Civic Society Comments 2007

 1          The Society welcomes this consultation.  To have gathered into one document a statement of Bristol City Council’s general approach to planning enforcement and service commitment, a flow chart of the available procedures and a summary of the relevant law and useful contacts will be invaluable to Bristol’s businesses and residents.  The Approach to Planning Enforcement (the Guide) does not explain why, in 2007, the City Council decided to publish in an extended form, the 1998 Enforcement Concordat adopted by the City on the 9^th March 2001.

The nature of the consultation

2                    The Guide appears to be in final form for adoption by the Council.  There is no consultation document.  Consultees are not told the issues that face the Department, nor are we told the options that are open to meet those issues.  We think the omission of a consultation document is a pity.  The Core Strategy Issues and Options Paper (July 2007) contains a statement of both the issues and the options for action.

3                    Many persons involved in Bristol local amenity societies have the impression that enforcement is the Department’s poor relation.  Without any background material, outsiders cannot appreciate the burdens that fall on the Department and the constraints under which it works.  An unintended consequence of the Guide’s publication is that it could raise public expectations of the Department’s planning enforcement capacity.  Paragraph 5.1 states that the City does not intend to increase the resources that it commits to planning enforcement.

4                    The Planning White Paper describes the rate of increase in the number of planning applications and appeals.  Paragraph 3.2 of the Guide describes the increase in the number of enforcement complaints.  In addition to routine development control, the Department has to commit resources to manage large planning applications and to prepare the Core Strategy and the other development plan documents that the Local Development Framework requires.  If the overall financial appropriation and officer time devoted to planning enforcement is published, these figures are not easily accessible.  It is not clear whether these figures appear as a sub-set in the Department’s annual accounts.  These figures would help consultees/stakeholders understand the Department organisation and to respond to the consultation.

5                    Are we to assume that the Department believes this to be an opportune moment to publish the Guide following its recent internal reorganisation and the appointment of a senior planning officer with responsibility for enforcement and large applications?  Are we to consider that the Guide is a step in a policy to improve the Department’s enforcement performance?  The Guide does not say.

6                    Paragraph 5.3 says “An annual performance report will be prepared.”  Does this mean that the City Council will publish baseline figures?  For example:

(i)                  What percentage of enforcement complaints merited further action?

(ii)                How many complaints result in the issue of each of the various classes of notice and proceedings described in appendix 3? 

(iii)               What was the profile of the time that it took to resolve complaints?

(iv)              What number of complaints did the City fail to resolve to the complainant’s satisfaction?

Are there any national standards against which the City’s figures can be compared?

Responses to the Guide’s individual paragraphs

7          Changes of use

Paragraph 3.1 (ii) -– this paragraph should be enlarged.  It should refer to the controls to prevent the change of use from a single house to a house in multiple occupation; a common problem in parts of the City.  A link should be made to check new Council Tax registrations.  This link could also assist the City Council prevent Council Tax evasion. 

A further problem that should be included in the unauthorised change of use category is the loss of shops in secondary shopping areas through residential occupation of the retail area for more than four years without planning consent.

8          Service Commitments

Paragraph 4.2 - the planning website is heavily populated; good web skills are required to navigate it.  For example,  appeal information is not shown beside the original decision.  It is necessary to look elsewhere.  How will the website complaints page be easily identified? 

9          Paragraph 4.7 – subject to what we say to paragraph 4.8 we support the principle of negotiated settlement.

10        Paragraph 4.8 – please delete the adjective “strong” before the word “presumption”.  It is tautologous, there is either a presumption or there is not. 

11        A distinction should be made between the private individual who will frequently act in ignorance and the professional property owner and builder.  In the case of persons in the property business there should be a presumption that a failure to obtain planning permission or listed building consent or the failure to comply with a planning condition is deliberate.  In every such instance the Department should ask itself whether the proportionate response is an immediate notice and prosecution.  An active enforcement policy will, in the long run ensure a greater degree of compliance by property developers and those whom they employ.  These persons generally have the means to satisfy pay the City’s costs of enforcement proceedings.  This paragraph must reflect paragraph 5.5 of PPG18 (5) which directs that

“where the LPA's initial attempt to persuade the owner or occupier of the site voluntarily to remedy the harmful effects of unauthorised development fails, negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop. (LPAs should bear in mind the statutory time limits for taking enforcement action.”

12        The Guide fails to state that where the City Council identifies a significant planning breach, the breach will be entered in the Local Land Charge database.  Frequently this is most effective method to secure compliance.  It hinders the sale or mortgage of the land.  The Home Information Pack Regulations will give greater publicity to entries in the Local Land Charges Register.

13        The Guide should state that the City Council will keep the complainant informed during any negotiations to remedy the breach.  It is often a matter of anxiety to the complainant that they do not know whether anything is happening.

14        Paragraph 4.9 – the Guide should state that the City Council will clarify the priority allocated to a complaint, and will provide reasons in writing if they decide not to proceed.

15        Paragraph 5.3 10 – the matters should appear in the Annual Monitoring Report (the Report).

(i)         We are concerned about the level of resources committed the Planning Department.  The Report should give the number of cases allocated to each Development Control Officer and the extent of any enforcement backlog.  The backlog should include, as a separate category, breaches of listed building consent.

(ii)        The report should record the number of potential breaches of planning control allocated to each priority described in paragraph 4.5.  There is danger that in times of pressure there is an incentive to allocate cases to the lowest priority.  We propose that every case the Report should state whether the breach was wilful and whether is was significant or minor.

(iii)       The Report should analyse complaints by type and postcode.  This will enable the Department to identify obvious problem areas and will enable the City to target pro-active action.

(iv)       The Report should publish the number of enforcement notices, stop notices, planning contravention notices, breach of condition notices, and enforcement injunctions.  These are currently published annually by the Department of Communities and Local Government.  In addition, the Report should publish the numbers of urgent works notices, temporary stop notices, and section 215 T & CPA 1990 notices.

16        Note: Complaints about service - Paragraph 5.3 and Appendix 4 only provide a link to the Corporate Complaints Procedure.  There is no link on the planning web page to give details or to summarise the complaints procedure. 

           

17        Conclusion

            Paragraph 5.2 – we question whether the City can achieve is aim “to seek to improve its Planning Enforcement service” within existing resources.  The Guide gives no information about the current allocation of officer time or resources.  There is no description of current problems and how the measures described by the Guide can be expected to address them.  Who are the “stakeholders”?  Against what “Best Value” standard will the Planning Enforcement service be judged?

            Paragraph 5.3 - Where will the report appear?

11        Appendix 2

            We propose these amendments to this Appendix.

            The enforcement of planning law is a particularly complex aspect of planning activity.  This is because The government has tried to strike a balance between the rights of individuals to use or alter their property in the way they wish, and the need to safeguard the character and quality of neighbourhoods and to uphold the planning policies for the local area.  [1]

In general, the system tends to give the benefit of the doubt to anyone undertaking the unauthorised development, and Councils are expected to give those responsible for undertaking unauthorised development the chance to put matters right before serving a formal notice.  [2]

If the council’s action are considered too harsh or hasty or legally incorrect, it can be ordered to pay costs or have its decisions overturned by the Planning Inspectorate or the courts.  [3]

12        Powers available to the Local Planning Authority

        (v)           Injunction – this statement contains serious factual errors.  It is incorrect to assert that one court has more experience than another.  Many judges nowadays have jurisdiction in both the High Court and the County Court, which in Bristol, use the same court rooms.  The Civil Procedure Rules apply to both Courts; they discourage adjournments.  We suggest that you replace this paragraph with:

                       “Both the High Court and the County Court have power to grant an injunction to restrain a breach of the planning regulations.  In an emergency the court can grant an immediate injunction without notice to the alleged wrongdoer.”

 

13        Omitted matters

            The Guide is solely reactionary.  Paragraph 1.5 describes the Department’s response to notification to it by informants of breaches of planning law.  The Guide fails to include proactive policies.  In particular the Guide contains no discussion about:

How the City Council will police conditions attached to a planning permission.  The impression that the Guide gives is that the Department will only react when it receives information that a developer has failed to comply with a planning condition.  Many see this as a failing by the Department.  What is the point of imposing a planning condition if the Department fails to ensure that the condition is fulfilled?  This failure brings the law into contempt and causes despair among members of the Bristol Neighbourhood Planning Network.  Because referrals usually come from vigilant neighbours should not the planning conditions be published and made readily accessible to the neighbours who can see whether a breach is likely to have occurred?

How will the City Council apply section 215 of the Town and Country Planning act 1990 to prevent blight?  [4] Local authorities are encouraged to use this provision.  Research has shown that many local authorities fail to use the powers that Parliament has given to them.  [5]

How will the City Council tackle fly posting, particularly in the centre of Bristol.  Section 22 of the Local Government Act 1972 gives to the City Council extensive powers to obtain an instant remedy against this type of anti-social conduct.  Is there a policy to use this flexible provision?

11 September 2007

[1]               The statement, as amended reflects Parliament’s purpose when it enacted planning legislation.  Nothing is added by the statement about legal complexity.  All law appears to be complex when read for the first time.  Planning law is set out in a statutory code, which is the simplest form of law to understand and to apply.

[2]           The meaning of the first sentence is unclear.  The second sentence is a sufficient statement of principle.

[3]               The paragraph adds nothing to the statement of principle and it probably encourages unlawful development.  It fails to reflect paragraph 5(2) of PPG18, which refers to possible findings of "maladministration if the authority fails to take effective enforcement action which was plainly necessary and has occasionally recommended a compensatory payment to the complainant for the consequent injustice.”

[4]           Town and Country Planning Act 1990 Section 215 Best Practice Guidance – January 2007. 

[5]           Derelict Land and Section 215 Powers published by ODPM - September 2000 said that 78% of respondent local authorities said that they served 2 or less notices per year.