Re: If a 172 enforcement notice requires a land owner to break another law - Public forum - Planning Advisory Service (PAS)

This does seem at first a somewhat draconian move by the LPA, however it also seems half a story. To remove a caravan sited on the land whilst development is ongoing, well, It is common for LPA’s to grant self builders as an example, residential occupancy for a set duration whilst the self builder develops his / her dwelling (maybe for a year) likewise a site office would be seen by most LPA’s as a reasonable request. However if work has stopped, why should it stay on site ? Has the development got the benefit of planning permission, you state ‘yes’ but if for example pre-conditions exist and have not been met or discharged prior to commencement, then an enforcement notice can seek to remove / cease the ongoing works due to the argument it has no permission for the owner failed to discharge the pre-conditions (you cannot use a Breach of Condition Notice for a pre-commencement condition, once the work has started) So removal of the works that have been started (which I would assume is the reference to the drive and services) would be indeed legal and correct – if the owner has failed to meet his / her planning obligations like a pre-condition or a s106 not been signed. Is it that when the notices sates ‘services’ is it relating to the provision of drains and other services, and does it actually state ‘remove the electricity pole’ ? As to the s215 and the bat roost, the works can be undertaken as long as it is done with regard to the roost, not when the roost is actively in use and I would suggest a specialist advisor ‘signing off’ the works, just because the roost is on site does not negate the s215 work requirements, just that it needs to be done with special attention to the law and the bats in situ (that if the bats are actually on site in the first place ?)

Thank you for your reply Don. The property obtained planning permission for all the works- including a driveway for parking for three cars, services etc, development of a chapel and this planning permission has been in place since 2002. The current owner bought the property in 2004 and continued these works steadily (lots of documentation-reports from building regs etc), continuing the use of the site caravan as a place to stay most weeks-that was on the property when he bought it. A number of builders have made use of the caravan when working on the property with the owner which is well documented and for which the owner has affidavits to prove. The owner is not a developer and the property is 4 stories high, 19mX24m and he has been doing works mainly with one other worker. There is a strong case for persistent and unwarranted harassment from the officer dealing with his case which I won't go in to. Leading up to the Section the owner decided he needed to do a few months work in Ireland to raise some more capital to replace the roof of the chapel- estimated cost £20k. While he was away he left a worker on site to carry on with smaller works. the authority served the notice in his absence for which when he eventually read it on his return found the planning appeal time had expired. Despite repeated correspondence with the authority, two separate lines of formal complaint, the authority refused to meet to talk through the situation-leaving him no choice but to try and comply. The enforcement notice was so badly written- legal advice obtained from an expert stated should my friend have had a chance to appeal the entire section would have be squashed. The reasoning given was- the notice requires the land to be returned to a green field with no provision for existing planning consent, easements on the land held my utility service providers-water/electricity- which service other houses, the hardstanding, an LPG gas tank (also listed in his planning). The lawyer also said the landowner had a right to have a site caravan and should have been granted planning permission. Overall instructions are ambiguous about what services were to be removed and implies his existing planning permission is totally void. It should be noted that until he lodged his second formal complaint he never had a direct response to any written communications. He was ignored. The owner did everything they asked for on the list except what he couldn't comply with or felt was lawful and continued to try and call for negotiations. He has now removed the caravan and finds it hard to continue work on the building they have served a 215 on. It a vicious circle where one prevents the other etc. The landowner has now been summoned to court for non compliance. It is only at this point he realises he cannot bring his defense to the hearing. We are looking at what other options he could possibly draw on- including prosecuting them for maladministration, the notices constituting a nullity, a judicial review??? It is hard to imagine the law is set up so it can fail one individual so completely. Any advice anyone has would be very much appreciated.

This sounds like a total mess. So what's the full story? Was there ever a reasonable degree of communication with the LPA? If so, what happened to disrupt that relationship? Has the original planning permission been rescinded? If so, why? If not, what else has triggered the LPA actions? And why has the development taken so long? And when would it have been completed? I would like to think that if this is simply a case of one vindictive case officer then the situation will resolve itself as other parties are drawn in.

The above is the real story Richard which is why I am on line trying to find a way to seek justice. I would say there was never good communication. The owner was perhaps calmer in earlier years and gave information on request. The officer was always aggressive and suspicious. Don suggests that because he went away to work for 2-3 months to raise extra money this may have been a reason, but he left a worker in the site caravan doing smaller works internally on the chapel and prep for roof work. It wasn't that he went away for a year or six months even. The development is taking so long because it is a 4 story, 19x21m old chapel, which when the owner bought it it had been left to deteriorate for 40 years. It had broken windows covered in tin, no floors, bad roof, broken panes, ceilings falling in. The idea was that the owner would take it on as a labour of love - to convert it into an amazing dwelling for which there was planning in place. He is an engineer so felt he could self teach himself building. He always intended to do it as a 2-3 builder job over many years as that is all he could afford. When he passed building regs in 2005 it gave him the right to take as long as he wanted. He's not a developer BUT there has been extensive work done over the years in line with what he is capable of. 15 huge windows have been hand made and replaced by the owner. There is just one really, really huge one at the front to go in now but they have banned him using scaffolding. Drainage has been put in, electricity wired internally, new roof-including structure holding it up, guttering, re-pointing, painting, ground floor work (lowering) there is a very long list here. Basically he's been at it year in year out- on site most weeks. A previous owner used it as a car repair business and the land at the back which has attracted a S172 for this owner was previously filled with old car parts and junk for 20 years before my friend bought it. It's grass now and a drive. A officer came around in about 2005 to tell my friend someone had made a complaint- the same person who always made complaints about this property. He asked if my friend knew of anyone with any reason to want to see the property demolished. He used the word vendetta. Planning permission has not been revoked although the officer did try in about 2007 to claim it should be- but found my friend had long before passed building control. That's when she tried to cause trouble claiming no progression- and when all this started. She was saying things to him like- "just get up on the roof and replace a title or two" when he found all the iron pegs in the tiles were rotten and the roof needed replacing. Water was pouring in. He missed the appeal on both the 215 and 172 which gives him no options. Of course over many years this makes a person more desperate and he has written letters of complaint. Letters challenging the validity of their sections. Letters begging them to talk to him. He even did a freedom of information act on them to see if he could find out anything that would shed light on this matter. He turned up to a meeting that was finally arranged a few months ago- for which I went in as a witness- traveled in- only to be told the new officer managing his case wouldn't be attending and the LPA had decided not to negotiate. My friend will now get a criminal record. In 2011 he sent a complaint in to start the complaint process (on advice of an ex employee of the authority) and they answered that with a letter- notice before action and never responded. He simply cannot comply as it would require removing an entire electricity supply for a whole cluster of houses, remove a manhole for water against the requirements of that utility provider as the outlined area in red has to be returned to a green field. Additionally he would have to remove other elements he already had planning for. It specifically asks him to "remove all electrical, water and drainage"and "restore the land to it's original state by covering the land with top soil and reseeding the area with grass". So simply- is there any hope of him declaring the section a nullity whereby he can defend himself against non compliance? Have affidavits, witness accounts, photos, building reg reports, freedom of information info showing vindictiveness on behalf of the officer in charge, between 2006-2012 never ever had a single reply to one letter, have answer to second formal complaint saying sorry for this lack of reply. Following that apology, had an invitation to meet, admitting many of the demands of the notice were complied with and so could discuss the planning issue further- turned up and was met with a refusal to discuss- by the head of department "There is a judicial process in place which we wish to pursue". Richard if we knew why this was allowed I guess he wouldn't have a problem. To answer your question- the outside perhaps would have reached completion about 12 months ago if naturally left alone to get on. Inside is really another 3 years- if my friend has any desire to continue after this nightmare. Really- I just want to find something that can make them have to be accountable for their actions and give my friend a chance to defend himself. For Don- no discharge, doesn't say remove electricity pole- says return to green field whole land with no provision for any of the utilities there or existing planning permission. Thanks

Emma Your friend needs to go to a good planning barrister and be represented in court. The presence of Counsel may make the legal officers at the Council check what has gone on and stay a prosecution. Even if it goes ahead what you have told us is likely confuse magistrates and may result in a dismissal or minor penalty. This is a classic example of why people should take early professional advice and not just hope that common sense, or what they feel to be such, will prevail. Les

Thanks Leslie, We can only hope the legal process has some safety net. Scottish power has now offered to provide a letter outlining their position and claim on the land and confirm that it is illegal to remove the poll under any circumstances. They are also going to be explicit that they have no intention of facilitating it's removal (regardless of cost) as it is part of an active network. The Section did not exclude the poll in it's request to return the land (as outlined on a map) to a green field and so we hope this will provide an opportunity for a defense. Hopefully if the case comes under scrutiny and they have to re-look at the original demands more closely and all my friends correspondence, the situation will be fully exposed at a higher level. He has obtained some expert planning advice from a planning solicitor (good one) on the validity of the Sections- which he advised would have been quashed had he submitted an appeal in the time. But as he hasn't and has attempted to comply, the lawyer also said that "although the case could be pursued it was arguably not in the public interest to do so". I hope the Magistrates are confused because we certainly are. The main question being- what is their real agenda? I still don't know what would be required to claim a nullity but I guess time has run out. Thank you everyone for your notes- some comments have led me to find some valuable information.

Permitted development rights allow the use of land as a caravan site in the circumstances set out in the Schedule to the 1960 Caravan Sites and Control of Development Act. One of these is the following: Building and engineering sites 9. Subject to the provisions of paragraph 13 of this Schedule, a site licence shall not be required for the use as a caravan site of land which forms part of, or adjoins, land on which building or engineering operations are being carried out (being operations for the carrying out of which permission under Part III of the Act of 1947 has, if required, been granted) if that use is for the accommodation of a person or persons employed in connection with the said operations. So why were the Council even challening the caravan in the first place?

Yes Michael, I have copies of 5 separate letters to the LPA where my friend asked exactly the same question, for which he never, ever had a reply. He actually quoted the same law to them those 5 times as you have now. He has affidavits and evidence demonstrating works were progressing reasonably to justify the caravan under those conditions. Aside from this, it is unusual that an authority wouldn't suggest and then grant residential use for a caravan for a set period, if necessary for the development of a property they had granted planning permission to. It is clear as day, had he been able to get the notice in time and raise an appeal, he would have won that appeal. This has been confirmed through a planning lawyer looking at the case. Unfortunately the law weighs heavily on the integrity of the LPA and once this 28 day window is missed you cannot present these questions or even the flaws or invalidity of the notice to the court in a case for non compliance- unless it is a nullity or you raise a judicial review. I am trying to find out if anything in this case justifies that claim. The law is complex and even if there are ridiculous assumptions that could be made from the notice - if it could have been amended through an appeal it cannot be used for either a nullity or Judicial review claim. I am finding the whole thing very frustrating and upsetting. I am wondering if I should address a letter to the head of the whole authority and plea with him to investigate this case for potential bias. As an objective bystander and witness to the only meeting he achieved to arrange, I am appalled by their conduct. When I walked in to the room, I was interrogated for who I was, where I lived and denied any right to take minutes.I felt intimidated and quite scared actually. So I get a feeling for how it's been for my friend. The lawyer representing my friend has been unable to get a meeting either as they claim "everyone" is on annual leave. When do their actions become criminal? Their action is disproportionate. As Leslie said, you would think someone higher above would recognise this....unless there has been some kind of concealment of information that would stop them being able to identify the problem. Appreciate another comment.

Q: Can someone bring a case to The Ombudsman even after a conviction? Can a conviction in these cases be over turned if it is found to have been flawed or that there has been bias or something malicious behind the proceedings?

As an ill informed outsider it seems that: Either: You have a "Rotten Borough" ... perhaps a councillor or a developer with 'contacts' lives next door to the development? Or: Your friend has REALLY upset one or more people, so now nobody is prepared to help in any way. If he has taken the micky out of the planning system or even worse abused an LPA employee - or threatened their jobs in any way - then human nature will kick in. For example: a client of mine once swore at my receptionist - there is NO way on God's Earth that I will now do anything for that client ... and I will try to ensure that my friends & associates know the situation and will act accordingly. Sadly (?) life's like that. Your friend needs to find out what the LPA would like to see happen : maybe they would be happy if he sold up and moved on? Or built something else? I'm not sure that I would spend too much time or money on legal process - life is too short and as they say 'You can't fight City Hall'. I do however suspect that the power pole will survive the fuss - even if the development doesn't.

Dear Richard, The last bit about the power pole had me in fits.... Yes I am most certain Scottish power has some clout over an authority. I would say that the borough is rotten on many levels as they have to show professionalism and measure. It is their job. Any action by them, threaten people's livelihoods and lifestyle and so part of their training is to deal with someone who is stressed and upset. My friend never threatened them or got violent. Considering in this whole process my friend did not bring any decent threat of legal action against them for bias and maladministration (through a formal complaint process) until 6 years into this polava, I am sure his attempt to seek justice should be seen with reason on all counts by anyone with any level of authority- unless of course they have something to hide. But yes- they did answer that complaint with a summons- so they obviously didn't like that. And they particularly didn't like that he did a freedom of information act on them to get some very incriminating evidence against them (As I said there is evidence of harassment). But in perspective, he did write some very reasonable letters well before this, simply saying he did feel he needed to defend his legal right to the site caravan as it would effect his ability to progress the development. That was in 2009 after an internal site visit and before the sections. He offered to "meet and draw up a realistic timescale for work based on my ability and finances so I can proceed in peace and concentrate on the job at hand". That's why if there had been an appeal or we could raise a case of bias or nullity or judicial review or anything- this would all come to light. I would imagine that would be pretty damning. I think there was a rouge officer that perhaps took her case too far and would bring potential disrepute on the authority if they withdrew. That's my opinion. Because should they withdraw they must be aware of the massive damages my friend could claim. He tried to sell the property before the sections were put on as he was fed up with the hassle and has a letter of withdraw to the value of £200,000. Anyway- three years on it is what it is. I do hope they give my friend a chance to sell it and move on. That would be a win for him as he just wants an end to this nightmare. He now has no site caravan and I think he could just about get the last window in and seal it up- beyond that he will have to pay for a B&B to continue works. Good news for all that have contributed though..... The magistrate refused to hear my friends plea yesterday on seeing evidence that the caravan was gone and adjourned the case for another month until the Authority could do a site visit and encouraged them to try and negotiate. Advice he got from he professional was that if he was granted more time, he should submit an application for a caravan for another year and on appeal he thought they would have to grant it to him. This would of course highlight a huge flaw. We will look in to that if the meeting doesn't go well. Thanks everyone for your help. My faith in justice has been restored a little.