Agenda item

To consider a report by the Director for Place, copy attached as item 8

The Committee had a report before it attached as item 8, which had been circulated to all Members and is attached to a signed copy of these minutes. This report responded to a JOSC request for a review of planning enforcement issues, planning enforcement policy and the Council's approach to planning enforcement. The report set out the legislative background and national planning policies relating to the enforcement of Planning Control. The report highlighted the Council’s Enforcement Policy and the relevant planning considerations in deciding whether to take enforcement action. The report also highlighted resourcing issues and compared the resources currently available to other Councils.

A Member asked, “Paragraph 6.8 - What is the relationship between Approved Inspectors and the council and what powers, if any, do the council have to question Approved Inspectors?”

Members were told that there was no relationship between the two and that the council had no powers over approved inspectors. That building control officers could not enter a site where there is an approved inspector but they could go on as agents of planning.

A Member asked, “Paragraphs 5.0 and 6.5 - Would there be a benefit in better monitoring those cases that are quickly dealt with by Officers and not registered as complaints in order to get a better idea of the council’s performance on serving the public?”

Members were told yes, that it would be a matter of expediency if something was dealt with it would save/avoid administrative time. A record of those cases would also highlight the workload the planning team dealt with.

A Member asked, “My question is around failing to comply with a condition set out in the Construction and Environmental Management Plan. Please can you take us through a timeline of the process of enforcement from the point a complaint is registered about site conditions, your contact with the developer, visits to the site, the issuing of a planning enforcement order, more follow-ups, and then the issuing of a stop notice for non-compliance.”

Members were told that one trend they had noticed was with some larger contractors, the construction management plans could be vague in terms of necessary measures, which made it difficult to enforce. They were working with environmental health to be more specific in construction management plans. As far as timeline, the team acted on a triage basis and responses depended on the breach. Hours of working could also be an issue. Giving a timeline was difficult as it depended upon the seriousness and nature of the complaint. Members were also told that Breach Condition notices took 28 days to take effect and so were quite a slow way to react. Stop notices were rarely used and were usually served with an enforcement notice at the same time. They were issued when a serious danger to people arose. They felt that they had a better condition with contractors than previously and found the best way to resolve most issues was to speak with them directly.

A Member asked “How does the council objectively manage planning enforcement complaints without bias when they are regarding council owned land and buildings?”

Members were told that the Council was unable to take enforcement action or enter into a legal agreement with itself. Invariably the Council did its’ best to comply with planning permission. A strict code of conduct existed to ensure officers acted properly at all times.

A Member asked “Page 21 states 8 weeks investigating a breach, sometimes more depending on the complexity of the circumstance. I’m aware of a case where a development progressed without a signed off landscape plan and a Breach of Condition notice was issued. Subsequently, it took over two years to form a landscape plan that is near pleasing to the residents; are there other ways to expedite resolution to this and other complex cases?”

Members were told that unfortunately developers were good at delaying enforcement action. Where a Breach of Condition Notice was issued regarding landscaping, where a landscaping plan hadn’t been agreed, they had to serve a notice for a plan to be submitted within a time scale and it was then up to the planning authority to agree to that plan. There could then be further complications if residents were to move in during that time, which can delay the process further.  

A Member asked “Paragraph 4.3 states ‘Do not have the resources to monitor compliance with conditions and following the grant of planning permission the onus is on the developer to 1 ensure conditions are discharged and development proceeds in accordance with the approved plans’ - Can you explain whether this opens the council up to a position where developments could be going against their permissions across the borough and district, and does incorrect development have further impact on the residents in the surrounding area?

Members were told that the position on planning conditions had improved in recent years as developers now had to apply for and had a fee for the discharge of conditions. Solicitors and developers were more aware of them being checked when people were buying properties. Case law stated that if pre development conditions were not discharged, they may find that they then did not have planning permission.

A Member asked “Appendix A - Page 23’ Deciding whether to take Enforcement Action Worthing Borough: Worthing Local Plan 2003, Worthing Core Strategy 2011 Adur District: Adur District Local Plan 1996. Statutory: Town & Country Planning Act 1990.’

Are all these reflective of planning practice in 2023 or would Planning Enforcement be a section of the authority worth reviewing to ensure compliance and good development?”

Members were told that most of these had been superceded, that enforcement was reviewed each year and procedures were regularly monitored.

A Member asked “In paragraph 4.2, it states that the Council takes breaches of planning "very seriously" yet acknowledges in 4.3 that resources are limited and the service is "reactive". The Government advice also states, "Effective enforcement is important to maintain public confidence in the planning system." I have no issue with the officers in the enforcement team, who are responsive when I contact them, but how does the council reconcile its two statements in 4.2 and how can the public be expected to have the skills and knowledge to effectively monitor and report suspected breaches?”

Members were told that the council provided an effective service in reacting and that local authorities fell foul of the ombudsman when they didn't. Decision notices were often sent to neighbors of applications with advice and guidance as well as sign posting further information. One of the issues was that the planning process had become so complex it was difficult to know sometimes what constituted a breach. A lot of it came down to what resources were available and where best to place them.

A Member asked “How much does the planning department cost the council taxpayers? Please detail income from fees and costs and balance against operational costs. Should application fees be raised to enable further recruitment (in addition to the part-time post that's pending) and proactive enforcement?”

Members were told that planning was one of the most expensive council services to run. Planning applications fees were minimal compared to the costs of delivering the service, in officer time, sending out notifications and the printing and postage costs associated with it. It was also noted that planning application fees were national and defined by the central government.

A Member asked “The report sets out at Paragraph 3.0 the legislative framework governing planning control. As I understand it, the Council has the right to apply enforcement action when a breach of planning control affects public amenity. How much consideration is given to historic objections and complaints by residents on

the grounds of health, safety, nuisance, and environmental risks and what constitutes a public amenity, and how do you know that previous recommendations and restrictions have been obeyed?

Members were told that the council could not take historic/retrospective issues into account when dealing with applications. Each application had to be taken and considered on its own merit. Where physical infringements like overshadowing were easier to evidence, complaints like loss of view or value were harder to evidence.

A Member asked ”When consideration is being given to a new application, retrospective or otherwise, how accessible to our enforcement officers are records of historic objections to applications made by the same applicant, particularly those setting out environmental, nuisance and health and safety risks and when planning permission is granted in a residential area, particularly when the planning application is retrospective, and objections have been received on environmental and health and safety grounds, how effectively is the development, and any restrictions or recommendations made by the Council, monitored once permission has been granted?

Members were told that when considering a new application, historic issues shouldn’t be considered. If breaches weren’t occurring when officers attended then it required residents to maintain a log and potentially appear in court if a breach of condition notice was served.

Resolved: The committee 

I.                Noted the contents of the report.

II.                Recommended that when the planning enforcement team has the resources, they monitor and report back on minor complaints received that do not go to enforcement action