Since 1947, there has been continuing public and professional concern about the complexity of the enforcement system and unacceptable delays (until 1960 enforcement appeals were deal with by Magistrates). Two statutory revisions post- Dobry:

• Town and Country (Amendment) Act 1977
• Local Government and Planning Act 1981

but many of the same concerns remained.

In 1989 the Government commissioned the Carnwath review:

The review benefited from being independent and open-ended, but only looked at the LAW. Carnwath was firmly against introducing direct criminal liability for breaches of planning control. Most of his recommendations were given effect in the Planning and Compensation Act of 1991, except:

• broadening of the SS’s powers to vary a notice on appeal, removing the limitation requiring "without prejudice", by giving parties adequate advance notice to deal with the altered issues
• a statutory protection from challenge on grounds of misdescription
• Breach of Condition Notice: Magistrates should also have the power to order compliance by means of abatement orders (similar to Public Health Act of 1936).

Although not within his remit Carnwath was critical of the Government’s "policy ambivalence" on enforcement and also suggested the need for good practice to be widely disseminated . Policy advice was improved in PPG 18 (1991). [NB Advice in para. 9 about under-enforcement/positive enforcement notice]

During the passage of the Bill, the Government successfully resisted an attempt to impose a duty to undertake a statutory review of enforcement within 4 years of the Act coming into force. However, Ministers accepted the spirit of the proposal. The (independent) review in 1995 said that: essentially the new laws were working well, the real problems lay in practice - recommended good practice guidance for LPAs.

In 1997 the (incoming) Government published the consolidating Circular (10/97) on Enforcement and a Good Practice Guide. Caveat emptor: don’t take case law in them as gospel, in some respects they are out-of-date.

The Good Practice Guide has a list of do’s and don’ts in the introduction. Try going through it – its alarming how many don’ts are still scored! The Guide also recommended:

• LPAs develop their enforcement policy statements. How many LPAs have them?
• if enforcement resources are scarce, maximise them by prioritising complaints. How many of you have this? As a public document?
• be proactive in enforcement, otherwise you are storing up problems for the future. How many LPAs have fully dedicated conditions monitoring officers?

Your answers show that in the 10+years since the last review, we still haven’t got our act together – enforcement is the weakest link!

The Government (Treasury) has now turned the spotlight on Planning, both in terms of performance (Best Value) but also as a vehicle to deliver key policies: regeneration, sustainable communities and sustainable development and economic growth for the 21^st century. The Green Paper published in December 2001 was titled "Delivering a Fundamental Change" It sought in Lord Falconer’s words to challenge implicit assumptions and deliver the most radical reforms for 50 years. The end result the Planning and Compulsory Purchase Bill now going through Parliament. Described by one eminent planning solicitor (Stephen Ashworth – Denton Wilde Sapte) as "the most cowardly waste of time". I have to agree, the green paper was not built on any supporting evidence, its prescriptions for change were full of rhetoric but had no intellectual depth and detail was simply absent. It could not even tackle enforcement!

Lord Falconer said an effective planning system is vital to the quality of people’s life. A system is needed that is capable of reaching decisions that command public confidence and which are seen to be open and fair – that is clear, comprehensible and comes to robust decisions in a sensible time frame. Well you can’t have any of that without an effective enforcement system. To quote the few paragraphs in the Green Paper on enforcement: effective action needs to be taken against those who try wilfully to avoid planning control. Without effective enforcement action, confidence in the system is undermined. Unfortunately, when planning regulations are broken, there is a presumption – often correct, that they are not being sufficiently enforced (para 2.7).

Which brings me to the Enforcement Review of 2002. Effectively a two stage process of which we have not yet completed the first stage (consultative) so it might all drag on for a long time yet.

The review started with a meeting of the "great and good" (and one enforcement officer) to pull together the issues. Despite what we all might say on the principle of criminalisation etc the outcomes have probably been decided:

Because lots of other issues got in the way (Gypsies/Human Rights and the Planning Bill). Enforcement is as much the "Cinderella" of the ODPM’s Planning Division as it is in most planning departments.

Not until some unspecified time in the New Year, probably after the ODPM have got the Planning Bill out of the way.

Anyone’s guess, probably not what you want. My guess:

• no new primary legislation (nothing in Bill)
• some tinkering with secondary legislation (lots of revamping expecting next year anyhow)
• lots of good practice advice on how LPAs could/should improve enforcement practice. (Which may not have much effect considering how many LPAs have still NOT acted on advice in the last one!)

I hope what I have said will not be correct, but I really doubt there will be the fundamental re-think, as originally envisaged. We will have to try and sort things out the best we can by ourselves and this is always going to be an up hill struggle if enforcement remains discretionary because it will not get the resources, money time and manpower that it needs (even with the Planning Delivery Grant). But you don’t have to wait for the review, start making real changes to how you "do" enforcement asap, otherwise enforcement will remain the weakest link.

Enforcement is the most complex and litigious part of the planning process. It is essential to maintain its integrity. When a business is failing you need to review the fit between your product and your customers. Its no good being efficient if you are not doing the right things i.e being effective (even M&S eventually realised that):

EFFICIENCY is doing the right things

- how you do things are matters of technique

- what you do is a matter of choice

We all profess that effective enforcement is essential to maintain the integrity of the planning system but is that what we actually do in practice? In a large number of cases it is not. In many planning offices enforcement is really an "environmental complaint mediation service". In fact, some LPAs do try to operate a system which reacts to complaints prioritised in relation to their importance in planning terms (rather than who is complaining or how vociferously). But neither of these systems can be said to be maintaining the integrity of the whole planning system – they are just fire fighting exercises to a greater or lesser degree. Only those planning departments who have both proactive and reactive elements stand a chance of claiming to be effective.

We have got tied into the reactive system and as complaints continue we often can’t even keep up with them. We need a sea-change in out thinking.

Ask: If you were starting from scratch how would you set up the "integrity" element of the process? You’d look at what you have to do and who you were doing it for.

Product: What you have to do is defined in the Act. Not only to regularise breaches, but to ensure that development takes place in accordance with the permissions granted. In reality the biggest area we should work on relates to the number of applications granted. If in a year an authority grants 2000 permissions and on average each permission has 5 conditions imposed on it (a gross underestimate?) then year on year there are at least 10,000 conditions which might need to be checked from time to time, some of course will have an on-going requirement: hours of operation, restriction on occupancy etc. Performance targets on DC also mean more and more pre-commencement-type conditions (materials, landscaping etc).

Customers: Who are you doing it for? We are in a tunnel vision of complainant v contravenor. There are two other very important customers we have a tendency to forget. Firstly, the community at large who expect a planning system which has integrity, which is fair, transparent and effective AND secondly those who are keeping a close eye on whether the authority does meet these standards, because if they don’t why should they bother obeying the rules ie potential contravenors.

In the absence of an mandatory enforcement regime which has criminal clout we have to put scarce resources to maximum effect for all these customers of the planning system. We need to get people to understand more about the planning system, about development and particularly permitted development. Customers need to see that "enforcement" officers are out there, monitoring the planning system, making sure that permissions are correctly implemented, taking action against those who flout the rules, then there would be fewer unauthorised developments and more likelihood of fewer "customers" trying to get away with things. How often have you explain the Whitley rule?

These different groups need different services – work on this:

Complainants: information, clarification, explanation and resolution

Alleged Contravenor: investigation, regularisation, cessation

With an idea of what is effective enforcement we can actually begin to measure our effectiveness: number of permissions correctly implemented, continuing conditions monitored, number of retrospective applications in relations to breaches. (These are real measures which can be equated to staff resources).

You have got to stop "just reacting". Raise your vision. Your job is to maintain the integrity of the system which means more proactive enforcement. You don’t need to wait for the review, start working at it now, otherwise enforcement will remain the weakest link. Goodbye?

Vivien Green

December 2003