Planning Enforcement and Costs for Clients

If a local planning authority behaves unreasonably in deciding to issue and then to prosecute an Enforcement Notice, that authority opens itself up to an award of costs in favour of an appellant. So it was in a recent case in which DF Legal were instructed to represent clients at a Public Inquiry appeal against the issuing of an enforcement notice.

Working closely with the client's own Planning Consultant, we were able to establish that some of the problems the Planning Authority had to overcome were

• That the Authority had failed to make reasonable enquiries into the ownership of the land the subject of an Enforcement Notice (infact had made no enquiries at all) and so were obliged to amend the Enforcement Notice plan at the Inquiry
• The precise terms of the Enforcement Notice showed inconsistencies between the reasons for issuing the same, and the works required of the Client's to rectify the alleged breech of planning control
• That a fairly junior and inexperienced officer had made the decision to issue the Enforcement Notice on "evidence" that was clearly inadequate, obtained from a veracious third party, and which was unsubstantiated at the Public Inquiry itself.

An application was made before the Planning Inspector for costs.

A full costs order was made against the Council, the Enforcement Notice was quashed and the clients are now happily developing out their land.

The case demonstrates that for a Local Planning Authority, following planning policies is not always enough. Planning Authorities have procedures to follow in making their planning decisions and if they fail in doing so they risk financial censure. They have to act reasonably and they have to support with compelling evidence each and every decision they make.

It's always worth enquiring whether the Authority has followed its own scheme of delegation to officers when considering planning matters of all kinds.

The case also demonstrates the need for professional assistance when clients are faced with such matters.

DAVID Ferraby
Head of Planning Law at DF Legal LLP
April 2011