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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 06/12/2005
Scheme of Delegation - Development Control Functions


Summary & Purpose
This report sets out proposed revisions to the scheme of delegation to officers for carrying out the Council’s enforcement powers in relation to development control functions.
APPENDIX N
WAVERLEY BOROUGH COUNCIL

DEVELOPMENT CONTROL COMMITTEE - 29TH NOVEMBER 2005

EXECUTIVE – 6TH DECEMBER 2005

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Title:
SCHEME OF OFFICER DELEGATION – DEVELOPMENT CONTROL FUNCTIONS

[Wards Affected:All.]
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Summary and purpose:

This report sets out proposed revisions to the scheme of delegation to officers for carrying out the Council’s enforcement powers in relation to development control functions.

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Environmental implications:

Positive, by enabling officers to properly implement the Council’s functions under the Acts under delegated authority, thus remedying matters of planning enforcement more efficiently than at present.

Social / community implications:

Positive, by enabling officers to remedy matters of planning enforcement more efficiently.

E-Government implications:

None.

Resource and legal implications:

The resource implications are limited to (a) an overall reduction in the amount of time and correspondence necessary, in each case, to secure authorisation to perform the Council’s enforcement functions under the Town and Country Planning Acts and (b) the production of a new general authorisation from the Director of Planning & Development to subordinate officers in the Planning Department permitting certain of the delegated functions to be undertaken by such officers.

The legal implications are (a) that all of the Council’s enforcement powers appropriate for officer delegation under the Town & Country Planning Act 1990 Planning (Listed Buildings and Conservation Areas) Act 1990 and Planning (Hazardous Substances) Act 1990 (and associated regulations) are to be so delegated; (b) the specific delegation of prosecution functions, namely the determination of evidential and public interest tests, to the Solicitor to the Council in accordance with the Code for Crown Prosecutors; and (c) the more effective use of the Council’s legal powers as a result of securing the delegation of functions in accordance with the recommendations of this report.

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Introduction

1. This report proposes a tidying-up exercise of the existing officer delegated functions as well as new powers of delegation to officers in the performance of the Council’s development control functions in relation to enforcement, proposing to replace certain paragraphs 202 to 223B of the Scheme.

2. Section 101 of the 1972 Local Government Act provides that a local authority may arrange for the discharge of any of their functions by (inter alia) a committee, a sub-committee or an officer of the authority. Failure to arrange for the discharge of functions by delegation does not generally give rise to an implied delegation at law: specific delegation to officers is required. Once delegated to an officer, however, there is a generally implied discretion to that officer to decide upon further delegation (but with such decisions being open to challenge for abuse of discretion).

3. The Town & Country Planning Act 1990 (“the principal Act”) was first amended by the Planning & Compensation Act 1991 and has since undergone further amendment in the form of the Planning & Compulsory Purchase Act 2004.

4. The powers now available to local planning authorities in the performance of their enforcement functions may be summarised as follows:

Town & Country Planning Act 1990 (as amended) (“the principal Act”)

1. Service of notices requiring information as to interests in land – section 330

2. Service of Planning Contravention Notices – section 171C – in the performance of the power to require information about activities on land. 3. To meet with recipients of PCNs and to consider offers and representations – section 171C(4) 4. Prosecution for failure to comply with a PCN – section 171D.

5. Service of Temporary Stop Notices – section 171E.

6. Prosecution for failure to comply with a TSN – section 171G.

7. Service of enforcement notices – section 172.

8. Power to vary or withdraw enforcement notices – section 173A.

9. Direct performance and recovery of costs by the local planning authority of the requirements of an enforcement notice – section 178.

10. Prosecution for failure to comply with the requirements of an enforcement notice – section 179.

11. Service of Stop Notices – section 183.

12. Prosecution for failure to comply with a Stop Notice – section 187.

13. Service of Breach of Condition Notices – section 187A.

14. Prosecution for failure to comply with the requirements of a Breach of Condition Notice – section 187A.

15. Obtaining injunctions to restrain breaches of planning controls – section 187B.

16. Orders to discontinue a use of land or to remove or alter buildings or works – section 102 and Schedule 9.

17. Prosecution for failure to comply with an order under section 102 – section 189.

18. Direct performance and recovery of costs by the local planning authority of the requirements of an order made under section 102 – section 190.

19. Prosecution for giving false or misleading information leading to the issuing of a certificate of lawful use or development, existing or proposed, under section 191 or 192 – section 194.

20. Rights to enter land without warrant to determine whether a breach of planning control exists, to determine whether or how any enforcement powers should be exercised, or to ascertain whether there has been compliance with any requirement imposed as a result of the exercise of such powers – section 196A.

21. Rights to enter under warrant – section 196B.

22. Power to make tree preservation orders – section 198.

23. Enforcement of duties as to replacement of trees – section 207

24. Prosecution for failure to comply with a tree preservation order – sections 210 and 211.

25. Enforcement of controls as respects trees in conservation areas – section 213.

26. Obtaining injunctions to restrain breaches of TPOs – section 214A.

27. Rights of entry – 214B, C and D.

28. Power to require the proper maintenance of land – section 215.

29. Prosecution for failure to comply with a section 215 notice – section 216.

30. Direct performance by the local planning authority of the requirements of a section 215 notice – section 219.

31. Prosecution for failure to comply with the 1992 Advertisements Regulations made under section 220 – section 224.

32. Power of removal of advertisements – section 225.

Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”)

33. Prosecution for carrying out works without obtaining Listed Building or Conservation Area consent for works or failing to comply with conditions attaching to such consents – section 9 34. Power to issue and serve Listed Building or Conservation Area enforcement notices – section 38

35. Power to withdraw or waive requirements of said notices – section 38(5)

36. Execution of works required by said notices and recovery of expenses incurred – section 42

37. Prosecution of offence of failure to comply with said notices – section 43

38. Obtaining injunctions to restrain actual or apprehended breaches of section 9(1) or 9(2) (works carried out without consent or in breach of conditions attaching thereto) – section 44A

39. Compulsory acquisition of listed building in need of repair – section 47

40. Execution of urgent works to preserve unoccupied listed buildings – section 54

41. Recovery of expenses of works carried out pursuant to section 54 – section 55

42. Prosecution of offence of causing damage to listed building with intent – section 59

43. Execution of urgent works to preserve unoccupied buildings in conservation areas – section 76

44. Authorisation of persons to enter land – section 88

45. Obtaining of warrants to enter land where admission has been refused or such refusal is reasonably apprehended – section 88A

46. Prosecution of offence of obstructing entry to land – section 88B

Planning (Hazardous Substances) Act 1990 (“the Hazardous Substances Act”)

47. Prosecution for contravention of hazardous substances control – section 23 48. Power to issue hazardous substances contravention notice – section 24

49. Power to waive or relax requirements of such notices – section 24A

50. Obtaining of injunctions to restrain any actual or apprehended breach of hazardous substances control – section 26A

51. Authorisation of persons to enter land – section 36

52. Obtaining of warrants to enter land where admission has been refused or a refusal is reasonably apprehended – section 36A

53. Prosecution of offence of obstructing entry to land – section 36B

These functions may be broadly grouped as follows:

Preliminary Functions

5. Planning Enforcement functions fall roughly into two stages: the first (after informal approaches) is the area of preliminary action, such as the issue of notices which, if not complied with, may be followed by legal proceedings such as injunctions or criminal prosecutions, or by direct performance by the planning authority of the requirements of such notices.

6. The Council’s enforcement policy was agreed by the Council on 18 February 2003 and sets out the prioritisation to be given to different breaches of planning control and delineates a consistent approach for remedying breaches. In performing their enforcement functions officers apply the policies adopted by Members.

7. The initial elements of enforcement action are presently delegated to the Director of Planning & Development subject to consultation requirements with the Chief Executive’s department. It is considered that Planning Contravention Notices issued under section 171C of the principal Act do not require such consultation but may be authorised and signed by officers in the Planning Department without reference to other officers. Planning Contravention Notices, which do not give rise to any right of appeal and which are used as a means of investigating suspected breaches of planning control, are required to be completed and returned within 21 days in order to avoid committing a criminal offence.

8. Neither is the input of the Chief Executive’s department required on the issuing of notices under section 330 of the principal Act, which may require information as to the nature of interests in land and the purposes to which land is being put. Failure to comply with such notices within 21 days is a criminal offence but again there is no right of appeal. Such notices may only be issued for the purpose of enabling the local authority to make an order or to issue or serve any other notice or document under the provisions of the principal Act (for example, to discover all interests in land in order that a subsequent enforcement notice, which must be served on the owner and occupier and any other person having an interest materially affected by the notice, can be validly served).

9. Other preliminary notices, with which non-compliance is invariably a criminal offence, such as Enforcement or Stop Notices, generally do give rise to a right of appeal and input from the Legal Section will be required in every case. The authorisation for issuing such documents should, it is submitted, remain with the Director of Planning & Development subject to consultation with the Solicitor to the Council.

10. The relative rarity of notices under the other planning Acts suggests that consultation with the Legal Section will be required and accordingly it is submitted that the authorisation for issuing Listed Building or Conservation Area enforcement notices under section 38 of the Listed Buildings Act and contravention notices under section 24 of the Hazardous Substances Act should be given to the Director of Planning & Development subject to consultation with the Solicitor to the Council. It is considered that the power to waive, relax or vary the requirements of such notices under section 38 of the Listed Buildings Act or section 24A of the Hazardous Substances Act should be similarly delegated.

Rights of Entry

11. The Local Authorities (Functions and Responsibilities) Regulations 2000 have been incorporated into the Council’s constitution and the Development Control Committee has powers to authorise entry onto land under section 196A of the principal Act. This power to authorise entry onto land for the purposes of section 196A is delegated to the Director of Planning & Development. The purposes of section 196A are to enter land in order that an authority may determine whether there is a breach of control on a site or to determine whether or how any powers under the principal Act should be exercised.

12. However, section 196A does not imply the power to enter land in order to actually perform any powers under the principal Act. Accordingly under those sections where the power is given to the local planning authority to enter upon land for the purposes of directly performing the requirements of an enforcement notice (s. 178), untidy site notice (s. 219), order to discontinue a use of land (s. 190) or the removal of advertisements (s. 225), the authority for such action rests with the full Council. It is proposed to delegate to the Directors of Planning & Development and Environment & Leisure the power to authorise the removal or obliteration of advertisements under section 225, whilst the remaining functions are to remain with Council for the time being, subject to a forthcoming review of the Development Control Committee’s functions.

13. The Listed Buildings and Hazardous Substances Acts also permit rights of entry, with or without warrant, and it is intended to authorise the Director of Planning & Development to permit officers to enter land and obtain warrants to do so under sections 88 and 88A of the Listed Buildings Act and sections 36 and 36A of the Hazardous Substances Act.

14. Authorisation of entry upon land for the purposes of performing urgent works (and the recovery of associated expenses) will need to be delegated to officers and it is proposed to delegate to the Director of Planning & Development the power to authorise the execution of works urgently required to preserve buildings that are listed or in conservation areas – sections 54 and 76 of the Listed Buildings Act – and to recover the expenses of doing so – section 55 of the said Act. However, as with the principal Act, any execution of works required by Listed Building or Conservation Area enforcement notices under section 42 of the Listed Buildings Act, and recovery of associated expenses, are reserved to the Council, as is the power granted by section 47 of the Listed Buildings Act to compulsorily acquire any listed building in need of repair.

Injunctions

15. Presently, officers are authorised to seek injunctions only “in relation to unauthorised development in conflict with the Council’s policies” and it is not clear that this authority covers anticipated rather than antecedent breaches, although each of the Acts permits the obtaining of an injunction in respect of an apprehended breach. Given the likely urgency of such proceedings it is proposed to retain the delegated authority to the Director of Planning & Development, in consultation with the Solicitor to the Council, to authorise the seeking of injunction restraining a breach of planning control in respect of all of those matters for which such power is given to the local planning authority by sections 187B and 214A of the principal Act and section 44A of the Listed Buildings Act and section 26A of the Hazardous Substances Act.

Prosecutions

16. Presently, prosecutions are specifically authorised only in relation to a breach of a Tree Preservation Order and the failure to comply with a Planning Contravention Notice. The Director of Planning & Development, in consultation with the Chief Executive, is also authorised to institute “any subsequent legal action” in relation to any antecedent Enforcement Notice, Breach of Condition Notice, Stop Notice or injunction.

17. This does not cover all the enforcement powers available to the Council (eg there is presently no delegated authority to prosecute under section 171G or section 194 of the principal Act) and so in order to ensure a consistent approach it is proposed to delegate the authority to institute all prosecutions under sections 171D, 171G, 179, 187, 187A, 189, 194, 210, 216 and 224 of the principal Act, sections 9, 43, 59 and 88B of the Listed Buildings Act and sections 23 and 36B of the Hazardous Substances Act to the Solicitor to the Council upon the request of the Director of Planning & Development. The ultimate decision to prosecute must rest with the Solicitor to the Council as the Prosecuting Officer, although such prosecutions would originally be initiated by enforcement officers in the Planning Department in their capacity as Investigating Officers.

Miscellaneous

18. Paragraph 205 of the Scheme of Delegation can be removed as superfluous; the relevant section of the Act has been repealed.

19. Discontinuance Orders made under section 102 of the Act may require compensation to be paid. The power to make such Orders is presently delegated to the Development Control Committee and it is not proposed to amend it.

20. The delegated exercise of functions concerning tree protection is generally adequately covered under paragraphs 107 – 114 of the Scheme of Delegation, with the exceptions of the powers to enter land and to seek injunctions (sections 214A-D). It is proposed to delegate these powers similarly to the power to seek injunctions under section 187B and the powers of entry upon land under sections 196A and B.

Recommendation

It is recommended that Council be recommended that, in exercise of the powers conferred by section 101 of the Local Government Act 1972:

1. paragraphs 202, 205, 208, 214, 215, 216, and 223B of the Scheme of Delegation to Officers be deleted (i) the issue of Temporary Stop Notices in accordance with the provisions of section 171E of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (ii) the issue of Enforcement Notices in accordance with the provisions of section 172 of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (iii) the issue of Stop Notices in accordance with the provisions of section 183 of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (iv) the issue of Breach of Condition Notices in accordance with the provisions of section 187A of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (v) the issue of notices requiring the proper maintenance of land in accordance with the provisions of section 215 of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (vi) authority to waive or relax the requirements of an Enforcement Notice in accordance with section 173A of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) (vii) the issuing of hazardous substances contravention notices in accordance with the provisions of section 24 of the Planning (Hazardous Substances) Act 1990 (or as may be modified amended or re-enacted) (viii) the waiving or relaxing of the requirements of hazardous substances contravention notices pursuant to section 24A of the Planning (Hazardous Substances) Act 1990 (or as may be modified amended or re-enacted) (ix) the issue of Listed Building and Conservation Area enforcement notices in accordance with the provisions of section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted) (x) the withdrawal or waiver of requirements of Listed Building and Conservation Area enforcement notices in accordance with the provisions of section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted)

(i) Institution of legal proceedings in accordance with section 171D of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with a Planning Contravention Notice issued under section 171C of the said Act (ii) Institution of legal proceedings in accordance with section 330 of the Town & Country Planning Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of failing to comply with a notice requiring information as to interests in land, or of knowingly making any misstatement in respect of it, issued under the aforesaid section of the said Act (iii) Institution of legal proceedings in accordance with section 171G of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with a Temporary Stop Notice issued under section 171E of the said Act (iv) Institution of legal proceedings in accordance with section 179 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with an Enforcement Notice issued under section 172 of the said Act (v) Institution of legal proceedings in accordance with section 187 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with a Stop Notice issued under section 183 of the said Act (vi) Institution of legal proceedings in accordance with section 187A of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with a Breach of Condition Notice issued under section 187A of the said Act (vii) Institution of legal proceedings in accordance with section 189 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with an Order made under section 102 of the said Act (viii) Institution of legal proceedings in accordance with section 194 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence under the aforesaid section in connection with the issue of a certificate under section 191 or 192 of the said Act (ix) Institution of legal proceedings in accordance with section 216 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with a notice issued under section 215 of the said Act (x) Institution of legal proceedings in accordance with section 224 of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) to prosecute persons liable for an offence of failing to comply with regulations issued under section 220 of the said Act (xi) Institution of legal proceedings in accordance with section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of carrying out works without or in breach of consent (xii) Institution of legal proceedings in accordance with section 43 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of failing to comply with an enforcement notice (xiii) Institution of legal proceedings in accordance with section 59 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of causing damage to a listed building with intent (xiv) Institution of legal proceedings in accordance with section 88B of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of obstructing entry onto land (xv) Institution of legal proceedings in accordance with section 23 of the Planning (Hazardous Substances) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of contravening hazardous substances control (xvi) Institution of legal proceedings in accordance with section 36B of the Planning (Hazardous Substances) Act 1990 (or as may be modified amended or re-enacted) to prosecute persons liable for an offence of obstructing entry onto land

para. 214

(i) Authority to seek injunctions pursuant to section 187B of the Town & Country Planning Act 1990 (or as may be amended modified or re-enacted) in respect of unauthorised development (whether actual or apprehended) in conflict with the Council’s policies
3. the Chief Executive be authorised to amend the appropriate section of the Constitution accordingly.

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Background Papers (CEx/DoPD)

There are no background papers (as defined by section 100D(5) of the 1972 Local Government Act) relating to this report.

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CONTACT OFFICER:

Name: Sara Whitmarsh Telephone: 01483 523176

E-mail: swhitmarsh@waverley.gov.uk

Comms/exec/2005-06/203