This article first appeared in the October 2014 NAPE newsletter.
We have noted with considerable interest the DCLG’s current consultation document ‘Planning & Travellers’ within which it is stated that it is the Government’s intention “…to amend national planning policy and Planning Policy for Traveller Sites to make clear that the intentional unauthorised occupation whether by travellers or members of the settled community, should be regarded by decision takers as a material consideration that weighs against the grant of permission.” –Emphasis added
To clarify this position further the consultation documents goes on to state “ For the avoidance of doubt, this does not mean that retrospective applications should be automatically refused, but rather failure to seek permission in advance of occupation will count against the application. It will, the Government hopes, encourage all applicants to apply through the proper planning processes before occupying land and carrying out development. “
Applying this rule exclusively to travellers would seem unreasonable, and so we assume that this rule might have wider application to all unauthorised development, not only in dealing with unauthorised traveller sites.
Such a stance may present a number of challenges for the planning enforcement system. Firstly, how would a local authority prove that a breach of planning control is ‘intentional’? Even where an intentional breach is accepted or proven, what weight should decision makers then give to this ‘material consideration’ in considering a retrospective planning application? Does the degree of flagrancy of the intentional disregard of planning laws, increase the weight of the material consideration? Where no retrospective planning application is submitted, which often is the case, must decision makers include this assessment when considering the expediency of enforcement action?
A recent example of seemingly intentional unauthorised development is that of the private temporary Kelston Toll Road in Bath, which as of 8th October welcomed its 100,000th user. This is a rare breach of planning control which has garnered a lot of local support and has left Bath & North East Somerset Council with the unenviable task of deciding whether it is expedient to take enforcement action. We understand they have not, but that they are currently considering a retrospective planning application for the temporary road. Here the businessman who set up the road may ultimately stand to make a not inconsiderable profit for his risky investment, despite the fact that it may be argued that he intentionally breached planning control.
We are in favour of tougher penalties for those who actively seek to breach planning control for financial gain, as we have long seen some unauthorised development as being a low risk/high reward activity (this though can be avoided in some cases through the appropriate use of POCA, but only after formal enforcement action has been taken). It is also clear that the man on the street feel that a person who makes a retrospective planning application should be penalised in some way. However, we are not convinced the proposed approach is correct and it would only further complicate the already difficult decisions taken by local authorities on enforcement matters.
The DCLG consultation on the ‘Planning & Travellers’ document closes on 23rd November 2014, a link to this document can be found here .