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Rights of Entry (appeared in NAPE newsletter October 2013)

See the original NAPE article.

 

With an increase in the number of Enforcement complaints and increased political interest in planning enforcement, Enforcement Officers are under more time pressure than ever before.  Exercising their Right of Entry (without a warrant) is one of the tools Enforcement Officers can apply to make more efficient use of their time when carrying out site visits.

 

It has come to my attention that Enforcement Officers from a certain prominent London Council make repeat unsuccessful attempts to enter land (not used as a dwellinghouse) apparently without being aware of their powers to demand entry. And so I thought it may be useful to restate the position on Rights of Entry to encourage Enforcement Officers to be confident of their right to enter land.

 

Section 196A of the Town and Country Planning Act 1990 says that if there are reasonable grounds for entering land, an authorised planning officer can enter the land at a reasonable hour to ascertain whether there has been a breach of planning control, determine whether and how the Council’s powers should be exercised and to ascertain whether there has been compliance. A similar power is granted in respect of listed buildings in s.88 of the Listed Buildings Act.

 

Addressing each of the elements in turn:

 

1. Reasonable grounds for entering the land. This is a judgement to be

made by the Enforcement Officer but a bona fide complaint of a potential breach would no doubt suffice.

 

The 'reasonableness' of a visit may become more problematic when repeat visits are made. In backlogged Enforcement departments, site visits are all too often repeated because of the time elapsed since the previous visit. Enforcement officers would be well advised to ensure their visits are thorough the first time round and should try to progress that matter to the next stage as soon as possible, whether the next stage is taking further action or not. Repeat visits should only be made if circumstances have changed or to check compliance.

 

2. Authorised planning officer: this must be a person duly authorised in writing by the local planning authority to enter land. An Enforcement Officer is required by S196C of the TCPA to carry the authorisation on his/her person and also state the purpose of him/her entering the land before so entering. Most planning enforcement officers carry such authorisation in the form of a card or letter.

 

Note that an authorised person may take other persons with him/her ‘as may be necessary’. An example of this could be where a Heritage Officer who is not necessarily authorised to enter the land, accompany the Enforcement Officer.

 

3. Reasonable hour: again this is a judgement for the Enforcement Officer, but visits undertaken during normal office hours are likely to be ‘at a reasonable hour’. Where it is necessary to visit a site at other times when the breach is suspected of taking place, the Enforcement Officer should exercise his/her good judgement.

 

4. The purpose of entry facilitated by s196A is drafted wide enough to include every instance where an Enforcement Officer would need to access land, i.e. to

- ascertain whether there has been a breach of planning control;

- determine whether and how the Council’s powers should be exercised; and

- ascertain whether there has been compliance.

 

Note however that there may be additional RIPA requirements when evidence is gathered for a planning prosecution.

 

The procedure for gaining entry to any building used as a dwellinghouse, can only be demanded as of right if 24 hours’ notice of the intended entry has been given to the occupier of the building.  Note that the wording of this section specifically refers to ‘any building used as a dwellinghouse’, thereby catching outhouses, office buildings etc., where such a building is used as a dwellinghouse. Note that the requirement to give 24 hours’ notice is just that; often Enforcement Officers think the position on accessing dwellinghouses is more complicated. By giving notice there is of course a risk that the breach will temporarily cease; in those cases the Council should consider obtaining a warrant.

 

A word of caution: if damage is caused to land or chattels in the exercise of a right of entry, compensation for the damage may be recovered from the Council in the Lands Tribunal. Practically speaking, it would be a difficult and drawn-out process for a landowner to recover such damages from the Council, but the Council will receive adverse press for such damage and so any damage should be avoided where possible.

 

Also, Enforcement Officers should not share trade secrets they learn when visiting sites; to do so is an offence and can carry a fine of up to £5,000. However, if they share such trade secrets in the course of their duties as Enforcement Officers, they would not be committing an offence.

 

On leaving the land, an authorised officer must, if the owner/occupier is not present, leave the property as effectively secured against trespassers as he found it.

 

Enforcement Officers should be very clear on their rights and duties around this powerful Right of Entry for use in the appropriate circumstances. Any person who wilfully obstructs an Enforcement Officer exercising his/her right of entry shall be guilty of an offence and liable on summary conviction to a fine of £1,000. In the unfortunate cases where an Enforcement Officer is obstructed, careful consideration should be given to prosecuting the person causing the obstruction and publicising a successful outcome to act as a deterrent to other would-be obstructers.

 

For the sake of completeness, Officers should be aware that where entry is refused or reasonably apprehended, or where the case is urgent, the Council may apply for a warrant to enter land. One example where warrants are successfully used is in investigating ‘Beds in Sheds’ complaints.

 

Please email suggestions for future newsletter topics to izindi@ivylegal.co.uk .

 

 

 

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