During the final planning club of 2015, we covered the following topics: • planning enforcement - a look at key planning enforcement difficulties and how to overcome them • The Planning and Housing Bill - considering the effect of this Bill and the government’s ‘crusade to get 1 million homes built by 2020’ from a planning perspective, with a particular focus on starter homes and the effect of these for local authorities. https://www.brownejacobson.com/sectors-and-services/sectors/public-sector

1. Public sector planning club 2015

2. Planning Enforcement
Katherine Hall

3. Relevant Legislation
• Town and Country Planning Act 1990 Part VII
• Planning and Compensation Act 1991 – Amended Part
VIII Town and Country Planning Act 1990
• S.330 Town and Country Planning Act 1990
• S.16 Local Government (Miscellaneous Provisions) Act
1976
• Community Infrastructure Levy Regulations 2010 (as
amended)
• Proceeds of Crime Act 2002

4. Types of Enforcement Action
• Enforcement Notice – S171 & S172TCPA 1990
• Planning Contravention Notice (PCN) – S16
Local Government (Miscellaneous Provisions)
Act 1976
• Breach of Condition Notice (BCN)– S187A TCPA
1990
• Temporary Stop Notice – S171 TCPA 1990
• Injunction – S187B TCPA 1990

5. Types of Enforcement Action
• Powers of entry – S196 TCPA 1990
• Proceeds of Crime Act 2002
• Section 215 Notice – S215 TCPA 1990
• Relevant demolition – S196D TCPA 1990
• Warning Notice/Stop Notice – Reg. 89/90
Community Infrastructure Levy Regulations
2010 (as amended)

6. Time limits for Enforcement
Action
• A time limit of 4 years applies for enforcement action concerning
operational development and change of use of any building to use
as a single dwelling house – S171B (1) and (2) Town and Country
Planning Act 1990
• A time limit of 10 years applies to any other breach of planning
control and no enforcement action may be taken after this period
of time, beginning with the date of the breach - S171B (3) Town
and Country Planning Act 1990

7. Time Limits for Enforcement
Action
• Where a breach has been deliberately concealed, the Localism Act
2011 inserted into S171BA, S171BB and S171BC of the Town &
Country Planning Act 1990, a power which allows local planning
authorities to apply to the court for a Planning Enforcement Order
which, if granted, gives them a 12 month period to take
enforcement action, even where the relevant 4 or 10 year period
has expired.

8. Expediency/Public Interest
• Has a breach been established?
• Does it warrant enforcement action?
• Is enforcement action expedient? Section 172 TCPA 1990 – the LPA
may issue a notice where it appears to them:-
• (a) that there has been a breach of planning control; and
• (b) that it is expedient to issue the notice, having regard to the
provisions of the development plan and any other material
considerations

9. Expediency/Public Interest
• Local Authorities should also considered whether:
i) the proposed action is in the public interest
ii) the breach is sufficiently harmful to justify taking action.
iii) the proposed action is reasonable and
commensurate with the breach to which it relates
iv) the action undertaken would be cost effective
v) the development is in accordance with planning policies

10. Expediency/public interest
• Are there any human rights issues?
• Enforcement policy
• CPS Code/concordat
• Authorisation
• Costs

11. Development
• Section 55 (1) TCPA 1990 defines ‘development’ as the carrying
out of building, engineering, mining or other operations in, on,
over or under land, OR the making of any MATERIAL change in the
use of any buildings or other land.
• Operational development:
-Demolition
-Rebuilding
-Structural alterations/additions
-other operations carried out by a builder

12. Breach of Planning Control S.171
TCPA 1990
• Section 171:-
• (1) for the purposes of this Act-
(a) carrying out development without the
required planning permission; or
(b) Failing to comply with any condition or
limitation subject to which planning permission
has been granted or pursuant to permitted
development rights under GDPO 2015
Constitutes a breach of planning control

13. Breach of planning control
• Check whether there are permitted development
rights – permitted development rights which
require an EIA statement will require Planning
Permission
• Check use classes/sui generis
• Mixed use – all or part lawful?
• Exceptions – i.e. incidental to enjoyment of
dwelling house (S.55(2)(d); agricultural/forestry
use (S.55(2)(e)

14. Planning Enforcement Order
• Section 124 – new Planning Enforcement Order Regime to cover
cases of concealment following the case of Fidler and Welwyn.
• Apply to the Magistrates Court
• If granted, the LPA may take enforcement action in respect of-
• (a) the apparent breach, or
• (b) any of the matters constituting the apparent breach
• The ‘Enforcement Year’ begins at the end of 22 days from the date
of the Court’s decision. If referred to the High Court the year
starts on the date proceedings are finally determined.

15. Community Infrastructure Levy
• Regulations 80-86 allow LPA’s to apply surcharges for:-
(a) failure to assume liability
(b) apportionment of liability
(c) failure to submit notice of chargeable
development
(d) failure to submit a commencement notice
(e) disqualifying events
(f) late payment
(g) Failure to comply with an information notice

16. Community Infrastructure Levy
• Regulation 89 – a Stop Notice may be issued if:-
• (a) an amount which has become payable in
respect of a chargeable development has not been
paid; and
• (b) the collecting authority considers it expedient
that development should stop until the amount has
been paid

17. Community Infrastructure Levy
• Regulation 89 (2) requires the LPA to issue a notice
warning of its intention to impose a CIL stop notice
in respect of the chargeable development “Warning
Notice”.
• Regulation 89 (3), (4) and (5) set out the content of
the Warning Notice and who it should be served on.

18. Community Infrastructure Levy
• Regulation 90(1) This regulation applies if-
(a) The collecting authority has issued a warning notice in respect of
a chargeable development; and
(b) The amount specified in the warning notice is unpaid (in whole or
in part) at the end of the period specified in the notice
(2) The collecting authority may serve a CIL stop notice in respect of
the chargeable development.
Regulation 90 (3) & (4) set out the contents of the Notice and who it
should be served on.

19. Appeals
• Enforcement Notices can be appealed
• Section 215 Notices may be appealed
• CIL Surcharges may be appealed
• CIL Stop Notices may be appealed
• No right of appeal against a Breach of Condition
Notice.
• No right of appeal against Temporary Stop Notice.

20. Case Law
• R v Del Basso and another v R [2010] EWCA Crim 1119 –
confiscation order of £760,000.
• Bowring v Secretary of State Department of
Communities and Local Government [2013]
• R (on the application of Tesco Stores Ltd) v Forest of
Dean District Council [2014]
• Slough Borough Council v Qazi Mohammed Naeem
Qureshi [2015] – confiscation order of £300,000

21. Any Questions?

22. Planning and Housing Bill
Ben Standing

23. The Planning and Housing Bill (1)
• First reading – 13 October 2015
• Currently at the reporting stage of the House of
Commons
• Expected to take another 12 – 18 months before
coming into force

24. The Planning and Housing Bill (2)
• Aims/rationale of the Bill
– Ensure that over 230,000 homes are built a year
– Make sure that the planning system does not add any
unnecessary obstacles to the delivery of new homes
– Intention for decision makers in local authorities to
“have the tools necessary to support and promote an
increase in housing supply and at a quicker pace”

25. The Planning and Housing Bill (3)
1. New Homes in England
2. Rogue Landlords and letting agents in England
3. Recovering abandoned premises in England
4. Social Housing in England
5. Housing, Estate Agents and Rentcharges: Other changes
6. Planning in England
7. Compulsory Purchase etc.
8. General

26. Self-build and custom house
building
• Clauses 8 – 11
• Duty on Councils to provide enough sites to meet
the demand for custom-build and self-build
properties
• Will be clause to allow SoS to make regulations
about how and when authorities can apply for an
exemption from the duty
• Necessary?

27. Rogue Landlords and letting
agents in England (1)
• Part 2 of the Bill introduces the concept of banning
orders
• They will have the effect of banning a person from:
– Letting housing in England;
– Engaging in letting agency work; or
– Engaging in property management work.
• A ban must last for at least 6 months
• Up to £5,000 penalty if breached

28. Rogue Landlords and letting
agents in England (2)
• Local housing authorities can apply for a banning
order to first tier tribunal
• Must give the person a notice of intended
proceedings informing them that:
– The authority is proposing to apply for an order; and
– The reasons why; and
– Inviting them to make representations during the
notice period.
• Database of rogue landlords and letting agents

29. Traveller sites
• Section 91(2) of the current bill sets out that
section 225 and 226 (accommodation needs of
gypsies and travellers) will be removed
• Still a requirement to assess the need and plan for
them under the NPPF
• How should this be interpreted?

30. Planning in England
• Neighbourhood planning;
• Local planning;
• Planning in Greater London;
• Local registers of land and permission in principle;
• Planning permission;
• Nationally significant infrastructure projects; and
• Urban development corporations
• Compulsory purchase

31. Social housing (excluding Starter
Homes)
• Extension of the right to buy on a voluntary basis
• Vacant high value local authority housing
– Payment from Councils to the Government for
having vacant high value property
– No definition of high value
• High income social tenants – mandatory rent
– For those earning above £30,000 outside of London

32. Neighbourhood planning
• Increased powers for SoS to intervene in the
preparation of neighbourhood areas
– Can require the LPA to designate the entire area applied
for as a neighbourhood area
– Will be able to set time limits by which an approved plan
must be approved
– Will be able to “direct the LPA to act in a way that is not
in accordance with what was recommended by the
examiner”
• Requirement for LPAs to notify neighbourhood forums
of planning applications in the designated area

33. Local planning
• Power for the SoS to intervene if local plans are
not delivered effectively
• SoS has new powers to:
– prepare or revise development plans;
– direct the Council how to proceed to implement the
development plan
– direct the examiner of any development plan to
suspend examination to consider specified matters
or hear evidence

34. Planning in Greater London
• Greater powers to the Mayor of London on planning
applications
– Whether they are determined by the Mayor or
whether they are directed to the LPA to refuse
• Intended to boost housing in the capital

35. Permission in principle/technical
consent (1)
• A new section in the TACPA 1990
• Expected to be limited to minor housing
developments initially (fewer than 10 units)
• A development order would grant permission in
principle to land that is allocated for development
in a qualifying document
• Initially only applicable to land in the Brownfield
Register, Development Plan documents and
Neighbourhood Plans

36. Permission in principle/technical
consent (2)
• If requirements are satisfied, permission in
principle is automatic
• Permission in principle will be granted at the time
the qualifying document is adopted
• LPA can either grant or refuse – cannot impose
conditions

37. Permission in principle/technical
consent (3)
• Technical consent process
– along with permission in principle will grant full
planning permission
– must be made in accordance with the permission in
principle
– conditions may be attached at this point of the
application process
– LPAs will not be able to reconsider the principle of
development unless there has been a material
change

38. Planning permission (1)
• Certain permitted development rights delegated to
LPAs
– should take into account local sensitivities
• Ability for SoS to “designate” authorities has been
expanded
– now includes minor developments

39. Planning Permission (2)
• Obligation on LPAs to disclose financial benefits as
a result of a proposed development:
– must be included in report to committee; or
– to the authority itself.
• Regardless of whether it is material to the decision
or not, the financial benefit must be recorded

40. Brownfield Land Register
• Government commitment to get planning
permission for 90% of brownfield land
• SoS can make regulations to require LPAs to
“prepare, maintain and publish”
• Register of land of a prescribed description or
which satisfies prescribed criteria
• Land suitable for housing development

41. Nationally significant infrastructure
• Consent under the nationally significant planning
regime for housing within major infrastructure
projects
• Government guidance to be produced setting out
the details of the amount of housing that may be
granted
• Includes housing functionally links to the
infrastructure project and housing where there is a
close geographical link

42. Urban development corporations
• New consultation requirements on the SoS before
designated an urban development area
• Changes to the parliamentary procedure for making
urban development orders

43. Compulsory purchase (1)
• The Bill includes provisions to help to speed up the
compulsory purchase regime, including:
– timetabling steps to be taken by local authorities to
confirm a compulsory purchase order;
– providing statutory time limits for notice to treat
and general vesting declarations; and
– enabling counter notices to be served requiring the
authority to take possession of the land on a
specified date.

44. Compulsory purchase (2)
• Additional powers for acquiring authorities to enter
and survey land
• Provision for a warrant to authorise the use of
force to enter land to carry out a survey
• Greater clarity on CPO timetables
• Clarification on compensation payments

45. Next steps
• LPAs should keep up to date with the Bill as it
progresses
– Could be subject to amendments/changes
• The changes are intended to speed up the process –
will this have an impact on LPA resources?
• Potentially coming into force late 2016/ early 2017

46. Starter Homes
Stephen Coult

47. Starter Homes - The Policy Commitment
• Conservative Party Manifesto commitment to
build more homes that people can afford
including 200,000 starter homes exclusively for
first-time buyers under 40.

48. So what is a Starter Home?
• Definition in S1 of the Bill
• Means a building or part of a building that—
– (a) is a new dwelling,
– (b) is available for purchase by qualifying first-time buyers
only,
– (c) is to be sold at a discount of at least 20% of the market
value,
– (d) is to be sold for less than the price cap, and
– (e) is subject to any restrictions on sale or letting specified in
regulations made by the Secretary of State. (Regulations may
cover minimum age or nationality and limit purchases to owner
occupiers.)

49. The Price Cap
Clause 2 specifies the maximum price that a starter home
may be sold to a first time buyer.
• the price cap is £250,000 outside Greater London and
£450,000 in Greater London.
• That price cap reflects the published proposed maximu
m threshold for the Help to Buy ISA.
• The Secretary of State can through regulations amend t
hese price caps and set different price caps for diffe
rent areas.

50. Duties under Act.
• Clause 3.
An English Planning Authority must carry out its relevant planning
functions with a view to promoting the supply of starter homes in
England.
• Clause 4. An English planning authority will only be able
to grant planning permission for certain
residential developments if specified requirements
relating to starter homes are met.
• Requirements will be set out in regulations including
– the proportion or number of starter homes
– commuted sums to be paid.
– discretionary powers for local planning authorities.
– thresholds for S106 Agreements providing starter homes
– exemptions for types of housing.

51. Further Definitions.
• English Planning Authority can be either a Local
Planning Authority or the Secretary of State
• Relevant planning functions include
(a) functions under Part 3 of the Town and Country Planning
Act 1990, other than functions relating to the grant of
permission in principle;
(b) functions under Part 8 of the Greater London Authority
Act 1999;
(c) functions under Part 2 of the Planning and Compulsory
Purchase Act 2004.

52. New dwellings
“New dwelling” means a building or part of a
building that—
(a) has been constructed for use as a single dwelling
and has not previously been occupied, or
(b) has been adapted for use as a single dwelling and
has not been occupied since its adaptation.

53. Enforcement
• Monitoring Provisions are contained in S5.
• Local Planning Authority is to prepare reports containing
information about the carrying out of its functions in relation
to starter homes.
• Form, content and timing or reports to be specified in
regulations.
• Can be combined with normal monitoring reports.
• S6 allows Secretary of State to issue Compliance Directions
• Purpose is to dictate that Local Planning Authorities ignore
their own policies which seek to frustrate the provision of
starter homes.

54. Proposed changes to national
planning policy
• Consultation announced Dec 2015
• Proposals include:
– Allowing Councils to “allocate appropriate small-
scale sites in the Green Belt specifically for starter
homes”
– Land allocated to employment or commercial uses
should not be ring fenced indefinitely to enable
residential development

55. Proposed changes to national
planning policy
– Encouraging starter homes in mixed use
developments
– Increasing residential density around commuter
hubs, to make more efficient use of land in suitable
locations
• Consultation closes 25 January 2016

56. Any questions?

57. Contact us…
Stephen Coult – stephen.coult@brownejacobson.com
0115 976 6152 / 07979 536990
Katherine Hall - katherine.hall@brownejacobson.com
0115 908 4887 / 07877 636714
Ben Standing – ben.standing@brownejacobson.com
0115 976 6200 / 07826 926419