This article first appeared in the April 2014 NAPE newsletter.
The National Planning Practice Guidance (NPPG) was launched on 6 March 2014, promising to make the planning system simpler clearer and easier for people to use, cutting out thousands of pages of previous circulars to produce an electronic ‘one stop shop’ for planning guidance. In contrast with previous guidance, the framing and content of the NPPG is clearly aimed at the ordinary person, in line with Planning Minister Nick Boles’ statement that “Planning should not be the exclusive preserve of lawyers, developers or town hall officials”.
A Fluid Resource
The NPPG is a fluid resource that will change as the law develops. However, as it is updated, previous versions of the guidance will not be saved. We would therefore firmly encourage Local Planning Authorities to ensure they keep a record of what is in force within the guidance when major enforcement decisions are made, as it may be the case that when it comes to appeal, the fluid resource may have changed its spots.
Information Missing from the NPPG
From an enforcement perspective, there are a number of differences between the NPPG and the previously existing circulars. Local Planning Authorities (“LPAs”) would be well advised to retain a number of historical circulars/guides, even if only as an interpretation or training tool.
To assist LPAs, we have drawn up a (non-exhaustive) list of useful information from cancelled guidance to highlight the instances where the old guidance may still be useful:
The decision to enforce: The NPPG has a section on the factors LPAs should consider when taking the decision on enforcement action, but this does not go into great detail. Although cancelled by the NPPF in 2012, PPG 18: ‘Enforcing Planning Control’ and its useful discussion on this point will still be handy on this point.
Notices: The key element of any LPA’s enforcement work, the NPPG gives only cursory information on all of the various notices an LPA can serve. We would therefore encourage LPAs to keep a copy of Circular 10/97 and its Annexes as guidance to make reasoned and proper decisions. Some of the vital information contained within the relevant Annexes that does not appear in the NPPG but which could still be of great use to planning officers:
•Planning Contravention Notices: Information on service, allowing the recipient to make representations; and the Teignmouth Quay case on the importance of only serving a notice where there is a suspected breach of planning control;
•Enforcement Notice: Information on under-enforcement; enforcing conditions; and effective drafting;
•Stop Notices: Information on service and the Wendy Fair case. The NPPG does, however, helpfully set out information on Temporary Stop Notices separately to Stop Notices, and thus should be considered carefully by officers;
•Breach of Condition Notices: Information on immunity, drafting, and serving such a notice.
Appeals: Given the importance of appeals to the general public when faced with enforcement action by Local Planning Authorities, one may have expected the NPPG to cover appeals in some detail. However, whilst there is some content on this topic, and a reference to the Planning Portal’s webpage on the procedure, there is minimal detail. Therefore, the information in Annex 2 to Circular 10/97 will still continue to be vital to LPAs, particularly paragraph 2.51 on the vexed question of the interrelation of Enforcement Notices and Lawful Development Certificates.
Costs – Circular 03/2009, a popular guidance document for planning officers up and down the country, has been cancelled by the NPPG. This circular had a wealth of information that planning agents and LPA officers could use to help fight the all important costs claims. The NPPG does an effective job in distilling this information into manageable chunks of information, however it still must be said that Circular 03/2009 will continue to provide support for agent and officers alike.
Injunctions: A useful tool for LPAs, the NPPG does provide a useful summary of the factors an LPA should consider when determining whether to use its discretion to apply for an injunction. However, it is missing information on important case law such as Kirklees MBC v Wickes, Runnymede BC v Harwood, and LB Croydon v Gladden in relation to the extent and process of obtaining injunctions under s.187B, information that is contained in Annex 5 to Circular 10/97.
Rights of entry and Crown Land: On these matters, the NPPG provides a similar amount of information as contained in previous guidance.
Listed Buildings: Similarly, the content on listed building enforcement within the NPPG contains slightly more detail on the options available to LPAs on listed building consent than found in Annex 2 to Circular 10/97 and PPG 15. However, given the complexities of this area of law, it may be felt that this is not quite enough to provide the guidance that is needed. This is compounded by the fact that the 2006 Good Practice Note on Listed Building Prosecutions has been cancelled by the introduction of the NPPG. We would recommend therefore that colleagues continue to make use of their favoured text on this area, and to keep a copy of the 2006 note for future reference. PPG15 still remains in force.
Unauthorised Advertisements: The NPPG provides a good summary of the various avenues open to LPAs to enforce against unauthorised advertisements. However, there is one key provision that is not mentioned within this that Local Planning Authorities should always keep in mind. This is that s.55(5) of the TCPA 1990 considers that the change of use of an external part of a building to use for the display of advertisements, is a material change of use, which can be subject to an enforcement notice if undertaken unauthorised. This is a useful option infrequently used by Local Planning Authorities, and it is unfortunate that it is not mentioned by the NPPG.
The NPPG also misses out the useful detailed content set out in 03/97, especially in relation to motorways and trunk roads and prosecuting for flyposting, which ought to be retained by LPAs. It is also worth noting that the very useful good practice guide “The Control of Flyposting” has been cancelled and LPAs may want to retain this as an informal guide.
It is clear from this list that the NPPG has been drafted for ease of understanding and ensuring that anybody can understand the hows and whys of planning enforcement. However, as colleagues know, planning enforcement is rarely a case of black and white, and so previous guidance will need to be retained to shine a light on the shades of grey inherent in planning law.
Izindi Visagie, Founder of Ivy Legal Limited
Matthew Fox, Trainee Solicitor with Rochford District Council