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Planning’s essential third arm – the Importance of enforcement

24 October 2018 Author: Ian Tant

At its heart, planning as a public service has three essential elements: policy making; development management; and enforcement. All three are vital and all are interdependent. That includes setting policies which needs to have regard to the real-world issues that enforcement uncovers.

The 3rd October in Birmingham saw this year’s conference of the National Association of Planning Enforcement (NAPE), one of the RTPI’s more vital and active networks. The presentations and informal conversations in the breaks uncovered several key important matters that are well known to those in planning enforcement but which quite possibly pass by many RTPI members and which deserve to be known.

The social issues uncovered by Enforcement Officers sit full-square alongside problems facing the police, social services and other government agencies.  

The positive news from the conference, expertly chaired by Neill Whittaker MRTPI of Ivy Legal, focussed on the powers of local planning authorities to take a range of actions – including direct action and the recovery of substantial funds under the Proceeds of Crime Act (POCA). 

Enforcement as revenue generator

As Scott Stemp, barrister from No.5 Chambers (the conference sponsors), explained, POCA empowers the courts to recover from those against whom enforcement action is taken, the full monetary value of the benefit gained through the unlawful development. 37.5% of the funds recovered is then returned to the local planning authority. In a number of cases, this is drawing in six figure sums to the councils, providing a powerful boost to resources (although Heads of Service should be cautious about setting targets for such income!) 

Courts generally "sympathetic to" councils making injuctions

A second power lies in the use of injunctions. These can be taken out to compel compliance with an enforcement notice but also to prevent an anticipated breach of planning control. In the experience of Jack Smyth of No. 5 Chambers, the courts are sympathetic to local planning authorities making applications for such injunctions. In the circumstances of a flagrant breach, an injunction may even be sought before any enforcement action is commenced.

Direct action is a further strong power available to councils, examples of which were given by Tom Wicks and Craig Allison, both NAPE regional representatives. With the backing of an upheld enforcement notice, councils have the power to step in themselves to remove the unlawful development, ranging from back garden structures, advertisements, workshops and dwellings. Willingness to take direct action sends a strong message to the local community and a number of speakers encouraged councils to do so.

Amidst the widespread challenges in securing resources for our local planning authorities, enforcement cannot be treated as the poor relation. 

Many breaches of planning control may be benign or even unintentional, although one representative bemoaned the frequent failure of major housebuilders to observe the conditions on planning permissions. 

Illegal planning belies bigger social problems

But there is a darker side with examples given by several speakers, including Emma Williamson and Fortune Gumbo from Haringey Council. The social issues uncovered by Enforcement Officers sit full-square alongside problems facing the police, social services and other government agencies. Those who overstep the mark in planning often overstep in other directions also, as Scott Stemp pointed out. Dreadful living conditions in unauthorised developments are not infrequently linked to crimes of human trafficking, modern day slavery and abuses of human rights.

Our enforcement officers are often the first to pick up on such serious problems of 21st century society here in the UK. That’s why enforcement is important to society and that’s what RTPI members as a body need to keep high on the agenda. 

Enforcement must not be treated as the poor relation

Amidst the widespread challenges in securing resources for our local planning authorities, enforcement cannot be treated as the poor relation. It’s vital to maintaining respect for the planning systems in the UK and it’s a key part of upholding our values as a society.

The RTPI must continue to argue for adequate resourcing for enforcement. Through NAPE it must also continue to support our enforcement colleagues.

 

Ian Tant

Ian Tant

Ian Tant is President of the RTPI.