Agenda item

The Planning Enforcement Sub-Committee was minded to seek an Injunction in this instance, but deferred making a final decision until its next meeting.  In the meantime, Members instructed planning officers to write to the landowner seeking a valid application for planning permission, receipt of which would halt court action while the application was processed through to determination.  Members instructed Environmental Health officers to visit the site and investigate the issue of contaminated land.

Further to the meeting on 26 January 2010 (Minute 6 refers), the Planning Enforcement Sub-Committee considered a report detailing the current situation relating to the sale of vehicles from the forecourt of the former Q8 garage by the A10 in the Parish of Foxton without the specific consent of the Local Planning Authority.    In January, the Sub-Committee had concluded that a deadline be given for the site owner to submit a planning application.  However, the resolution had not been based on any material harm arising from the proposal – an essential factor in determining whether or not to issue and serve an enforcement notice. 

The Senior Planning Officer informed Members that, in spite of further discussions with the landowner, he still had not submitted a planning application.  However, following further consideration, officers had recognised that there was no significant harm in planning terms, and were now proposing “positive enforcement action” as a way of addressing local concerns while seeking to regulate the vehicle sales activity.  This would involve defining from which parts of the site sales could and could not take place, and securing the landowner’s formal agreement to this.  The Council had to consider the impact of vehicle sales on a rural area.

Councillor Deborah Roberts, the local Member, said that it was essential that there should be public confidence in the planning system.   If people perceived the Council as allowing that system to be undermined in certain cases, a very dangerous precedent would have been set.  She said that the land owner had been given ample opportunity to apply for planning permission, and that the Council should now issue and serve an enforcement notice.  Councillors Charlie Nightingale and Pippa Corney supported the comments of the local Member.

The Head of Planning reminded Members that the Council could not force the landowner to submit a planning application.  He commended the “positive enforcement” approach as the best option, given the difficulty in identifying any planning harm.  Councillor Nightingale referred to the Council’s pre-application charging regime, and asked whether the landowner was receiving free advice.  In reply, the Head of Planning said that the landowner was not being advised, but was being told what he had to do in order to regularise his business in planning terms.

Councillor Sebastian Kindersley raised the issue of the landowner applying for a Certificate of Lawful Use or Development.  In reply, the Senior Lawyer advised that the appropriate timescale in this case was ten years, during which time the unauthorised activity must have operated continuously.  Service of an enforcement notice effectively would “stop the clock”.  There would then almost certainly be an appeal, and the Council would have to defend its reasons for the enforcement notice.  It would have to satisfy the Inspector that there had been a breach of planning control in the first place, and that it was in the public interest to enforce.  It would be an abuse of power for the Council to use enforcement action as a form of punishment for conduct of which it disapproved.

Councillor Hazel Smith supported the comments from the Head of Planning, and said the Council must have confidence in its ability to win any subsequent appeal.

Councillor Kindersley noted that the site had formerly been a petrol filling station.  He said that, had an application for planning permission been received, the Local Planning Authority would have been able to attach Conditions to a consent, including a requirement to remediate any contaminated land.  Given the potential cost of such remediation, Councillor Kindersley wondered whether this might explain why no application had been forthcoming.

Councillor Corney was worried by the perception that might be given if the Council refrained from taking enforcement action.

The Senior Lawyer emphasised that the enforcement notice process was constrained by the need to identify planning harm.  The absence of such harm being identified also made it highly unlikely that an Injunction would be a realistic alternative: the absence of a good reason was likely to persuade a Judge that such a discretionary remedy would not be proportionate.

Councillor Kindersley proposed that this matter be deferred for at least one month and that officers be instructed to write to the landowner to the effect that the Council would seek an Injunction should no planning application be received within a reasonable period.  Councillor Smith seconded the proposal.  Through planning officers, Councillor Nick Wright instructed Environmental Services to investigate contaminated land issues on the site.

The Planning Enforcement Sub-Committee was minded to seek an Injunction in this instance, but deferred making a final decision until its next meeting.  In the meantime, Members instructed planning officers to write to the landowner seeking a valid application for planning permission, receipt of which would halt court action while the application was processed through to determination.