This article first appeared in the Civic Voice guest blog in June 2013.
On 24 April 2013 Stafford MP Jeremy Lefroy presented a 10 Minute Rule Bill to enable local planning authorities to impose mandatory financial penalties where planning permission has been deliberately breached. He proposed imposing an “automatic financial penalty” equivalent to the gain made by breach planning consent, i.e. if a 3 storey building is built where permission was only given for a 2 storey building, the developer should be fined the difference in value. Mr Lefroy argued that planning prosecutions and fines as currently applied are ineffective. He said: “these cases [planning prosecutions] rarely go to court and the fines are almost never imposed”. He also opined that requiring demolition is often “a disproportionate penalty” and lobbied for “an automatic sanction which falls short of demolition”.
The Bill failed to complete its passage through Parliament before the end of the session, meaning it will make no further progress. However, Mr Lefroy successfully raised the profile of planning enforcement by widely publicising his Bill, and he should be commended for that.
Tabling the Planning Permission (Financial Penalties) Bill is a symptom of the general frustration with ineffective planning enforcement action and the realisation that without a real threat of enforcement, development control is pointless. Planning breach investigations generally take a long time, often due to the ever dwindling resources within Council Planning Departments and the ever increasing backlog of complaints. The bureaucracy of Council decision making on expediency and appropriate type of action adds to the process. If an Enforcement Notice or other type of notice is eventually issued, it takes time for that notice to come into effect and if the notice is appealed, time drags out further.
Only once there is an effective notice, and investigations indicate that the breach remains, can a further decision be made on the expediency of a criminal prosecution or taking direct action (the demolition Mr Lefroy refers to). If a criminal prosecution is selected as the way forward, the inevitable to-and-fro on witness statements commences. Mr Lefroy is correct in saying that not many of these matters reach court. When they do, the reaction from the courts is mixed.
Mr Lefroy’s Bill attempted to remedy the system by adding an automatic financial penalty. Admirable though it is, this is not where the solution lies. Planning enforcement action has always been discretionary; an ‘automatic’ penalty goes against this principle. Furthermore, enforcement action should only be carried out when expedient, and sufficient checks such as appeals must remain included in the process. I don’t see how Mr Lefroy’s Bill would work in the context of the wider planning enforcement system.
While legislation can always be improved by tweaks, the biggest part of the solution to planning frustration is in rigorous application of existing powers. The heart of the matter is that planning enforcement is not effectively carried out by local planning authorities. Councils already have very wide and effective enforcement powers in the Planning Acts, the Localism Act (adopt a local enforcement plan), and the Proceeds of Crime Act, for example. They simply need to have the courage and political will to use them. Local campaigners can encourage their local authority to prioritise planning enforcement. Because a stitch in time…
* In the House of Commons, Bills introduced under the ten-minute rule are one of the ways in which backbench MPs (private Members) can introduce legislation. However, the process is used more as a means of making a point on the need to change the law on a particular subject as there is little parliamentary time available. They mainly provide the opportunity for MPs to test Parliament's opinion on a particular subject.Source: http://www.parliament.uk/site-information/glossary/ten-minute-rule-bill/
Author: Izindi Visagie, CEO Ivy Legal Limited http://www.ivylegal.co.uk
Ivy Legal provides the full planning enforcement solution to local authorities, from effective investigations to prosecutions, injunctions or direct action and subsequent costs recovery. For further information, please contact email@example.com