SOUTHERN ENFORCEMENT OFFICERS GROUP
BRACKNELL SPORT AND LEISURE CENTRE 
FRIDAY 23 MARCH 2001
10.00 - Welcoming address by Mike Holmes, Borough Planning Officer, Bracknell Forest Borough Council Mike welcomed the group to Bracknell set in an prosperous area known as the 'Silicon Valley' where a number of hi-tech companies are based. There are intense pressures for residential development and despite unemployment being low there are also pressures for commercial development and problems with commuting In view of this there are financial rewards for starting up business development without planning permission and consequently Bracknell has strengthened its compliance team and has adopted more proactive approach, especially towards compliance with conditions. They are also keen to promote technology and as 50% of the population have Internet access, Bracknell has now placed its planning applications on line. This has proved a success with as many as 23 hits from different people being received on one day. One of Mike's biggest concerns has been the increase in demand for mobile phone masts and given the legislative bias in favour this could well accelerate. Masts can be of various shapes and heights and can be difficult to measure for compliance especially when looking at structures that can be in excess of 6 metres high. Mike was pleased to see such a good attendance because from his experience with organising the RTPI Summer School, he thought that the biggest advantage of meetings like this was that it gave people the opportunity of getting together to discuss issues and establish networks.
10.10 - Minutes of meeting of 3d November 2000 held at Eastbourne -The Minutes were accepted. Jim Lynn thanked Bracknell and Rebecca Lord for arranging this meeting which necessitate a great deal of commitment and enthusiasm.
Jim Lynn has been in contact with Lee Philpot the person at the Home Office who drafted the Investigatory Powers Act, and he has agreed to make a presentation to the SEOG meeting in November at Chigwell in Essex.
Jim Lynn referred to previous correspondence and discussions concerning the possibility of arranging a social event in connection with the meeting, perhaps on the evening before hand. Could all interested parties contact Jim and if sufficient interest was expressed something could be arranged perhaps for the meeting at Eastbourne. Proposed for Spring 2002.
10.20 - Professor Martin Chick, University of West of England - PLANNING LAW UPDATE Martin had been looking at current trends within the profession and split his presentation into two, an overview which he describes as a 'Helicopter' view and an update on any interesting legal decisions. Helicopter view 1 'Best Value' is still very high on the agenda and Martin felt that this could be a good thing for enforcement officers. Despite news of some Local Authorities disbanding enforcement teams in the interests of economy, generally he thought the pressures that best values place on Local Authorities should work in favour of enforcement, moving it away from a purely technical job towards a management function and dedicated teams. Martin felt that enforcement officers should consider closely the role of the compliance and emphasising the importance of that function to their organisation. The central premise of 'Best Value' is the review of functions and this should present opportunities to promote the importance of enforcement particularly with regard to bench marking with adjoining areas. Enforcement officers should be responsive to change and if they come into competition for jobs with qualified planning officers then it may be necessary to consider gaining qualifications, particularly in relation to management. Legal framework Human Rights legislation is still proceeding through the system, although to date Martin would described it as 'a field day for crackpots', but that should soon settle down and many organisations are watching progress. One issue that has arisen is whether the planning inspectorate could be judged to be sufficiently separate from government to comprise an impartial forum; this has yet to be decided. Martin reported that the most common area of concern raised by members in his training courses is whether or not breaches of planning control should be offences of strict liability. Although there are advantages to making the breaches criminal offences, Martin was of the view that the existing discretion based system was the best way of dealing with this issue. Enforcement notices Martin made comments on several cases that had come to his attention. The first underlined the importance of identifying the breach based on evidence and a notice had recently been quashed when it was found that the case had been based solely on residents' complaints. With regard to the quality of information, Martin did not think was sufficient to simply denote a site/buildings by a heavy black line as specific areas could be unclear and notwithstanding that it saves photocopying time, it is essential that area(s) are clearly identified by a coloured line. An inspector may correct minor anomalies at appeal but a lack of clarity may not be acceptable at a prosecution. Martin then gave an example of a case which illustrated the need to be clear about the criteria which constitute the breach. This involved a mixed use on agricultural land and the Council claimed that a change of use had occurred within 10 years involving the intensification of permanent commercial shooting. Martin considered that the meaning of this is unclear. For a material change of use to have occurred through intensification, the use would have to be substantially different and in Martin's experience 'intensification' alone is not enough. If the notice describes 'intensification' of shooting, does this imply that shooting was there before, if so in what form? Martin's guiding principle would be that every use must relate to the others and a direct and clear relationship must be established between what is the breach and what the reasons are for taking action. Whilst inspectors do have powers of correction there have been instances where the wording of a notice is so confused that the notice has been nullified. In the case of the example cited by Martin the steps required for compliance were that the appellant ceased the use of the land for commercial shooting. This would imply that there is a perceivable difference between commercial shooting as opposed to shooting, if so what is it? The notice went on to require the permanent removal from the land of all equipment used for commercial shooting in accordance with the County Council's guidelines for the control of noise in the countryside. Martin was under the impression that an enforcement notice should not be used to invoke other regulations and in this case there was no relationship between breach and guidance. Time for compliance There has been a spate of nullities relating to the compliance times stipulated in the notice. In one case involving the seasonal occupation of chalets, none of the notices stated a period for compliance. Martin felt that a notice would automatically be nullified if the time for compliance were stated as 'forthwith'. Land and mixed uses Martin felt it would be useful to revisit the Burdell case where courts set out the rules for establishing a planning unit. The first point of possible confusion can occur over what is the determining point, i.e. occupation or ownership. In Burdell it was established that there are other possibilities, a dual use or two uses or a mixed composite use where the uses move about over time and area. It is important to make the area as wide as possible as in Martin's experience the inspector may amend a notice to reduce the area, but rarely enlarge it. Breach of conditions There do not appear to be any further stunning developments here. Martin was interested to note that they are not popular in certain parts of the country. The theory is that such action is efficient as there is no right of appeal, however, in practice the courts have accepted as a defence that a notice was served out of time. Martin thinks that gradually the power of BCNs will be eroded, although they may be useful for minor matters such as hours of operation.
11.50 - Dr Nigel Barker, Waverley Borough Council - CHARACTER ASSASINATION: LISTED BUILDINGS AND ENFORCEMENT Nigel's presentation was divided into two halves, an update on enforcement procedures for listed buildings and secondly some slides to demonstrate what the protection of the special character of the listed building actually means. An enforcement officer may have to assess this prior to alerting a breach to a Listed Building officer. What is listed building? There is a statutory duty to protect listed buildings, as they are finite a resource and represent the social and architectural history of the period. They are a common asset. The 'list' can apply to the building itself and to any free-standing structure within the curtilage. The issue of 'curtilage' can present problems and can be very important particularly where sites are subdivided and the owners may not be aware that their building is Listed. The best way of dealing with this is through land charge entries. The tests are whether any of the works would affect the special character of the building. 'Works' is a descriptive term and can involve repairs or refurbishment and even painting and not simply alteration. If works are carried out without obtaining consent under Section 7 of the 1990 Planning -. g (Listed Building and Conservation) Act, under Section 9 the person is guilty of an offence. It is possible for a Local Authority or an Amenity Group to mount a prosecution, but in practice it is usually the Local Authority. The fact that it is a criminal offence reflects firstly the importance of the heritage, and secondly that works may not be reversible. As previously stated Listed Buildings are a finite resource and once destroyed they cannot be replaced. When the Local Planning Authority becomes aware of works without consent they have a choice; they can issue a Listed Building Enforcement Notice to require the owner rectify the works, but before considering this they must decide whether consent would have been be granted. A Local Planning Authority would be unwilling to grant retrospective consent as it sends out a message that doing works first may be acceptable. The only time this would happen would be with minor and unexceptional works. In addition, where works are unexceptional they may be considered to improve the character of the Listed Building. It would not be prudent to enforce against major works where consent would have been granted and it would be reasonable to advise the owner to submit an application. Another area where it would not be prudent to prosecute is when the works are not entirely satisfactory but could be amended by way of a Listed Building application The basic principles of Listed Building Enforcement Notices are the same as enforcement notices. Another peculiarity of Listed Building legislation is that the four-year rule does not apply and there are no BCNs or Stop Notices. Listed Building Enforcement Notices cannot be issued in respect of work by the crown on its own land, and if the works are undertaken by a foreign tenant the Local Planning Authority may only take action via the foreign office. Procedures can be instigated if it appears that works were carried out without consent or in breach of a condition and would affect the special character of the building. It is not relevant who carried out the works, it could be a previous owner or even a vandal and it is perfectly acceptable to require the present owner to rectify works previously done. Mw general test to be applied to the Notice would be - does it inform the recipient what has been done wrongly and then specify the steps necessary to remedy. It may be possible to request that the building be restored to its former state if this is not practical or desirable then further works may need to be specified. This could comprise something different from restoration to bring the building into an acceptable state. An important point arose in the Sutton Place appeal when the appellants questioned what restoration actually meant would it be to its original condition as in the 16'h century, or to that immediately before the appeal. It is therefore vital to think precisely of the action required by the Notice. There are several courses of action possible when a period feature has been removed, ranging from the return of the feature, to a replacement by a similar item of the same period, or for the provision of a modem item or simply for the damage to be made good. It is important to state the reasons for the chosen alternatives as the notice can be challenged on the grounds of excessive works. The penalties for non-compliance are fines up to £20,000 and this sum is unlimited on indictment With replacement items, it is a defence that the owner has done every thing in his/her power to comply with the notices and is unaware where the item is. If the item is removed it may not be possible to prosecute, as the owner of the building may not own the item itself To ensure compliance it may be necessary to obtain a mandatory injunction from the high court to restore the item forthwith this could involve a full trial accompanied with an interlocutory injunction. This happened in the case of Sotherbys to prevent the sale of an item It can also be claimed that no contravention has occurred and that as a matter of fact consent should be granted, this can occur when there are issues of health and safety or the structural soundness of a building. The remedies are similar to enforcement with a few exceptions. A criminal prosecution can be instigated against unauthorised works under Section 9 of the Listed Buildings Act and damages can be claimed under Section 59 of the Act. With a Building Preservation Notice it is possible to bring action under Section 9, but not under Section 59. For this to succeed it is necessary to prove that: a) the building was listed; and b) the works carried out could be deemed to be alteration or extension. Following the Shimitzu case it is now decreed that whether works constitute demolition or alteration must be decided within the context of the whole of the building, demolition means completely destroyed, however, demolition of part of the building, falling short of destruction, would be deemed to be an alteration. If the works comprise an alteration or extension it has to be demonstrated that it affects the special historic or architectural context and that the works were UNAUTHORISED. To establish whether the works affect the special character will require an expert witness, It is essential to choose someone with-knowledge of the building type and period , 1 UNAUTHORISED works are an offence of strict liability and it makes no difference whether the owner was aware or not and no evidence is required on these grounds. A company is only liable if they were responsible at the time the contracts were taken out. For an owner to claim as a defence that the works were undertaken in the interests of health and safety they need to back it up by written Notice given to the Local Planning Authority. This notice must be accompanied with appropriate surveys. It has to be demonstrated that it was either the demolition or alteration that damaged the special character of the building and the burden of proof rests with the prosecution. The jury must be satisfied beyond all reasonable doubt. If found guilty in the Magistrates Court the defendant is liable to 6 months imprisonment and/or a maximum fine of £25,000 and on indictment a 2 year imprisonment and/or an unlimited fine or both. As so much of the enforcement case rests on the damage caused to the special character of the Listed Building it is vital to keep photographic records.
14.10 - George Summers, Gypsy Liaison Officer, Hampshire County Council - REPOSSESSION ACTION IN RESPONSE TO UNAUTHORISED ENCAMPMENTS BY TRAVELLING COMMUNITY In Hampshire there are large increases the gypsy population in July and uninformed people imagine that we can just go along and tell them to go, and they will! The numbers of people involved could be as many as 2500. George tends to act as liaison between different groups and finding sites for them to go to as contrary to popular belief most gypsies live on permanent sites. However, they like to move around periodically. George was instrumental in setting up a Good Practice Guide for dealing with gypsies in Hampshire and at the time this was seen as revolutionary. Now most Local Authorities use a Guide as an essential tool when dealing with travellers. In order to undertake the relevant Needs Audit, a Local Authority must have appropriate policies in their Local Plan and a Good Practice Guide. The Needs Audit must take into account education, special needs and health and welfare needs. Based on the relevant case law George would advise that a decision should not be made on site, he normally treats this as an information-collecting exercise and upon his returns to the office the relevant decision-makers are consulted. This separation of the report process from the decision making process is Human Rights compliant in that the action must be proportional to the offence and a balanced view must be taken. George may well decide to leave people there and then monitor the situation. The same applies to when a police officer is involved, a decision is not usually taken at the scene and is usually referred to a more senior level. It is important that Good Practice Guides are drawn up in liaison with the police. The powers of the Police under Section 61 of the Criminal Justice and Public Order Act 1994, are only used as a means of last resort. Normally the Local Planning Authority is quite capable of resolving problems and taking them before the civil court rather than criminalising the case and the police concur with this. Since the 1994 Act has been repealed the duty of provision of sites on the Local Authority there has been reduction of sites from 350 to 300. The Local Authority does not have the resources to maintain the gypsy sites and are also in competition for funds. George would advise that if a Good Practice Guide is used it is possible to take appropriate action and as far as he is concerned enforcement is the art of achieving the impossible in the shortest possible time.
15.15 - Samantha Pullin LLB, Barrister at Law to Eastbourne Borough Council - Human AN RIGHTS UPDATE (SEE ARTICLE) This was an update on Samantha's previous presentation relating to the last six months of significant European and UK legislation. With regard to the recent New Forest case this did not involve gypsies, but similar arguments were put forward about the enjoyment of home and family life under Article 8. The planning decision involved the unlawful erection of a dwelling on land previously used for agriculture and planning permission had been granted for agricultural buildings. The Council served an enforcement notice that the dwelling should be demolished. The inspector said that if the enforcement notice was upheld in its format it would breach Article 8, this decision was made despite the fact that the development was contrary to Local Planning Authority policies regarding agricultural land and our forestry heritage. The reasons for considering that Article 8 had been breached was because the appellant and his family would be made homeless with little prospect of reasonable alternative accommodation and financial ruin. The inspector said that whilst this right had to be balanced in this case the test of proportionality fell on the side of the appellant. In these circumstances this decision may not be as far reaching as first appeared, nevertheless the fact that only 1 0 minutes worth of evidence was heard regarding special circumstances could be worrying. It looks likely that the Local Authority will appeal. Copies of appeal decision letter may be obtained from Enforcement New Forest District Council. 16.15 - Close of proceedings, the next meeting will be on Friday 13'b July at Bushy the Metropolitan Police Club Bushey, Herts. To be sponsored by London Borough of Barnet.