves the breach fast, which is what neighbours seek in the majority of cases. Councils have the power to sell any materials removed in carrying out the requirements of the enforcement notice and they can recover the costs of taking the action from the owner of the land. These expenses may be secured as a charge on the land, binding successive owners. Publicising direct action furthermore acts as a deterrent for other would-be offenders, reducing the need for future enforcement action.

 

Direct action can be combined with a prosecution when tackling the most recalcitrant offenders. In other cases, taking direct action instead of prosecution is better for the offender in the long term; paying the council’s costs for direct action is in most cases preferable to being convicted of a criminal offence.

Despite these obvious benefits, this power remains largely unused. One stumbling block is unfamiliarity with the process. This can be easily overcome by outsourcing the process to a specialist provider.

 

The initial costs outlay is another stumbling block. Due to its ad hoc nature, carrying out direct action is usually outsourced to contractors. In the past planning departments rarely had a budget for this (with a few exceptions such as Newham Council) and so the approval of additional spend is usually required. Notably, more and more councils seem to be moving towards allocating a budget for direct action. A recent example is East Lindley District Council, which in 2012 first allocated a budget towards exercising default powers.

 

Where no specific direct action budget exists, the process for approval is more complex, but this should not deter planning enforcement officers. In the long run, the benefits of direct action in appropriate cases far outweigh these initial obstacles. And once direct action has been undertaken, recovering the costs is simpler to recover than prosecution costs. In the writer’s experience, almost all direct action costs are eventually settled pursuant to the local land charge.

 

Residents and members have always been keen on more enforcement action. With the National Planning Policy Framework now encouraging councils to devise their own planning enforcement plans and adding emphasis on a more proactive service, planning enforcement is hopefully stepping up to attain its rightful equal place alongside policy and development management, helping to maintain public confidence in the planning system. Many local authorities are presently drawing up these local enforcement plans, and local authority lawyers will assist in the preparation.

 

When preparing local enforcement plans, local authority planning lawyers should carefully consider which methods of enforcement action are most appropriate and should advise their planning colleagues accordingly. Applied correctly, direct action is a powerful tool in the planning system.

 

Izindi Visagie is the founder of Ivy Legal, a law firm specialising in planning enforcement on behalf of local authorities. She can be contacted by email.

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