S.I. 2007/406: memorandum from the Department for Communities and Local Government

Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2007 (S.I. 2007/406)

1.  The Committee has requested a memorandum on the following point-

"Paragraph A2(c) of new Part 39 of Schedule 2 to the principal Order (inserted by article 2(2) of this Order), permitting buildings needed to protect birds from avian influenza, requires compliance with the conditions mentioned in that paragraph "on or before the relevant date" (defined in paragraph A3). Given that building removal and land restoration appears possibly to call for work extending beyond the day when the need for the building ceases, explain how paragraph A2(c) is intended to operate in a case referred to in paragraph (b) of that definition.".

2.  We accept that the 2nd limb of the definition of "relevant date" may mean that it would be difficult in some cases to comply with condition A2(c)(i).

3.  However in practice we do not think that this will create a problem. Where there has been a failure to comply with a condition attached to planning permission, the local planning authority has a discretion whether to take enforcement action under Part 7 of the Town and Country Planning Act 1990. No criminal liability arises from the mere fact that a condition attached to a planning permission has not been complied with. The purpose of enforcement action is to remedy the breach of planning control not to punish.

4.  If the local planning authority decide to take enforcement action against the breach of planning control, they have the option of serving an enforcement notice, a breach of conditions notice or they might seek an injunction from the Court under section 187A. An enforcement notice cannot come into effect before the expiry of a period of 28 days and must specify the period within which the required steps must be taken. There is a right of appeal against an enforcement notice to the Secretary of State, one of the grounds of appeal being that the any period specified in the notice for compliance falls short of what should be reasonably allowed (see section 174(2)(g)). Failure to comply with an enforcement notice is an offence. The period allowed for compliance with a breach of conditions notice is not less than 28 days from the date of service, or such longer period as extended by a further notice. There is no right of appeal but there is a statutory defence to a prosecution for failure to comply with such a notice, that the defendant took all reasonable measures to comply with the condition in question.

5.  In deciding whether or not to grant an injunction the court would be bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end (see the decision of the Court of Appeal in South Bucks. DC v Porter [2001] EWCA Civ 1549).

6.  We think that it is likely that the relevant date will be 19th February 2008 in any event rather than the date provided for in the second limb of the definition. But even if it is this other date, we do not think that there will be a practical problem for the reasons set out above.

9th March 2007

Department for Communities and Local Government