THE PLANNING REFORM BILL: DEVELOPING A WELSH ENFORCEMENT SYSTEM

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THE PLANNING REFORM BILL: DEVELOPING A WELSH ENFORCEMENT SYSTEM Sophie Berry Welsh Government/Newport City Council [email protected]

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THE PLANNING REFORM BILL: DEVELOPING A WELSH ENFORCEMENT SYSTEM. Sophie Berry Welsh Government/Newport City Council [email protected]. Overview. Background to enforcement research and Planning Bill Task 1 Measures proposed to be included in the Bill Task 2 - PowerPoint PPT Presentation

Transcript of THE PLANNING REFORM BILL: DEVELOPING A WELSH ENFORCEMENT SYSTEM

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THE PLANNING REFORM BILL: DEVELOPING A WELSH

ENFORCEMENT SYSTEM

Sophie BerryWelsh Government/Newport City

Council [email protected]

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Overview

• Background to enforcement research and Planning Bill

• Task 1• Measures proposed to be included in the

Bill• Task 2• Outcome of phase 1 of research• What next?

Sophie BerryWelsh Government/Newport City Council

[email protected]

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BackgroundStage 1 and 2 Enforcement Reviews

• Planning Delivering for Wales (PdW) (2002) Programme: Enforcement system is ‘cumbersome and ineffective’

• Subsequent review into Welsh enforcement system

• Stage 1 of review: Questionnaire to stakeholders fed into Stage 2 review paper (2006)

• Consensus that existing regime was generally effective although made recommendations for areas of further research – no primary legislation making powers until March 2011

Sophie BerryWelsh Government/Newport City Council

[email protected]

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BackgroundReport by Independent Advisory Group (IAG): ‘Towards a Welsh Planning Act’ (Sep 2012)• IAG set up to review planning system

- chaired by former Director of Planning Inspectorate in Wales- other stakeholders: lawyer, local government, RSPB, development industry

• Gathered evidence on how best to allocate future roles and responsibilities in the planning system – 97 recommendations• Few comments from call for evidence re enforcement• Recommendations made based on experiences of IAG members• Recommendations 82 and 92 – 93 Sophie Berry

Welsh Government/Newport City Council [email protected]

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Task 1 Put the existing legislation/policy documents in the correct columns on your worksheet:

A. Town and Country Planning (Local Development Plan) Regulations B. Technical Advice Note 9: Enforcing Planning ControlC. Town and Country Planning Act D. Town and Country Planning (General Permitted Development) OrderE. Planning and Compulsory Purchase Act F. Town and Country Planning (General Development Procedure) (Wales) Order G. Planning and Development RegulationsH. National Planning Policy FrameworkI. Town and Country Planning (General Development Procedure) (England) Order J. Planning and Development Act

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Planning Bill• Overarching power in primary and detail in

secondary e.g.TCPA & DMPWO - not the case with enforcement

• Pre 2011: relied on secondary legislation, policy and guidance to shape system

• Primary legislation powers in May2011 (commencement of Part 4 of Government

of Wales Act 2006): Now able to legislate for Welsh Context in

areas of legislative competence

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Arup research• Arup won £50,000 contract to conduct review into Welsh

enforcement system over 5 months• Asked to consider measures identified in Stage 2 review

and by IAG• Conducting baseline survey of Welsh LPA enforcement

statistics to feed into review• Steering Group established• 3 Phases. Phase 2 report due in March• Final Phase Report will make recommendations for

effective and efficient enforcement system: Bill, secondary legislation, policy, guidance, training etc

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Measures Considered• Changes to 4 and 10 year time limits• Power to introduce Temporary Stop Notices• Use of completion notices• Role of fines• Use of S102 and conditions on Notices• Power to introduce Fixed Penalty Notices for

offences• Provision to cancel Enforcement Notices• Changes to ground (a) appeal: remove deemed

application & no ground (a) if previous refusal upheld

• Power to decline to accept retrospective applications

• Change of S.217 appeals to Ministers Sophie BerryWelsh Government/Newport City Council

[email protected]

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Task 2Group A: Removal of time limitsGroup B: Introduction of Fixed Penalty Notices

In your group identify:

The legislation that would have to be changed to implement your measure;

The positives and negatives of implementing this measure

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Common Themes in Phase 1

• Reactive approach• Resource constraints• Variations in service quality• Training• Delegation of responsibility• Delay and unfair practice• Collaborative working and info sharing

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Time limits• S.171B TCPA 1990: 4 and 10 years immunity –

increase? Decrease? Remove?• Beesly 2011: ‘deliberate, elaborate and sustained

plan to deceive the council from first to last’• What about residential conversions where no

obvious deliberate attempt to deceive?• reduced urgency/increased strain & increase in

appeals/prosecutions OR Reduced burden & greater clarity

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Temporary Stop Notices• S.171 (E – H) TCPA 1990 (S. 52 PCPA 2004):

‘Widely effective tool’ (DCLG)• S144A & 144D of TCP(Scotland) Act 1997• Power not available in Wales• Immediate effect, no EN required, offence BUT

compensation risk• Positive reaction in interviews: ‘breathing space’,

halt intensification. • Increased complexity?

Sophie BerryWelsh Government/Newport City Council

[email protected]

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S.94 Completion Notices

• In-effective• Not used regularly• Result in lawful but Incomplete development• Slow, WM approval, &Compensation risk• Repeal or change S.94under Planning Bill

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Fines• Defined in legislation• Fines imposed too low• Fines don’t act as deterrent• Change to legislation ORguidance to magistrates?• LPA’s need to emphasise Financial gain

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Conditions on a Notice• S102 TCPA 1990: Discontinuance Order

- rarely used- little knowledge of Orders

• New power to attach conditions to EN’s- where development acceptable in all other respects e.g. removal of pd rights, opening hours

• Change to S.173 (content of an EN) or S.102• Quick resolution BUT• No retrospective fee

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Fixed Penalty Notices• S.136A & 145A of TCP (Scotland) Act 1997-must be served within 6months, no appeal, 1 peroffence-£300 (BOCN) to £2000- rarely used• Quick fix• Avoid magistrate system• More proportionate?• Multiple FPNs for repeat offences = appeal system

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Cancelling Notices• Notice on Register can be impediment to property

transactions (IAG)• Power to cancel EN’s when spent• Could be beneficial where no chance of re-

occurrence• Part of site history – informational, deterrent• What if repeat offence occurs? resource implications• LPA’s interviewed considered Notices should run

with land• Register should already record compliance

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Ground (a) Appeal• Removal of ‘deemed’ application

- ‘deemed application’ is confusing- ground (a) only route to pp once EN served- interviewees agree

• Remove ground (a) appeal where refusals upheld- prevent delay- S.123 Localism Act 2011 – no ground (a) where EN served after app submitted and before the end of the application period – Wales goes further (applies to retrospective)- restriction of appeal rights?

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Retrospective Applications• S.123 Localism Act 2011: Power to Decline

Retrospective Planning Applications, where EN served first

• Discretion of LPA• Would operate in conjunction with loss of ground

(a) where previous refusals upheld • Prevent delay – developer forced to take one

route to attempt to gain pp where breach has occurred

• Risk of manipulation through proposal of small changes

Sophie BerryWelsh Government/Newport City Council

[email protected]

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S.217 Appeals• Appeals against S.215 Notices (S.217 TCPA 1990)

currently determined by magistrates• No other enforcement or planning appeals dealt with in

this way• Magistrate’s not used to making such judgements

• More appropriately dealt with by WM?• Very few S.217 appeals made

• LPA’s tend to get good results at courtfor these sorts of cases

Sophie BerryWelsh Government/Newport City Council

[email protected]

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What Next?

• Phase 2 report due in March: case studies and baseline data

• Final Report and recommendations in April• Final policy instructions by May• White Paper and draft Planning Reform

Bill by winter 2013• Secondary legislation and guidance• Planning Bill by 2015-16

Sophie BerryWelsh Government/Newport City Council

[email protected]

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Sophie BerryWelsh Government (Newport City Council)

[email protected] 20 825014